Bava Metzia 2b — the Talmud in English

If it taught [only] “finding,”

that if the tanna had taught only “I found it,”

I would have said

that specifically in a

finding, the Rabbis imposed an oath upon him

the Rabbis obligated him to take an oath,

because

in a finding

he considers it permitted

the one who seizes it considers it permitted for himself to seize it from one who had already acquired the finding before him,

and

the reason for considering it permitted is that he

says: “My fellow has not lost anything through it,”

for my fellow has suffered no loss if I seize it from him, since the finding came to him gratuitously and he did not trouble himself to obtain it; therefore

I will go,

I myself will go,

seize it and divide it with him,

and I will also seize part of the cloak and divide it with him—and for this reason the Rabbis instituted an oath, so that through the oath he would withdraw and would not consider it permitted for himself .

But

with regard to “This one says: It is all mine,” which is speaking concerning

a sale and purchase—

for it cannot be said so,

since in this case one cannot say that he considers it permitted for himself to seize it after his fellow’s seizure, for he is seizing an object that his fellow purchased with money—

I would say:

it might have been said that if he nevertheless claims, “It is all mine,” this is because he believes that this is the truth; therefore

we would not

make him take an oath, because there is no reason for this oath, since he would not withdraw because of the oath, as he believes that he is speaking the truth. It teaches us that even with the claim “It is all mine,” he must take an oath .

And if it taught [only] sale and purchase,

and if the Mishna had written only the case of “It is all mine,” and had not written the case of “I found it,”

I would have said

that specifically

there,

in a sale and purchase,

the Rabbis imposed an oath upon him

the Rabbis obligated him to take an oath,

because

in a sale and purchase

he considers it permitted

he considers it permitted for himself to seize it, even though his fellow was the one who purchased the object from the seller,

and

the reason for considering it permitted is that he

says: “My fellow is giving money,”

for just as my fellow paid money to the seller for the cloak,

“and I am giving money,”

I too desire to give money for the object ; and since this is so—

“Now that I need it, I will take it,

now that I need the object, I will take it, for I am paying money for it,

and my fellow

who paid first

should go and trouble himself to buy [another],

let him go and trouble himself and purchase [one] elsewhere—and for this reason they instituted that he should take an oath, so that through the oath he would admit the truth”—

But

with regard to the one who says, “I found it,” which is

a finding, where it cannot be said so,

for such a consideration of permission is not applicable, since he cannot say that his fellow should find [the object] elsewhere,

I would say:

it might have been said that if he nevertheless claims, “I found it,”

we would not

make him take an oath, since he believes that he is speaking the truth and would not withdraw because of the oath. It teaches us that even with the claim “I found it,” he is obligated to take an oath —

And therefore

it is necessary:

the Mishna must teach anew that both with the claim “It is all mine” in a sale and purchase and with the claim “I found it” in a finding, he is obligated to take an oath. And we object: If it is as you say, that the Mishna is speaking also about

a sale and purchase,

where each one claims, “I purchased it from the seller,” why should they divide? There is a possibility of clarifying the doubt—

“And let us see from whom he took the coins!”

Let us ask the seller from which of the two he received the money, for the owner of the sale is trusted to say, “To this one I sold, and to that one I did not sell” .

And we answer:

No, it is necessary [to state it], for he took from both of them—

the Mishna is speaking of a case in which the seller received money from both of them—

from one willingly,

the seller agreed to sell to one of them and took the money from him,

and from one against his will,

and with regard to one of them the seller did not agree to sell to him, and that one forced the seller to take the money from him against the seller’s will,

and we do not know,

and we do not know

which one is the willing one and which one is the one against his will,

which one gave the money with the seller’s consent and which one forced the seller to take the money—and in this case, even if the seller claims that he remembers who gave him the money willingly, he is not believed. For the entire trustworthiness of the seller to say, “To this one I sold,” applies specifically when he received money from one person and we do not know who that person is; but if he received money from two, he is no longer believed to say, “From this one I received it willingly, and from that one against my will.” The reason is that since both desired to purchase the object, it may be said that he does not remember to whom he ultimately agreed; only if he received money from one is he believed to say that he remembers to whom he sold [the object].

