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Its Concept.

—In Talmudic Law:

The concept "Bererah," known to the later Babylonian Amoraim, is a development of the law of joint property, and, just as in Roman law, this branch of the law presents very great difficulties. Girtauner, in "Jahrbücher für Dogmatik," 3:239 (edited by Gerben and Ihering), says, "Ihering calls it the filigree of jurisprudence." In his "Die Rechtstellung der Sache und der Eigenthumsbegriff," etc., p. 242, Girtauner further says: "Joint property contains a contradiction to the concept of property. There is no object to which the right of property of the joint proprietor attaches, but it must be assumed as existing, although it is not actually existent." A. Rümelin ("Die Theilung der Rechte," p. 100) says: "The several dicta of the Roman law concerning joint property can not be brought together under a uniform principle, and they seem to exist independent of one another." It is not, therefore, surprising that the Talmudists formed no clear idea of Bererah, by which they attempted to explain the texts of the Mishnah and Tosefta concerning joint property; more especially because they did not limit this idea to joint property, but extended it so as to include other matters. Contradictions arose because the Tannaim and the Palestinian halakists in general knew nothing of the concept of Bererah, which was a later development of the Babylonian Halakah and modified the stricter ideas of the Palestinian.

In cases of joint property the question arises, Is the proprietor that is using the joint property to be considered for the time being as sole proprietor or merely as owner of part, and as exercising the right of use of the part owned by the other? Furthermore, in cases of division of the joint property, do the joint proprietors receive their original property, or do they receive new property through exchange?

Yesh Bererah and En Bererah.

The various answers to these questions result in important differences both from the religious and from the juridical point of view. For instance: One vows not to enjoy the property of his partner. If he, as joint proprietor using joint property, is looked upon as sole proprietor, this vow has no effect, because he is simply using his own property, and not that of his partner; but if he is considered, as to a part of it, simply as exercising the right of use of property belonging to the other, the joint proprietorship must be dissolved, or he must assign his right to another person. In Ned. 5:1, a controversy of the Tannaim is reported: If two joint proprietors vow not to enjoy the property of each other, according to the general view, neither of them may enter upon the estate which they own in common, whereas one of the Tannaim, R. Eliezer ben Jacob, maintains that each of them may say, "I am entering upon my part." Accordingly, therefore, the Babylonian Gemara (B. Ḳ. 51b), assuming that the joint property is indivisible, concludes that this controversy of the Tannaim can be explained only through the legal principles Yesh Bererah and En Bererah. The Gemara assumes that R. Eliezer applied the principle Yesh Bererah; namely, that each of the joint proprietors may choose to consider the joint property as his sole property during the time that he is using it. It is an implied legal condition (conditio juris) that "during the time in which I use the joint property, it is my property; during the time that you use it, it is your property," or, as it might also be translated, "That which formerly was undetermined is now—by the partner's act—looked upon as determined" (R. Nissim on Nedarim, c.). The Gemara furthermore assumes that the opponentsof R. Eliezer applied the principle En Bererah; namely, that the exercise of such choice is not to be presumed; or (according to Nissim) that which was undetermined before-hand is not considered as determined. What is said here concerning the use of an indivisible estate is also applicable to the use of any fruit-bearing property. Each takes of it what is then considered as having belonged to him according to the principle of Bererah, and therefore the Gemara applies to the use of a common well the arguments in the above-mentioned controversy (B. Ḳ. c.; Beẓah 39b; against R. Nissim compare R. Solomon Luria, in "Yam Shel Shelomoh"). Another example may be taken from the case of fruits. In Syria the fruits of the fields belonging to Jews were subject to tithes and heaveofferings, but fruits of a Gentile bought by a Jew were not. Now, in case a Jew and a Gentile are joint owners of a field in Syria, if each of them is considered the sole proprietor, then, upon division, each receives his original property, and the fruits of the Jew, therefore, are liable for tithe and heave, and those of the heathen are not; but if the division is considered as an exchange, then in the share of both the fruits of the Jew and of the Gentile are mixed.

