Bava Metzia 37b (לז:) — the Talmud in English

Rav Mattana said that Rav said: This one

cries out,

saying to each one, “I do not know you”!

And the Gemara explains:

The one who says: This one cries out, 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 if

this one remains silent,

because he reasons:

Silence in this case is not tantamount to admission,

because

he can say that

the robber

said to him: “The reason I remained silent to each and every one was that I said: Perhaps this is he” [the reason I remained silent to each one was that I truly do not know from whom I stole the two hundred, and perhaps he is indeed the one who was robbed].

The Master said:

If he robbed one of five people and does not know which one he robbed, and this one says, “He robbed me,” and that one says, “He robbed me,”

he places the stolen property between them and withdraws:

And we raise an objection:

And

does that mean

that all of them take it and leave [can each one take the stolen property and withdraw]!? The result would be that the robber removes the stolen property from his possession, and the person who was robbed thereby suffers a permanent loss.

But did Rabbi Abba bar Zavda not say that Rav said:

Anyone

who finds an object that is

possibly intentionally placed [possibly its owners intentionally left it there], such as an object with no identifying mark found beside a somewhat protected place, meaning a place where passersby do not come, and therefore there is reason to suspect that someone left it there:

Initially, he should not take it,

since its owner will not find it, while he cannot announce it, as it has no identifying mark [and all the more so in a case of definite intentional placement]—

And

nevertheless,

if he took it,

he may

no longer return it

to anyone who claims, “It is mine,” without providing an identifying mark, because perhaps it does not belong to him, and the owners may eventually come and bring witnesses that they left it there. Rather, he should keep it in his possession until Elijah comes.

We have therefore learned that when there is uncertainty regarding to whom an object belongs, it must remain in the possession of someone until it becomes clear to whom the object belongs. If so, how can the robber remove the object from his possession without it becoming clear to whom it belongs!?

He said—

he answered—

Rav Safra:

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 as to whom it belongs. And what they said, “and withdraws,” means that he withdraws from the legal proceedings: He should place the stolen property before them in court and say, “Clarify the matter as to whom it belongs, so that he may take it,”

and he should leave

the stolen property in his possession until Elijah comes.

Abaye

asked

Rava in astonishment:

Did Rabbi Akiva say:

If he robbed one of five people and does not know which one 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—

that frees him from the transgression until he pays the stolen property to each and every one.

Evidently,

it is proven that Rabbi Akiva maintains:

In a case of uncertainty, we remove money from the possessor, and we do not say, “Leave the money in the presumed possession of its owner” [in a case of uncertainty, we obligate him to pay money, and we do not leave the money in the presumed possession of its owner].

And we raise a contradiction

from a Mishna in Bava Batra:

If the house collapsed upon him and upon his mother,

and his mother had property, and it is unknown 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 son inherited her property, as he precedes all of the mother’s relatives, and we inherit from her son.”

And

if

the mother’s heirs say: “

The son

is the one who

died first,

and when his mother died, her son was no longer alive to inherit her,” and we acquired the property, as we are her heirs.”

Both these and those—

Beit Shammai and Beit Hillel —

agree that they divide

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

And Rabbi Akiva said: I agree—

that I am with Beit Shammai— and concerning the other cases of a collapsed house mentioned in the Mishnayot there, I maintain like Beit Shammai, that they divide—

in this case, the property remains in its presumptive status,

and there, in Bava Batra, the Gemara [158b] explains in whose presumptive possession it is.

He said—

he answered—

to him,

Rava to Abaye:

There—

in the Mishna in Bava Batra—

it is uncertainty and uncertainty: Each of the parties raising the uncertainty makes no definite claim, but only an uncertain one. Therefore, the property remains in its presumptive status.

But with regard to “

he robbed

one

of five

people,”

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

We nevertheless ask:

But what of our Mishna [and yet our Mishna], which we learned: “

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

and I do not know which one it is,”

and he does not know which one,

which is a case of uncertainty and uncertainty [the claimants and the defendant do not know whom he robbed], as the Gemara demonstrates later in the discussion—

and

nevertheless,

it teaches: He gives this one a maneh and that one a maneh. Thus, even in a case of uncertainty and uncertainty, we remove money from its owner’s presumptive possession, which presents a difficulty from our Mishna to the Mishna in Bava Batra. The Gemara explains the question from our Mishna:

And from where do you know that

our Mishna is also

Rabbi Akiva’s view, so that you can question the Mishna in Bava Batra, which is Rabbi Akiva’s view, from our Mishna!?

Because

it teaches

in a baraita

concerning that

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

Rabbi Tarfon agrees,

who maintains, in the case of one who robbed one of five people, that he does not give 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,”

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

And

to whom does

Rabbi Tarfon agree? Is it

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

The Gemara further explains:

And from where

do we know that our Mishna and that beraita of Yevamot,

perhaps and perhaps is so!?

First: for

this

does not teach “

they demand it from him.”

And furthermore: Rabbi Hiyya teaches explicitly

in a beraita: “Rabbi Tarfon concedes in the case of one who says to two people: ‘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 the contradiction between the Mishna in Bava Batra and our Mishna and the beraita of Yevamot:

We established it

as referring to our Mishna and to that beraita [we already established our Mishna and the beraita above, on the first side of the page]

as a case in which one seeks to fulfill his obligation before Heaven,

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

Here the Gemara returns to what Rava said above, on the first side of the page, explaining our Mishna—which obligates one to give to each claimant when one person deposited the money with him, but exempts him when two people deposited money with him [one deposited one hundred and the other two hundred]. The distinction is that when one person deposited the money, it is as though two people had deposited money with him in two separate bundles, one containing one hundred and the other two hundred. He should have investigated and taken note of which person had given him the two hundred, and when one person gave him the money, he should have investigated who the depositor was. Therefore, he must pay each one. But when two people gave him the money, the Mishna is dealing with a case in which both gave it to him in each other’s presence, and therefore he did not have to investigate which one had given him the two hundred.

To understand the Gemara’s difficulty as the Tosafot explain it here, one must first state the following:

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

B. We find Rabbi Akiva stating his ruling only with regard to robbery, where one committed a prohibition; and there we find that he obligates a person, when one party is certain and the other uncertain, to give to each one. But what is the ruling with regard to a deposit, where he did not commit a prohibition, according to Rabbi Akiva? We have not heard this.

C. Nevertheless, this ruling can be derived from the precise wording of our Mishna, which is also in accordance with Rabbi Akiva. Although our Mishna does not deal with a legal obligation, but with fulfilling one’s obligation before Heaven, and it also deals with a case of certainty on one side and uncertainty on the other, the point is as follows:

In the first clause, when one person deposited money with him, we learned in the Mishna: “The father of one of you” deposited it, and so on. The intention of the tanna—who spoke of a father who deposited the money and not of the depositor himself—is to say that this ruling applies specifically when the claimant does not assert certainty [as is the manner of the sons of the depositor, who cannot assert with certainty that their father made the deposit]. The inference from this is interpreted in one way according to Rabbi Tarfon [as our Mishna follows his view], and in another way according to Rabbi Akiva:

According to Rabbi Tarfon, the Mishna is saying: Even in a case of uncertainty on both sides, he is nevertheless obligated to fulfill his obligation before Heaven, in the case of the first clause, where he should have investigated.

According to Rabbi Akiva, the Mishna is saying: When we say that he is obligated because “he admitted on his own initiative,” this applies specifically because he is seeking to fulfill his obligation before Heaven; and this is specifically because we are dealing with a case of uncertainty on both sides. But if we were dealing with a case in which one party was certain and the other uncertain, then, according to Rabbi Akiva, he would be legally obligated to give to each one.

