Bava Metzia, page 2. This study has been sponsored in the merit of a successful match and success in Torah study for Yehonatan ben Neta; Neta bat Tzipporah; Avraham ben Daniela; Sarah bat Neta; for the elevation of the soul of Shalom ben Rivka; and for the success of Yitzchak ben Esther.
We begin today’s page at the beginning of the tractate, with the Mishnah. The Mishnah discusses two people who are holding onto a prayer shawl. Since each person is holding part of it, each one is considered to be in possession of it. Neither person has a stronger claim than the other.
If one person were holding the garment while the other merely claimed that it belonged to him, we would apply the rule that the burden of proof rests on the one who seeks to extract something from his fellow’s possession. The second person is claiming, “What is in your hand belongs to me.” We already learned this principle in Bava Kamma 46: Whoever seeks to take something from another must bring proof.
Here, however, both people are holding onto the garment, so neither claim is stronger. One says, “I found it,” and the other says, “I found it.” In that case, each one is claiming that it is a lost article and therefore belongs entirely to him.
The Mishnah then presents a second possibility: One says, “It is entirely mine,” and the other says, “It is entirely mine.” What is the case? The Gemara explains that they may both have purchased it. In other words, there was a sale, and each person says, “I bought it.” Each one therefore has a complete claim to the garment.
The Mishnah says that in this situation an oath is necessary. What oath does each person who is in possession make? He swears that he does not own less than half. Since each one says, “I own the entire garment,” each one swears that he owns at least half, and the law is that they divide it.
The Mishnah then discusses another case: One says, “It is entirely mine,” and the other says, “Half of it is mine.” The second person admits that he does not own the entire garment; he claims only half. The dispute is therefore limited to the other half. He certainly has to swear regarding the half that he claims. Regarding the half that is disputed, he swears that he does not own less than a quarter. The result is that the first person receives three quarters, while the second receives one quarter.
The Mishnah explains that the entire matter is focused on the disputed half. The person who says, “It is entirely mine,” swears, as the first formulation states, that he owns at least half. The other person swears that, of the disputed half, he owns no less than a quarter. They are therefore swearing primarily about the half over which they are arguing, and each receives the appropriate portion.
The Mishnah then says that if two people are riding on an animal, or if one is riding on the animal while the other is leading it, and each says, “The entire animal is mine,” they divide it after taking an oath.
What is the novelty of the case involving riding or leading? The Gemara explains that riding or leading is sufficient to constitute an act of acquisition from ownerless property. Whether one is riding the animal or leading it, that is a way of acquiring something ownerless. The case is therefore again one in which each person is holding half, each swears that he owns no less than half, and they divide it.
If one person admits that the other has half, there would be no novelty in saying that they divide it without an oath. The novelty is that a person can lift a lost object with the intention of acquiring part of it on behalf of his fellow. In such a case, both people are admitting that each owns half, and the object is divided without an oath.
The Gemara begins analyzing the Mishnah. Why does the Mishnah need to teach both of the following cases: “One says, ‘I found it,’ and the other says, ‘I found it,’” and “One says, ‘It is entirely mine,’ and the other says, ‘It is entirely mine’”? Let the Mishnah teach only one of them, since the law appears to be the same.
The Gemara initially answers that they are actually one case. The Mishnah means: One says, “I found it, and it is entirely mine,” and the other says, “I found it, and it is entirely mine.” If so, the Gemara asks, the Mishnah should simply say, “I found it.” If a person found something, it is obvious that he claims it all for himself. Why does the Mishnah add the words “It is entirely mine”?
The Gemara answers that if the Mishnah had said only, “I found it,” one might have understood the word “found” in its ordinary usage to mean, “I saw it.” The Mishnah would then seem to teach that merely seeing an object is sufficient to acquire it. Therefore, the Mishnah adds, “It is entirely mine,” to indicate that the person actually performed an act of possession.
Rashi explains the possible mistaken understanding. One person might be saying, “I saw it first, before it was lifted,” and the other might be making the same claim. Each would then argue, “I saw it first, and therefore I acquired it.” If the Mishnah had said only, “I found it,” one might have thought that seeing the object was sufficient to acquire it. That is why the Mishnah says, “It is entirely mine,” indicating a complete act of possession: “I lifted it first, and then you took it from me.”
The Gemara challenges this explanation. Is it possible to say that the expression “I found it” means “I saw it”? This discussion concerns a lost object. The Gemara teaches from the verse that one is required to return an object belonging to one’s fellow, meaning to a Jew. Ravina explains that the phrase “and you found it” refers even to a situation in which the object actually came into one’s hands.