Concerning this case, there is a controversy between Rabbi and R. Simon ben Gamaliel (Bab. Giṭ. 47a and b; Ḥul. 135b). R. Simon ben Gamaliel permitted the division so that each received his sole property; Rabbi was of the opinion that each received mixed property; and from these opinions it is presumed that R. Simon ben Gamaliel maintained the principle Yesh Bererah, and Rabbi that of En Bererah. In this manner, the Babylonian Talmud ('Er. 36b et seq.) explains the Mishnah Demai 7:4. In the case of untithed fruit, a part of which is intended for tithes and heave-offerings, there is a mingling of sacred portions and profane ("ḥullin"); the profane portions may be taken away and used, and the balance remains as tithes and heave-offerings. The aforesaid Mishnah as well as Mishnah Demai 7:1 reflect the principle Yesh Bererah. According to the principle of En Bererah, both Mishnahs would be different, and would forbid the use of the fruit until after the tithe and heave had been removed.

Extension.

In the Babylonian Talmud, Raba, who favored the concept "Bererah" (see Tem. 30b), if indeed he was not its author, takes pains to prove that not only R. Meïr, but also R. Jose, R. Simon, and R. Judah accepted the principle Yesh Bererah (in 'Er. 36b "Riṭba" reads "Raba," and not "Rab"; so also the Munich manuscript; see Rabbinowicz, "Diḳduḳe Soferim," ad loc., and compare Rab's opinion in Yer. 'Er. 3:21b) who does not accept the concept of "Bererah." In the Babylonian Talmud itself Samuel ignores Bererah, B. Ḳ. 9a; while R. Naḥman, the teacher of Raba, accepted En Bererah (Giṭ. 48a; see R. Nissim to Ned. 45b). Raba explains the case in Mishnah 'Er. 3:5 by means of Bererah. One may say, "If the instructor [ḥakam] comes to this side, my 'erub [removal of residence on Sabbath for 2,000 ells] shall be on this side; but if he goes to the other, the 'erub shall be on the other side; if one comes to this side and the other goes to the other side, then that 'erub shall be valid which I shall determine upon tomorrow." From this passage Raba seeks to deduce the principle Yesh Bererah, because the locality of the residence ('erub) was uncertain at the time when the condition according to which it was to be determined was made. If the decision is made on the Sabbath, it is retroactive to the period of the commencement of the Sabbath; just as in the case of the division of joint property where the presumption is that an actual division had already been made ab initio; hence this is a case of Yesh Bererah. Most of the commentators take this view (treated later in this article), but there is a distinction between these two cases. In 'Erubin, there is an express condition after the fulfilment of which the matter is absolutely decided; whereas in the case of the division there is no express condition made beforehand, and it is not absolutely determined even afterward, which part, from the beginning belonged to the one joint owner, and which part to the other.

Kinds of Bererah.

This led the Tosafists to distinguish between different kinds of Bererah. Some accepted Bererah where an express condition had been made, others where a doubt is resolved afterward (Tos. to Giṭ. 48a); on the other hand, in the case of the division they adopted the principle En Bererah. Raba did not recognize these distinctions; he considered the division conditioned even if the condition was not expressed (conditio juris); see Schürl ("Theilbarkeit als Eigenschaft von Rechten," p. 30), who also calls it conditioned. Abbayi, opposing Raba, calls attention to another distinction. He says the condition "if it shall be my will" can be referred back to Bererah, but not the condition "if this will happen," or "if it shall be the will of another" ( , "dependent on his own will" and "dependent on the will of others"; Giṭ. 25a et seq.). In the latter case the retroactive effect of the condition is generally accepted; the former cases are such instance of Bererah, concerning which there is a controversy. According to Windscheid, i § 93, the condition, "if it shall be my will," has no retroactive effect. Raba, however, takes pains to prove that the Tannaim who accept Bererah in the one case also maintain it in the other cases, and vice versa. He does not recognize any distinctions, therefore, in the concept Bererah.

Retroactive Force of Conditions.

The commentators ask, "What difference is there according to Raba between the concept Bererah and the retroactive force of a condition?" Such a difference must exist because the retroactive force of the condition is generally accepted on the ground that he who says "on condition" is like him who says "from now on." Rashi (Giṭ. 25b), who raises this question, is of the opinion that only conditions within man's power to fulfil or not to fulfil have retroactive effect according to general opinion, but not such conditions as are in the power of him who is master over life and death, as, for example, "if I die from this disease." In these cases retroaction can only be adopted on the principle Yesh Bererah. But in this case Bererah contains the idea of predestination; that which hasactually occurred has already been predetermined by Providence. But it is clear that such a view must be kept out of the field of law. Naḥmanides sets up the following distinction between Bererah and the retroactive force of a condition: Simple conditions have retroactive force even according to the principle En Bererah, whereas a double condition works retroactively only according to the principle of Yesh Bererah. The distinction is clear. If one makes a simple condition, his will is directed toward something definite which merely requires the fulfilment of the condition; but if one makes a double condition, he wants either one thing or another, he vacillates, and therefore the idea of Bererah must be brought into requisition in order to cause retroactive effect. This view of Naḥmanides, however, is not satisfactory, and therefore his distinction between "Bererah" and the "retroactive force of the condition" is rejected (see Luria, c.); but the idea of Naḥmanides is correct and merely requires amendment; it is the only correct one, following the view of Raba. If one says to a woman, "I marry you on condition that your father consents," the act is an alternative juridical act.

