The Gem. says that in such a case the Olah is credited by Shamayim to whom it truly belongs.
I would like to suggest a new way of paskening Choshen Mishpat shailos. If Beis Din is unsure to whom the money in question really belongs; and if circumstances are such that the money can be given to a Tzedakah (that both disputants support); then let the money be given and let "Shomayim" credit it to whomever it really belongs.
What is your opinion on this?
Again thanks for your forebearnce.
Alex Lebovits, Toronto, Canada
Dear Alex
Thanks for your email. Interesting suggestion, but we have a rule that when in doubt, do without. "Hamotzei Me'chavairo Olov Horayah". If Beis din is in doubt, the money remains in the hands of the current owner. Beis Din cannot force anyone to give up money he is in control of, unless they rule against him.
All the best.
Yehuda landy
Dear Rabbi Landy
The kollel wrote: "Hamotzei Me'chavairo Olov Horayah". If Beis din is in doubt, the money remains in the hands of the current owner. Beis Din cannot force anyone to give up money he is in control of, unless they rule against him.
Cannot Beis Din, thru the power of "hefker bes din hefker", force anyone to give up money he is in control of ?
alex
Dear Alex,
The answer to your question is "yes". They do have the power to confiscate money and transfer it to someone else. But this applies only when there is a valid reason to do so (e.g. the person's act warrants him being fined). If Beis Din cannot resolve a monetary issue, the money will remain in the hands of the current owner. In this case, there is no valid reason to confiscate it. The burden of proof remains on the person to try and extract the money from the other litigant.
Thanks again.
Yehuda Landy