Bava Metzia 6a (ו.) — the Talmud in English

Rather,

if we say that one who is suspect with regard to money is suspect with regard to an oath, it is difficult:

that which Rav Naḥman said:

one who denies everything,

they administer to him the rabbinic oath of inducement,

by rabbinic ordinance.

But how can he take this oath? If you suspect him of lying, then he is suspect with regard to money, and

shall we not say: Since one who is suspect with regard to money is suspect with regard to an oath ? —

It is necessarily the case that even though he is suspect with regard to money, he is not suspect with regard to an oath [as will be explained below].

Furthermore,

there is an additional proof that one who is suspect with regard to money is not suspect with regard to an oath. If we do not say so, it is difficult:

that which Rabbi Ḥiyya taught,

what Rabbi Ḥiyya taught in a beraita, that if the householder said to the shopkeeper, “Give money to my workers, and I will reimburse you,” and the shopkeeper claims that he gave the money to the workers and demands that the householder reimburse him, while the workers claim that they received nothing from the shopkeeper and demand their wages from the householder—

both of them take an oath and collect from the householder!

But how can they take an oath? Since one of them is certainly lying, they are suspect with regard to money, and

shall we not say: Since one who is suspect with regard to money is suspect with regard to an oath!?

Rather, it is necessarily the case that one who is suspect with regard to money is not suspect with regard to an oath.

Furthermore,

there is an additional proof that one who is suspect with regard to money is not suspect with regard to an oath. If we do not say so, it is difficult:

that which Rav Sheshet said:

a bailee without payment who claims, “It was stolen” or “It was lost,” and thereby becomes liable to take the “oath of bailees,” does not take an oath only concerning his claim. Rather,

they administer three oaths to him.

These are the three oaths:

An oath that I was not negligent with regard to it.

For if he was negligent, he must pay. And even if he was not negligent, they administer to him

an oath that I did not send a hand into it—

for if he used the deposit, it thereby renders him like a robber, and in this case, even if the deposit was subsequently lost through circumstances beyond his control, he must pay. Therefore, although he takes an oath that he was not negligent with regard to it, he must also take an oath that he did not send a hand into it, so that he will not be liable for accidents beyond his control. In addition, he must take

an oath that it is not in my possession,

that the deposit is not in his possession, for although he has sworn that he was not negligent with regard to it and did not send a hand into it, it is still possible that the deposit is in his possession.

And if you suspect him that the deposit is in his possession and that he intends to steal it, how can he take an oath? You suspect him with regard to money, and

shall we not say: Since one who is suspect with regard to money is suspect with regard to an oath?

Rather,

it is proven from these three rulings that

we do not say: Since one who is suspect with regard to money is suspect with regard to an oath!

It was explained above that according to Rabbi Yoḥanan, the reason for the oath in our Mishna is that otherwise everyone would go and seize his fellow’s cloak and say, “It is mine.”

Abaye said:

We do not suspect that one person would seize another’s cloak without reason. Rather, the reason for the oath is that there is concern that perhaps one person rightfully seized the cloak from the other, for

we are concerned that he has an old loan against him.

It is possible that the owner of the cloak previously borrowed money from the one who seized it, but the lender cannot demand the money because a long time has passed since the loan and the borrower has forgotten about it. Therefore, he seizes the borrower’s cloak in order to collect his debt, as any lender may collect even from the garment worn by the borrower. For this reason, they administer an oath to him that he did in fact seize the cloak rightfully, and he collects half of it against the debt.

The Gemara raises an objection:

If so,

if there is no concern that he seized the cloak without reason, and we assume with certainty that the reason for his seizure is that the other owes him money, why must he take an oath:

Let him collect without an oath!

As is the law concerning any lender, who may collect the movable property of the borrower without an oath.

The Gemara answers:

Rather,

we do not assume with certainty that the borrower indeed lent money to the owner of the cloak. Rather,

we are concerned that perhaps he has an uncertain old loan against him.

