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Thought for the Day: Understanding How המוציא מחברו עליו הראיה/the Burden of Proof is on the Claimant Works

Since I brought up the topic of  המוציא מחברו עליו הראיה/the burden of proof is on the claimant, I thought it might be fun to spend some time on it.  There is a discussion among our sages for the source of this concept.  R' Shimon bar Nachmani says it is a "g'zeiras hakasuv" (divine decree).  No logic to it, just the way it is.  Not that it is illogical, mind you; just that logic isn't relevant.  The earth goes around the sun once every 365¼ days (approximately); atoms are comprised of protons, neutrons, and electrons.  Neither logical nor illogical, just is. I can handle that.

Rav Ashi disagrees and says: Why do I need a pasuk?  It's logical; a person who is in pain goes to a doctor.  This Rav Ashi bothered me for weeks.  I couldn't quite put by finger on it, but something about the tzu shtel just bothered me.  Somehow having playing a tug of war with someone who has my stuff doesn't seem the same as having appendicitis and going to the doctor.  I asked around and basically got one of two answers (neither helpful):
  1. it's pshut; what's your question?
  2. hmm... interesting; that is strange.
The first was unhelpful davka because I couldn't explain (even to myself) what the problem was, the second didn't help because I wanted an answer, not reassurance that it was a good question.  So I just kept the question on my mind, waiting for something to gel.  I find it helps sometimes to just let a question sit; don't force an explanation, just wait and see what happens.

What happened was I heard an explanation of another gemara that discussed a case where someone threw his vase off a roof and before it hit the ground someone smashed the vase.  The p'sak fo the gemara was that the smasher was not obligated to pay because from the time it left the roof it was considered already broken.  Various m'forshim ask why the gemara needs to stretch like this to find an explanation.   Why not just say that when he threw the vase off the roof he was obviously declaring it ownerless and that's why the smasher is patur?  R' Shimon Shkop answers that the dinim of hefker (making something ownerless) and the dinim of hezek (damages) are different.  Since there is (say) a 90% chance the vase will break, the vase is considered broken.  However, since there is a 10% chance the vase won't break, you can't say with certainty that the owner gave up on his property.  Even though the property is not going back to the hapless original order in any case, the principle still applies.  Ah-hah, I thought!  Nice use of "ha'motzi mei'chaveiro, alav haraya".

On the heels of that thought was what bothered me by the tzu shtell of going to the doctor.  I thought Chazal were discussing how to get my property back; they're not.  Rather, Chazal are informing us that המוציא מחברו עליו הראיה is one factor is determining the actual ownership of an item.  How to get the object to its proper owner is a completely different question.

As usual, the problem resolved by looking at the world as Chazal do.  That's a lot of work, having grown up in America and being fed a steady diet of the wrong way to look at the world.  Live and learn.
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