The Eri B. Sit edition and audio series of the Talmud Bavli. In the merit of what? Today’s page, Bava Metzia 2, is being studied by Rafa Moshe ben Dina. We also have the sound of Parat Zakenati, Yafa Batsara, and the sound of Abraham ben Ester: “O Hashem, place them in the Garden of Eden.” Amen.
We begin today’s study at the beginning of the tractate, on the second page, with the first Mishnah. Two people are holding on to a tallit, and each one claims, “I found it,” and “The entire tallit belongs to me.” Each one is claiming one hundred percent of it. What do we do in such a case?
The Mishnah establishes the following rule: Each one must take an oath that he does not own less than half, and then they divide the tallit equally. One says, “I swear that I do not own less than half,” and the other says, “I swear that I do not own less than half.” The ruling is that they divide it.
Rashi explains that the words “two people are holding the tallit” teach us an important rule. The case applies specifically when they are actually holding it. Both are considered possessors because both of them are holding the object, and neither one has a stronger claim than the other. One is not more credible than the other; they are both holding the tallit.
That is different from a case in which one person is holding the tallit and another person merely claims that it belongs to him. The person holding it is considered the possessor. He says, “It is mine,” while the other person says, “What is yours? I am holding it.” The one holding it is presumed to possess it unless the other person can bring proof that it belongs to him. The other person is not even believed through an oath. He cannot simply say, “I swear that it is mine,” and thereby establish his claim. He must bring witnesses who can prove that it belongs to him.
In our case, however, what do you want the court to do? Both people are holding the tallit, and neither claim is stronger than the other. One is not more credible than the other. Therefore, an oath is imposed on both of them.
The Gemara has to explain the language of the Mishnah. The Mishnah appears redundant. It says, “I found it; I found it,” and then says, “It is entirely mine; it is entirely mine.” If each person says, “I found it,” that already means, “It is mine.” If each one says, “It is entirely mine,” that also means that he found it. Why does the Mishnah state both claims?
We also need to know where the requirement for an oath comes from. Why do they have to swear at all? And why is the oath phrased in this particular way: “I swear that I do not own less than half”? We need to understand the wording of that oath precisely. Thus, the Gemara must address three questions: Why is the Mishnah redundant? Where does the oath come from? And why is the oath phrased as a declaration that one does not own less than half?
The second case of the Mishnah is as follows. Again, two people are holding a tallit. One says, as in the first case, “The entire tallit belongs to me.” The other says, “I agree that half belongs to you, but the other half belongs to me.” They are therefore arguing only about the second half; the second person is conceding that the first person owns the first half.
The person who says, “It is entirely mine,” must swear that he does not own less than three quarters. The person who says, “Half belongs to me,” must swear that he does not own less than one quarter. One receives three quarters, and the other receives one quarter.
Rashi explains that the second person admits that the first half belongs to his fellow. Therefore, the dispute concerns only the remaining half. The first person has the first half that is not in dispute, and the two of them divide the disputed half equally. Consequently, the first person ends up with three quarters and the second person with one quarter. The ratio of the oath remains the same: Each person must swear that he owns no less than half of the portion being disputed.
We will have to understand why the Mishnah needed to give us this second case if it follows the same principles as the first case.
The next case of the Mishnah concerns two people riding on an animal. Each claims that the animal belongs to him. They do not necessarily both have to be riding it. One person may be riding the animal while the other is leading it. This is equivalent to the case of the two people holding the tallit: Each one swears that he does not own less than half, and they divide the animal.
The novelty of this case is that not only is the rider considered a possessor; the person leading the animal is also considered a possessor. Although he is standing on the ground and merely leading the animal, he is nevertheless regarded as holding it for purposes of acquiring an ownerless object. The rider and the person leading the animal are equal in this respect. Just as one must be physically holding a tallit, with an animal either riding or leading is sufficient.
The final part of the Mishnah states that when they admit that they picked up the object at the same time, or when there are witnesses who testify that they picked it up at the same time, they divide it without an oath. If they themselves admit that they picked it up simultaneously, or witnesses attest to that fact, no oath is necessary; they simply divide it.
The Gemara will explain the novelty of this ruling as well. One possibility is that the case teaches that when one person picks up a lost object, he may acquire it for another person as well. That is something the Gemara will explain.
