QUESTION: The Gemara relates an incident in which one person's goats entered another person's field and ate a large amount of barley. The owner of the field seized the goats and claimed that they caused him a large loss. The father of Shmuel ruled that the fieldowner was believed to claim any amount up to the value of the goats because of a "Migu" that he could have claimed that he actually owned the goats themselves.

Why was the fieldowner believed with this "Migu"? Since he wanted to extract money from the owner of the goats with this "Migu," it is a "Migu l'Hotzi." Many Rishonim rule that Beis Din may not accept a "Migu l'Hotzi" -- a "Migu" used to extract money from someone (in contrast to a "Migu" used to retain money already in one's possession). Why, then, was the field owner entitled to collect compensation based on this "Migu"? (RABEINU YONAH to Bava Basra 33a)

ANSWER: RABEINU YONAH answers that since the fieldowner was entitled to seize the goats as collateral, the compensation for the damages was considered a debt for which the lender (in this case, the person who owned the field) had collateral. A person who has collateral on a debt is not considered a "Motzi," someone who is extracting money from someone else, but rather is considered "Muchzak," someone who is trying to retain what he is holding (the value of the damages).

RAV SHMUEL ROZOVSKY zt'l quotes the Gemara here to challenge Rabeinu Yonah's answer. The Gemara here compares the incident of the goats to an incident of a lender who seized a butcher's knife as collateral. In the case of the goats, the fieldowner was a Nizak (damagee) and was entitled to seize the goats; that is why the case could be viewed as a debt with legal collateral. In the case of the butcher's knife, however, the lender was not allowed to take such collateral in the first place (for such a knife is in the category of "Kelim she'Osim ba'Hem Ochel Nefesh"). Since the knife was not considered legal collateral, the lender was considered to be "Motzi" and not "Muchzak," and thus he should not have been entitled to collect based on a "Migu" (because it should be considered a "Migu l'Hotzi"). The Gemara, however, attempts to prove from the case of the goats that the lender who seized the butcher's knife should also have a "Migu" that entitled him to collect. Rabeinu Yonah's answer, therefore, does not suffice, since according to his answer the Gemara should have answered that the case of the butcher's knife was a case of a "Migu l'Hotzi." (Y. Marcus)

QUESTION: The Mishnah teaches that when one person owns the lower story of a house and another person owns the upper story and the house collapses, the two owners divide the wood and stones between them. If one of them claims that he recognizes which stones are his, he may take them (and let the other owner take an equal amount of the other stones). The Gemara explains that this applies only if the other owner admits to part of the claim and says that he does not know with regard to the rest. (In that case, his partial admission obligates him to make a Shevu'ah of "Modeh b'Miktzas," but he is unable to swear because he does not know about the rest, and he therefore must pay). In a simple case, in which one owner claims certain stones as his and the other owner says that he does not know (and he does not admit to any of the rest of the claim), the owner who claims to recognize his stones may not take them. This is because of the principle of "Bari v'Shema, Lav Bari Adif" -- in a case in which one litigant has a claim of certainty ("Bari") and the other has a claim of uncertainty ("Shema"), the one with the claim of certainty does not prevail.

TOSFOS (DH Leima) asks that the principle of "Bari v'Shema, Lav Bari Adif" should not apply to this case, and the one who has a claim of certainty should prevail. The reason for the rule in general is that a claim of "Bari" is not sufficient for Beis Din to extract an object or money from a "Muchzak." In the case of the fallen house, however, neither litigant is "Muchzak," because the stones are in a public domain and not in the domain of either of them. Why, then, is the one with the claim of "Bari" not entitled to keep the stones that he claims are his?

ANSWER: TOSFOS answers that whenever there is an intrinsic doubt about who owns a disputed object or money (such as in this case), it is considered to be held by both litigants. Hence, the one who claims with certainty that he recognizes his stones is considered one who is "Motzi" from someone who is "Muchzak," and therefore the normal principle of "Bari v'Shema, Lav Bari Adif" applies.

The SHA'AR HA'MISHPAT (138:3) points out that the RAMBAN in Bava Basra (34b) disagrees. The Ramban states that in any case in which no one is the clear "Muchzak," such as in the case of two disputants holding a Talis (Bava Metzia 2a), a claim of "Bari" prevails in court against a claim of "Shema." This opinion does not agree with the view of Tosfos here, who says that one is considered "Muchzak" (and a "Bari" claim will not work to extract an object from him) even when he is not physically holding the object. (For a possible reconciliation of Tosfos and the Ramban, see KOVETZ SHI'URIM.) (Y. Marcus)