Rabbi Meir Orlian
Rabbi Brand was a kashrus mashgiach (supervisor). He had once purchased blowtorch equipment for kashering ovens, but later accepted an administrative position and hadn’t used the equipment since. A colleague, Rabbi Brenner, asked to buy the blowtorch. “I don’t want to sell the equipment at this point,” Rabbi Brand replied. “However, I’m happy to let you use it until I need it again.”
Rabbi Brenner agreed. They signed an agreement allowing him use of the equipment until the owner wanted it back. Three years later, Rabbi Brand needed a kashering job done. He arranged verbally with Rabbi Brenner to do the job without charge in lieu of using the equipment.
The following year, Rabbi Brand notified Rabbi Brenner that he wanted the blowtorch back.
“It’s mine now,” said Rabbi Brenner with surprise. “I did a job for you last year as payment for the equipment.”
“I never sold it to you,” said Rabbi Brand. “You agreed to do the job in return for having used the blowtorch during the past few years, but I never intended to sell it.”
“I was clear that the job was payment for buying the equipment,” replied Rabbi Brenner.
“Absolutely not,” insisted Rabbi Brand. “I was clear that the job was in lieu of the use, but I never relinquished ownership.”
“It’s your word against mine,” said Rabbi Brenner. “I’m in possession of the equipment, so the burden of the proof is now on you!”
“I have proof,” said Rabbi Brand. “There is a signed contract that you borrowed the equipment and would return it.”
“That’s irrelevant,” said Rabbi Brenner. “Of course you lent it to me initially, but later you sold it to me. There’s no proof to negate that. I suggest that we consult Rabbi Dayan and let him decide.”
The two came before Rabbi Dayan. Rabbi Brand explained the circumstances and asked: “Does Rabbi Brenner have to return the blowtorch equipment?”
“When there are witnesses or clear evidence that 1) Rabbi Brenner received the equipment as a loan and 2) the equipment is still in his hands – he must return it,” ruled Rabbi Dayan. “He is not believed without proof to say that he subsequently bought it.”
“Why is that?” asked Rabbi Brenner. “What happened to the rule of hamotzi meichavero alav hare’ayah (the burden of proof is on the plaintiff)?”
“The Gemara (B.M. 116a; B.B 46a, 52b) teaches that although the person currently in possession of an item usually has the upper hand, this does not apply to items that are lent or rented,” replied Rabbi Dayan. “In that case, the original owner is still considered the muchzak (in possession).”
“Why do we need evidence about these two factors – initially a loan and still holding?” asked Rabbi Brand.
“Otherwise, Rabbi Brenner has a migo (lit., ‘since’),” replied Rabbi Dayan. “As you know, when a person can make a winning claim, but instead claims something else that is questionable, he retains much of the rights of the winning claim. Simply stated, if the person wanted to lie, he could have made the other, winning claim and won the case. Since he didn’t make that claim – this lends credence to his version.”
“How does that apply here?” asked Rabbi Brenner.
“Without evidence that the blowtorch was loaned, Rabbi Brenner could claim that he bought it from the outset and would be believed,” explained Rabbi Dayan. “Alternatively, without evidence that the equipment was still in his hands, he could claim that he returned it already and would be believed. Therefore, with this migo, he is also believed to claim that he received it as a loan and later purchased it.
“However, when there is evidence that he received the equipment as a loan, and people see it still in his hands – he has no alternative, winning claim,” concluded Rabbi Dayan. “We know that the blowtorch was initially loaned, and, without the migo, he is not believed that he later bought the item. Rabbi Brand is considered the known owner of the equipment, so Rabbi Brenner must return it” (C.M. 72:18; 90:13; 133:5).