The Gemara begins: Why does the Mishnah say, “This one says, ‘I found it,’ and this one says, ‘I found it,’” and then add, “This one says, ‘It is entirely mine,’ and this one says, ‘It is entirely mine’”? Why not state only one of these formulations?
The Gemara initially answers that the two formulations are really one case. The Mishnah should be read as follows: This one says, “I found it, and it is entirely mine,” and the other says, “I found it, and it is entirely mine.” It is not presenting two separate disputes.
But that does not fully answer the question. Why say “I found it” at all? Why not simply say, “It is entirely mine”? The claim “I found it” might be misunderstood. A person might think it means, “I saw it first.” If so, one might mistakenly conclude that merely seeing a lost object first gives a person the right to acquire it. That is not so. Seeing an object first does not give a person possession of it. If I am walking down the street and see a lost object, the fact that I saw it before someone else is irrelevant unless I acquire it.
Therefore, the Mishnah adds the words “It is entirely mine” to clarify that “I found it” means more than “I saw it.” It means that the object came into his possession and that he acquired it. The claim is not merely one of precedence in seeing the object; it is a claim of possession.
Could we really have made such a mistake? The Torah uses the expression “and you find it” in the laws of returning a lost object. The Gemara in Bava Kama explains that this expression means that the object came into a person’s hands. If the Torah’s language indicates possession, why would we think that the expression “I found it” in the Mishnah means merely “I saw it”?
The answer is that there are two forms of language: the language of the Torah and ordinary vernacular. In the language of the Torah, the expression “you find it” indicates that the object came into a person’s hands. But the Mishnah is using ordinary human speech. When an ordinary person says, “I found it,” he may use those words even when he means only that he saw it. Therefore, the Mishnah must clarify the intended meaning by adding, “It is entirely mine.”
Rashi explains that the claim in the Mishnah is actually that each person acquired the object first and that the other person then took hold of it. Each one is saying, “I was holding it first, and you pulled it out of my hands.” That is the actual dispute.
The Gemara then asks: If the purpose is to clarify the meaning of “I found it,” why not eliminate those words entirely? Why not say only, “This one says, ‘It is entirely mine,’ and this one says, ‘It is entirely mine’”? The phrase “It is entirely mine” already indicates that each person claims to have acquired the object. Why include the potentially ambiguous expression “I found it” in the first place?
Before answering, Rashi explains that the Mishnah also wants to establish the meaning of the word “found” in other places. Whenever another Mishnah says that a person found a lost object, one might interpret that as meaning that he merely saw it. By saying, “I found it, and it is entirely mine,” the Mishnah teaches that in the context of a lost object, “I found it” means that he acquired it, through lifting it or otherwise taking possession of it. The Mishnah is therefore teaching not only the rule of this case but also the meaning of the expression in other places.
The Gemara objects that the wording still seems to indicate two separate cases. The Mishnah says, “This one says,” and “This one says,” regarding “I found it,” and then again, “This one says,” and “This one says,” regarding “It is entirely mine.” If it were one case, the Mishnah could have written the claims together: “This one says, ‘I found it, and it is entirely mine,’ and this one says, ‘I found it, and it is entirely mine.’” The fact that the Mishnah repeats the formulation suggests that there may be two distinct cases.
Rav Pappa, citing Rav Shimi bar Ashi, answers that the first part of the Mishnah concerns a lost object, while the second part concerns a transaction. The first case is “I found it; I found it.” Two people are walking in the street, see a lost object, and both are now holding it. One says, “I picked it up first, and you took it out of my hands,” while the other says the same thing about himself.
The phrase “It is entirely mine,” however, refers to a sale. One person says, “I bought it,” and the other says, “I bought it.” They are holding the object because each claims that the seller sold it to him. One says, “He sold it to me,” and the other says, “No, he sold it to me.” This is a dispute concerning a purchase and sale.
At first glance, the second case should have a simple solution: Ask the seller. Who did you sell the object to? Why should both people have to swear that they own at least half? The seller himself should know whom he sold it to.