Bererah and Condition.

If the condition is fulfilled, the marriage is valid; if the condition is not fulfilled, the union is unlawful; but it has certain legal consequences, for Jewish law does not recognize the maxim "Pater est quem nuptiæ demonstrant." In this case, therefore, there is a double condition, and, nevertheless, after being fulfilled, it has retroactive force exactly as in the case in Mishnah Demai 7:4, where one may eat only on condition that that which was last taken out is presumed to have been "terumah" from the beginning. The opponents of this view who maintain that the marriage is valid in any event, even if the father does not give his consent, must assume the principle En Bererah, because it is possible to consent only to something definite. In a like manner, there is a double condition in the case, "Here is your bill of divorce, to take effect if I die from this disease," if the view is accepted that the wife remains a lawful wife up to a moment before the death of the husband. The conditions are first, "You shall remain my wife up to a moment before my death," and second, "The bill of divorce shall be effective a moment before my death." His will, therefore, is divided, and nevertheless there is a retroactive effect; hence, the principle Yesh Bererah is in action. If his will were only directed toward the divorce, the effect would be that the marriage would be in suspenso; and since that is not the case, it follows that the principle Yesh Bererah is invoked. In this manner, it seems, Raba has distinguished "Bererah" from "the retroactive force of a condition," and only in this manner can the etymology and translation of the word be fixed.

Etymology and Translation.

Since the commentators joined in the views of Rashi concerning the discrimination between the personal and the elementary nature of the conditions, they necessarily must find nothing else in the word "Bererah" than "retroactive force of condition." Bererah is, according to this view, a special form of the retroactive force of conditions which is accepted by some and rejected by others. The word, therefore, must be explained through the assistance of other words: , "the matter has been made clear with regard to the past"; and the translation of the word would imply its secondary meaning. because means, in the first place, "to choose," "to select"; as for instance, , "to select the edible from the inedible." In its derived meaning it also means "clear," "clean," "positive." Bererah might be translated "certainty"; e., that which was formerly doubtful is now certain; but this idea is also contained in the notion of the retroactive force of condition, and the word "Bererah" would not cover that special meaning which it was intended to express. In the Jerusalem Talmud, there is a phrase which covers "retroactive force of condition" (Demai 6:25d, and elsewhere), , "this, his share, was his from the first moment." According to Rashi, the word "Bererah" ought to be translated as predestination; but this idea is not in the word. But, in fact, "Bererah," derived from , "to choose," "to select," means "choice." "Yesh Bererah" means "he has the choice"; that is to say, one can make a double condition and afterward choose one or the other; or through the fulfilment of the condition, whichever it may be, one thing or the other is determined. "En Bererah" means that one can not make a double condition, so that afterward one of the two may be determined. This was the view of the Babylonian Talmud as shown in Yoma (55b), where it is argued, "let him choose four zuzim," etc. Likewise in another place (Tem. 30a; Bek. 57a), "let him take one out, and the others will be permitted." It is true that Levy and, following him, Kohut explain the word to mean "choice," but this translation of the word will not be of help in the Gemara, unless the above-explained view of Naḥmanides is borne in mind. Jastrow, therefore, gives a twofold translation, "choosing or a subsequent selection"; "retrospective designation." According to the above-mentioned explanation, the word "choice" is sufficient. The fact that a condition is retroactive is assumed, and is not expressed in the word; since this is characteristic of all conditions.

Application in Practise.

