Bava Metzia 3a — the Talmud in English

And one can say: It is entirely his, and one can say: It is entirely his;

rather, either all of it belongs to one of them or all of it belongs to the other—and logically, in such a case one should require an oath, since, as only one of them is telling the truth, if we require an oath, it is possible that the liar among them will recoil from taking the oath and admit the truth to the other —and even so, in this case as well,

Sumakhos said: Property subject to doubt is divided without an oath—

This is a kal va-chomer:

here

[in the case of two people holding a cloak], although there is logical grounds to require them to take an oath, as we said above, because

there is no derara de-mamona,

as without their claims there is no doubt before us—

nevertheless, on the other hand, logic dictates that they should not be required to take an oath, because

it is possible that it belongs to both of them,

as it is possible that the cloak truly belongs to both of them. And this can be derived by means of a kal va-chomer: If, in the case of one who exchanges a cow for a donkey, where it is clear that the offspring cannot belong to both of them, and there is logical grounds to require an oath in order to deter the liar—and nevertheless Sumakhos said that they divide the property without an oath—then, in a case where it is possible that the cloak truly belongs to both of them,

is it not all the more so

that they should divide it without an oath?

If so, the question returns: Our Mishna cannot follow Sumakhos, who maintains that property subject to doubt is divided without an oath, since in our Mishna the Sages required an oath.

And we answer:

Even if you say that it is the opinion of Sumakhos—

it is possible to say that our Mishna follows even the opinion of Sumakhos. Although according to him all property subject to doubt is divided without an oath, here an oath is required because

this oath is a rabbinic enactment, that of Rabbi Yoḥanan.

For Rabbi Yoḥanan said: This oath

that the Sages required in the case of two people holding a cloak—

is a rabbinic enactment,

and the reason for the oath is so that

each person will not go and seize another’s cloak and say, “It is mine!”

The Gemara now discusses what we learned in the Mishna below (37a): If two people deposited money with another person—one deposited one hundred dinars with him, and the other deposited two hundred—and afterward each of them claims that he is the one who deposited the two hundred—

The opinion of the first tanna is that the bailee gives each of them one hundred, since one hundred dinars were certainly deposited by each of them, while the remaining one hundred, concerning which we do not know which of them deposited it, is to remain until Elijah comes. Rabbi Yosei challenges this: If so, what has the dishonest party lost? After all, he receives the one hundred that he deposited. Therefore, Rabbi Yosei maintains that the dishonest party should be penalized by having all the money remain until Elijah comes, at which point the dishonest party will lose his money—

And the Gemara discusses this:

Shall we say that our Mishna,

the Mishna that says that two people holding a cloak divide it, is apparently

not in accordance with Rabbi Yosei —

For if it is in accordance with Rabbi Yosei, he said: “If so, what has the dishonest party lost? Rather, everything should remain until Elijah comes.”

Since Rabbi Yosei maintains that the dishonest party should be penalized by having everything remain until Elijah comes, so too, in the case of two people holding a cloak, we should leave the entire cloak until Elijah comes, so that the dishonest party will suffer a loss.

And we challenge this:

Rather, what are you saying?

What do you wish to say—that our Mishna follows the opinion of

the Rabbis

? But our Mishna cannot follow even the opinion of the Rabbis, who disagree with Rabbi Yosei—

since the Rabbis say: “The remainder shall remain until Elijah comes,”

for the view of the Rabbis is that the one hundred concerning which there is a doubt should remain until Elijah comes—

this, too, is like the remainder, as it is a matter of doubt.

This cloak, concerning which we are deliberating in our Mishna, is similar to that doubtful one hundred, since the entire cloak is subject to doubt; and with regard to property subject to doubt, even the Rabbis agree that it should remain until Elijah comes, whereas our Mishna states that they divide it.

And we answer:

What is this!