We learned in the Mishna that before the division, each one of them must take an oath that at least half of the cloak belongs to him!

And the Gemara discusses:

Let us say that our Mishna is not in accordance with Ben Nanas,

seemingly, this Mishna is not in accordance with the words of Ben Nanas —

for if it is Ben Nanas, he says: “How can these and those come to an oath in vain?”—

We learned in the Mishna [Shevuot 45a] that if the householder said to the shopkeeper, “Give my workers money worth a sela, and I will pay you,” and the shopkeeper claims that he fulfilled the householder’s instruction and gave them money, and therefore demands that the householder pay him, while opposite him the workers claim that the shopkeeper did not give them money, and therefore they too demand that the householder pay them their wages, since they did not receive their wages from the shopkeeper—

The view of the first tanna is that the shopkeeper takes an oath that he indeed gave the workers money and receives a sela from the householder in exchange for it, and the workers also take an oath that they did not receive their wages from the shopkeeper, and after the oath they receive their wages from the householder. But Ben Nanas disagrees and holds that the shopkeeper and the workers receive from the householder without an oath, since if we obligate them to take an oath, one of them will necessarily swear falsely, for it is impossible that the shopkeeper gave [the money] and the workers did not receive it; and in such a case they do not administer an oath at all, in order to prevent a certain false oath.

And the Gemara objects: According to Ben Nanas, who does not impose an oath in a case where there will certainly be a false oath, if so, how do they administer an oath to the two who are holding a cloak that they have a share in this cloak, for one of them is certainly lying—for only the one who lifted the finding first has a share in the cloak, while the second is a robber?

And we answer:

Even if you say [that it is] Ben Nanas,

it is possible that our Mishna is also in accordance with the position of Ben Nanas, because all the words of Ben Nanas apply specifically

there,

with regard to the shopkeeper, because

there is certainly an oath in vain,

and since one of them is certainly swearing falsely, they do not administer an oath at all.

But

here,

with regard to two who are holding a cloak,

it may be said that there is no oath in vain

there is no necessity that one of them swear in vain, because

perhaps

it may be said

that both of them lifted it together,

that both of them lifted the cloak at the same time, and if so, it is true that each one has half the cloak, [and in a sale and purchase too, it is possible that the seller agreed to both of them and intended to transfer half the cloak to each one, and it turns out that they are swearing truthfully].

And now the Gemara continues to discuss the words of the Mishna:

Let us say that our Mishna

which ruled the law of division is apparently

not in accordance with Somkhos, for if it were in accordance with Somkhos, he said: Property placed in doubt is divided without an oath

for the method of Somkhos is that all property placed in doubt is divided without an oath , whereas in our Mishna it is explained that they are obligated to swear before the division.

And we object:

But rather, what

will you say—that our Mishna is in accordance with the view of

the Rabbis

who disagree with Somkhos? This is not possible, for

they said: “The one who takes from his fellow—the burden of proof is upon him”

for the method of the Rabbis is that with property placed in doubt, “the one who takes from his fellow—the burden of proof is upon him.” Accordingly, here, since both of them are holding the cloak, each one is considered to be taking from his fellow, and he must bring proof. If so, we should leave the cloak until one of them brings proof , whereas in our Mishna it is explained that they divide?

And we answer:

What is this!

Although it is impossible to establish our Mishna in accordance with Somkhos, it is possible to establish it in accordance with the Rabbis—

for

if you say, granted, the Rabbis

if we establish our Mishna according to the method of the Rabbis, then it is possible to distinguish and say that specifically

there

in the case of one who exchanges a cow for a donkey,

where both of them do not hold it,

for both of them are not holding the offspring—therefore

the Rabbis said, “The one who takes from his fellow—the burden of proof is upon him”

for here there is one who is holding it and here there is one who is taking.