It is possible that the one who seized the cloak is uncertain whether the owner of the cloak actually borrowed money from him, and he seized the cloak because of this uncertainty. Therefore, they obligated him to take an oath, to clarify that the owner of the cloak did indeed borrow money from him.

The Gemara raises an objection:

And

when

do we not say, “One who seizes property because of uncertainty will also take an oath because of uncertainty”!?

If the reason for the oath is the concern that the one who seized the cloak seized it because of uncertainty, it follows that this person is not deterred from seizing money from another because of uncertainty. If so, what benefit is there in the oath? Just as he seizes property because of uncertainty, one should likewise assume that he will take an oath because of uncertainty.

Rav Sheshet, son of Rav Idi, said: People refrain from taking an oath because of uncertainty, but they do not refrain from taking money because of uncertainty.

People refrain because of the uncertainty involved in an oath and do not take an oath because of uncertainty, whereas they are not deterred by uncertainty involving money; rather, they seize their fellow’s property because of uncertainty.

What is the reason?

Money can be returned.

Even if it ultimately becomes clear to him that he seized the money in error, he can still return the money to its owner. But

an oath cannot be returned.

If he takes an oath and it subsequently becomes clear that he was mistaken in his oath, it turns out that he swore falsely. Therefore, people do not take oaths because of uncertainty, even though they seize money because of uncertainty.

For this reason, the Rabbis instituted that the one who seized the cloak must take an oath, in order to clarify that he did not seize it because of uncertainty; if his entire seizure was motivated by uncertainty, he would be deterred and would not take the oath.

Now that the Gemara has explained the reason for dividing the cloak with an oath, the Gemara considers the parameters of seizure.

The passage before us is known as the passage of “the koen’s seizure,” because, among other matters, it deals with the right of the koen to seize an animal born as a doubtful firstborn and take it for himself.

Two principal subjects are clarified in this passage:

First, when there is uncertainty concerning ownership of an object, can one of the parties seize the entire object for himself, or not?

Second, to what extent is the right to seize disputed property sufficient to enable one to consecrate the property on the basis of uncertainty?

Rabbi Zeira raised a dilemma:

If

one of the two seized

the cloak

in our presence,

forcibly taking it from the other in the presence of the court, and now he alone has possession of it,

what is the law?

Is it the case that seizure in the presence of the court does not confer any validity upon the seizer’s possession, but rather both parties take an oath that they have a share in the cloak and divide it between them, as would have been the law had the seizure not occurred?

Or perhaps his seizure is effective even in the presence of the court, since he now alone possesses the cloak, and the other can no longer take an oath and collect his share; rather, he must bring witnesses’ proof that half of it belongs to him.

The Gemara analyzes Rabbi Zeira’s uncertainty:

What are the circumstances?

How did the one whose cloak was seized respond to the seizure?

If he was silent,

if he did not respond to the seizure but remained silent, then by doing so he

certainly acknowledged it to him

and conceded the seizure, indicating that he did not oppose it. Why, then, should the seizer’s possession of the cloak not be effective?

And if he is shouting

in protest against the seizure in the court, why is there any possibility that the seizure should benefit the seizer?

What else could he have done,

for the one whose cloak was seized had no other option but to protest the seizure. If so, why should the seizure be effective when carried out in the presence of the court!?

Therefore, the Gemara establishes the case as follows:

It is necessary to state that he was initially silent,

that at the moment of the seizure itself he remained silent,

and afterward

he

shouted,

protesting against the seizure. The uncertainty is:

What is the law?

Does

from the fact that he was silent

at the time of the seizure,

he certainly acknowledged it to him,

agreeing to the seizure and now being unable to make a claim against it?

Or perhaps,

perhaps we should say:

since he is now shouting,

since he is now protesting the seizure,

the matter is revealed,

the matter is retroactively clarified,

that the reason he was initially silent

was that he

thought: The Rabbis see it!

