Bava Metzia 37a — the Talmud in English

Rav Shmuel bar Yehuda said to Rav Yehuda: You told us in the name of Shmuel

that Rabbi Yosei disagreed ![](pamud.bmp "

Exact position of folio")

also in

the

first

Mishna-law of this chapter, namely, in the law of “he paid and did not wish to swear,” where according to the First Tanna he acquired the double payment, whereas according to Rabbi Yosei we say: How can it be that this bailee puts into his pocket the double payment of this depositor!? Rather, the double payment should be paid to the depositor!

And if so:

is the halakha in accordance with him

in both of these laws,

or is the halakha not in accordance with him?

He said to him,

Rav Yehuda to Rav Shmuel his son: Indeed,

Rabbi Yosei disagreed also in the first [case], and the halakha is in accordance with him also in the first [case].

It was also stated: Rabbi Elazar said: Rabbi Yosei disagreed also in the first [case], and the halakha is in accordance with him also in the first [case].

And

if

Rabbi Yohanan said: Rabbi Yosei agreed in the first [case], since he had already paid!

And we object: Is that to say that when he

paid, yes,

he indeed acquires the double payment, whereas when he

did not pay, no!?

But Rabbi Hiyya bar Abba said in the name of Rabbi Yohanan

himself:

Not

“paid”

means actually paid, but since he said:

“I am prepared to pay,”

even though

he has still

not paid,

he nevertheless acquired the double payment!?

And we answer:

Say

this instead:

Rabbi Yosei agreed in the first [case],

since he had

already said:

“I am prepared to pay.”

Mishna:

If he said to two:

“I stole a maneh from one of you, but I do not know

from

which of you.”

Or

if he said to two:

“The father of one of you deposited a maneh with me, but I do not know which one he is [of them]”

[that is: whose father it was who deposited it with me]—

he

gives this one a maneh and that one a maneh,

because

he admitted on his own initiative,

as will be explained in the Gemara.

Two people who deposited with one person: this one

deposited with him

a maneh, and this one

deposited with him

two hundred

zuz; and when they came to take their deposits:

This one says: “The two hundred

zuz are

mine,”

which I deposited.

And this one says: “The two hundred

zuz are

mine,”

which I deposited.

The bailee

gives this one a maneh and that one a maneh, and the remainder shall be left until Elijah comes

and says: Who is the depositor? But he is not required to give, because of the doubt, two hundred to this one and two hundred to that one.

Rabbi Yosei said: If so—

that you give each one a maneh—

what has the swindler lost

when he has received everything that he deposited, and he will never admit the truth!?

Rather, everything shall be left until Elijah comes,

for then the swindler will lose the maneh that he has, and in the end he will admit.

And likewise,

two people who deposited

two vessels, one worth a maneh and one worth a thousand zuz.

This one says: “The valuable one is mine,” and

also

this one says: “The valuable one is mine.”

He gives the small one to one of them, and from the large one,

after breaking it,

he gives the value of the small one to the second; and the remainder shall be left until Elijah comes.

Rabbi Yosei said: If so, what has the swindler lost!?

Rather, everything shall be left until Elijah comes.

Gemara:

We learned in the Mishna: If he said to two, “I stole a maneh from one of you, but I do not know which of you”; or, “The father of one of you deposited a maneh with me, but I do not know which one he is,” he gives this one a maneh and that one a maneh:

Apparently,

it is proven from our Mishna—“he said to two, ‘I stole ...,’ he gives this one a maneh and that one a maneh”—that when one claims, while the other does not know whether he owes him or his fellow, then

because of the doubt

we take money out [of the defendant]

[we take money from the defendant because of the doubt],

and we do not say:

“Establish the money in the possession of its owner

[establish the money in the possession of its owner]”!

And it raises a contradiction

from the law of the deposit stated later in our Mishna:

“Two people who deposited with one person: this one a maneh and this one two hundred; this one says, ‘The two hundred are mine,’ and this one says, ‘The two hundred are mine’; he gives this one a maneh and that one a maneh, and the remainder shall be left until Elijah comes;”

and we do not say: Let him give each one two hundred. It is proven that in such a case we say: “Establish the money in its presumptive possession,” and this contradicts the first clause and the latter clause!? That is, what is different about a deposit from theft, so that in theft we say, “He gives this one and that one,” whereas with a deposit we say, “It shall be left until Elijah comes”!?

He said to him

And is it so that

you raise a deposit against theft

[you raise a difficulty from the law of deposit against the law of theft]!? Yet there is a major distinction between them:

In theft, he committed

the thief

a transgression;

therefore, although according to the law he should not have had to give anything at all, but it should have been left until Elijah comes, because because of doubt we do not take money out, nevertheless

the Sages fined him

to give each one a maneh, in order to emerge from the doubt.

But

in a deposit, where he did not commit

the bailee

a transgression, the Sages did not fine him,

but established him according to Torah law, so that he should pay each one only a maneh, which he certainly owes them, whereas the remainder shall be left until Elijah comes and clarifies our doubts.

