Bava Metzia 2b (ב:) — the Talmud in English

If the tanna taught only the case of a lost object,

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

I might have said

that specifically in the case of a

lost object, the Sages imposed an oath upon him

and obligated him to take an oath,

because

in the case of a lost object he

justifies

to himself the permissibility of taking it from one who had already acquired the lost object before him,

and

the reason for this self-justification is that he says:

“My fellow has suffered no loss because of it.”

His fellow has no loss if I take it from him, since the lost object came to him without cost and he did not exert himself to obtain it. Therefore,

“I will go”

I will go,

“take hold of it and share it with him.”

I will also take hold of the cloak and divide it with him. For this reason, the Sages instituted that he take an oath, so that through the oath he would withdraw and would not justify the matter to himself.

But

regarding the statement, “This one says: It is all mine,” which refers to

a sale—

for one cannot say this

in that case, since one cannot say that he justifies to himself taking an item after his fellow has taken possession of it, as he is taking something that his fellow purchased with money—

I might say:

it would have been possible to say that if he nevertheless claims, “It is all mine,” this is because he believes that this is the truth. Therefore,

he should not

be made to take an oath, since there would be no purpose to this oath: he would not withdraw because of the oath, as he believes that he is telling the truth. The Mishna therefore teaches us that even when he claims, “It is all mine,” he must take an oath.

And if the tanna taught the case of a sale

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

I might have said

that specifically

there,

in the case of a sale,

the Sages imposed an oath upon him

and obligated him to take an oath,

because

in a sale

he justifies

to himself the permissibility of taking the item, even though it was his fellow who purchased the object from the seller,

and

the reason for this self-justification is that he says:

“My fellow is giving money,”

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

“and I too am giving money,”

I too wish to pay money for the object. And since this is the case—

“Now that I need it, I will take it,”

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

“and my fellow”

who paid first

“should go and trouble himself to purchase one,”

let him go and trouble himself to purchase one elsewhere. For this reason, they instituted that he take an oath, so that through the oath he would admit the truth—

But

regarding the one who says, “I found it,” which is a case of

a lost object, one cannot say this,

as there is no such self-justification, since he cannot say that his fellow can find another one elsewhere.

I might say:

it would have been possible to say that if he nevertheless claims, “I found it,”

he should not

be made to take an oath, since he believes that he is telling the truth and would not withdraw because of the oath. The Mishna therefore teaches us that even when he claims, “I found it,” he must take an oath.

And therefore

it is necessary:

the Mishna must teach that both one who claims, “It is all mine,” in the case of a sale, and one who claims, “I found it,” in the case of a lost object, must take an oath. And we challenge this: If it is as you say, that the Mishna also deals with

a sale, [that each one claims, “I purchased it from the seller,”]

why should they divide it? There is a way to clarify the uncertainty—

“Let us see from whom he took the money!”

Let us ask the seller from which of the two he received the money, since the seller is believed to say, “I sold it to this one and not to that one.”

And we answer:

No, it is necessary to state the case where he took money from both of them—

the Mishna is speaking of a case where 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 the other under duress,

the seller did not agree to sell to the other, but the latter forced the seller to take the money against the seller’s will,

and we do not know

and we do not know

which was willingly and which was under duress,

which one gave the money with the seller’s consent, and which one forced the seller to take the money. In this case, even if the seller claims that he remembers who gave him the money willingly, he is not believed. For the seller’s reliability in saying, “I sold it to this one,” applies specifically when he received money from one person and we do not know who that person was. But if he received money from two people, he is no longer believed to say that he received the money willingly from this one and under duress from the other. The reason is that since both wished to purchase the object, it may be said that he does not remember to whom he ultimately agreed to sell it; he is believed to say that he remembers to whom he sold it only when he received money from one person.

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

And the Gemara discusses this:

Shall we say that our Mishna is not in accordance with Ben Nanas,

and that apparently this Mishna does not follow the opinion of Ben Nanas —

for if it follows Ben Nanas, he said: “How can these and those come to take a false oath?”—

We learned in the Mishna [Shevuot 45a] that if the householder says 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 the money, and therefore demands that the householder pay him, while the workers claim that the shopkeeper did not give them the money, and therefore they too demand that the householder pay them their wages, since they did not receive their wages from the shopkeeper—

The first tanna holds that the shopkeeper takes an oath that he indeed gave the workers the money and collects a sela from the householder in return, and the workers also take an oath that they did not receive their wages from the shopkeeper, and after the oath they collect their wages from the householder. But Ben Nanas disagrees and holds that the shopkeeper and the workers collect from the householder without taking an oath, since if we obligate them to take an oath, one of them will necessarily swear falsely: it is impossible that the shopkeeper gave the money and the workers did not receive it. In such a case, no oath is administered, in order to prevent a certain false oath.

The Gemara raises a difficulty: According to Ben Nanas, who holds that an oath is not imposed in a case where it will certainly be a false oath, how can the two who are holding a cloak be made to take an oath that they have a share in this cloak, when one of them is certainly lying? For only the one who raised the lost object first has a share in the cloak, while the second is a robber.

And we answer:

You may even say that it is in accordance with Ben Nanas.

It is possible that our Mishna follows even the opinion of Ben Nanas, because all of Ben Nanas’s statements apply specifically

there,

in the case of the shopkeeper, because

there is certainly a false oath,

and since one of them will certainly swear falsely, no oath is administered at all.

