Manual Two Models of Alternative Dispute Resolution (Hakirah Single from Volume 4)

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As mentioned above in our discussion of the Yerusahlmi, R.

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The Talmud explains that according to R. This argument is reasonable if one assumes that each of the parties possesses a part of the cloak that his counterpart does not. He suggests that according to the Tosefta and the two Talmuds, each of the parties possesses half of the cloak, and there- fore the cloak is split. The sugya on B. Although the ques- tion is in line with the previous discussion, wherein each of the parties enjoys the presumption of ownership because each possesses part of the cloak, in this passage the Talmud does not explicitly argue that the parties enjoy this pre- sumption.

Furthermore, we cannot assume that the parties enjoy the presump- tion of ownership here, since elsewhere the sages award the disputed object to the one who possesses it even though he does not enjoy the presumption of ownership. This argument corresponds to the side of R. On the one hand, this passage makes a presumption about possession similar to that of R.

Hiyya or, in other words, that of the Talmud according to R. Hiyya : each party possesses the part of the cloak that his counterpart does not possess and, therefore, the cloak should be divided based on posses- sion. The last discussion35 in the Talmud B. This version makes the literary connection between R.

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However, there is no obvious difference between the content of the two versions. Both seem to be equally valid variants of the text. On these versions, see Tosafot, ad loc.

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Dimitrovksi, ed. An English translation of these criteria appears in the summaries at the end of that book no page numbers given. Tahlifa the Westerner taught before R. Abbahu: Two Hold a Cloak, this one takes the part his hand reaches and this one takes the part his hand reaches, and the rest is divided equally. Abbahu made a gesture39 [and said]: They should take an oath. However our Mishnah, which teaches that they should divide the cloak and does not teach that one takes the part his hand reaches—to which case does it apply?

Abbahu instructs R. After R. David Pardo, Hasdei david, seder nezikin, reprinted ed. Jerusalem, , p. Shabbtai b. Brody [Jerusalem, ], p. Yohanan, who dis- agrees with R. Eliezer, argues that the document cannot be divided based on the specific part of the document that each of the rivals possesses.

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Apparently R. Yohanan dispute R. Eliezer who takes into account the specific part of the document that each party holds does parallel R. The first group of parallels are those related to the Tosefta: 1. Tosefta 2. This is not to say that all these sources make the exact same argument.

As demon- strated above, there are differences in context and content between them. The second, smaller, group is related to the Mishnah. It includes the Mishnah itself and the first discussion in the Babylonian Talmud B.

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Both parties share in once act of possession, instead of two individuals performing two acts of possession. All five sources in the table relate to the Mishnah. This explanation was not advanced by the Talmuds.

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The next discussion presents R. Later on the Talmud rejects R. This rebuttal leads to the Talmudic question found in the next discus- sion on 5b: Why should the parties take an oath if we can determine the verdict based on possession of the cloak? This paper merely observes that these sources are connected to one another in some vague way: we cannot assume that the sources were aware of each other maybe both sources stem from a third source that did not survive , and we cannot provide a definitive chronological hierarchy of these sources.

However, in the following paragraph Lieberman suggests that the Tosefta and R. Even if we adopt the radical, critical-historical approach that questions the provenance of the familiar tannaitic sources and considers the pos- sibility that the Babylonian Talmud contains the earliest sources and formulations, the literary links are still unimpeachable. The picture that emerges is strange, but not impossible.

From this perspective, the gap between the Mishnah and the Tosefta reflects the gap between the various Talmudic discussions in the Talmud. Friedman argues the opposite.

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Although he insists that every paral- lel should be examined on its own, he declares that in most cases the Tosefta is the earlier source. Both sources argue that the cloak should be divided based on the specific part each party possesses, while the Mishnah disputes this argument. While Lieberman is motivated by a desire to harmonize the tannaitic sources, arguing that no matter which source is the earliest they are not in dis- pute, this paper perceives the sources to be in some sort of implicit dispute. This notwithstanding, it seems reasonable to evaluate each extant source in light of the other extant sources, because these sources were part of the same discourse at the time that at least one of them was formulated.

For example, we deduced from the literary connection between R. Hiya and R. Or, is this impossible since both parties possess the entire cloak? Piscataway, , pp. Author Prof. Joseph Bekhor Shor. Their work was super professional, quick and they are pleasant to work with.

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