Bava Metzia 37a (לז.) — the Talmud in English

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

that Rabbi Yosei disagreed

even in

the

first Mishna

of this chapter, namely, in the case of “he paid and did not wish to take an oath”: According to the first tanna, he acquires the double payment, whereas according to Rabbi Yosei, we say: How can it be that the bailee puts this depositor’s double payment into his own pocket?! 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 said to Rav Shmuel, his son: Indeed,

Rabbi Yosei disagreed even in the first case, and the halakha is in accordance with him even in the first case.

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

But

if

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

And we raise an objection: Is that so? In the case where

he paid, yes,

he indeed acquires the double payment, whereas

if he did not pay, no!?

But Rabbi Hiyya bar Abba said that Rabbi Yohanan himself said

:

“He did not

pay”

does not mean that he actually paid; rather, once he said:

“I will pay,”

even though

he had still

not paid,

he nevertheless acquired the double payment!?

And we answer:

Say

the following instead:

Rabbi Yosei agreed in the first case,

because

he had already said:

“I will pay.”

Mishna:

If he said to two people:

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

from

which of you.”

Or

if he said to two people:

“The father of one of you deposited a maneh with me, but I do not know which one”

[that is, the father of which of you deposited it with me]—

he

gives one maneh to this one and one maneh to that one,

since

he admitted on his own initiative,

as will be explained in the Gemara.

If two people deposited an item with one person, one

deposited

a maneh, and the other

deposited

two hundred

zuz with him; and when they came to take their deposits:

This one says: “The

two hundred

are mine,”

the zuz that I deposited.

And this one says: “The

two hundred

are mine,”

the zuz that I deposited.

The bailee

gives one maneh to this one and one maneh to that one, and the remainder shall be placed aside until Elijah comes

and says who the depositor is. But he is not required to give, on account of the uncertainty, 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,

since he has received all that was deposited, and he will never admit the truth!?

Rather, everything shall be placed aside until Elijah comes,

for then the swindler will lose the maneh that he has, and ultimately he will confess.

And likewise,

if two people deposited

two vessels, one worth one maneh and the other worth one thousand zuz.

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

also

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

He gives the smaller one to one of them, and from the larger one

after breaking it,

he gives the value of the smaller one to the other; and the remainder shall be placed aside until Elijah comes.

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

Rather, everything shall be placed aside until Elijah comes.

Gemara:

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

Apparently,

it is evident from our Mishna—“He said to two people: I stole …; he gives one maneh to this one and one maneh to that one”—that when one person makes a claim, while the other does not know whether he owes the money to him or to his fellow,

because of the uncertainty

we extract money

we take money from the defendant because of the uncertainty],

and we do not say:

“Leave the money in the possession of its owner”

[leave the money in the possession of its owner]!

And we raise a contradiction

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

“If two people deposited with one person, one a maneh and the other two hundred, and this one says, ‘The two hundred are mine,’ and that one says, ‘The two hundred are mine,’ he gives one maneh to this one and one maneh to that one, and the remainder shall be placed aside until Elijah comes;”

and we do not say that he should give two hundred to each one. It is therefore evident that in this situation we say: “Leave the money in its presumptive status,” and this contradicts the first clause and the latter clause! That is, what is different about theft from a deposit, such that in the case of theft we say, “He gives to this one and to that one,” whereas in the case of a deposit we say, “It shall be placed aside until Elijah comes”!?

He said to him

But do you

raise a contradiction from a deposit against theft

[are you raising a difficulty from the law of a deposit against the law of theft]!? There is a major distinction between them:

In the case of theft, the thief committed

the

transgression;

therefore, although by law he should not have to give anything, but rather it should be placed aside until Elijah comes, because we do not extract money on account of uncertainty, nevertheless

the Sages penalized him

by requiring him to give one maneh to each one, in order to remove the uncertainty.

But

in the case of a deposit, where the bailee did not commit

a

transgression, the Sages did not penalize him;

they left him subject to the Torah law, that he should pay each one only one maneh, which he certainly owes them, whereas the remainder shall be placed aside until Elijah comes and clarifies our uncertainties.

But

still,

a deposit is contradicted by a deposit

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

theft is contradicted by theft

[there is also a difficulty from the law of theft against the law of theft], and it is impossible to answer according to the distinction drawn by the Gemara!

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

It raises a contradiction from

a deposit against a 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; he gives one maneh to this one and one maneh to that one.”

And we raise a contradiction

from the law of a deposit in the latter clause: “

If two people deposited

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

Rava said:

The contradiction between one deposit and another is not difficult, for:

The first clause,

which deals with a single depositor who deposited with him, but he does not remember which person the depositor is,

becomes

the bailee

like one to whom two people deposited,

one a maneh and the other two hundred,

in two bundles

[in two separate pockets],

for he should have paid attention

[he should have taken care and noted who had deposited the two hundred with him]; here too, he should have remembered which person had deposited with him.

Whereas

the latter clause,

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

becomes like one to whom

those same two people deposited, one a maneh and the other two hundred, and gave them

in a single bundle, for he did not have to pay attention

[he was not required to know which was the owner of the maneh and which was the owner of the two hundred]—

for the latter clause deals with

a case where they both deposited with him simultaneously, at the same time

[meaning that they deposited at the same moment, in each other’s presence]!

And

because he said to them

the depositors:

“You yourselves do not take care regarding one another”

[you do not take precautions and distinguish yourselves from one another], and should

I take care

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

That is: I saw that you were not concerned that ultimately the owner of the maneh—who saw his fellow deposit two hundred—might say, “I am the one who deposited the two hundred,” since you trust one another. If so, was it my responsibility to be concerned that one of you might lie? Therefore, I did not take care, and because of the uncertainty I will not give the money, for “leave the money in its presumptive status.”

And

still

the difficulty of robbery is the same as the difficulty of robbery:

That

it is taught here

in our Mishna: “

He said to two people: I robbed one of you of a hundred dinars, but I do not know which of you, or

the father of one of you deposited a hundred dinars with me, but I do not know which one; he gives one a hundred dinars and the other a hundred dinars!

And we raise a contradiction

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

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

He robbed me,”

and that one says, “He robbed me,”

he

places the stolen property among them

of the two

and withdraws; these are the words of Rabbi Tarfon. [Rabbi Akiva says: This is not a way to remove oneself from wrongdoing; he must pay each and every one.]

Apparently,

Evidently,

for it is apparent that according to Rabbi Tarfon

we do not remove money from its presumed owner on the basis of uncertainty,

and we say: “

Leave the money in the possession of its owner”!?

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

and from where do you know that

even

the Mishna here is Rabbi Tarfon’s

that you raise a difficulty from our Mishna against that baraita!?

And we explain: It is because

it is taught

in the baraita

in addition to that

Mishna, with the same law as in our Mishna; for it is taught there:

“Rabbi Tarfon concedes that if he says to two people: I robbed one of you of a hundred dinars, but I do not know which of you, he gives one a hundred dinars and the other a hundred dinars!”

And we answer:

There

in the Mishna in Yevamot—in a case

where they are suing him [meaning, they are concerned only with being exempted by the court from their claim, and he does not wish to fulfill his obligation before Heaven; and indeed, we have no basis for obligating him by law to give both of them].

But

But

here

in our Mishna and in the baraita appended to the Mishna in Yevamot—he

comes to fulfill his obligation before Heaven,

and he does not fulfill his obligation before Heaven until he gives each and every one, for if the stolen property remains deposited until Elijah comes, the robbed party will have suffered a loss because of him.

The Gemara supports this resolution:

This too is precise

as we explained the reason for the ruling of our Mishna,

for

it

teaches

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

because he acknowledged it on his own initiative”—

learn from this!

The Master said:

There

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

where they are suing him

the robbed parties! And we explain:

And that one

the robber—

what does he claim

does he make to each one? The amoraim disputed this in the name of Rav:

Rav Yehuda said in the name of Rav:

Even

if the other remains silent.