Translation:Shulchan Aruch/Choshen Mishpat/138

Paragraph 1- If two individuals were grasping one vessel or riding one animal- see later Siman 271 as to what form of riding is not a valid kinyan- or if one was riding and the other was leading, or if they were sitting beside a bundle of wheat placed in an alley or in a courtyard belonging to both of them- if the house belonged to one of them, however, and he took in the other and they are disputing the properties in the house, it would be presumed to belong to the owner of the house- and each one says the entire item belongs to him, each one would swear while grasping a holy item that he has an ownership stake in the item and that it is no less than half, and they would divide it. If one says to the other to swear and collect the entire item, we would listen to him. If the second one does not either want to swear, they would divide the item without an oath. If two individuals were disputing a roof on their homes and each one says the entire roof belongs to him, it is as if they both have possession and they would split it.

Paragraph 2- If one says the entire item belongs to him and the other says half belongs to him, the one who claims the entire item would swear that he has an ownership stake in it and that he has no less than ¾ ownership, and the one that claimed half would swear that he has an ownership stake in it and that it is no less than ¼, and the first party would take ¾ and the other would take ¼. If the item is something that can be divided, the first party can take the half the other side concedes without an oath and each person would then swear that they don’t own less than half of the remainder.

Paragraph 3- When is this true? When the parties are grasping the edge of the item so that neither one has more than three finger-breadths by three finger-breadths. In such a case they would divide the item, even if the clothing was gold and the gold was on one side. One party cannot tell the other to divide it by its width so that he would receive the gold. Rather they would divide it by its length so that they would receive an equal amount of the gold. If each party had some of the item in his hand and each party claims the entire item belongs to them, however, each party would take up to where his hand reached and the rest would be divided equally with an oath in the manner that was explained. Each party can roll into the other’s oath the fact that whatever such other party took was taken legally.

Paragraph 4- Any time we refer to dividing an item, if it is an item that would lose value if it were literally divided, they would divide the value.

Paragraph 5- If one party was grasping the entire item and the other was clinging to him and hanging on, the item is presumed to belong to party grasping the entire item.

Paragraph 6- If two parties come holding on to the item and one grabs it from the other in front of us and the other party was silent, even if the other party subsequently demands he return it, we would not take it away because since he was originally silent it is as if he confessed. There are those who say that even if he were to subsequently bring witnesses that the item belongs to him, it would be of no effect, because an admission by a party has the status of 100 witnesses.

Paragraph 7- If such other party went ahead and grabbed the item back from the original grabber, even if the original grabber demanded he return the entire item, they would divide the item as they would have initially. There are those who say that since the first party acquired the item due to the admission of the other party, the other party cannot grab the item back from him without proof.

Paragraph 8- If two parties came clinging to an item of clothing and the court told them to go out and divide its value, and they left, and when they returned one party has possession and claims the other party conceded and removed himself from the item and the other party claims he rented it to him or that the party overpowered him and grabbed it, the party trying to take away the item has the burden of proof. If he cannot bring proof, the current possessor would swear that it is his and be exempt. There are those who say that if the party says the other party grabbed it from him he would be believed and they would divide the item. Therefore, if the party says I rented it to him in front of so and so and so who now went overseas, he would be believed with a migu that he could have said the party grabbed it from him. This seems to me be the primary view.