But

here,

in the case of the two who are holding a cloak,

it is possible to say that there is no false oath

there is no necessity that one of them will swear falsely, because

perhaps

it is possible to say

that both of them raised it together,

that both raised the cloak at the same time. If so, it is true that each of them owns half the cloak, [and likewise, in the case of a sale, it is possible that the seller agreed to sell to both of them and intended to transfer half the cloak to each one, in which case they are both swearing truthfully].

The Gemara now continues its discussion of the words of the Mishna:

Let us say that our Mishna

which establishes the law of division is, apparently,

not in accordance with Sumakhos, for if it were in accordance with Sumakhos, he says that money whose ownership is in doubt is divided without an oath

For Sumakhos’s view is that any money whose ownership is in doubt is divided without an oath, whereas our Mishna indicates that they are required to take an oath before the division.

And we raise an objection:

Rather, what

else can you say—that our Mishna follows the view of

the Rabbis

who disagree with Sumakhos? This is not possible, for

they say: “The burden of proof rests upon the claimant”

For the view of the Rabbis is that, when ownership of money is in doubt, “the burden of proof rests upon the claimant.” Accordingly, here, since both of them are holding the garment, each one is considered the claimant against the other, and must bring proof. If so, we should leave the garment in its present state until one of them brings proof, whereas our Mishna indicates that they divide it?

And we answer:

What is this!

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

For

if you say that it is in accordance with the Rabbis

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

there

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

where both of them are not holding

since neither of them is holding the offspring—therefore

the Rabbis said, “The burden of proof rests upon the claimant”

for here there is one party in possession and one claimant.

But

here

in the case of two who are holding a garment, it is not appropriate to say that the burden of proof rests upon the claimant, because

both of them are holding it

for both litigants are in possession of the garment. In such a case, the Rabbis agree that they

divide

it,

that is, they divide it, and the principle of “the burden of proof rests upon the claimant” does not apply here, since each one is holding the garment and is not considered a claimant. Nevertheless, they divide it only

with an oath

Although the division results from their possession of the garment, nevertheless, since the other party is also holding the garment and he must collect his share of the garment from him, they are therefore required to take an oath!

But if you say that it is in accordance with Sumakhos

it is impossible to establish our Mishna according to Sumakhos, for the inference would be all the stronger—

Now, if there

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

where both of them are not holding it,

since neither of them is holding the offspring—and nevertheless Sumakhos says that they

divide it without an oath,

then it is certainly so that

here,

in the case of two who are holding a garment,

where both of them are holding it,

since both of them are holding the garment, it is

all the more so

that they divide it without an oath. For since each one has possession of the garment, it is even more reasonable to say that he receives without an oath the portion that he is holding.

And we answer:

Even if you say

even if you say that our Mishna is also in accordance with

Sumakhos—

it can be said that

when Sumakhos said

all of Sumakhos’s statements apply specifically when the claimant’s assertion is uncertain, and he claims

“Perhaps,”

and the defendant’s response is likewise only an assertion of

“Perhaps”—

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 asserts

with certainty [that is, “I am certain] that the object is mine,” and the defendant likewise responds with an assertion made

with certainty—

then,

in such a case,

he did not say

that they divide it without an oath.

And we raise an objection:

And according to Rabba bar Rav Huna, who says

that what

Sumakhos said

namely, that money whose ownership is in doubt is divided without an oath, applies

even

when the claimant’s assertion is

certain and

the defendant responds with an assertion made

with certainty—

what is there to say?

Why does our Mishna state that they must take an oath? After all, in every case of money whose ownership is in doubt, they divide it without an oath.

And we answer:

Even if you say that it is in accordance with Sumakhos,

it is possible that our Mishna is also in accordance with Sumakhos, and nevertheless they must take an oath, because

when Sumakhos said

that all of Sumakhos’s statements apply only

where

there is

an inherent monetary uncertainty,

that is, even if the litigants make no claim, there would still be a doubt before us [for example, in the case of one who exchanges a cow for a donkey and it gives birth, and it is unknown whether it gave birth before the exchange or afterward. This doubt does not arise from their claims; rather, it arises on its own]. In such a case, where there is a clear doubt before us, it is logical to say that they divide it without an oath.

But where

there is

no inherent monetary uncertainty,

where no doubt would arise without the litigants’ claims [for example, in the case of two who are holding a garment, where the entire doubt arises because each one claims, “It is all mine”—for if they claimed nothing, there would be no doubt! Although both of them are holding the garment, this is not considered a case in which there is a doubt before us, since it may be that the garment belongs to both of them, and that is why both of them are holding it. ]— in such a case,

he did not

say that they divide it without an oath.

And we raise an objection:

Is this not a kal va-chomer?

On the contrary! If, in the case of one who exchanges a cow for a donkey, Sumakhos says that they divide it without an oath, then by a kal va-chomer, in the case of two who are holding a garment they should divide it 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 for saying that they should divide it without an oath, as we said above, because

there is an inherent monetary uncertainty for this one, and there is an inherent monetary uncertainty for that one,

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

but on the other hand, there is a contrary rationale for requiring an oath, for there is no basis whatsoever for saying that in truth the offspring belongs to both of them—