Undoubtedly, in practise, Raba has applied the concept of Bererah without distinction. Rabbi Isaac, the Tosafist, maintains that in every case a decision can be rendered according to Raba; namely, on the principle Yesh Bererah. R. Tam at first also decided in this manner, but later he departed from it (see Tosafot to Tem. 30a, and parallels in marginal notes). In the Gemara (Beẓah 37b et seq.), Mar Zuṭra is of the opinion that inasmuch as there is a difference of opinion concerning Bererah, the rule of decision should be "In Biblical commands, En Bererah; in rabbinical commands, Yesh Bererah"; and in this manner Maimonides also decided ('Er. 8:7), although many contradictions appear in his work that can not all be reconciled by his interpreters (see Luria, ib. 36b; and "Sha'agat Aryeh," No. 89). Rabbi Joseph Caro (Shulḥan 'Aruk, c.) also notes this division; namely, "In rabbinical commands, Yesh Bererah, and in Biblical commands,En Bererah." One rather illogical exception is made in the case of a Biblical command; namely, in the case mentioned in Ned. (c.), because it is said to differ from other cases of Bererah (see R. Solomon Luria).

Unknown in Palestinian Halakah.

The Palestinian Halakah is closer to Roman legal concepts than is the Babylonian, and in spite of all separation from that which was foreign, Roman legal concepts current among the people unconsciously forced their way into the Palestinian Halakah, although the rules of law of the two systems differed.

In Roman law, the difference between movable and immovable property shows itself in the concept of divisibility of property. Immovable property can be divided, and movable property can not (pars pro diviso, pars pro indiviso). In the case of immovable property an actual division is possible; in the case of movable property only a theoretical or ideal division can be made. Actual division of quantities and genus is likewise possible (numero fit divisio), because the value of equal parts remains the same; (see Waechter, "Archiv für die Civilistische Praxis," 25:155 et seq.); but this rule applies only to obligations and not to joint property. The division of joint property, is looked upon as an exchange (permutatio). In place of the formerly undetermined property, each of the joint proprietors receives from the other, by exchange, certain determined property (see Savigny, "Obligationenrecht," § 30, and likewise other well-known jurists quoted in "Monatsschrift," 1900, c.).

The Palestinian Halakah likewise distinguishes between joint property in divisible and in indivisible things. This distinction is found in the above-mentioned controversy, in the case of a vow of abstinence by the joint proprietors from any enjoyment of each other's property; and in the other controversy, concerning tithes and heave-offerings in the case of joint property of Jew and Gentile in Syria. The Babylonian Talmud uses these as its principal supports for the controversy concerning Yesh Bererah and En Bererah. In Yer. Demai 6:25d the latter controversy is discussed, and the Halakah is as follows: In case of a division of heaps of sheaves or even the threshed grain, it is undisputed that in each stalk or each grain there is common property, but in the case of a division of growing grain, there is a controversy between Rabbi and R. Simon ben Gamaliel. The former maintains that in this case also the community of property exists in every single stalk, and the latter maintains that each joint proprietor obtains his separate property.

Case of Joint Property.

R. Simon ben Gamaliel's principle is the following: The field being divisible (pars pro diviso; (see JOINT OWNERS), there is an implied condition (conditio juris) among the joint proprietors that whichever of the two halves falls to the share of either one shall be presumed to have been his from the beginning. This is an alternative condition with retroactive force. This is the meaning of the maxim: "This, his share, was his from the first moment." The Palestinian Halakah has not distinguished the condition "if it shall be my will" from other conditions. Köppen ("Jahrbuch für Dogmatik," 11:280) maintains that according to Roman law such a condition has retroactive force; so also Derenbourg ("Pandekten," p. 258, § 108, Berlin, 1896). Thus (Yer. 'Er. 3:21b) the condition, "I may go whither-soever I may desire," is considered a condition with retroactive force. In Yer. Giṭ. 3:44d, the case cited in the Mishnah—a bill of divorce written for one of two wives of the same name to be determined at the will of the husband—is considered invalid, because a bill of divorce may, under no circumstances, be written conditionally, otherwise the maxim of the law would apply, "that it was written for her from the first moment"; to wit, the condition has retroactive force. In the case of the division of a field, R. Simon ben Gamaliel held such condition to be necessarily implied. Rabbi does not consider such condition valid even if it is actually expressed, because, according to him, the joint property exists not only in that part which is divisible, but in each separate stalk, whereby division becomes impossible. R. Simon ben Gamaliel therefore had to admit that in case a division of a heap of grain is attempted, the joint property continues in every stalk or in every grain, whereby actual division becomes impossible.

