Talmud - Mas. Baba Metzia 2aTalmud - Mas. Baba Metzia 2a
C H A P T E R I MISHNAH. TWO [PERSONS APPEARING BEFORE A COURT] HOLD A GARMENT.1 ONEOF THEM SAYS, I FOUND IT, AND THE OTHER SAYS, I FOUND IT; ONE OF THEMSAYS, IT IS ALL MINE, AND THE OTHER SAYS, IT IS ALL MINE, THEN THE ONESHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND THE OTHERSHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND [THE VALUE OFTHE GARMENT] SHALL THEN BE DIVIDED BETWEEN THEM. IF ONE SAYS, IT IS ALLMINE, AND THE OTHER SAYS, HALF OF IT IS MINE, HE WHO SAYS, IT IS ALL MINESHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN THREE QUARTERS, AND HEWHO SAYS, HALF OF IT IS MINE SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESSTHAN A QUARTER. THE FORMER THEN RECEIVES THREE QUARTERS [OF THE VALUEOF THE GARMENT] AND THE LATTER RECEIVES ONE QUARTER. IF TWO RIDE ON ANANIMAL, OR ONE RIDES AND THE OTHER LEADS IT, AND ONE OF THEM SAYS, IT ISALL MINE, AND THE OTHER SAYS, IT IS ALL MINE, THEN THE ONE SHALL SWEARTHAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND THE OTHER SHALL SWEARTHAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND [THE VALUE OF THE ANIMAL]SHALL THEN BE DIVIDED BETWEEN THEM. IF BOTH ADMIT [EACH OTHER'S CLAIMS]OR IF THEY HAVE WITNESSES [TO ESTABLISH THEIR CLAIMS] THEY RECEIVE THEIRSHARES WITHOUT AN OATH. GEMARA. What need is there [for the Mishnah] to [give two pleas of the litigants and] state:ONE OF THEM SAYS, I FOUND IT, AND THE OTHER SAYS, I FOUND IT, ONE OFTHEM SAYS, IT IS ALL MINE, AND THE OTHER SAYS, IT IS ALL MINE? Surely one pleawould have been sufficient! It is only one plea: One says I found it and [therefore] it is all mine,and the other says I found it, and [therefore] it is all mine! But why not just state I found it, and itwill be understood that the intention is to claim the whole garment? The term I FOUND ITmight have been explained as denoting I saw it, the mere seeing [of the garment] entitling him toclaim it as his possession.2 Therefore the plea IT IS ALL MINE is added, so as to make clear thatseeing alone does not constitute a claim. But how could it be thought that one who has only seen [thegarment] could plead I found it? Does not Rabbannai3 say that the phrase and thou hast found it4means thou hast taken hold of it? It is admitted that the Scriptural use of the term foundimplies having taken hold, but the Tanna uses popular language, in which, on seeing something, onemight use the term found it, [the belief being prevalent] that one acquires [a lost article] by sightalone. For this reason it was necessary to add the plea IT IS ALL MINE and thus to indicate thatthe mere seeing [of an ownerless object] constitutes no claim to possession. But even so, would it nothave been sufficient to state IT IS ALL MINE without the plea of I FOUND IT? Had [theMishnah] stated only the plea IT IS ALL MINE I might have said that elsewhere [in the Talmud]the term found is used to mean [seen, and the conclusion would have been drawn] that mere sightconstitutes a claim to possession. For this reason the Mishnah states first I FOUND IT and then ITIS ALL MINE so that we may gather from the additional clause that mere sight does not constitute aclaim to possession. But how could you say that the two pleas are really one? Is not each plea introduced by the words:ONE OF THEM SAYS and THE OTHER SAYS5 , [viz.] ONE OF THEM SAYS I FOUND IT,AND THE OTHER SAYS I FOUND IT, ONE OF THEM SAYS IT IS ALL MINE, etc.? [Tothis] R. Papa. or R. Shimi b. Ashi, or, as some say, Kadi,6 replied: The first plea applies to a case offinding, but the second plea applies to a case of buying and selling.7 And it is necessary [to have thetwo cases].____________________
(1) So that they are both in actual possession otherwise the one in actual possession would have the stronger claim.(2) Though the other man has taken hold of it first.(3) B.K. 113b; [MS. M.: Rabina. V. D.S. a. l.].(4) Deut. XXII, 3.(5) Which would show that they form alternative pleas.(6) This word may also mean an unknown authority.(7) But not to a case where each one maintains that he has made the garment, for then one of them is bound to be lying.
