His Silence Is Deafening
‘One Seized it in Our Presence’
(Bava Metzia 6a)
Our daf refers to the Mishna (2a) that cites the following case of two people who appear before a beis din clutching two ends of a garment, each claiming that he found it first. The resolution is that the garment is to be divided between the them (subsequent to their taking oath).
An Admission
Our Gemara states that if one of the litigants seizes the garment from the other while they are in the beis din’s presence and the other remains silent, this is construed as an admission (shetika k’hoda’a). Therefore, in such a case, the garment will be awarded to the one who seized it.
Delayed Reaction
R’ Zera wonders about a case where the aggrieved party did not protest immediately, at the moment the garment was seized from his hand, but protested afterwards, before leaving the beis din. Perhaps his initial silence should not be construed as an admission. Rather it was due to his expectation that the aggressive action of his opponent would serve as sufficient cause for the members of the court to enact justice on their own. (R’ Zera does not resolve his query.)
The Ins and Outs
Ramban (Novella, Bava Metzia ad loc.) discusses where the seizure took place outside the beis din. He postulates that in such a case, the aggrieved party’s silence definitely should constitute an admission. He may not justify his silence by stating that he expected onlookers outside the beis din to take up his case. Thus, in his view such an argument might in fact have validity in beis din before its judges.
Rashba (Novella ad loc.) disagrees and maintains that on the contrary, when an injustice is perpetrated outside of the beis din, the aggrieved party is less likely to cry out in protest. His justification is simple. What would such a cry help; after all he is not in beis din where such matters are resolved. Obviously, when one is in beis din one would and should cry out. Therefore, the litigant’s silence before the court is definitely seen as an admission.
