On the one hand, the Mishnah (Pe'ah 4:11) records that doubtful leket goes to the poor. (Yes, I am aware that R' Meir says that. The Tosfos Yom Tov holds that everyone holds of that in principle and only argue in that particular case whether it applies - is that considered a doubt.)

Likewise, in Peah 7:4, the Mishnah paskens that doubtful oleles goes to the poor. (What, you thought it was just Leket, shichecha, and peah?)

How do these Mishnayos not contradict the rule of hamotzi mechaveiro alav hara'ayah? Why don't we say that the owner keeps them, since they are in his reshus, and it's up to the poor to prove that they are indeed Leket and oleles that they have rights to them?

  • Did you see the Tos RAE? – TrustMeI'mARabbi Mar 7 '17 at 17:35
  • @TrustMeI'mARabbi Who? – DonielF Mar 7 '17 at 17:36
  • Tosfos Rabbi Akiva Eiger. I recall this being brought up, I'm pretty sure he speaks about it. I don't have my mishnayos with me currently to tell you for sure – TrustMeI'mARabbi Mar 7 '17 at 17:52
  • Which ones are you using? – TrustMeI'mARabbi Mar 7 '17 at 18:12
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    @TrustMeI'mARabbi Nevermind, I do see him, shoved in the corner like that. How rude of the publishers. – DonielF Mar 7 '17 at 18:13

This excellent question is asked by the Gemara in Chulin 134a(¹), you can found it learning the Mishnayot chulin 10, 4 in TYT and Tif'eret Yisrael. . The conclusion of Rava is that: Kama beChezkat chiuva, when last sfekot which are ruled as Hamotsi mechavero alav hareaya are cases of Chezkat ptur.

Rashi explains:

פרה. כשנולד לך ספק זה במתנותיה ואתה מעמידה על חזקתה הראשונה הרי היא פטורה שהרי בחזקת של עובד כוכבים היתה עומדת: קמה. כשנולד לך ספק בלקט ואתה מעמידה על חזקתה חזקת חיוב הוא דמעולם היא עומדת לכך דשל ישראל היא: ‏

The case of a convert who has a cow. There is a doubt: whas it schited before his conversion and it is exempt from matnot kehuna, or after conversion and it is chayav? The rule is hamotsi mechavero alav hareaya because the first situation leads not to a duty . For the wheat grains found in the anthill the owner of the field needs to give by chumra. When the doubt occurs, regarding the grains, there is Chezkat chiuv, because the duty is already expected as a natural event after the first situation.

Note that there is no fundamental divergence between Rabbi Meir and Rabanan concerning the rule in case of doubt, the divergence is regarding the lower layer if it is a case of Safek.

There is a further question, if this is the logical rule, why need we the proof from a verse as the Gemara gives later (134b)? The Gemara explains according to the Rashi's comment that the verse explains that you need to maintain the Leket, shichecha, pea, olelot, disponible for the poor persons, i. e. you are not "tofes". This needs a large explanation. I hope that this is a enough minimal answer.

To see quickly by yourself the answer, in the Mishnayot Chulin 10, 4, see the Yachin 38 (לח).


‏ תנן ספק פטור אלמא ספיקא לקולא (רש"י: מתנות כהונה לקולא דאמרינן המוציא מחבירו עליו הראיה:) ורמינהו חורי הנמלים וכו'‏

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  • So you're saying that the chezkas chiyuv overrides his muchzakus? Interesting. – DonielF Mar 8 '17 at 14:55
  • @DonielF this point is very interesting. In a previous version of the answer, I tried to explain this. The poor man is allowed to enter in the field because of the chezkat chiuv. So, the Karka, is not entirely the karka of the owner, the vine is not only a property of the owner. Muchzak is not a physical phenomenon, physical + right. safek with muchzak is contradictory with chezkat chiuv. something similar. to be on a field which has a mare kama, the mare kama creates a chezkat chiuv which makes the chezka null without taana – kouty Mar 8 '17 at 15:04

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