Although it is impossible to establish our Mishna according to Rabbi Yosei, it is possible to establish it according to the Rabbis! For—

If you say that it is the opinion of the Rabbis,

if we say that our Mishna follows the opinion of the Rabbis, it is well understood that specifically

there,

in the case of two people who deposited one hundred and two hundred respectively, the Rabbis said that the doubtful money should remain until Elijah comes, because

it is certainly the one hundred of one of them,

as the third hundred, which is subject to doubt, certainly belongs only to one of them. Therefore

the Rabbis say that it should remain until Elijah comes,

because an item that certainly belongs to only one of them should not be divided. But

here,

in the case of two people holding a cloak,

where it is possible that it belongs to both of them,

as it is possible that the cloak truly belongs to both of them, in this case

the Rabbis say that they divide it with an oath.

The Rabbis agree that they divide it by means of an oath.

But if you say that it is the opinion of Rabbi Yosei,

if you wish to say that our Mishna follows even the opinion of Rabbi Yosei, this is impossible! For—

Now,

in the case of two people who deposited money,

where there is certainly one hundred for one and one hundred for the other,

as it is clear that each of them deposited at least one hundred dinars, nevertheless

Rabbi Yosei said

that everything

should remain until Elijah comes,

and even the money that certainly belongs to them should not be given to them [so that the dishonest party will suffer a loss].

If so,

here,

in the case of two people holding a cloak,

where it is possible that it belongs to only one of them,

as it is possible that the cloak belongs only to one of them,

is it not all the more so

that the cloak should remain until Elijah comes?

For if, with regard to property that is not subject to doubt, Rabbi Yosei said that it should remain in order that the dishonest party suffer a loss, then by means of a kal va-chomer, property that is itself subject to doubt should remain until Elijah comes.

And we answer:

Even if you say that it is the opinion of Rabbi Yosei,

it is possible to say that our Mishna follows even the opinion of Rabbi Yosei! For specifically

there,

in the case of two people who deposited one hundred and two hundred respectively, Rabbi Yosei said that everything should remain until Elijah comes because

there is certainly a dishonest party.

Since one of them is certainly dishonest, Rabbi Yosei penalizes the dishonest party so that he will not receive even his own share—

But

here,

in the case of two people holding a cloak,

who says that there is a dishonest party!?

It is possible that there is no dishonest party here at all, because

perhaps both of them lifted it simultaneously.

It is possible that both lifted the cloak at the same time, and each thinks that he lifted it first; therefore each claims, “It is all mine,” and there is no dishonest party here at all!

Alternatively,

there is another way to distinguish the cases: Specifically

there,

in the case of two people who deposited money,

Rabbi Yosei penalizes the dishonest party.

The reason for the penalty is

so that he will admit,

so that the dishonest party will confess. But

here,

in the case of two people holding a cloak, there is no reason to impose a penalty, since even if we penalize them by having the cloak remain until Elijah comes, the dishonest party will not confess, because

what loss does he suffer that would induce him to confess!?

He suffers no loss whatsoever by the cloak remaining, since the cloak was never his in the first place. This is unlike the case of two people who deposited money, where, if the dishonest party does not confess, he will lose the one hundred that he deposited.

And we challenge this:

That works for a lost object

—the reasoning you stated, that even if we leave the cloak in place there is no penalty to the dishonest party because he loses nothing, applies only to the case of two people holding a cloak that they found. There, even if the dishonest party receives nothing, this is not a monetary loss but merely the loss of the opportunity to benefit from the lost object. But in the case of

a sale, what can be said?

For it was explained above that the latter clause of the Mishna speaks of a case where each one claims, “I purchased the cloak,” and the Gemara explained above that both of them paid the seller. In this case, it would be possible to impose a penalty by having the cloak remain, so that the dishonest party would lose the money he gave the seller—

For this reason, the Gemara rejects the second distinction between our Mishna and Rabbi Yosei’s ruling.

Rather, it is clear, as we answered initially.

It is clear that the distinction is as the Gemara distinguished at first: Rabbi Yosei stated his ruling only in a case where there is certainly a dishonest party, whereas in our Mishna there is no certainty that there is a dishonest party.

