[Avodah] HaMotzi meiChaveiro Alav haRaayah

[Micha Berger]

AhSY is learning Hil' Bekhoros, and a recurring issue is who owns
a safeiq bekhor. See in particular YD 315:2, but the same idea is
repeated in the contexts of specific sources of safeiq.

It made me think about homotzi meichaveiro alav haraayah, and if
there is a machloqes about why.

First, background:

If the animal is still in the Yisrael's posession, a Kohein cannot prove
his claim to it, so the animal stays with the Kohein. But if a Kohein
was already mistkaenly given the animal, or claimed it without asking,
it relates to a machloqes one finds throughout CM.

The Rosh says ther kohein has to return the animal.

The Rambam says he does not. Although the AhS notes that this general
machloqes may not apply here, and even the Rambam may require the kohein
to return the animal because even if the animal is a bekhor, it isn't
necessarily *this* kohein. And that the Rambam is only talking about a
situation where there is only one kohein he clearly would have given it
to (in a vadai case). Also, this relies on the Rambam also holding that
tovas hana'ah (the owner's power to choose the recipient kohein) is not
of actual financial value. More like a right than a form of property.

So, here's what I am wondering:

HMMAHR could work in at least two ways:

1- The person holding the item has a chazaqah, and like any other
chazaqah demei'iqara we assume things haven't changed until proven
otherwise.

This would make HMMAHR an active ruling of BD. And thus like any other
chazaqah, it would depend on the state when the question arose.

Which would justify the Rosh's poisiton that BD should return the item
to the original owner. In our case, give the safeiq bekhor back to the
Yisrael.

2- If the question is unresolvable, BD has no motive for the item to
change hands. HMMAHR is telling BD to remain passive, because it lacks
information to justify acting.

And that could be the Rambam's position, that BD leaves things where they
are no matter how often the item (safeiq bekhor) changes hands.

Tir'u baTov!
-Micha

-- 
Micha Berger                 I always give much away,
http://www.aishdas.org/asp   and so gather happiness instead of pleasure.
Author: Widen Your Tent              -  Rachel Levin Varnhagen
- https://amzn.to/2JRxnDF