Bava Metzia 6a — the Talmud in English

Rather,

if it is said that one who is suspected concerning money is suspected concerning an oath, it is difficult:

this that Rav Naḥman said:

one who denies everything,

they administer to him the oath of heset,

by rabbinic enactment.

And how does he swear? If you suspect him that he is lying, then he is suspected concerning money, and

let us say: since one who is suspected concerning money is suspected concerning an oath ? —

And necessarily, even though he is suspected concerning money, he is not suspected concerning an oath [as follows].

Furthermore,

another proof must be brought that one who is suspected concerning money is not suspected concerning an oath, for if this is not said, it is difficult:

this that 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 pay you,” and the shopkeeper claims that he gave it to the workers and demands that the householder pay him, while the workers claim that they received nothing from the shopkeeper and demand their wages from the householder—

both of them swear and collect from the householder!

And how do they swear? Since one of them is certainly lying, they are suspected concerning money, and

let us say: since one who is suspected concerning money is suspected concerning an oath!?

Rather, necessarily, one who is suspected concerning money is not suspected concerning an oath.

Furthermore,

another proof must be brought that one who is suspected concerning money is not suspected concerning an oath, for if this is not said, it is difficult:

this that Rav Sheshet said:

A gratuitous bailee who claims, “It was stolen” or “It was lost,” and becomes liable through the “oath of the bailees,” does not swear only concerning his claim; rather,

they administer three oaths to him.

And these are the three oaths:

an oath that I was not negligent with it.

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

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

for if he sent his hand into it and used the deposit, he thereby became like a robber, and in this case, even if afterward the deposit was destroyed through circumstances beyond his control, he must pay. Therefore, although he swore that he was not negligent with it, he must swear that he did not send his hand into it, and he is not liable for unavoidable accidents. Besides this, he must swear

an oath that it is not in my possession,

that the deposit is not in his possession, for even though he swore that he was not negligent with it and that he did not send his hand into it, it is still possible that the deposit is under his control—

And if you suspect him that the deposit is in his possession and that he intends to steal it, how does he swear? Since you suspect him concerning money, and

let us say: since one who is suspected concerning money is suspected concerning an oath?

Rather,

it is proven from these three laws that

we do not say: since one who is suspected concerning money is suspected concerning an oath!

It was explained above that according to Rabbi Yoḥanan, the reason for the oath in our Mishna is that everyone should not go and seize his fellow’s cloak and say, “It is mine”—

Abaye said:

We do not suspect that one would seize his fellow’s cloak without a reason. Rather, the reason for the oath is that there is concern that perhaps one seized the cloak from the other lawfully, for

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

It is possible that the owner of the cloak previously borrowed money from the seizer, and the lender cannot demand the money because a long time has passed since the loan and the borrower forgot about the loan. Therefore, he seizes his cloak in order to collect his debt, as any lender may collect even from the garment upon the borrower. For this reason, they administer an oath to him that he indeed seized the cloak lawfully, and he takes half for his debt.

And we challenge this:

If so,

if there is no concern that he seized the cloak without a reason, and we certainly attribute the reason for his seizure to the fact that the other owes him money, why must he swear

let him take it without an oath!

As is the law regarding any lender, who takes the movable property of the borrower without an oath.

And we answer:

Rather,

we do not certainly attribute it to the fact that the borrower 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 seizer is uncertain whether the owner of the cloak indeed borrowed from him, and because of the uncertainty he seizes his cloak. Therefore, they made him liable to swear, in order to clarify that the owner of the cloak indeed borrowed money from him.

And we challenge this:

And

if

we do not say, “One who seizes property because of uncertainty also swears because of uncertainty”!?

If the reason for the oath is that there is concern that the seizer seized the cloak out of uncertainty, it follows that this person is not deterred from seizing his fellow’s property because of uncertainty. If so, what benefit does the oath provide? Just as he seizes property because of uncertainty, so too it should be assumed that he will swear because of uncertainty.

Rav Sheshet, son of Rav Idi, said: People refrain because of an uncertain oath, but they do not refrain because of uncertain property.

People refrain because of the uncertainty of an oath and do not swear because of uncertainty, whereas concerning uncertain property they are not deterred; rather, they seize their fellow’s property because of uncertainty.

What is the reason?

Property can be returned.

Even if it ultimately becomes clear to him that he seized it mistakenly, he can still return the property to its owners. But

an oath cannot be returned.