And we challenge:

Whether according to the Rabbis or according to Rabbi Yosei, there, concerning the shopkeeper upon his ledger, for it teaches: This one swears and takes, and this one swears and takes—

It is explained in the Mishna [Shevuot 45a] that if the householder said to the shopkeeper: “Give my workers money [small coins] worth a sela for their wages, and I will pay you for them afterward,” and the shopkeeper claims that he indeed gave his worker the money as he was instructed, but the worker claims that he received nothing from the shopkeeper—the view of the first tanna is that the shopkeeper swears that he gave the worker the money, and once he swears, he takes the money from the householder, without witnesses and without proof; and likewise the worker swears that he did not receive it, and takes his wages from the householder, without witnesses and without proof.

What is different, that we do not say: “Let us take the money out from the householder, and let it remain deposited until Elijah comes,”

Why there do the worker and the shopkeeper swear and receive the money from the householder? After all, the position of the Rabbis and Rabbi Yosei is that when there is uncertainty concerning money, that money should remain deposited until Elijah comes. If so, the law should have been that the money is taken from the householder and left until Elijah comes — And this is not comparable to our Mishna, where they divide the cloak and do not say that it should remain deposited, for the reason that in our Mishna we do not say that it should remain deposited is that there is no certain deceiver; but here the situation is different,

for certainly there is a deceiver,

since one of them is certainly lying, because it is impossible that the shopkeeper gave the money and the workers did not receive it.

And we answer:

They said—

They said in answer:

There, this is the reason,

for that reason we do not say there that it should remain deposited:

For the shopkeeper says to the householder: “I am carrying out your agency!”

I fulfilled your instruction and gave the worker the money according to your command. And although he claims that he did not receive it, he has no power to exempt you from paying me, because:

“What do I have to do with the hired worker?”

After all, I am not his litigant, and

even though he swears to me, he is not trustworthy to me by means of an oath.

Even if he swears to me that he did not receive it from me, he is not trustworthy to me, since in my view he is wicked and is not trustworthy to me by an oath. If so, you must pay my claim.

Lest you say: After all, the Sages instituted that the hired worker swears and takes from you, and seemingly this is proof that the Sages believed the words of the hired worker through this oath?

The answer is: It is not because the Sages believed him concerning this that he swears and takes his wages. Rather,

“I made him trustworthy!”

You are the one who revealed through your own mind that he is trustworthy to you concerning his claim for his wages,

for you did not say to me

to give it to him

in the presence of witnesses!

You made him trustworthy to you concerning his claim for his wages from you by not telling me to give him the money in the presence of witnesses. It follows that he is trustworthy only with respect to you, and not with respect to [the shopkeeper].

And therefore you,

give it to him,

give him his money. But I should not have to suffer a loss because you trusted him, and since I paid the worker at your instruction, there is nothing that exempts you from paying; therefore the householder must pay the shopkeeper.

And the hired worker likewise,

for that reason he takes his wages from the householder, even though the shopkeeper swears that he gave them to him, and on the basis of this oath the shopkeeper is trustworthy to take the payment from the householder. For

he says

the hired worker

to the householder: “I worked for you;

I worked for you, and you became obligated to pay me for this. And since I claim that I did not receive my wages, you must pay me. And although the shopkeeper claims and swears that he paid me,

what do I have to do with the shopkeeper?

I do not believe him. And

even though he swears to me, he is not trustworthy to me.

Even if he swears that he gave it to me, he is not trustworthy to me, since I say that he is wicked and is not trustworthy by an oath.

Therefore, both of them swear and take from the householder.

And for that reason the law is that both of them swear and take from the householder.

The sugya of Rabbi Hiyya the first:

One who claims from his fellow a sum of money, and the latter admits to him a portion of the amount claimed, the defendant must swear that he owes no more than what he admits. [But one who denies everything is exempt from an oath].

This law is derived from what is stated in the verse [Exodus 22:8]: “Concerning every matter of transgression, concerning an ox, concerning a donkey, concerning a sheep, concerning a garment, concerning every lost item, of which he says that it is this.” And the Gemara in tractate Bava Kamma [106b] expounds and explains that what Scripture says, “that it is this,” comes to teach concerning one who admits a portion. And it is stated there in the verse: “The owner of the house shall draw near to the judges,” and its meaning is that he is obligated to swear.

And concerning this Rabbi Hiyya comes and innovates that this oath of one who admits a portion applies not specifically where the defendant admits a portion. Rather, even if the defendant denied everything, but witnesses came and testified that a portion of the claim was true, also in this case the defendant must swear as though he himself had admitted a portion. The reason of Rabbi Hiyya will be explained in the Gemara.

Rabbi Hiyya taught:

One who claims from his fellow and says:

“A maneh”

[one hundred zuz]

“is in your possession! And the other”

denies and

says: “You have nothing in my possession!”—

“And the witnesses testify concerning him that he has fifty zuz.”

There are witnesses testifying that the defendant indeed borrowed from the claimant, but the amount of the loan was only fifty zuz, and not one hundred as the lender claimed.

“He gives him fifty zuz,”

as the witnesses testified,

“and he shall swear concerning the remainder.”

Concerning the remaining fifty, which he denies, the defendant shall swear that he does not owe it to him—and the reason for this oath is:

“So that the admission of his mouth should not be greater than the testimony of witnesses, by means of a kal va-chomer!”

For where the defendant admits a portion of the claimant’s claim, the defendant must swear according to the law of one who admits a portion; all the more so where witnesses testified that a portion of the claimant’s claim is true, the defendant must swear. For if his admission, whose force is weak, obligates him to swear, all the more so witnesses, whose force is greater, should obligate him to swear. And below the Gemara will explain what the kal va-chomer is and why the testimony of witnesses is superior to the admission of his mouth.

And Rabbi Hiyya adds—

“And the tanna teaches this too,”

the tanna in our Mishna supports this law. For it is explained in our Mishna that

“two hold a cloak; this one says, ‘I found it’”

“and so on,”

and this one says, “I found it,” and they shall divide—

“But here,”

and in this case of “two hold a cloak,”

“since he is holding it,”

since each one of them is holding half the cloak,

“we are witnesses,”

behold, by virtue of this holding we are witnesses

“that whatever this one is holding is his,”

that the half which one of them is holding is his [according to the law that anything under a person’s hand is presumed to be his, for we are witnesses that the object is his, since it emerges from under his hand]

“and”

likewise, concerning the half that his fellow is holding, we are witnesses

“that whatever this one is holding is his,”

that this half is his—

It follows that against his claim, “It is all mine,” there is testimony that half belongs to his fellow—and this is exactly like Rabbi Hiyya’s words: the defendant denies everything [for he claims, “It is all mine,” and my fellow has no share in it], and witnesses testify that half of the claimant’s claim is true [for “we are witnesses” that half is his]—

“and it teaches: ‘He shall swear.’”

And it is explained in the Mishna that in this case he must swear, as Rabbi Hiyya said!

And we challenge:

What is the meaning of “so that the admission of his mouth should not be greater than the testimony of witnesses, by means of a kal va-chomer”?

Why did Rabbi Hiyya require a kal va-chomer to prove that the admission of his mouth is not superior to the testimony of witnesses [and just as with the admission of his mouth he swears, so too with the testimony of witnesses]? After all, on the basis of reason it is possible to compare the testimony of witnesses to the admission of his mouth even without a kal va-chomer: just as one who admits a portion must swear concerning what he denies, so too witnesses who testify concerning a portion of the claim obligate him to swear concerning the remainder.

And we answer:

“Lest you say”

that specifically with

“the admission of his mouth,”

when he admits a portion,

“the Merciful One imposed an oath upon him.”

Only there did the Torah obligate an oath, and the reason for the oath is

“as Rabbah said”—

“Why did the Torah say: ‘One who admits a portion of the claim shall swear’?”

After all, if he had denied everything, he would have been believed without an oath, since one who denies everything is exempt from an oath. If so, now that he admits a portion, let us believe him even without an oath through a migo — for if he is lying, he could have lied more and denied everything, thereby exempting himself from an oath.

And concerning this Rabbah answered that here there is no migo, because there is

a presumption

that

a person does not brazenly confront his creditor,

a person does not brazenly deny his debt before the creditor and say that the matter never occurred.