If Goats Had Wheels
‘The Goats Ate Husked Barley’
(Bava Basra 36a)
Our Daf discusses an incident in Neharde’ah, where some goats were found eating husked barley. Subsequently the owners of the barley seized the goats and claimed a large loss. The Gemara discusses some aspects of the case: Goats, though entrusted to a shepherd, nevertheless graze unattended morning and evening and return at night. In Neharde’ah, however, there are many thieves, so people do not leave their goats unattended.
A Vehicle In Dispute
Levi was known to have a car and Shimon started using it, but when Levi asked him to desist, Shimon retorted that he had bought it from him. The licensing bureau was on strike and the true ownership could not be documented, so Levi summoned Shimon to a beis din. Shimon claimed the right of chazaka, that anything a person now holds is assumed as his (Shulchan Aruch, Choshen Mishpat 133:1).
Apparently, the solution to the problem depends on the two explanations in the Rashbam’s commentary on our Gemara: Anyone purporting to own real estate known as another’s must produce a bill of sale or other proof. If not, the claim of ownership is relinquished. Regarding chattel, though, the present holder of the goods may claim the above right of chazaka without further proof of acquisition, as his physical possession proves his ownership. We assume that he did not enter the owner’s premises and steal them, but rather made a legal purchase or other legal acquisition.
Our sugya, though, discusses the case of a person with goats in his possession which are being claimed by the original owner who asserts that chazaka in this case is inapplicable, and that the holder must prove he bought them. The Rashbam (s.v. hagoderos) offers two reasons to differentiate goats from other chattel: (a) They move about by themselves, as opposed to other, immobile chattels, and (b) Other chattels are kept at home whereas goats are usually out grazing.
Chazaka, we said, stems from the assumption that a holder of chattel has not stolen them, as most people are not so brazen as to rob others’ homes. Goats, though, may be stolen in two ways without invading another’s premises: (a) They could wander into the holder’s premises by themselves, or (b) He could take them from a public or ownerless area. The ease of their theft undermines the claim of chazaka.
How Is A Goat Different Than A Car?
In Netzach Yisrael 41, Rabbi Yisrael Grossman asserts that according to the Rashbam’s first reason, cars are not like goats – they don’t move by themselves. According to his second reason, however, cars may be compared to goats as they are not kept at home. To decide if chazaka applies to a car, then, we must determine whether the Rashbam links the two reasons – i.e., that chazaka doesn’t apply only if both reasons prevail, as in the case of goats – or if merely one reason suffices to overrule an assumed chazaka. Rabbi Grossman learns from Tosafos in Gittin 20b, s.v. ta shema, that one reason is enough and Shimon must therefore prove his ownership.
A Man’s Car Is His Castle
In his Darchei Choshen (1:197), Rabbi Yehuda Silman insists that entering and driving another’s car is the same as breaking and entering into his premises. Most people are not suspect of such crimes, and thus Shimon does not have to prove his ownership. (See also Rabbi Silman’s remarks about proof of ownership by a licensing bureau. Others suggest reconsidering the comparison. Poskim seem to indicate that our sugya relates only to animals which are able to be quickly stolen, hidden, and unnoticed as having been taken, criteria which do apply to other chattel.)