The answer is that the seller received money from both of them. One person paid him willingly, while the other threw money at him or forced the payment upon him. The seller knows that he was paid twice, but he has forgotten which payment came from which person. Therefore, he cannot identify which buyer acquired the object. In that situation, each person takes an oath, and they divide the object. Since the seller admits that he received money from both of them, they also recover their money proportionately rather than allowing the seller to retain both payments.
The Gemara explains why both the lost-object case and the purchase case are needed. If the Mishnah had mentioned only the lost object, one might have thought that a person rationalizes taking it. He may say to himself, “My fellow is not really losing anything. This is merely a lost object, a windfall. It was never his tallit. Why should I not take half?” Such a person does not necessarily view himself as a thief. He may convince himself that his conduct is not so serious. Therefore, one might say that he can still be believed through an oath.
In the case of a purchase, however, one might think differently. A person who went to a store to buy an object presumably needs that object. If someone else claims half of it, he is taking something from a person who needs it. One might therefore suspect that the claimant is willing to lie in order to take the object from the other buyer, and perhaps he should not be believed through an oath.
Even in the purchase case, however, the person may rationalize his conduct. He can say, “My fellow paid, and I paid. I also need the object. Let him purchase another one.” Since the other person will receive his share and no one is being deprived of all his money, the claimant may not see himself as a thief. One might therefore think that he remains believable through an oath.
Conversely, if the Mishnah had mentioned only the purchase case, one might have thought that an oath is appropriate there because both people paid and the matter can be resolved by dividing the object and the money. But in the case of a lost object, there is no such reasoning. The person cannot say, “Let my fellow go and find another one,” because the entire object was a lost object. It may not be replaceable. One might therefore have thought that a claimant to a lost object should not be trusted with an oath.
For that reason, the Mishnah needs both cases. It teaches that even in the case of a lost object, where a person may rationalize taking something that was never his fellow’s, an oath is imposed. And even in the case of a purchase, where the other person needs the object and the claimant may be trying to take it from him, the oath is still imposed. In both cases, the court can say that the claimant may not view himself as an outright thief, and he may therefore be believed through an oath.
The Gemara then asks an obvious question concerning the purchase case. Why not simply ask the seller who purchased the object? The seller is presumed to know whom he sold it to. A seller is generally believed to say, “I sold this to one person and not to the other.”
The Gemara answers that in this case the seller does not remember. He knows that he received payment from both people, but he does not know which payment was given willingly and which was forced upon him, or which buyer’s payment corresponded to the object. Since he cannot identify the buyer, the case remains uncertain. Each person swears, each receives half the object, and each receives the appropriate portion of his money back.
This resolves the technical questions about the language of the Mishnah. There are two cases: one involving a lost object and one involving a purchase and sale. We have explained why the Mishnah uses both formulations and why the seller cannot resolve the dispute. We have not yet explained the underlying mechanics of the oath: Why is an oath imposed in this form when each person is holding the object?
The Gemara begins that discussion by asking whether the Mishnah follows the view of Ben Nanas. To understand the question, we must know the case discussed by Ben Nanas. A homeowner tells a shopkeeper, “Give my son wheat on credit, and I will pay you later.” Alternatively, he tells the shopkeeper, “Pay my workers for me, and I will reimburse you.” Later, the shopkeeper says, “I paid your son or your workers,” while the son or the workers say, “We never received the money.”
Now the shopkeeper claims that he paid, and the son or workers claim that they were not paid. If the shopkeeper takes an oath that he paid, and the son or workers take an oath that they did not receive payment, the homeowner may have to pay twice. He must pay the shopkeeper because the shopkeeper swears that he paid, and he must pay the son or workers because they swear that they were not paid.
Ben Nanas says that this cannot be the ruling. Someone in this case is certainly lying. It is impossible for the shopkeeper to have paid and for the son or workers not to have received the money, unless someone is being untruthful. Therefore, the homeowner should not impose an oath on both sides. Rather, the two claimants receive payment without an oath, because the court should not impose oaths in a case where one of the two oath-takers is certainly lying.
The Gemara asks how the Mishnah could be consistent with Ben Nanas. In the Mishnah, one person says, “It is entirely mine,” and the other says, “It is entirely mine.” Each one takes an oath. But if only one person could have acquired the object first, then one of them must be lying. Why would the Mishnah impose an oath on both?