The judges of the court themselves saw the seizure, so why should I shout and protest against it, when it is clear to the judges that the other party is seizing it by force?

Rav Naḥman said: Come and hear:

Come and hear a proof to resolve the uncertainty, from what we learned in a beraita concerning the statement in our Mishna that when two people are holding a cloak, they divide it with an oath:

For it was taught:

When are these matters stated,

that they divide it with an oath? When

both are holding it.

But

if

a cloak emerges from beneath the hand of one of them—

the one who seeks to extract from the other bears the burden of proof!

Rav Naḥman analyzes the words of the beraita:

What are the circumstances?

In what manner is the beraita speaking?

If you say that it is as it teaches,

if we say that the language of the beraita is to be understood literally, that the cloak emerged from beneath the hand of one of them, this is impossible, for this ruling is

obvious

—that the one who seeks to extract from the other bears the burden of proof—and the beraita would not have needed to state it.

Rather, is it not

necessarily the case that the beraita is speaking of a situation in which both were holding the cloak, and afterward

one seized it in our presence,

while the other was silent at the time of the seizure and then shouted? The beraita comes to teach that his seizure is effective, leaving the cloak in his possession, since the other’s silence constitutes an admission of consent to the seizure. Therefore, the other must bring proof that he has a share in the cloak. If he does not bring proof, he cannot claim that he wishes to take an oath and divide it.

From here Rav Naḥman brings proof to resolve the uncertainty: Seizure is indeed effective when the other party was silent and shouted afterward, so that the entire cloak remains in the seizer’s possession.

The Gemara rejects this:

No!

There is no proof from the beraita for Rabbi Zeira’s uncertainty, because the beraita is speaking about a different case:

Here,

in this beraita,

what are we dealing with?

With

a case where they came,

where both of them came

before us,

before us,

when both of them were holding it,

when both of them were holding it,

and we said to them: Go and divide it!

Go and divide the cloak between yourselves.

And they left,

and they went out of the court,

and then he came again, when only one of them was holding it,

and they returned before us when only one of them was holding it. And this is what they now claim:

This one,

the one holding it,

said: He admitted to me, he admitted to me,

the other admitted to me that the entire cloak is mine, and therefore he stopped holding it.

And that one said,

and the other claimed:

I rented it to him for money!

I rented him half of the cloak in exchange for money, so that he could use the entire cloak [but he did not produce witnesses for this claim].

Therefore, the one holding the cloak is awarded the entire cloak, since

we say to him

the other:

Until now, you suspected him of being a robber,

until now you regarded him as suspected of robbery, since you claimed that the cloak was yours and not his,

and now you rented it to him without witnesses!?

And now you rented him your share of the cloak without witnesses!? Since you acted in this manner, this supports his claim that the entire cloak had been his, because a person does not rent out his cloak without witnesses to someone who had forcibly taken it from him.

Alternatively, if you wish,

the beraita can be understood

as it is taught,

as it is stated,

that they came before us when only one of them was holding it.

Only one of them came before us while holding the cloak with a complete grasp,

while the other

and the second

was merely clinging to it,

was “clinging” to it, holding onto it somewhat as he tried to seize and hold it, but he was not holding it in the same manner as the first one.

The novelty of the beraita is not according to the Rabbis, because according to them it is obvious that one who merely clings to the cloak without holding it has no claim to it. Rather, the novelty is this—

Even according to Sumakhos, who says, “Property that is subject

to uncertainty is divided

without the need for an oath,” here, the one clinging to the cloak cannot take even with an oath. For this is not property subject to uncertainty, because his clinging to the cloak does not create a state of uncertainty regarding his ownership. Therefore,

Sumakhos concedes

that the entire cloak belongs to the one holding it, since

the clinging

of the other one

is nothing!

Now, after the Gemara has rejected Rav Naḥman’s proof from the beraita, Rabbi Zeira’s question remains unresolved: When one person forcibly takes the cloak in our presence, and the other remains silent at the time of the taking and then protests, does the taking enable the one who took it to retain the cloak, or not?