If he swears and afterward it becomes clear that he erred in his oath, it turns out that he swore falsely. Therefore, people do not swear because of uncertainty, even though they seize property because of uncertainty.

And for this reason the Sages instituted that the seizer should swear, in order to clarify that he is not seizing because of uncertainty; if his entire seizure is because of uncertainty, he will be deterred and will not swear.

And now, after 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 called the passage of “the priest seized it,” since, among other matters, it concerns the right of the priest to seize an animal born as a doubtful firstborn and take it for himself.

Two principal subjects are clarified in this passage:

The first: whether, in a situation of uncertainty concerning ownership of an object, one of the parties can seize the entire object for himself or not.

The second: to what extent the right of seizure of disputed property enables one to consecrate the property because of the uncertainty.

Rabbi Zeira raised a problem:

If

one seized it

from the two holding the cloak

before us,

and forcibly removed it from the other’s possession in the presence of the court, so that now only he is holding it,

what is the law?

Does seizure in the presence of the court give no force to the seizer’s seizure, so that they both swear that they have a share in the cloak and divide it between them, as the law would have been had the seizure not occurred?

Or perhaps his seizure is effective even in the presence of the court, since now he alone is holding the cloak; therefore, the other can no longer swear and take his share, but must bring proof by witnesses that half of it belongs to him.

And the Gemara discusses Rabbi Zeira’s uncertainty:

What are the circumstances?

How did the one from whom it was seized respond to the seizer’s seizure?

If he was silent,

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

he acknowledged it to him,

he admitted his seizure, in that he did not oppose it; why, then, should the seizer’s seizure of the cloak not be effective?

And if he was shouting

against the seizure in the court, why is there a side to say that the seizure benefits the seizer? After all,

what could he have done

There was no other option for the one from whom it was seized except to protest against the seizure. If so, why should the seizure be effective in the presence of the court!?

Therefore, the Gemara establishes it as follows:

It is necessary [to state this] in a case where he was initially silent,

where he was silent at the very time of the seizure,

and afterward

he

shouted,

protesting against the seizure. And the uncertainty is:

What is the law?

Does

from the fact that he was silent

at the time of the seizure

he acknowledged it to him,

agreeing to the seizure, so that he can no longer make a claim against it?

Or perhaps,

perhaps it may be said:

since he is now shouting,

since he is now protesting against the seizure,

the matter has been revealed,

the matter has become clear retroactively,

that this fact that he was initially silent

that his silence at the time of the seizure was because he

thought: “The Sages are seeing it!”

The judges of the court themselves saw the seizure; why should I shout and protest against it, when it is clear to the judges that the other 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 what is stated in our Mishna: “Two holding a cloak shall divide it with an oath”:

For it was taught:

When are these words said,

that they divide it with an oath? It is when

both of them are holding it.

But

if

a cloak was emerging from beneath the hand of one of them—

the one who seeks to take property from his fellow, the burden of proof is upon him!

And Rav Naḥman analyzes the words of the beraita:

What are the circumstances?

In what manner is the beraita speaking?

If you say as it teaches,

if it is said that the language of the beraita is to be understood literally, that the cloak was emerging from beneath the hand of one of them, this is impossible, for this law is

obvious:

that the one who seeks to take property from his fellow bears the burden of proof, and the beraita did not need to state it.

Rather, is it not

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

one seized it before us,

and the other was silent at the time of the seizure and afterward shouted? The beraita comes to teach that his seizure is effective, leaving it in his possession, since the other’s silence constitutes an acknowledgment of his agreement 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 swear and divide it.

And from here Rav Naḥman brings proof to resolve the uncertainty: seizure is indeed effective if the other was silent and afterward shouted, so as to leave the entire cloak in the seizer’s possession.

And the Gemara rejects this:

No!

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

Here,

in this beraita,

with what are we dealing,

with a case

such as they came,

in which both of them came

before us,

before us,

when they were both 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 went out,

and they left the court,

and afterward he came 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 all of it was mine, and therefore he stopped holding it.

And this one said,

and the other claimed:

I rented it to him for money!

I rented him half of the cloak for money, so that he could use all of it [but he did not produce witnesses for this rental].

And therefore the one holding the cloak is acquitted with regard to all of it, since

we say to him

the other:

Until now you suspected him of being a robber,

until now you considered him suspected of robbery, for you claimed that the cloak was yours and not his,

and now you rented it to him without witnesses!?

But now you rented him your portion of the cloak without witnesses!? And since you acted in this way, this is proof in accordance with his words, that the entire cloak had been his, for a person does not rent out his cloak without witnesses to a person who seized it from him.

