Wednesday, February 25, 2009

Lesson 3 Recap:

Thank you for attending our third lesson of You Be The Judge. Here’s a quick recap of the session:

Deciding Disputed Ownership in the Absence of Proof

Our lesson began with the case of Thomas Law Wilcox, who found a shopping bag full of historical papers in his late stepmother’s home. After advertising for an auction, several government officials obtained a temporary restraining order to prevent the sale of the papers, declaring the State of South Carolina their rightful owner. Generally, gubernatorial papers do belong to the state. At the same time, a fundamental legal principle is that “possession is nine-tenths of the law.” Thus, in order to challenge the status quo, it is the responsibility of the plaintiff to prove the other party’s claim is invalid.

Turning to the Jewish tradition, we reviewed a classic Talmudic passage in which two men grasp a single garment, presenting counterclaims of ownership. Such cases are often resolved by splitting the item, or selling it and dividing its value. However, if only one party has possession of an item, the possessor of the item is presumed to be the owner, since most people are averse to “breaking and entering” in order to steal an item which is not theirs.

Matters become more complicated, though, when the dispute involves land or cattle. People are less reluctant to move onto abandoned property, or to take cattle which is normally kept outdoors. Thus, in the case of real estate or livestock, and the possessor is presumed owner only if three years have passed since the onset of possession.

A Modern Talmudic Case

In a recent case brough before a rabbinic court, two men argued regarding ownership of a bike. Edry admitted stealing the bike from the bike rack in front of Soleimani’s house. However he claimed that the seller was a crook and had already sold the bike to him before Soleimani.

To resolve this case, the first step is to establish the classification of the bike. In one way, it is similar to inanimate property because it does not move on its own – so one might apply the principle that “possession is nine-tenths of the law.” At the same time, it resembles cattle in that it is kept outside. Since one is less hesitant to steal from outside of a home, it is possible to invoke the rule requiring demonstration of a history of undisputed ownership.

A unique principle in Jewish law, migu, can also pertain to this case. It applies when a litigant brings a claim, in the absence of witnesses, and it is impossible to prove or disprove it. If the claim could have been stated in a way more advantageous to the person’s position, the migu argument would dictate that the claim, as stated, should be believed. According to this, since Edry freely admitted seizing the bike, the court may assume that he is telling the truth and took what was rightfully his.

The Legal and the Mystical

We conclude by reflecting on the mystical significance of these ownership laws. Early in the lesson, we reviewed the text in which two men present both claim to own the same garment. Similar arguments are made by souls standing before the heavenly tribunal, seeking to claim the reward for mitzvot performed during the souls’ lifetime. Mitzvot are often referred to as the garments of the soul. Each soul has a right to the mitzvot performed by the body it inhabitated during its lifetime. At the same time, every person is shaped and guided by mentors, teachers, parents and friends who also claim partial ownership to those good deeds. The souls thus stand before the Heavenly Tribunal, arguing over how to divide the the value of the soul’s “spiritual garments.” The Mishnah ultimately concludes that both the soul of the one who performed the mitzvah as well as the souls of those whose influenced in its performance share in the reward.

Thank you again for joining, and I very much look forward to seeing you next week for lesson four.

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