Bava Metzia 37b — the Talmud in English

Rav Mattana said in the name of Rav: “This one” ![](pamud.bmp "

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shouted,

saying to each one: “I do not recognize you”!

And the Gemara explains:

The one who says: “This one shouted,” [holds that] but

if he remained silent, then he gives two hundred to each one, because

silence is tantamount to admission.

And

if

the one who says:

even

“this one remains silent,”

because he reasons:

The silence here is not tantamount to admission,

because

he can say

the robber

to him: “The reason I remained silent to each and every one was that I said: Perhaps this is he,” [that is,

the reason I remained silent to each one was that I truly do not know from whom I robbed two hundred, and perhaps he indeed is the one who was robbed].

The Master said:

One who robbed one of five, and does not know which of them he robbed, and this one says, “He robbed me,” and that one says, “He robbed me,”

places the stolen property between them and withdraws:

And we challenge this:

And

is it so that

all of them take it and go away [can each one of them take the stolen property and withdraw]!? It follows that the robber removes the stolen property from his possession, and through this the one who was robbed suffers a permanent loss.

то есть разве каждый из них сможет взять украденное и удалиться?! В таком случае грабитель вынесет украденное из своих рук, а ограбленный из-за этого навсегда понесёт ущерб].

But did Rabbi Abba bar Zavda not say in the name of Rav:

Anyone

who finds an object that is

possibly deliberately left [possibly its owners placed it there intentionally], such as one who finds an object without an identifying mark beside a somewhat guarded place, meaning a place where travelers do not come, and therefore it is uncertain: perhaps a person placed it there:

то есть неизвестно, оставили ли её владельцы там намеренно], например вещь без опознавательного знака, найденную возле места, которое в некоторой степени защищено, куда не заходят прохожие, и поэтому есть сомнение: возможно, человек намеренно оставил её там:

Initially, he should not take it,

the finder, since its owner will not find it, while he cannot announce it, for it has no identifying mark [and certainly in a case of definite deliberate placement]—

And

nevertheless,

if he took it,

then

he may not return it

to anyone who claims, “It is mine,” and does not provide an identifying mark, because perhaps it is not his, and the owners will eventually come and bring witnesses that they placed it there. Rather, he should leave it in his possession until Elijah comes.

We have therefore learned that if there is uncertainty whose it is, one must leave it in the possession of whoever has it until it becomes clear to whom the object belongs. If so, how does the robber remove the object from his possession without it becoming clear whose object it is!?

He said,

[and] Rav Safra

answered:

What we said—“He places the stolen property between them and withdraws”—does not mean that he removes it from his possession. Rather, the stolen property remains in his possession until the matter becomes clear to whom it belongs. And what they said, “and withdraws,” means that he withdraws from the legal proceeding and places the stolen property before them in the court, saying: Clarify the matter whose it is, so that he may take it;

and he should leave

the stolen property in his possession until Elijah comes.

He said,

[and] Abaye

challenged Rava:

Did Rabbi Akiva say:

One who robbed one of five and does not know which of them he robbed, and this one says, “He robbed me,” and that one says, “He robbed me,”

“This is not the way”—

that he should place the stolen property between them and withdraw—

[but] it removes him from the transgression until he pays the stolen property to each and every one.

Apparently,

it is demonstrated that Rabbi Akiva holds:

From uncertainty we remove money, and we do not say, “Leave the money in the possession of its owner.” [That is, because of the uncertainty, we obligate him to remove money, and we do not leave the money in the presumed possession of its owner.]

то есть при сомнении обязывают его вынести деньги из своего владения и не оставляют их за предполагаемым владельцем на основании его прежнего владения].

And he raises a contradiction from

a Mishna in Bava Batra:

If the house fell upon him and upon his mother,

and his mother had property, and it is not known which of them died first—

The son’s heirs—

his relatives on his father’s side, such as his paternal brothers—

say: “

The mother

is the one who

died first,

and her property was inherited by her son, who precedes all the mother’s relatives, and we are inheriting her son.”

And

if

the mother’s heirs say: “

The son

is the one who

died first,

and when his mother died, the son was no longer alive so that he could inherit her,” and we acquired the property, for we are her heirs.”

Both these and those—

the School of Shammai and the School of Hillel —

agree that they divide

the mother’s property between the son’s heirs and the mother’s heirs.

And Rabbi Akiva said: “I concede”—

that I am of the School of Shammai — and concerning the other collapses mentioned in the Mishnayot there, I hold like the School of Shammai, that they divide—

in this case, the property remains in its presumed possession,

and there, in the Gemara of Bava Batra [158b], it is explained in whose presumed possession it is.

He said,

[and]

to him

Rava answered Abaye:

There—

in the Mishna in Bava Batra—

it is uncertainty against uncertainty: Each of the parties to the uncertainty makes not a definite claim but an uncertain claim, and therefore the property remains in its presumed possession.

But concerning

“one who robbed

from

one of five

people,”

it is a definite claim and an uncertain claim: Each of the five says, “You robbed me,” while the person holding the money, who was the robber, does not know whom he robbed. Therefore Rabbi Akiva holds that he pays each and every one.

And we still challenge:

But the Mishna here [and is it not our Mishna] that we learned: “

He said to two people, ‘I robbed one of you of a maneh,’

He said to two people: ‘I robbed one of you of a maneh,’

but I do not know which one,”

for it is uncertainty against uncertainty [the claimants and the defendant do not know whom he robbed], as the Gemara proves later in the discussion—

то есть ни истцы, ни ответчик не знают, у кого именно он украл], как Гемара доказывает далее, —

and

nevertheless,

it teaches: ‘He gives this one a maneh and that one a maneh.’

It follows that even in a case of uncertainty against uncertainty, money is removed from its presumed owner, and our Mishna contradicts the Mishna in Bava Batra. And the Gemara explains the challenge from our Mishna:

And from where is it that

our Mishna is also

Rabbi Akiva’s,

that you raise a question from our Mishna against the Mishna in Bava Batra, which is Rabbi Akiva’s position!? Because

it teaches

in a beraita

concerning that

Mishna in Yevamot, regarding one who robbed one of five, in which Rabbi Tarfon and Rabbi Akiva disagreed whether he pays each and every one:

Rabbi Tarfon concedes,

who holds, concerning one who robbed one of five, that he does not give to each and every one,

when he says to two people: “

I robbed one of you of a maneh, but I do not know which of you,”

that he gives this one a maneh and that one a maneh—

And

to whom does he concede

Rabbi Tarfon—and is it not

to Rabbi Akiva, his disputant [is it not to Rabbi Akiva, his disputant]!? It follows that Rabbi Akiva holds even in a case of uncertainty against uncertainty that he gives to each and every one,

то есть разве не рабби Акиве, с которым он спорит?! Следовательно, рабби Акива считает, что даже в случае неопределённости обеих сторон он даёт каждому и каждому,

The Gemara further explains:

And from where is it

that our Mishna and that beraita of Yevamot

perhaps are the same!?

One:

this

does not teach

“they claim against him.”

And further: Rabbi Hiyya taught

explicitly in a beraita: “Rabbi Tarfon concedes in the case of one who says to two: I stole a hundred dinars from one of you,

this one says, ‘I do not know,’ and this

one says, ‘I do not know,’

that he gives one hundred dinars to this one and one hundred dinars to that one.”

And we answer concerning the contradiction between the Mishna in Bava Batra and our Mishna and the beraita of Yevamot:

We established it

with regard to our Mishna and that beraita [we already established our Mishna and the beraita, above on page one]

as referring to one who comes to fulfill the obligation before Heaven,

and therefore there is no longer a difficulty from the Mishna of Yevamot concerning “the house collapsed,” for the case there concerns only the legal ruling.

Here the Gemara returns to what Rava said above on page one, to explain our Mishna, which obligates him to give to each one when one person deposited with him, and exempts him when two deposited with him [this one one hundred and that one two hundred]. The distinction is because, when one person deposited with him, it is as though two deposited with him in two bundles, this one one hundred and that one two hundred; he should have examined carefully and taken to heart which one was the person who gave him the two hundred, and when the one hundred was given to him, he should have examined carefully who the depositor was. Therefore, he must pay each one. But when two gave it to him, the Mishna deals with a case in which both gave it to him in each other’s presence, and for that reason he did not have to examine carefully which one was the person who gave him the two hundred.

To understand the Gemara’s question, as the Tosafot explained it here, it is necessary to preface:

A. It is evident from the entire discussion of the Gemara above that our Mishna deals with one who comes to fulfill the obligation before Heaven, and with uncertainty and uncertainty; and the law of our Mishna applies both according to Rabbi Tarfon and according to Rabbi Akiva.

B. Now, we find Rabbi Akiva stating his law only with regard to robbery, in which he committed a prohibition, and in that case we find that he obligates one, in a case of certainty and uncertainty, to give to each one. But what is the law with regard to a deposit, in which he did not commit a prohibition—according to Rabbi Akiva? We have not heard this.

C. However, this law can be learned from the precision of the language of our Mishna, which is also according to Rabbi Akiva. Although our Mishna does not deal with an obligation by law, but with fulfilling the obligation before Heaven, and it too deals with certainty and uncertainty, the matter is as follows:

For in the first clause, when one person deposited with him, we learned in the Mishna: “the father of one of you” deposited, and the intention of the tanna—who spoke of a father who deposited, and not of the depositor himself—is to say that this law applies specifically when the claimant does not assert certainty [as is the manner of the sons of the depositor, who do not assert certainty concerning their father’s deposit]. This precision is interpreted according to Rabbi Tarfon [for our Mishna is also according to his view] in one way, and according to Rabbi Akiva in a second way:

According to Rabbi Tarfon, the Mishna comes to say: Even in a case of uncertainty and uncertainty, nevertheless he is obligated to fulfill the obligation before Heaven, in the circumstance of the first clause, where he should have examined carefully.

According to Rabbi Akiva the Mishna comes to say: This that we say that he is obligated because “he admitted on his own initiative”—that is specifically because he comes to fulfill the obligation before Heaven; this applies specifically because we are dealing with uncertainty and uncertainty. But if we were dealing with certainty and uncertainty, then he would be obligated to give by law, according to Rabbi Akiva.

We have therefore learned that even with regard to a deposit, in which he did not commit a prohibition, nevertheless according to Rabbi Akiva, had it been a case of certainty and uncertainty, we would obligate him to give to each one. However, this precision, which is derived from the first clause dealing with a case in which one person gave it to him, and he should have examined carefully, teaches us only that with regard to a deposit, when he should have examined carefully, he is obligated by law according to Rabbi Akiva. But if he did not have to examine carefully, we have not learned that he would be obligated in a case of certainty and uncertainty by law, according to Rabbi Akiva. On the contrary, from the fact that in the latter clause the tanna stated that they themselves deposited, and not their father, it follows that the tanna comes to say—according to Rabbi Akiva—that even when they assert certainty, nevertheless, since they deposited in each other’s presence and he did not have to examine carefully, he is not obligated even to fulfill the obligation before Heaven, and all the more so not by law.

The following question of the Gemara—according to the interpretation of the Tosafot—revolves around what is implied by our Mishna: had this been a case of certainty and uncertainty, Rabbi Akiva would have obligated him, even though he had not committed a prohibition, since he should have examined carefully.

He said

he raised a difficulty

to him, Ravina to Rav Ashi:

And did Rava say [

above on page one]:

Anyone

to whom two people deposited

in two bundles,

this one one hundred and that one two hundred,

should have examined carefully!?

That is to say: According to Rava’s interpretation of the first clause of our Mishna—which is also according to Rabbi Akiva—explaining that since only one person deposited with him, this is like a case in which two deposited with him in two bundles, and he should have examined carefully, we have learned:

Whenever he should have examined carefully, if the depositor asserted certainty, then he would be obligated to pay each one—according to Rabbi Akiva—by law, and not only because “he admitted on his own initiative” and in order to fulfill the obligation before Heaven. For the meaning of the language of the Mishna, which states the case of “the father of one of you,” namely, that his sons assert uncertainty, implies: Had the depositor himself been before us, and presumably asserted certainty, then the law would be that he is obligated by law and not only to fulfill the obligation before Heaven, because he should have examined carefully.

But Rava said, and some say Rav Pappa [

and some say that Rav Pappa said it]:

All—

Rabbi Tarfon and Rabbi Akiva—

agree, in the case of two who deposited with a shepherd

this one one lamb and that one two, this one says with certainty: “The two are mine,” and this one too says with certainty: “The two are mine,”

that

by the strict law—when he does not come to fulfill the obligation before Heaven—

the shepherd places between them

the second lamb

and withdraws,

and we do not say: He should pay each one, even according to Rabbi Akiva, who obligates one in the case of robbery to give to each one by law in a case of certainty and uncertainty. And the reason [according to the Gemara’s understanding in its question] is:

Because Rabbi Akiva disagreed and said that only in a case of certainty and uncertainty is he obligated by law to pay each one when it concerns robbery, in which he committed a prohibition, but not with regard to a deposit, in which he did not commit a prohibition—

it follows: Even if he should have examined carefully and known who deposited two with him and who deposited one, nevertheless he is not obligated according to Rabbi Akiva, and this is unlike what is precisely implied from our Mishna according to Rava’s own interpretation!?

He answered

him,

Rav Ashi to Ravina:

There—

with regard to a shepherd—we are dealing

with a case in which they deposited in the shepherd’s flock without his knowledge,

that is to say, without the shepherd seeing it, and therefore he did not have to examine carefully.

We learned in the Mishna:

And likewise, in the case of two vessels, one worth one hundred dinars and one worth one thousand zuz,

this one says: “The valuable one is mine,” and that one says: “The valuable one is mine,” he gives the smaller one to one of them, and from the larger one he gives the value of the smaller one to the second. The remainder shall remain until Elijah comes. Rabbi Yosei said: If so, what has the swindler lost!? Rather, everything shall remain until Elijah comes:

And it is necessary

for our Mishna to inform us of the dispute between the Sages and Rabbi Yosei both in the case of two who deposited money, this one one hundred and that one two hundred, and in the case of two who deposited vessels, this one small and that one large:

For if it had taught us

our Mishna only

this first one [

only the first clause], which deals with depositing money, I would say: Only

in that case—

with money—is it that

the Sages say

that they give one hundred to this one and one hundred to that one,

because there is no loss [

there is no loss through this division];

but in this case—

with two vessels—

where there is the loss of the larger one [

when Elijah comes, it will be found that the owner of the larger vessel suffered a loss through the breaking of the vessel],

say that they concede to him,

the Sages

to Rabbi Yosei,

that everything should remain until Elijah comes.

And if it was stated

in our Mishna that their dispute applies only

in this case,

namely, with vessels, I would say: Only

in this case—

with vessels—

does Rabbi Yosei say

that everything should remain until Elijah comes, because of the loss of the vessel;

but in this case—

with money—

say that Rabbi Yosei concedes to them,

the Sages

to the Sages,

that he should give one hundred to this one and one hundred to that one, and the remainder should remain until Elijah comes.

Therefore

it is necessary

for our Mishna to inform us of their dispute both with regard to money and with regard to vessels!