Talmud - Mas. Baba Metzia 2bTalmud - Mas. Baba Metzia 2bTalmud - Mas. Baba Metzia 2b
For if the Tanna had dealt solely with the case of finding I might have said that only in such a casewould the Rabbis impose an oath, because each disputant might permit himself [to claim thegarment] by saying to himself, My neighbour loses nothing through my action [as it cost himnothing to acquire the garment]; I shall go and take hold of it and share it with him.1 But in the caseof a bought article, where this argument does not apply,2 it might be assumed that no oath was to beimposed. On the other hand, had the Tanna dealt solely with a case of buying and selling, it might beassumed that only in such a case would the Rabbis impose an oath, because each disputant mightpermit himself [to claim the garment] by saying to himself, My neighbour has paid the price and Iam prepared to pay the price; seeing that I need it I shall take it, and let my neighbour take thetrouble to go and buy another garment. But in the case of a found article, where this argument doesnot apply, it might be assumed that no oath was to be imposed; therefore both cases are necessary. But how could such a situation arise in the case of a bought article? One could surely ascertainfrom the seller as to which of the two paid him the money? The case is one in which the sellertook money from the two purchasers, willingly from one, and unwillingly, from the other, and we donot know from whom he took it willingly and from whom unwillingly.3 Shall it be said that our Mishnah is not in agreement with the view of Ben Nannus? For does notBen Nannus4 express surprise at the decision of the Sages to impose oaths on disputants one ofwhom is bound to swear falsely? The Mishnah may well be in agreement with Ben Nannus. Forin the case [where Ben Nannus objects to the oath] it is certain that if both parties take the oath oneof them will commit perjury. But in our Mishnah it may well be assumed that no perjury will becommitted [even if both parties swear], for it is possible that both of them picked up the garmentsimultaneously.5 Again, shall it be said that our Mishnah is not in agreement with the view of Symmachus? Fordoes not Symmachus, [in another case,]6 maintain that disputed money of doubtful ownership shouldbe divided among the disputants without an oath? But would not the same difficulty arise [if wecompared the decision of our Mishnah] with that of the Rabbis7 [who are opposed to Symmachus]?For have these Rabbis not declared that the claimant must bring evidence to substantiate his claim[while in our Mishnah the disputed article is divided on oath]? What a comparison! In the case inwhich the Rabbis apply the principle that the claimant must bring evidence the contending partieshad not taken hold of the disputed object, but here [in our Mishnah] since both disputants hold thegarment8 it is rightly divided, after both have taken the oath. But in regard to Symmachus theargument is the other way. For if he decided in the case referred to [where no party is in possessionof the disputed property] that the amount should be divided among the litigants without an oath, howmuch more readily would he give this decision in a case like ours, where both disputants are equallyin possession of the article in question; [and thus the query remains, Shall it be said that ourMishnah is not in agreement with Symmachus?] It can still be maintained that the Mishnah is inagreement with Symmachus. For Symmachus expressed his view [that the property in dispute shouldbe divided without an oath] only in a case where both litigants are uncertain as to the true facts [andit would therefore be wrong to make either of them swear] but where both parties assert their claims
with certainty [as in our Mishnah] he would take a different view. But does not Rabbah the son of R. Huna maintain that Symmachus's decision applies also to a casewhere both parties are certain and definite in their claims?9 It can still be maintained that ourMishnah is in agreement with Symmachus. For Symmachus expressed the view [as quoted] only in acase where a verdict in favour of one would involve a loss to the other, but where no actual monetaryloss is involved [as in our Mishnah] he would take a different view. But then again, can we not inferby means of a Kal wa-homer10 [that Symmachus would disagree with our Mishnah]? For if even inthe case where the party entitled to the verdict loses money by being awarded only half of thedisputed amount,____________________(1) The oath would then act as a deterrent, as even if he did not hesitate to put forward a wrong claim he would not beready to commit perjury.(2) Apart from the loss of the money paid, there is the loss of the garment which the man who went to the trouble ofbuying it evidently needed for his own use.(3) The evidence of the seller, even if available, would not be trusted in such a case, as he is not likely to remember, afterthe two have left, from whom he took the money willingly (Rashi). [Tosaf. reads, he did not know, i.e., the seller doesnot recollect the matter; v. Kid. 73a.](4) V. Shebu. 43a. It is the case of a householder having instructed a shopkeeper to supply his employees with goods forthe amount that he (the householder) owed them in wages. The shopkeeper asserts that he has supplied the goods, whilethe employees deny having received any. The decision of the Sages is that both the shopkeeper and the employees takean oath in confirmation of their statements, and the householder pays both parties, whereas Ben Nannus holds that bothreceive payment without taking an oath.(5) In this case each finder would be entitled to swear that half of the garment belongs to him, in the belief that he wasfirst in