The same controversy would exist even if there was joint property in two separate equal heaps of grain, or two equal pieces of the same kind of property, because, in this case, we have partes pro diviso; each part being a body for itself. R. Johanan and R. Eleazar dispute concerning this case (Yer. Ḳiddushin 1:60d; compare Demai, c.). R. Johanan decided, like Rabbi, that, even in the case of divisible things, community remains in every single piece or heap. R. Eleazar decides like R. Simon ben Gamaliel, "This, his share, was originally his." But it is undisputed that if there is joint property in a single heap of grain, it is indivisible, because the joint property exists in every grain (compare Yer. Demai 6:25d). The same relation exists in the case of a courtyard held in common. Here, also, a distinction is made whether it is divisible or indivisible. According to Yer. Ned. 5:39a, it is undisputed that if the courtyard is indivisible, the joint proprietors that have through vows mutually resolved to abstain from enjoyment of one another's property may not step into the courtyard (Mishnah Ned. 5:1). The conflict between the general opinion and the view of R. Eliezer ben Jacob exists only if the property is divisible. According to the former view, every square inch of the courtyard is joint property, and therefore may not be divided. In order that they may step into this courtyard, joint proprietors must transfer their right to a third person. R. Eliezer ben Jacob is of the opinion that each joint proprietor has an undetermined half-interest in the entire property, and, through conditio juris, each joint proprietor obtains, after the division, his original property. This controversy is exactly like that between Rabbi and R. Simon ben Gamaliel.

Mishnah Demai 7:2 is explained in Yer. 26b without controversy on the principle that the condition has retroactive force ().

The Babylonian Halakah, by setting up the concept Bererah, went far beyond the Palestinian and read this concept into the controversy of the Tannaim. According to the Jerusalem Talmud, the division of indivisible things in the case of joint property is not permitted; according to the Babylonian, it is permitted in the case of rabbinical prohibitions (see an example in "Sha'agat Aryeh," c.). According to the Jerusalem Talmud, such a distinction can not be drawn because, following it, the division of indivisible things contains a contradiction, which makes its application equally impossible for rabbinical and Biblical law. Moreover, the controversy between Rabbi and R. Simon ben Gamaliel actually refers to a rabbinical prohibition.

Roman and Modern Law.

But although the Babylonian Talmud's interpretation of the controversy of the Tannaim must yield to that of the Jerusalem Talmud, the concept Bererah, as such, is nevertheless juridically and logically justifiable. Roman law is not abstractly logical. The Roman law, it is true, establishes the proposition "Dominium plurium in solidum esse non potest," and most of the jurists, starting out with this proposition, take the stand that according to Roman law, in the case of joint property, the right is divided and the division is looked upon as emptio. Göppert explains this view clearly and convincingly ("Beiträge zur Lehre vom Miteigenthum," Halle, 1864). Other doctors of the law, such as Steinlechner, Windscheid, and Eisele, explain joint property as separate property even according to Roman law. Without venturing to express an opinion on Roman law, the statement of Unger seems convincing that there was an evolution in the law. He writes ("Jahrbuch für Dogmatik," 22:289):

A similar evolution took place in Talmudic law. The Palestinian Halakah takes the point of view that the joint proprietor, particularly of indivisible things, has a theoretical share in the article. It considers division as a purchase or an exchange. In the later Babylonian Halakah (through Raba) the joint proprietor is looked upon as sole proprietor who after the division receives his original property. It did not assume in joint property, consisting of many similar units, that each unit was joint property and had to be divided—division of the property and division of right are the same—but considered that the one-half of the bulk belonged to the one, and the other half to the other, and each one while using the joint property was presumed to be using his own property, and on division received what was always his property (Tos. Giṭ. 48a).

The difference between the views of the deciders of the responsa and the older authorities is particularly noticeable because the former say that in the case of indivisible joint estate, the vow of the joint proprietor has no force because they have assumed the obligation that one may use the share of the other; but, according to the older conception, the partnership relation contains no such idea of obligation and can be ended at any moment. This is the idea of the Jerusalem Talmud.

The concept Bererah is known in French law. Göppert (ib. pp. 64, 65) states: "In French law, the essence of the division of joint property did not consist in a mutual changeable contract, but rather in an acte detérminatif, by which it was established what portion of the joint property the joint heir really inherited, from which arose the legal presumption that the property which fell to his share at the division was deemed to have been his from the beginning. A remarkable coincidence! There being no inherent contradiction in the concept Bererah, the Babylonian Halakah, modifying the older view, established the compromise that in Biblical commands the principle En Bererah is followed, and in rabbinical commands Yesh Bererah. But the interpretation of the Babylonian Talmud of the dicta of the Tannaim contains innumerable contradictions, and is a shoreless ocean in which the commentator is lost. By distinguishing between the Palestinian Halakah and the Babylonian, it is believed that the matter has been made clear.