The Gemara answers that the cases are not identical. In the Mishnah, it is possible that both people are telling the truth. They may have picked up the object simultaneously. It is unusual, but it is possible. Each person may genuinely believe that he picked it up first, or each may truthfully be claiming ownership of the half that he acquired. Therefore, neither person is necessarily lying, and an oath may be imposed.
In the case of the shopkeeper, by contrast, the events cannot be reconciled. Either the shopkeeper paid the son or workers, or he did not. Someone is certainly lying. That is why Ben Nanas does not impose oaths there.
The Gemara next considers whether the Mishnah follows the view of Sumchus. We have encountered Sumchus several times. His principle is that when money is in doubt and two parties claim it, they divide it. This is the rule of money that is subject to uncertainty: The parties divide it, even without an oath.
If the Mishnah followed Sumchus, why would it require each person to swear? In the Mishnah, one says, “It is entirely mine,” and the other says, “It is entirely mine.” There is money or property whose ownership is uncertain. According to Sumchus, they should divide it without an oath. Since the Mishnah requires, “This one swears, and this one swears,” it appears not to follow Sumchus.
Where do we find Sumchus’s view? We find it in the case of an ox that gored a cow, after which a dead fetus was found beside the cow. We do not know whether the ox caused the cow to miscarry, or whether the cow gave birth before the ox gored it. The owner of the cow claims that the ox caused the damage, while the owner of the ox denies it. Sumchus rules that because the money is in doubt, they divide it without an oath.
Perhaps, then, the Mishnah follows the Rabbis who disagree with Sumchus. According to the Rabbis, a person who wants to take money from another person must bring proof. The one holding the money is presumed to be the possessor, and the claimant cannot take it without witnesses. But that also seems difficult. The Mishnah does not require witnesses, nor does it leave the object with one possessor. It imposes an oath on both people and divides the object. Where does this ruling come from?
The Gemara answers that it is easier to explain the Mishnah according to the Rabbis than according to Sumchus. The case discussed by the Rabbis is not identical to the case in the Mishnah. In the case of the ox and the cow, neither party is holding the disputed property. The owner of the ox is simply being asked to pay money to the owner of the cow. The owner of the cow is trying to take money from him, and the principle of “the one who wishes to extract money from another must bring proof” applies.
In the Mishnah, however, both parties are holding the object. Neither one is attempting to extract more from the other than the other is attempting to extract from him. They are equally established as possessors. Since neither one has a stronger claim, the Rabbis could agree that they divide the object after each one takes an oath. This is a different set of circumstances from the case in which one person is holding his money and the other is trying to take it from him.
Rashi explains that in the Mishnah both parties are holding the property, so neither is considered the sole possessor. Nevertheless, because each one has taken hold of the object, the division is made through an oath. The oath serves as the requirement imposed when both parties have equal possession, rather than as a way of allowing one person to take money from a recognized possessor without proof.
The Gemara then says that even if we wish to explain the Mishnah according to Sumchus, it is possible. Sumchus may have said that disputed money is divided without an oath only in a case of “perhaps” versus “perhaps,” when both parties are uncertain about what happened.
In the case of the ox and the cow, neither side knows what happened. Perhaps the ox caused the miscarriage, and perhaps the cow had already given birth. Each party’s claim is expressed as a possibility. That is the case in which Sumchus says that disputed money is divided without an oath.
In the Mishnah, however, each person is certain of his claim. One says, “I picked it up first,” and the other says, “I picked it up first.” This is certainty versus certainty, not uncertainty versus uncertainty. Each person claims to know precisely what happened. Perhaps Sumchus would agree that in such a case an oath is required.
The distinction is important. When both parties say, “We do not know what happened, but one of these possibilities is true,” Sumchus says that they divide without an oath. But when each person says, “I know what happened, and my claim is certain,” an oath may be required, even according to Sumchus. The Mishnah can therefore be understood as following Sumchus as well, because the two claimants are making definite claims rather than expressing uncertainty.
We have therefore addressed the main questions raised by the opening Mishnah: the repetition in its wording, the distinction between a lost object and a purchase, the reason for the oath, the meaning of “I found it,” the status of the rider and the person leading an animal, the case in which both parties picked up the object simultaneously, the view of Ben Nanas, and the possible relationship between the Mishnah and the opinions of the Rabbis and Sumchus.