The Gemara continues and explains how the matter is to be considered according to the two sides of the uncertainty:

If you say

according to the first side of Rabbi Zeira’s uncertainty, that if

one forcibly takes it in our presence

[even if the other remained silent and then protested]

we remove it from his possession,

because a forcible taking in the presence of the court is ineffective in changing the existing situation; rather, the court intervenes and restores the previous state, in which two people are holding the cloak—then it is obvious that if

one of them consecrated

the cloak, without forcibly taking it, the cloak

is not consecrated,

because transferring the cloak to the Most High through consecration cannot be more effective than forcibly taking the cloak for oneself.

According to this side of Rabbi Zeira’s question, it is obvious that his consecration does not take effect.

However,

if you say

according to the second side of Rabbi Zeira’s question, that if

one forcibly takes it in our presence, we do not remove it from his possession

[when the other remained silent and then protested], there is room for uncertainty:

If one of them consecrated

the cloak,

without forcibly taking it, what is the law?

The sides of the uncertainty are:

Since the master said,

“His declaration to the Most High is equivalent to his transfer to an ordinary person,”

then, with regard to consecrating the cloak,

it is considered as though he forcibly took it.

For the essence of “consecrating” an object is transferring it to consecration by declaring that it is consecrated; it is not necessary to physically transfer it to consecration, since the transfer is accomplished through the declaration alone. If he were actually to take the cloak by force and then consecrate it, his consecration would be effective. Accordingly, his declaration, which is considered a transfer to consecration, should be effective as though he had forcibly taken the cloak with his hands and transferred it to consecration. Just as we do not remove it from his possession after he forcibly takes it, so too, we do not remove it from the possession of consecration after he has “transferred” the cloak to consecration [through his declaration].

And there is no deficiency here of the object being “not in his possession,” which prevents the consecration of the cloak, since his right to take it forcibly [if the other remains silent and then protests] is sufficient to render the cloak as though it were in his possession.

Or perhaps, now, at least, he has not forcibly taken it,

and at present, before he consecrated it, the entire cloak is not in his possession, since he has still not forcibly taken it.

And it is written

[Leviticus 27], with regard to consecration:

“And when a person consecrates his house as sacred,”

and so on.

The verse’s mention of “his house” teaches that the possibility of consecrating an object exists only when its owner has complete ownership of it, as he has complete ownership of his house:

Just as his house

like a person’s house

is in his possession, so too every

object that a person consecrates must be

in his possession! This excludes this one, which is not in his possession.

That is, this verse excludes the possibility of consecrating an object that is “not in his possession.” Therefore, even when two people are holding a cloak, despite the right to take it forcibly that each one has, he cannot consecrate the entire cloak, because the entire cloak is not in his possession, since another person is holding its other half. Consequently, his consecration does not take effect, even as a matter of “uncertain consecration.” Rabbi Zeira therefore raised the question whether one should learn from the verse “when a person consecrates his house” that even in such a situation there is a deficiency of an object being “not in his possession.” Or perhaps, since each of them has the right to take it forcibly—a right that would leave the cloak in his possession if the other remained silent at the time of the taking and protested only afterward—and, conversely, the other has no robbery-acquisition in it, there is no deficiency here of an object being “not in his possession.” The Gemara brings proof from an incident that occurred involving two people who were not holding a cloak but were disputing ownership of a bathhouse, neither of whom was in possession of it. Rather, its law was “whoever is stronger prevails”—that is, on the one hand, neither had acquired it through robbery, while on the other hand, each had the right to take it forcibly, such that if he took it, we would not remove it from his possession.

The Gemara compares the law of two people holding a cloak to this law, as will be explained below in the Gemara at the conclusion of the discussion:

Ta shma,

come and hear how the halakha in this uncertainty can be resolved from another source: