Bava Metzia 3a (ג.) — 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 raise an objection:

Both according to the Rabbis and according to Rabbi Yosei, there, in the case of the shopkeeper and his ledger, as it is taught: This one takes an oath and receives, and that one takes an oath and receives:

It is explained in the Mishna [Shevuot 45a] that if the homeowner said to the shopkeeper: “Give my workers money [small coins] equivalent to a sela for their wages, and I will pay you for it afterward,” and the shopkeeper claims that he indeed gave the money to the worker as instructed, while the worker claims that he received nothing from the shopkeeper—the opinion of the first tanna is that the shopkeeper takes an oath that he gave the money to the worker, and after taking the oath he collects the money from the homeowner, without witnesses or proof; and likewise, the worker takes an oath that he did not receive the money, and collects his wages from the homeowner, without witnesses or proof.

Why is this different, such that we do not say: “Let us remove the money from the homeowner, and let it remain deposited until Elijah comes,”

Why do the worker and the shopkeeper take an oath and receive the money from the homeowner? 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 be that the money is removed from the homeowner and left until Elijah comes — This is not analogous to our Mishna, where they divide the cloak and we do not say that it should remain deposited, since the reason we do not say in our Mishna that it should remain deposited is that there is no definite swindler. Here, however, the situation is different,

for there is certainly a swindler,

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

And we answer:

They said:

They said in response:

There, this is the reason

that we do not say there that the money should remain deposited:

The shopkeeper says to the homeowner: “I am acting as your agent!”

I fulfilled your instruction and gave the money to the worker as you directed. Although he claims that he did not receive it, he has no power to exempt you from paying me, because

what connection do I have with the hired worker!?

I am not his litigant, and

even though he takes an oath to me, I do not find him credible on the basis of an oath.

Even if he were to swear to me that he did not receive the money from me, he would not be credible to me, since in my view he is wicked and is not trustworthy to me on the basis of an oath. If so, you must pay my claim.

You might say: The Sages enacted that the hired worker takes an oath and collects his wages from you. Apparently, this proves that the Sages considered the worker’s words credible on the basis of this oath.

The answer is: It is not because the Sages considered him credible in this matter that he takes an oath and collects his wages. Rather,

“You made him credible to me!”

You were the one who demonstrated by your conduct that he is credible to you with regard to his claim for wages,

since you did not say to me

to give him the money

in the presence of witnesses!

You made him credible to you with regard to his claim for wages by not telling me to give him the money in the presence of witnesses. It follows that he is credible only with regard to you, and not with regard to me.

Therefore, you

give it to him,

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

And the hired worker as well,

this is why he collects his wages from the homeowner, even though the shopkeeper swears that he gave the money to him, and on the basis of that oath the shopkeeper is considered credible to collect payment from the homeowner. This is because

the hired worker says

the worker

to the homeowner: “I worked for you;

I worked for you, and you became obligated to pay me for it. 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 connection do I have with the shopkeeper?

I do not believe him! And

even though he takes an oath to me, I do not find him credible.

Even if he swears that he gave me the money, he is not credible to me, since I say that he is wicked and is not trustworthy on the basis of an oath.”

Therefore, both of them take an oath and collect from the homeowner.

And for this reason, the law is that both of them take an oath and collect from the homeowner.

The first teaching of Rabbi Hiyya:

If one claims a sum of money from another, and the latter admits to part of the claimed amount, the defendant must take an oath that he owes no more than the amount he admits. [But one who denies the entire claim is exempt from an oath].

This law is derived from 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.” The Gemara in tractate Bava Kamma [106b] expounds and explains that the words “that it is this” teach about one who admits to part of a claim. The verse there says, “The homeowner shall draw near to the judges,” which means that he is obligated to take an oath .

Rabbi Hiyya now introduces a novel ruling: This oath of one who admits to part of a claim applies not only where the defendant admits to part of the claim. Even if the defendant denies everything, but witnesses came and testified that part of the claim is true, the defendant must also take an oath, as though he himself had admitted to part of it. Rabbi Hiyya’s reasoning will be explained in the Gemara.

Rabbi Hiyya taught:

One who claims from another and says:

“A maneh

a hundred dinars

is owed to me by you!” And the other

denies this and

says: “You have nothing owed to you by me!”—

And witnesses testify that he owes him fifty dinars.

There are witnesses who testify that the defendant did indeed borrow money from the claimant, but that the amount of the loan was only fifty dinars, not one hundred as the lender claimed. —

He gives him fifty dinars,

as the witnesses testified,

and takes an oath concerning the remainder.

Concerning the remaining fifty dinars, which he denies, the defendant takes an oath that he does not owe them to him. The reason for this oath is:

So that his own admission should not be stronger than the testimony of witnesses, by means of a kal va-chomer!

For when the defendant admits to part of the claimant’s assertion, he must take an oath under the law of one who admits to part of a claim; all the more so, when witnesses testify that part of the claimant’s assertion is true, the defendant must take an oath. For if his own admission, whose force is weaker, obligates him to take an oath, all the more so witnesses, whose force is greater, should obligate him to take an oath. The Gemara below will explain what the kal va-chomer is and why the testimony of witnesses is stronger than his own admission.

Rabbi Hiyya adds—

And the tanna teaches this as well,

the tanna in our Mishna supports this ruling. For our Mishna establishes that

“Two are holding a cloak; one says, ‘I found it,’ [

and so on]

and the other says, “I found it,” they shall divide it”—

And here,

in this case of “two are holding”

since each is holding it,

since each one is holding half of the cloak,

we are witnesses

indeed, as a result of this physical possession, we are witnesses

that whatever this one is holding is his,

for the half that one of them is holding is his [as with anything in a person’s possession, concerning which we are witnesses that it belongs to him, since it is in his possession]

and

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

that whatever this one is holding is his,

that this half belongs to him—

It follows that, in opposition to his claim, “It is all mine,” there is testimony that half belongs to his fellow. This is exactly analogous to Rabbi Hiyya’s ruling: The defendant denies everything [for he claims that it is all his and that his fellow has no share in it], while witnesses testify that half of the claimant’s assertion is true [for “we are witnesses” that half belongs to him]—

and it teaches: “He must take an oath.”

Thus, the Mishna establishes that in this case he is obligated to take an oath, in accordance with Rabbi Hiyya’s ruling!

And we raise an objection:

What is the meaning of: “So that his own admission should not be stronger than the testimony of witnesses, by means of a kal va-chomer”?

Why did Rabbi Hiyya require a kal va-chomer to prove that his own admission is not stronger than the testimony of witnesses [and that just as he takes an oath in the case of his own admission, so too he takes an oath in the case of the testimony of witnesses]? It should be possible on logical grounds to compare the testimony of witnesses to his own admission even without a kal va-chomer: Just as one who admits to part of a claim must take an oath concerning what he denies, so too, when witnesses testify concerning part of the claim, he must take an oath concerning the remainder.

And we answer:

So that you should not say

that specifically in the case of

his own admission,

where he admits to part of the claim,

did the Merciful One impose an oath upon him.

Only there did the Torah obligate him to take an oath. The reason for the oath is

as Rabbah said, for Rabbah said—

“Why did the Torah say: One who admits to part of a claim must take an oath?”

If he had denied the entire claim, he would have been believed without an oath, since one who denies everything is exempt from an oath. If so, now that he admits to part of the claim, we should believe him even without an oath by means of a migo — for if he were lying, he could have lied more extensively, denied everything, and thereby exempted himself from an oath.

And on this Rabbah explained that there is no migo here, because there is

a presumption

that

a person does not show audacity before his creditor,

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