One might have thought that when a lost object belongs to a non-Jew, one is not required to return it only when one merely saw it. In that case, one need not trouble oneself to pick it up. But perhaps, once one picked it up and it is already in one’s hand, one would be required to return it. Ravina therefore explains that the verse refers even to the case in which the object was picked up, and nevertheless the law applies.
If Ravina understands the verse as referring specifically to an object that was picked up, how could the Mishnah be understood as using “I found it” to mean “I saw it”? The Gemara answers that biblical language refers to picking up the object, while the Mishnah is using ordinary speech. In ordinary speech, a person can say, “I found it,” meaning, “I saw it.” Thus, one might have thought that merely seeing the object was enough to acquire it. The words “It is entirely mine” teach that seeing alone is not an act of acquisition; an actual act of possession is required.
The Gemara summarizes the point: If the Mishnah had simply said, “I found it,” one might have understood that the person meant, “I saw it first,” and one might have thought that seeing it was enough to acquire it. That is why the Mishnah adds the words “It is entirely mine.”
The Gemara then asks the opposite question. If the purpose of the extra words is to teach that seeing is not acquisition, the Mishnah should say only, “It is entirely mine,” and omit “I found it.” Why does it need both expressions?
The Gemara answers that if the Mishnah had said only, “It is entirely mine,” one might not have understood that the case involved a lost article. The word “found” teaches that the item was a lost object. At the same time, the additional words “It is entirely mine” teach that merely seeing it is not enough; the person must actually acquire it.
The Gemara then returns to the wording of the Mishnah. If these expressions are all part of one case, why does the Mishnah say, “One says this, and the other says this,” and then again, “One says this, and the other says this”? The language sounds as though the Mishnah is presenting two separate cases rather than one combined statement.
Rabbi Papa gives another answer. Some versions attribute the statement to Rabbi Zeira, while others attribute it to Rabbi Idi. The Mishnah is indeed presenting two different cases. The first case is that of a lost object: one person says, “I found it,” and the other says, “I found it.” Each claims that he found it first and that the other took it from him.
The second case involves a purchase. One person says, “I bought it,” and the other says, “I bought it.” The novelty of the second case is that an oath is required even though each person could plausibly be telling the truth. It is possible that the seller sold the item to both of them.
If, by contrast, the case were that each person claimed, “I wove the garment,” they could not both have woven it. One of them would certainly be lying. In such a case, one of them is making a false oath, and we would not impose an oath on both of them. In the case of a sale, however, it is possible that the seller sold the same item twice, so each person could have a plausible claim. Therefore, each one swears.
We now have two cases: the case of a lost article and the case of a purchase. The Gemara asks why both cases are necessary. Rabbi Yochanan says that both are needed. If the Mishnah taught only the case of a lost article, one might have thought that the Rabbis mandated an oath in that case because someone is obviously lying, but that the oath nevertheless serves a purpose.
Why might the oath serve a purpose in the case of a lost article? The person who is lying may rationalize that his fellow did not lose anything. His fellow found the object free of charge; he did not work for it. The dishonest person may therefore say, “Let me take a piece of the action.” He is not necessarily viewing himself as a complete thief. He is rationalizing that the other person did nothing to obtain the object.
Because he may be an otherwise decent person who has become caught up in his rationalization, the oath may deter him. He may decide, “All right, it is yours; keep it.” If, however, we viewed him as a true thief, an oath would not help. Someone who is willing to steal may also be willing to swear falsely. The oath works only when the person is rationalizing rather than acting as a committed thief.
One might therefore have thought that an oath is effective in the case of a lost article, because the person rationalizes that his fellow did not work for it. But in the case of a purchase, the dishonest person knows that he is causing his fellow a loss. The other person went to a store, selected the item, and paid for it. Even if he ultimately receives his money back, he wanted that particular item and worked to obtain it. The person taking it from him is therefore acting in a more serious way.
One might have thought that such a person would be considered a thief, and that an oath would not help. He is taking away something for which someone else exerted effort. The Mishnah therefore needs the case of a purchase to teach that an oath is imposed there as well.
Why would one nevertheless think that an oath helps in the purchase case? Since both people paid money, neither will ultimately lose the money. Each will receive back the appropriate portion of what he paid. The person who takes the item is therefore not stealing money from the other person. He is taking away the item, but the other person will receive his money back.
The Gemara explains that the person did not necessarily need that exact item. He went to the store to buy a garment, and another garment may be available. He is not necessarily considered a thief who is taking away the only thing his fellow could have obtained. One might therefore have thought that an oath would serve its purpose in the case of a purchase.
By contrast, in the case of a lost article, there is no market of lost articles. The person cannot simply go and find another identical lost object. The dishonest claimant may therefore be viewed as acting more sinisterly: “I found it, and it is entirely mine.” One might have thought that a person willing to do that would also be willing to swear falsely. The Gemara teaches that even in that case an oath is imposed.
Thus, each case has a reason why one might have thought not to impose an oath. In the case of a purchase, the person is taking away something for which his fellow exerted effort. In the case of a lost article, he is taking away something that his fellow cannot replace. The Mishnah teaches that despite these concerns, an oath is required in both cases.
The Gemara then asks about the case of a purchase: Let us ask the seller whom he sold the item to. Perhaps he can identify the true purchaser, in which case there would be no need for the two claimants to swear.
The Gemara answers that the seller can be trusted only while the item is still in his possession and he remembers to whom he sold it. Once the item has left his possession, he may have dealt with many customers and no longer remember which person purchased it. In the case under discussion, the item has already left the seller’s possession, so he is not considered reliable to identify the purchaser.
The Gemara raises a difficulty from Kiddushin. There, the Gemara discusses a seller who received money from two people, one willingly and one against his will, and then the item left his possession. Since the item is no longer in his hands, he is not believed to say which person received it. What, then, is the Gemara’s question here? The seller has no reliability once the item leaves his possession.
The Gemara explains that the case in Kiddushin involved exactly this situation: the seller received money from both people, one willingly and one against his will. Once the item left his possession, he did not know which person had been the actual purchaser. He was not aware that he would one day have to testify, and therefore he did not preserve the details in his memory.
The Gemara’s initial assumption here was that only one person had paid the seller. If so, the seller would be believed to say to whom he sold it, and we could simply ask him. The Gemara responds that the case is actually the same as the case in Kiddushin: the seller received money from both people. One paid willingly, while the other threw money to him, and the item then left the seller’s possession. Since he no longer knows which person purchased it, he cannot resolve the dispute. We must therefore return to the two claimants, each of whom swears, and they divide the item.
The Gemara then asks who authored the Mishnah. First, it discusses an opinion that could not be the author. The Mishnah cannot be according to Ben Nanas, because Ben Nanas holds that when one of two people is certainly lying, we do not impose an oath in a way that will cause one of them to make a false oath.
The case discussed in Tractate Shevuot involves a shopkeeper and workers. The owner tells the shopkeeper, “Give my workers wheat to a certain value, and I will pay you,” or he tells the shopkeeper, “Give my son money.” The shopkeeper says, “I paid them,” while the workers say, “We did not receive it.” One of the two sides is certainly lying.
Ben Nanas says that we do not make both of them swear, because one of them will inevitably make a false oath. Instead, they return to the householder. The shopkeeper claims, “I lent you money,” while the workers claim, “We were not paid.” The householder is then faced with two claims, and the appropriate procedure is to have the relevant party swear rather than create a situation in which someone is certainly making a false oath.
According to Ben Nanas, then, we do not place a person in a situation where he will make a false oath. In our Mishnah, each person claims, “It is entirely mine,” while the other says the same. Neither of them can own the entire garment if the other person also owns the entire garment. If we make both swear that the whole garment is theirs, one of them will certainly be swearing falsely. It would therefore seem that the Mishnah cannot follow Ben Nanas.
The Gemara answers that the Mishnah could even follow Ben Nanas. It is possible that both people lifted the garment at precisely the same moment. In that case, they both acquired it, and neither person is necessarily lying. The real ownership may indeed belong to both of them, so the oaths do not necessarily involve a false oath.
Rashi explains that in the case of a lost object, each person may believe, “I lifted it first,” while the other believes the same. When each one swears that he owns half, he may be telling the truth according to his understanding. In the case of a sale, it is possible that the seller sold the item to both people. He sold it to one and then to the other. Therefore, neither case necessarily involves a false oath.
We can now return to the discussion in Bava Kamma concerning a pregnant cow. An ox gored a cow, and the owner of the cow claimed, “Your ox killed my cow when she was pregnant, so you must also pay for the offspring.” The owner of the ox responded, “The cow gave birth before my ox gored her.” The dispute concerns the offspring. Both agree that there was damage to the mother, but they disagree about whether the offspring was present at the time of the goring.
The law there is that they divide the value in dispute. Sumchus says that disputed property is divided. The Mishnah is following the position that the disputed amount is divided rather than awarded entirely to one side.
The Gemara asks whom the Mishnah follows. It would appear to follow the Rabbis, who disagree with Sumchus. The Rabbis say that the burden of proof rests on the one seeking to extract money from another’s possession. If he cannot bring proof, he receives nothing.