But

here

in the case of two holding a cloak, it is not relevant to say, “The one who takes from his fellow—the burden of proof is upon him,” because

both of them are holding it

for both litigants are holding the cloak, and in this case the Rabbis agree that they

divide

it,

for they divide, and “the one who takes from his fellow” is not relevant here, since each one of them is holding the cloak and is not considered to be “taking”; nevertheless, they divide only

with an oath,

and although the division results from their holding the cloak, nevertheless, since his fellow is also holding the cloak and he must collect his share of the cloak from him, they must therefore swear!

But if you say, Somkhos

but according to the method of Somkhos, it is impossible to establish our Mishna, for this is all the more so—

Now! And if there,

in the case of one who exchanges a cow for a donkey,

where both of them do not hold it,

for neither of them is holding the offspring—and nevertheless Somkhos said that they

divide without an oath,

then it is certainly the case that

here,

in the case of two holding a cloak,

where both of them are holding it,

for both of them are holding the cloak,

all the more so

that they divide without an oath—for since each one has a hold on the cloak, it is more reasonable to say that he receives his share, which he is holding, without an oath.

And we answer:

Even if you say,

even if you say that our Mishna is also according to

Somkhos—

it may be said that

when Somkhos said

all the words of Somkhos apply specifically when the claimant’s claim is not certain, but he claims

“Perhaps,”

and the defendant’s response is also only a claim of

“Perhaps”—in this case Somkhos holds that they divide without an oath, for if the litigants do not know with certainty to whom the property belongs, how will they swear?

in such a case Sumakhos maintains that they divide it without an oath, for if the litigants do not know with certainty to whom the money belongs, how can they take an oath?

But

if the claimant claims

“Certainly”

“I am certain that the object is mine,” and the defendant also responds to him with a claim of

“Certainly,”

in such a case

he did not say

that Somkhos holds that they divide without an oath.

And we object:

And according to Rabbah bar Rav Huna, who said

who holds that what

Somkhos said

that property placed in doubt is divided without an oath applies

even

when the claimant’s claim is

certain and

the claimant responds with

certainty—

what is there to say?

Why does our Mishna state that they must swear? After all, with all property placed in doubt, they divide without an oath.

And we answer:

Even if you say, Somkhos,

it is possible that our Mishna is also according to Somkhos, and nevertheless they must swear, because

when Somkhos said

all the words of Somkhos apply only

where

in a place

where there is a financial cause of doubt,

where even if the litigants make no claim, there would be a doubt before us

—[for example, one who exchanges a cow for a donkey and it gave birth, and it is not known when it gave birth, whether before the exchange or after it; for this doubt is not created by their claims, but the doubt arises on its own]—in this case, where there is a clear doubt before us, it is logical to say that they divide without an oath . But where

in a place

where there is no financial cause of doubt,

where without the claims of the litigants no doubt arises [for example, in the case of two holding a cloak, where the entire doubt is created because each one claims, “It is all mine”—for if they claimed nothing, there would be no doubt! And although both of them are holding the cloak, this situation is not considered to be a doubt before us, because it may be said that the cloak belongs to both of them, and for this reason both of them are holding it ]— in this case

he did not

say that Somkhos holds that they divide without an oath.

And we object:

Is this not a kal va-chomer?

On the contrary! If, concerning one who exchanges a cow for a donkey, Somkhos said that they divide without an oath, it is a kal va-chomer that in the case of two holding a cloak they should divide without an oath, for—

And if there,

in the case of one who exchanges a cow for a donkey, even though on the one hand there is a rationale that they should divide without an oath, as we said above, because

there is a financial cause of doubt for one and there is a financial cause of doubt for the other,

for the doubt is clear before us even without their claims—

but on the other hand, there is there an opposing rationale for obligating them to swear—for there is no basis whatsoever for saying that according to the truth the offspring belongs to both of them—