And

still

he raises a deposit against a deposit

[and there is still a difficulty from the law of deposit against the law of deposit], and still

he raises theft against theft

[and also from the law of theft against the law of theft], [and it is not possible to answer according to the distinction made by the Gemara]!

At first the Gemara explains the question from deposit against deposit and resolves it, and then the Gemara again explains the question from theft against theft and resolves it!

He raises

deposit against deposit:

For it teaches in the first clause

of our Mishna:

“Or, the father of one of you deposited a maneh with me, but I do not know which one of them; he gives this one a maneh and that one a maneh.”

And it raises a contradiction

from the law of deposit in the latter clause:

“Two people who deposited

with one person: this one a maneh and this one two hundred; this one says, ‘The two hundred are mine,’ and this one says, ‘The two hundred are mine’; he gives this one a maneh and that one a maneh, and the remainder shall be left until Elijah comes”!?

Rava said:

There is no difficulty, deposit against deposit, because:

The first clause,

which deals with one depositor who deposited with him, except that he does not remember who the depositor is,

is made

the bailee

like one to whom they deposited

two people, this one a maneh and this one two hundred,

in two bundles

[in two separate pockets],

for he ought to have investigated

[he ought to have investigated and paid attention to who deposited the two hundred with him], and here too he ought to have remembered who deposited this with him.

Whereas

the latter clause,

which deals with two people who deposited with him, this one a maneh and the second two hundred,

is made like one to whom they deposited

those two people, this one a maneh and this one two hundred, and they placed them

in one bundle, for he did not have to investigate

[it is not incumbent upon him to know who owns the maneh and who owns the two hundred]—

for the latter clause deals with

a case where both deposited together at one time

[a case where both deposited at the same time, in one another’s presence]!

And because

he said to them

the depositors:

“You yourselves do not take care with respect to one another”

[you do not take care and guard yourselves from one another], and is it so that

I should take care

[is it incumbent upon me to take care]!?

That is: I saw that you were not concerned lest in the end the owner of the maneh—who sees his fellow depositing two hundred—should say, “I am the one who deposited two hundred,” for you trust one another; and if so, was it incumbent upon me to be concerned lest one of them lie? Therefore I did not investigate, and because of the doubt I will not give, for “establish the money in its presumptive possession.”

And

still

I raise a contradiction concerning robbery from [a case of] robbery:

For

it is taught here

in our Mishna: “

He said to two: ‘I robbed one of you of a maneh, and I do not know which of you; or

the father of one of you deposited a maneh with me, and I do not know which one; he gives this one a maneh and that one a maneh!’”

And we raise a contradiction

from the Mishna in Yevamot [118b], in which we learned:

If he robbed one of five, and he does not know from which of them he robbed, and this one says: “

He robbed me,”

and this one says, “He robbed me,”

he

places the robbed property among them

of the two

and withdraws; these are the words of Rabbi Tarfon. [Rabbi Akiva says: This is not a way of removing oneself from sin, until he pays each and every one].

It is thus evident,

for it is proven

that according to Rabbi Tarfon

we do not extract money on account of uncertainty,

and we say: “

We leave the money in the possession of its owner”!?

The Gemara explains the question: For in the Mishna in Yevamot this law was taught in the name of Rabbi Tarfon,

and from where [do we know that]

even

the Mishna here is [the opinion of] Rabbi Tarfon—that you raise a difficulty from our Mishna against that beraita!?

We explain: Because

it is taught

in the beraita

above that

that very

Mishna, with a law like that of our Mishna; for it is taught there:

“Rabbi Tarfon concedes, in the case of one who says to two: ‘I robbed one of you of a maneh, and I do not know which of you,’ that he gives this one a maneh and that one a maneh!”

And we answer:

There,

in the Mishna in Yevamot—in a case

where they are suing him [that they sue him], that is: he is interested only in being legally exempt from their claims, and he does not wish to fulfill his obligation before Heaven; and indeed, we have no grounds to obligate him by law to give to both of them.

But

here—

in our Mishna, and in the beraita concerning the Mishna in Yevamot—

he comes to fulfill his obligation before Heaven,

and he does not fulfill his obligation before Heaven until he gives to each and every one, for if the robbed property remains deposited until Elijah comes, it follows that the person robbed loses on his account.

and he has not fulfilled his obligation before Heaven until he gives each and every one of them what is due to him. For if the stolen property were left there until Elijah comes and clarifies the matter, the person who was robbed would suffer a loss because of him.

The Gemara supports this answer:

It is also precise

as we explained the reason for our Mishna,

for

this

is taught

in our Mishna as the reason for his obligation to each and every one: “

because he admitted on his own”—

learn from it!

The Master said:

There—

in the Mishna in Yevamot, where we learned, concerning one who robbed one of five and does not know from whom he robbed, that he places the robbed property among them and withdraws—

where they are suing him [the persons robbed]! And we explain:

And the other—

the robber—

what does he claim

to each one? And the amoraim disagreed in the name of Rav concerning this:

Rav Yehuda said in the name of Rav:

Even if

the other remains silent.

the other remains silent.