Audacity

The Talmud analyses the following case: Shimon the owner of a fog tree is out of town. Reuben announces that he is going to harvest Shimon’s fig tree, because he has Shimon’s permission to do so. The question is whether or not the court should interfere and deny Reuben access to Shimon’s tree, and demand that Reuben prove his claim.

Rabbi Yehudah rules that the court should not interfere. He explains that there is a legal principle that assumes that “a person does not have the audacity” to publicly harvest someone else’s tree without permission. The court must therefore assume that Reuben is telling the truth.

The Gemara takes this legal principle a step further, applying the same reason to a far more complicated case.

In the second case, Shimon the owner of the fig tree comes back to town and sues Reuben for harvesting his fruit without permission. Reuben claims to have bought the rights to the fruit for a period of a few years and the term of the agreement is not yet over and he still has the right to collect the fruits in the future.

Rav Zvid rules that Shimon, the owner of the tree, could keep the fruit in the future, however, Reuben can keep the fruit that he has already harvested. Now, this is not a compromise. Rav Zvid’s reason is identical to the first case, we believe Reuben because “a person does not have the audacity” to harvest his friends tree without permission.

It seems that Rabbi Zvid is taking this legal principle to far. For in the second case Shimon, the owner, is challenging Reuben. One of them is lying, so how can we just assume “a person does not have the audacity” and Reuben is telling the truth?

The first case is very different, as the owner did not yet challenge Reuven. In the absence of a challenger we assume that “a man does not have the audacity” and Reuben is telling the truth.

Perhaps we can explain as follows:

There is a legal principle that “the burden of proof is upon the one (the plaintiff) who wishes to exact from his friend”. In other words in the lack of any other evidence the person in possession has the upper hand. How do we determine possession? Possession of movable property is determined by physical possession. The person known to own real property is considered to be in possession.

In our case there is no evidence, it’s Reuben’s word against Shimon’s. So we must examine who is in possession. At first glance it would seem that Shimon is in possession, after all he is the undisputed owner of the tree.

Rav Zvid’s novel idea is that Shimon would be considered the “possessor” of the fruits, if Reuben’s entrance to Shimon’s field was unauthorized and illegal. But now that we established that the court allowed Reuben to Harvest the tree for ““a man does not have the audacity”, the law’s assumption that Reuben is telling the truth is what makes Reuben the legitimate “possessor”. Therefore he has the upper hand in the absence of any evidence.

In summary: the legal principle that “a man does not have the audacity” is not what causes us to belive Reuben. It just allows Reuben to be the “possessor”, shifting the burden of proof to Shimon.