Monday, March 02, 2009

Taiku in Monetary Halachah

Our Gemora (Bava Kamma 62) contains two instances of Taiku – an unresolved question. Taiku’s are very common throughout Shas, and are generally considered a full fledged doubt when deciding halachah. However, when there is a taiku in issues of monetary halachah, the Rishonim are of various opinions how to rule. Rav Hai is quoted by the Rosh (paragraph 16) and Tosfos (62a, Asu), as saying that in any monetary case that is left as a taiku, the two parties split the money in question. In our case, that would mean that the alleged damager would pay half the claimed amount, after the victim swore. The Rosh, Rif, and Ri, however, hold that no money can be extracted in a taiku case, since money can only be taken from someone with a proof. The Rambam (Chovel uMazik 8:7) holds that money cannot be extracted, but if the victim seizes the money, we do not take it away from him. The Shulchan Aruch (388:1) rules like the Rambam.