We have therefore learned that even with regard to a deposit, where one did not commit a prohibition, according to Rabbi Akiva, if one party were certain and the other uncertain, we would obligate him to give to each one. However, this inference, which is drawn from the first clause dealing with a case in which one person gave him the money, and where he should have investigated, teaches us only that with regard to a deposit, when he should have investigated, he is legally obligated according to Rabbi Akiva. But if he did not have to investigate, we have not learned that he would be legally obligated in a case of certainty on one side and uncertainty on the other, according to Rabbi Akiva. On the contrary, from the fact that in the second clause the tanna states that they themselves deposited the money, and not their father, it follows that the tanna intends to say—according to Rabbi Akiva—that even when they assert certainty, nevertheless, since they deposited the money in each other’s presence and he did not have to investigate, he is not obligated even to fulfill his obligation before Heaven, and certainly not by law.

According to the Tosafot’s interpretation, the following difficulty of the Gemara revolves around what is implied by our Mishna: that if one party were certain and the other uncertain, Rabbi Akiva would obligate him, even though he had not committed a prohibition, since he should have investigated.

He said

in astonishment

Ravina to Rav Ashi:

But did Rava say [

above, on the first side of the page]:

Anyone

to whom two people deposited money

in two separate bundles,

one one hundred and the other two hundred,

should have investigated!?

That is to say: According to Rava’s interpretation of the first clause of our Mishna—which also follows Rabbi Akiva—the interpretation is that since only one person deposited money with him, this is like a case in which two people deposited money with him in two separate bundles, and he should have investigated. We have learned:

Whenever he should have investigated, if the depositor had asserted certainty, he would then be legally obligated, according to Rabbi Akiva, to pay each one, and not merely because “he admitted on his own initiative” and in order to fulfill his obligation before Heaven. For the wording of the Mishna, which presents the case of “the father of one of you,” meaning that his sons are uncertain, implies that if the depositor himself were before us and presumably asserted certainty, the law would be that he is legally obligated, and not merely obligated to fulfill his obligation before Heaven, because he should have investigated.

But did Rava say, or, some say, Rav Pappa [

and some say that it was Rav Pappa who said it]:

Everyone—

Rabbi Tarfon and Rabbi Akiva—

concedes, in the case of two people who deposited animals with a shepherd,

one depositing one lamb and the other two, and one says with certainty: “The two are mine,” while the other also says with certainty: “The two are mine,”

that

as a matter of law—when he has not come to fulfill his obligation before Heaven—

the shepherd places between them

the second lamb

and withdraws,

and we do not say that he should pay each one, even according to Rabbi Akiva, who obligates one in the case of robbery to give to each one as a matter of law when one party is certain and the other uncertain. The reason [according to the Gemara’s understanding in its difficulty] is:

Rabbi Akiva disagreed and said that only in a case of certainty on one side and uncertainty on the other is one legally obligated to pay each one when the case involves robbery, where he committed a prohibition, but not with regard to a deposit, where he did not commit a prohibition—

It follows that even if he should have investigated and known who had deposited two animals with him and who had deposited one, he is nevertheless not obligated according to Rabbi Akiva. This contradicts what is precisely implied by our Mishna according to Rava’s own interpretation!?

He answered

him

Rav Ashi to Ravina:

There—

with regard to the shepherd—we are dealing

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

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

We learned in the Mishna:

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

one says: “The valuable one is mine,” and the other 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 other; and 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 teach us the dispute between the Sages and Rabbi Yosei both with regard to two people who deposited money, one depositing one hundred and the other two hundred, and with regard to two people who deposited utensils, one depositing a small one and the other a large one:

For if it had taught us

only

the first case [

only the first clause], which deals with the deposit of 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 resulting from this division];

but in this case—

with two utensils—

where there is the loss of the larger utensil [

for when Elijah comes, the owner of the larger utensil will be found to have suffered a loss through the breaking of the utensil],

say that they concede to him,

the Sages

to Rabbi Yosei,

that everything should remain until Elijah comes.

And if their dispute had been stated

in our Mishna only

in this case,

that is, with utensils, I would say: Only

in this case—

with utensils—

does Rabbi Yosei say

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

but in this case—

with money—

say that Rabbi Yosei concedes to them,

the Sages,

that

they give one hundred to this one and one hundred to that one, and the remainder shall remain until Elijah comes.

Therefore,

it is necessary

for our Mishna to teach us their dispute both with regard to money and with regard to utensils!