If that principle were applied here, the person trying to take the other half of the garment should have to bring proof. Neither person is bringing proof. Each is simply holding part of the garment. Why, then, does the Mishnah say that they divide it with an oath?
One might answer that when a person seeks to take money from someone who is in possession of it, he must bring witnesses proving that he has no share in that money or that it belongs entirely to him. Without proof, he cannot extract anything. In our Mishnah, however, the disputed garment is being held by both people, so perhaps the law is different.
The Gemara says that this comparison to Bava Kamma is not decisive. In the case of the pregnant cow, the two parties are not both holding the money in dispute. The owner of the cow claims that the owner of the ox owes him damages, while the owner of the ox says that he owes nothing. The money is entirely in the possession of the owner of the ox. The owner of the cow is trying to extract money from him.
In that case, the owner of the ox is the one in possession. The owner of the cow is saying, “The money in your pocket belongs to me because your ox damaged my pregnant cow.” The Rabbis therefore say that the one seeking to extract the money must bring proof.
In our Mishnah, however, both people are holding onto the garment. Both are in possession. The principle that one who seeks to extract something from another must bring proof applies when one person is trying to take something entirely out of the other person’s possession. When there are two people in possession of the same object, the Rabbis may agree that the item is divided after an oath.
The distinction is therefore as follows: In Bava Kamma, the owner of the ox has the money in his possession, while the owner of the cow is trying to take it from him. In our Mishnah, both people are holding the garment. Each one is a person in possession, and neither one is trying to remove the entire object from the other’s possession.
One person may say, “I am holding the entire garment; you are merely in my way. Leave it, because it is mine.” The other person responds, “You are in my way; I am holding it, and it is mine.” Both are therefore in possession of something. That creates a different law from the case in which only one person is holding the disputed money.
The Gemara then considers the opinion of Sumchus. Sumchus says that in a dispute over property, the parties divide it. In the case of the pregnant cow, however, the parties are not both holding the payment. Nevertheless, Sumchus says that they divide the disputed amount without an oath. If that is Sumchus’s position in a case where only one person is in possession, then certainly, in our case where both people are holding the garment, he would not require an oath. It would seem that the Mishnah cannot be authored by Sumchus either.
The Gemara answers that there is a distinction within Sumchus’s position. Sumchus may have said that disputed property is divided without an oath in a case where both sides are uncertain. In the case of the pregnant cow, neither side knows what actually happened. The owner of the ox says, “Perhaps the cow gave birth before the goring,” while the owner of the cow says, “Perhaps she had not yet given birth.” It is a case of uncertainty on both sides.
Our case, however, is different. Each person is making a definite claim. One says, “It is entirely mine,” and the other says, “It is entirely mine.” Neither is saying, “I do not know.” According to one understanding of Sumchus, his rule applies only when both sides are uncertain, not when both make definite claims.
Not everyone agrees with that limitation. There is an opinion that Sumchus requires division even in a case where both sides make definite claims. According to that opinion, however, one still cannot say that Sumchus is the author of our Mishnah if Sumchus says that division is without an oath.
The Gemara offers another answer. Even if the Mishnah follows Sumchus, the oath mentioned here is not the oath of Sumchus. It is a rabbinic oath instituted for a different purpose. Rabbi Yochanan says that this oath is an oath intended to prevent people from forcibly taking another person’s property.
Without such an oath, someone might see another person holding a garment, pull it out of his hands, and say, “It is entirely mine.” If the law were simply that the two people divide the item, taking half would be very easy. A person could grab an object from another’s hands and then claim half of it.
The Rabbis therefore instituted an oath as a deterrent, so that a person would not attack the property of his fellow and then claim a share. This is not the same oath discussed by Sumchus. Sumchus’s position concerns how to divide disputed property. The oath in our Mishnah is a rabbinic safeguard intended to prevent people from taking property by force.
Accordingly, the Mishnah may follow the Rabbis, who normally place the burden of proof on the person seeking to extract property, because here both people are holding the garment. Alternatively, it may follow Sumchus, who says that disputed property is divided, while the oath in this Mishnah is a separate rabbinic institution designed to deter people from taking an object from another person’s hands.
The purpose of the oath is therefore practical. It is meant to ensure that people will not simply seize an item and then say, “Let us divide it.” Rabbi Yochanan explains that the oath protects a person’s property from such behavior. That is the final explanation of why the Mishnah requires an oath even though the oath is not necessarily the same oath that appears in Sumchus’s ruling.
May the Master of the universe be blessed. Amen.