And if you wish, say instead,

the beraita should be established

as it is taught,

as it is taught,

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

Only one of them came before us while he was holding the cloak with a complete hold,

while the other,

and the other

was clinging to it with a clinging.

“Clung” to it, held onto it somewhat, while he was trying to seize it and hold it, but he was not holding it in the manner in which the first one was holding it.

And the novelty of the beraita is not according to the Sages, because according to them it is obvious that one who clings to the cloak without holding it has no right to it. Rather, the novelty is—

And even according to Sumchos, who says, “Money that is placed

in doubt, they divide,

without requiring an oath,” here, the one clinging to the cloak cannot take even with an oath. For this is not money placed in doubt, because his clinging to the cloak does not create a situation of doubt regarding his ownership; therefore

Sumchos concedes

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

the clinging

of the other

is nothing!

And now, after the Gemara rejected Rav Naḥman’s proof from the beraita, Rabbi Zeira’s problem remains as it was: when one seized the cloak before us, and the other remained silent at the time of the seizure and afterward cried out, does the seizure help to leave the cloak in the possession of the one who seized it, or not?

And the Gemara continues and explains how one should rule according to the two sides of the problem:

If you arrive at the conclusion

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

one seized it before us

[and even if the other remained silent and afterward cried out]

we remove it from his possession,

because a seizure before the court is ineffective to change the situation; rather, the court intervenes and restores the situation to its original state, in which two people are holding the cloak—then it is obvious that if

one of them consecrated

the cloak, without having seized it, the cloak

is not consecrated,

since handing the cloak over to the Most High through consecration cannot be more forceful than seizing the cloak in order to take it for himself.

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

But

if you arrive at the conclusion

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

one seized it before us, we do not remove it from his possession

[when the other remained silent and afterward cried out], there is room for doubt:

If one of them consecrated

the cloak

without seizing it, what is the law?

And the sides of the doubt are:

Since the Master said, “

His declaration to the Most High is like his handing over to an ordinary person,

then with regard to consecrating the cloak

it is as though he seized it.

For the essence of “consecrating” an object is handing it over to consecration through saying that it is consecrated; it is not necessary to hand it over to consecration physically, but through speech alone the handing over is carried out. And if he had actually seized the cloak and afterward consecrated it, his consecration would have been effective; if so, his declaration, which is considered like handing it over to consecration, should be effective as though he had seized the cloak physically and handed it over to consecration. And just as we do not remove it from his possession after a seizure, so we do not remove it from the possession of consecration after he has “handed” the cloak over [through his declaration] to consecration.

And here there is not the deficiency of “it is not in his possession,” which prevents consecrating the cloak, since his right of seizure [if the other remains silent and afterward cries out] is sufficient to consider the cloak as though it were in his possession.

Or perhaps, now, at any rate, he has not seized it,

for now, before he consecrated it, the cloak is not entirely in his possession, since he has still not seized it.

And it is written

[Leviticus 27] with regard to consecration: “

And when a man consecrates his house as holy.”

And it continues.

And the verse’s mention of “his house” teaches that the ability to consecrate exists only when the owner of the object has complete ownership, as he has complete ownership of his house:

Just as a person’s house

is

in his possession, so too every

object that a person consecrates must be

in his possession! To exclude this one, which is not in his possession.

That is, from this verse the possibility of consecrating an object “that is not in his possession” was excluded. Therefore, even when two people are holding a cloak, despite the right of seizure that he has, he cannot consecrate the entire cloak, because the entire cloak is not in his possession, since another person is holding its other half; therefore his consecration does not take effect, not even as “consecration in doubt.” And therefore Rabbi Zeira was uncertain whether one should learn from the verse “when a man consecrates his house” that even in such a situation there is the deficiency of “it is not in his possession.” Or perhaps we should say that since each of them has a right of seizure that will leave the cloak in his possession if the other remains silent at the time of the seizure and cries out only afterward, and conversely there are no robbery-acquisition rights of the other here, there is no deficiency here of “it is not in his possession.” And the Gemara brings proof from an incident that occurred involving two people who were not holding a cloak, but rather disputed between themselves ownership of a bathhouse, and neither of them was holding it; rather, its law was “whoever is stronger prevails”—that is, on the one hand there were no robbery-acquisition rights in it, while on the other hand each one had a right of seizure, so that if he seized it we would not remove it from his possession.

And 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:

Come and hear,

come and hear how to resolve what the law is in this doubt from another source: