Commentary for Bava Metzia 11:19

But that which Rav Nachman said, [that when one denies all, he is obligated to swear an oath of incitement, etc.] Rav Nachman’s ‘oath of incitement’ is presented as proof that even when one is suspected of stealing, he is not suspected of swearing falsely. This is bewildering! For here as well, one who entirely denies owing a loan, may be ‘evading the creditor’ and stalling for time, as the Gemara said earlier (4a,5b), when one completely denies the plaintiff’s claim and is found to be lying, he is still eligible to testify as a witness, because we do not view him as a confirmed liar, but rather as ‘evading his creditor’.
We can answer: That Rav Nachman obligates [the defendant] to take an ‘oath of incitement’, even when [the plaintiff] claims that the object in your hand is mine, where if he is lying it is not possible to say that he is ‘evading the creditor’.¹Tosfos’ answer that Rav Nachman requires an ‘oath of incitement’ even when the plaintiff claims that the object in your hands is mine, is somewhat difficult. It appears that the Gemara knew this to be true, even though there is no specific mention of this fact in the Gemara. In fact, Tosfos proceeds to question why this should be true as we will soon see. Perhaps Tosfos views the ruling in the Mishna in Shavuos which says “You owe me a hundred zuz, and the defendant answers: I owe you nothing”, as being equally applicable to a deposit as it is to a loan. If so, when Rav Nachman adds that we impose an ‘oath of incitement’, it is referring to a deposit as well as a loan. Thus, the source of Tosfos’ reasoning is that Rav Nachman’s original ruling includes even a situation where justifying the defendant because he is ‘evading the creditor’ is inapplicable. Tosfos then proceeds to ask: Why is this so? He never questions the truth of his conclusion.²It is noteworthy that Tosfos does not even mention how Rashi ד'ה נימא deals with this problem. For a better understanding of Rashi’s explanation see שיטה מקובצת, רמב"ן and נחלת דוד. When the object he must return is immediately accessible, we cannot argue that he is denying the charges because he wants to ‘evade the creditor’. All he needs to do, is simply return the object to the plaintiff. His refusal to do so, can be construed only as an attempt to steal the item. Even so, Rav Nachman obligates him to swear. This is conclusive proof that even though one is suspected of stealing, he is not suspected of swearing falsely. So too, Rav Hai Gaon explains that we impose an ‘oath of incitement’ upon a denial of land, even though ‘evading the creditor’ is inapplicable to land. One merely needs to return the land to its owner, since it is always here and accessible. We see that Rav Nachman’s oath is required even when there is no possibility of ‘evading the creditor’.
The Gemara in Shavuos 40b is discussing Rav Nachman’s oath: Rav Nachman said: We impose an ‘oath of incitement’ upon [one who denies all]. What is the reason that we suspect that he might be lying? It is assumed that [the plaintiff] would not lay claim, if [the defendant] did not owe him. The Gemara counters: On the contrary, we may assume that a person does not have the audacity to deny his debt in the face of his creditor. If he is denying the debt, he is most probably telling the truth.
The Gemara answers: He is not exhibiting audacity, rather, he is ‘evading the creditor’, he thinks, I will deny the debt till I will have funds with which to pay.
We see that Rav Nachman’s original oath was imposed only because of the possibility of ‘evading the creditor’. It follows that when ‘evading the creditor’ is inapplicable, there should be no ‘oath of incitement’. Tosfos has concluded that Rav Nachman does impose an ‘oath of incitement’ even when there is no possibility of justifying his claim as ‘evading the creditor’, such as when the plaintiff claims the object in your hands is mine or when the dispute is about land as Rav Hai ruled.
And this conclusion that Rav Nachman’s oath was instituted even when ‘evading the creditor’ is not an option, is difficult! For in Perek Shavuos HaDayanim (Shavuos 40b) it appears that [Rav Nachman] obligates an ‘oath of incitement’ only because of the possibility of ‘evading the creditor’? For [the Gemara] asks about the ruling that an ‘oath of incitement’ is required because the creditor would not claim something if the debtor did not owe him: On the contrary, a person does not have the audacity to deny his debt in the face of his creditor, and [the Gemara] answers: that [the defendant] is not exhibiting audacity, rather he is ‘evading the creditor’. It is evident that an ‘oath of incitement’ is required only because of the possibility that the debtor might be lying in order to ‘evade the creditor’.
We can answer: Since when the loaned money or deposited item is not accessible, [the defendant] must swear because he might be ‘evading the creditor’, even when the disputed item or funds are accessible, the Rabanan did not differentiate between different types of disputes and required an oath in all cases. Initially the oath was instituted for such cases where there is the possibility of ‘evading the creditor’. However, once it was instituted, it was expanded to include all types of disputes, even those where there is no likelihood of ‘evading the creditor’, as in the cases that Tosfos speaks of. However, we do see that there is an oath requirement even where the defendant is suspected of stealing the disputed item or land and he is not suspected of swearing falsely.
There is an inherent weakness in Tosfos’ previous explanation. We must concede that Rav Nachman initially instituted his ‘oath of incitement’ for disputes where there is a possibility of ‘evading the creditor’. We must then say that the Gemara knows that the initial ruling was expanded to include all types of disputes even though the Gemara presents no evidence of this. Tosfos searches for a better solution to his question.
In the second approach Tosfos will concede that his question is better than his answer and the proof offered by the Gemara from Rav Nachman’s ruling is in fact inconclusive. However, at this point in the dialogue, the Gemara simply chose not to pursue this weakness, even though it certainly could have deflected the proof offered from Rav Nachman’s ruling.
Alternatively, the Gemara is aware of the flaw of the proof from Rav Nachman’s ruling, however [the Gemara] chooses to ignore this, because it is relying on the question it raises from R’ Chiya’s ruling, which definitely does prove that even when one is suspected of stealing money, he is not suspected of swearing falsely. Since the Gemara knew that ultimately there is proof that even in this situation one is required to swear, it ignores the fact that Rav Nachman’s ruling does not in fact prove this at all.

As R’ Chiya taught in a Baraisa. See Rashi ד'ה שניהם who raises a question: Why is the Gemara quoting a Baraisa of R’ Chiya, when this ruling is clearly mentioned in a Mishna (Shavuos 44b)? Rashi asked: Why didn’t [the Gemara] cite the Mishna of Shavuos (44b), instead of R’ Chiya’s Baraisa? A Mishna is usually recognized as more authoritative than a Baraisa. We can answer: That Rebbe Yehudah the Prince, author of the Mishna, taught this Mishna as a result of his conversation with R’ Chiya, as is evident there (Shavuos 47b).
The Gemara in Shavuos 47b: We learned in a Baraisa: Rebbe said: The trouble of this oath is for what purpose? R’ Chiya said to [Rebbe]: We learned in a Baraisa: Both swear and collect from the householder. It seems that Rebbe had his doubts about this oath and was convinced by R’ Chiya to incorporate this ruling into the Mishna.

[An unpaid custodian who claims that the deposit was stolen must] swear that he did not¹Literally the words – לא שלח ידו - mean that he did not stretch his hand to the deposited item. This of course cannot be understood literally. What difference would it make if he stretched his hand to the deposited item? Rashi therefore explains that the intent of the verse is that he did not “stretch his hand to the item” in a way that would make him liable for the accident that eventually occurred to the animal. This would happen if he used the animal for his personal use. He is a thief and becomes liable even for accidents. We have translated the words according to the meaning and not literally for the sake of clarity. use it for his personal needs. Why is this oath required? What will change if the custodian did use the deposited item for his own needs?We must first be aware that custodians have different levels of liability.
a) An unpaid custodian is liable only for negligence. He is exempt for loss, theft and unavoidable accidents.
b) A paid custodian is liable for loss and theft, but exempt for unavoidable accidents.
c) A borrower is liable even for unavoidable accidents.
Rashi explained: That if he did 1 use it for his personal needs, he is a thief and even if it was destroyed by an unavoidable accident he is liable. As an a) unpaid custodian he is liable only for negligence. However, a thief is comparable to a borrower²See Rashi below (41b) ד'ה תיתי משואל. and liable even for unavoidable accidents. When an unpaid custodian uses the deposited item for his own needs, he is legally a thief and is consequently liable even for unavoidable accidents.
Even though when [the custodian/thief] returns [the deposit] to its designated place after he used it for his personal needs, he has effectively returned the stolen object and is exempt from future liability for unavoidable accidents, as we learned in HaMafkid (Below 40b), and if so, what difference does it make that he used the deposit for his personal needs, since at this point he is no longer a thief? Even so, perhaps it was damaged by accident before he returned the deposit to its place and he is liable for damages at that time. The custodian must therefore swear that he carries no additional liability as a result of misappropriating the deposited item.
But there is a difficulty with [the Gemara] at the end of Ha’umnim (below 83a), where [the Gemara] says in explanation of a verse in the passage dealing with a paid custodian (Shemos 22, 9) “if it was broken or captured, and nobody saw” he must swear in order to clear himself, the Gemara deduces, but if witnesses did see, the custodian may bring witnesses to testify in his behalf and [the custodian] is exempt from swearing. But how can the Gemara say that the custodian is unequivocally exempt, perhaps he used it for his personal needs and is liable even for unavoidable accidents because he is a thief? The witnesses testify only that the deposit was destroyed by an accident, they does not tell us that the custodian never used the deposit for his personal needs and is not liable for accidents.
We can answer: That the Gemara is saying only that [the custodian] is exempt from swearing that it was destroyed by an accident, but he must still swear that he did not use it for his personal needs.
This explanation limits the exemption in the Gemara (83a). Although the Gemara says that the custodian is exempt, we are compelled to say that he is only exempt from an oath that it was destroyed by accident, because he has witnesses who testify to that. However, he is still obligated to swear that he did not use the deposit for his personal needs. Thus, he is not completely exempt from swearing. The simple reading of the Gemara leads us to believe that the exemption is complete. Tosfos will now offer an approach to the Gemara (83a) that concurs with the simple reading.
Alternatively, one swears that he did not use the deposit for his personal needs only via the process of devolving³See הרמב"ם הל' שאלה ופקדון פ"ד ה"א who also uses the term ,מגלגלין when describing the oaths of a custodian. from the original mandatory oath wherein he states, “I was not negligent”. It is only when the custodian must swear that he was not negligent that another oath - stating that “I did not use the deposited item for my personal needs” devolves upon him. However, when there are witnesses who testify that [the deposit] was destroyed by accident, [the custodian] is completely exempt from swearing. There is no need to swear that it was destroyed by accident, since there are witnesses, and he need not swear that he did not pick it up to use it for his personal needs, because he is obligated to take that oath only when he must swear that it was destroyed by accident.
Until this point, Tosfos follows Rashi’s explanation that the oath - “I did not stretch my hand to it” means that I did not take it to use as my own and I am therefore not subject to the liabilities of a thief. Tosfos will now cite Rabbeinu Tam’s explanation of the oath “I did not stretch my hand to it”,⁴See note 1. which differs radically with Rashi’s explanation.
Rabbeinu Tam explains that even via the process of devolving a non-mandatory oath via a mandatory oath, one need not swear that he did not misappropriate the animal when [the animal] is dead before us.⁵Tosfos stresses that the animal before us is dead, because there is no need to swear that he did not consume the animal. We see that it is in front of us. We will only require an oath that he did not eat the animal when the custodian claims that it was eaten by another animal and there is no carcass to prove that it was not eaten by the custodian. For devolving a second oath is only required when the secondary oath is for something likely to have happened. The original oath proves that the animal did not die as a result of negligence. The secondary oath that he did not use the animal for his personal needs is unlikely and unrelated. For what might cause us to think that the custodian may have used [the deposit] for his personal needs when nothing is pointing in that direction?
Therefore, Rabbeinu Tam concludes that “I did not stretch my hand to it” means something entirely different, as we will soon see. First Tosfos wants to dispel the idea that one can require an oath by devolving even when the second oath is for something unlikely. The Mishna teaches that partners may demand an oath from each other at anytime. However, if partners or the sharecroppers split up, [their former partner or employer] cannot impose an oath upon him concerning their past relationship. If an oath devolved upon [a former partner or sharecropper] from somewhere else, an oath for all claims devolves upon [the former partner or sharecropper].
We do see that when one is obligated to swear to his litigant about a financial matter, he may be asked to swear about additional matters that are unrelated to the present claim. Rabbeinu Tam maintains that even when one is liable to swear that he was not negligent there is no reason to ask him to swear that he did not use the deposit for his personal needs. How does Rabbeinu Tam deal with the Mishna in Shavuous (45a)?
For it is only in the case of partners who divided their assets and one was obligated to swear from somewhere else that he must also swear about matters other than the original oath, via the process of devolving a non-mandatory oath via a mandatory oath, because it is the nature of partners that one rationalizes when dealing with partnership property. Since there is reason to believe that a partner might have stepped beyond the strict letter of the law when dealing with partnership assets, when we have a primary oath obligation on one of the former partners, a secondary oath devolves upon that partner to swear that he did not misappropriate any of the partnership assets. This does not contradict Rabbeinu Tam at all. When an animal is killed, the custodian must swear that it did not happen as a result of his negligence, but there is no reason to suspect him of using it for his personal needs.
If so, what is the oath “that I did not stretch my hand to it”²See Rashi below (41b) ד'ה תיתי משואל. about? The oath that “I did not stretch my hand to it”, Rabbeinu Tam explains, means that I did not eat it which is not included⁶For the sake of clarity, we will paint the scenery of the custodian’s oath as it happens in בית דין according to Tosfos.
A) The court: What happened to the deposited sheep.
B) Custodian: It was eaten by a lion.
C) Court: Perhaps it was a result of your negligence? Do you have witnesses to prove that it was truly an accident?
D) Custodian: No.
E) Court: You must take an oath that you were not negligent. In addition to that oath, you must also swear that you did not eat the animal and that it is not presently in your possession.
Tosfos understands that the text of the oaths cited by the Gemara are to be taken literally. When the custodian swears that “he was not negligent”, it is understood that a lion did not eat it as a result of his negligence. This does not preclude that it may still be in his possession or that he might have eaten the sheep himself. When he swears that he did not eat the animal, this too, does not preclude the possibility that the animal is presently in his possession. So too, when swearing that the animal is not in his possession, he does not preclude that he did not eat the animal himself. Rambam’s understanding of the practicality of these oaths is substantially different. See רמב"ם ibid. in the oaths that he was not negligent and that it is not presently in his domain. If the custodian ate the animal, he could swear that he was not negligent and it is not in his possession at this point in time. The oath “I did not stretch my hand to it” is needed to verify that he did not consume the animal.

Perhaps [one of the litigants] has a questionable loan against [the garment’s owner]. Let us review the mathematics of the Gemara:
a) R’ Yochanan said that the need for the oath in this Mishna is because Shimon may have seen Ruvain lifting up the garment and decided that since Ruvain did not invest time or effort to find or purchase this garment, he too wants to have a share in it and he therefore grasps the garment. Although, this is indeed an act of stealing, Shimon rationalizes his behavior. We therefore require an oath, which will discourage Shimon from doing so.
b) The Gemara asks: If you are concerned that Shimon might steal, you should also be concerned that he might swear falsely. Stealing and swearing falsely are equally prohibited by the Torah.
c) The Gemara answers: Even when Shimon is suspected of stealing, he is not suspected of swearing falsely. The Gemara proceeds at length to prove that one who is suspected of stealing is not suspected of swearing falsely. The Gemara presents three rulings to prove that even one who is suspected of stealing is not suspected of swearing falsely: 1) Rav Nachman’s ruling that a total denier swears an ‘oath of incitement’. See Tosfos 6Aa. 2) R’ Chiya’s Baraisa which rules that both the worker and storekeeper swear and collect from the householder. In this case one of the parties is definitely attempting to steal and even so we require and allow him to swear. 3) Rav Sheishes’ ruling that a custodian must swear that the deposit is not in his domain. If the custodian did have the deposited item in his domain and denied receiving it, this would be an outright attempt to steal the item, even so we require and allow him to swear and are not concerned that he might swear falsely.
d) Abaye says that the reason each of the litigants must swear is not because we are concerned that Shimon may steal from the true owner. Rather, we are concerned that Shimon might feel that Ruvain may owe him money from a questionable old debt, which Ruvain has long forgotten. Shimon knows that if he would claim payment for that questionable loan, Ruvain would most probably deny owing the money. When the opportunity presents itself Shimon grabs Ruvain’s garment in an attempt to collect the questionable loan. In order to discourage Shimon from attempting to recoup this questionablel loan, we require that both Ruvain and Shimon swear. It is expected that in the face of taking an oath Shimon will back down.
Abaye’s explanation is valid as a second way of explaining this Mishna. Does Abaye disagree with the principle of ‘one who is suspected of stealing is not suspected of swearing falsely?¹See שיטה מקובצת who quotes other Rishonim who do not view Abaye as arguing with R’ Yochanan’s rationale ‘one suspected of stealing is not suspected of swearing falsely’. It is noteworthy that Tosfos does not tell us how to deal with the first proof of the Gemara from Rav Nachman’s ruling requiring an ‘oath of incitement’ from a total denier. See Tosfos 6Aa who questions the proof from Rav Nachman’s ruling. Perhaps Tosfos held that Abaye has the option of holding that there truly is no proof from Rav Nachman’s ruling. See תוספות הרא"ש who clearly says that Abaye’s rationale that he might have an old questionable loan on himself can be used to disprove Rav Nachman’s proof as well. The Gemara cited other sources as well, where it is evident that one who is suspected of stealing is not suspected of swearing falsely. If those are truly absolute proof that one who is suspected of stealing is not suspected of swearing falsely, Abaye must certainly agree with that principle.
If so, what did Abaye gain by introducing a second explanation of our Mishna? Ultimately Abaye must agree with the principle of ‘one who is suspected of stealing is not suspected of swearing falsely’, because we have proof of this from the sources quoted in the Gemara. Tosfos feels compelled to show us that the other sources quoted by the Gemara are also not definite proof that ‘even one who is suspected of stealing is not suspected of swearing falsely’. Thus, Abaye is free to reject that principle and explain our Mishna according to his own opinion that the oath in our Mishna is required because of the possibility that Shimon may believe that Ruvain owes him money from a long forgotten debt.
Tosfos will now demonstrate that proofs 2 & 3²See Artscroll note 13. Also see שיטה מקובצת who cites רמב"ן, who explains that when it is unknown to us whether a person has stolen and we are considering his status in regard to taking an oath, we may say that this is not an attempt to steal, rather, he is trying to recover an old questionable loan. We therefore allow him to swear. However, when one has already stolen or denied receiving a deposit, our assumption must be that he is a thief. We cannot disregard the fact that he is a thief, because he might have been recovering an old questionable loan when we do not know this to be true. הר"ש די ויד"ש argues that our initial assumption that the person is a thief or is denying receiving a deposit is based upon our choice not to judge him favorably by assuming that he was attempting to recover a loan. If so, how can we differentiate between before the fact or after the fact? הרב יוסף הלוי also known as R’I Migash says that even if one stole or denied a deposit in order to recover an old loan, it is inherently an act of theft and the perpetrator is disqualified from swearing and testifying as a witness. The item that he is stealing is definitely not his and he has no right to take this particular item to satisfy the debt. Therefore, after the fact we say that the thief or denier of a deposit is disqualified from swearing. It is only before the fact, when he might be attempting to use the garment as leverage for payment of the debt, that we would allow him to swear, because he does have the right to seize the garment as collateral for the debt. quoted by the Gemara earlier are not absolute proofs that ‘one who is suspected of stealing is not suspected of swearing falsely. That (proof 3), quoted from Rav Sheishes’ ruling that we impose upon [the custodian] three oaths including an oath that the deposited item is not presently in the custodian’s domain, and also (proof 2) R’ Chiya’s Baraisa which says: Both the storekeeper and the employee swear and collect from the householder, which are offered as proof that one who is suspected of stealing etc., can be explained as follows: There as well we require and allow the defendant to swear, because we are concerned that perhaps the custodian, employee or storekeeper believes that the defendant may owe them money from a dubious stale debt. Thus, from these cases as well, there is no proof that one who is ‘suspected etc.’, rather, we are concerned that the employee, storekeeper or custodian may believe that the householder owes him money, which they could not otherwise claim. When they have the opportunity to take advantage of a misstep of the householder, they enters a false claim in order to recoup money, that may be legitimately theirs.
Therefore, we cannot exempt [the custodian] without an oath, and [the employee or storekeeper] also cannot collect from the householder without swearing. If we always consider the possibility that a defendant is not attempting to steal, but is only trying to collect funds that he legitimately believes are his, shouldn’t we extend this excuse to one who has definitely stolen or denied having a deposited item. In those cases as well we could say that the reason he stole or denied possession of a deposit is because he believed that the depositor or their victim owed them money from an old questionable debt. Tosfos will now inform us that the rationale of the victim possibly owing them money is applicable only about events that are in the process of happening, but not to events that have already occurred.
However, a known thief and [a custodian] who denied receiving a deposit and was discovered to be lying, cannot be permitted to swear because perhaps the thief stole the money or the custodian denied receiving the deposit, because he thought that there was a questionable old debt that their victims owed.

Money can be returned, [as opposed to an oath, which once uttered can never be retracted]. The Gemara says that money can be returned. In the context of our discussion there are two possible ways of interpreting this satement;
a) Shimon might seize the money or garment with the intention of investigating whether Ruvain truly owes him or not. When Shimon realizes that there is no way that he can reach a decision he will return the money, because he truly does not want to keep any money he is not sure belongs to him.
b) Shimon might seize the money with the intent of investigating whether it is truly his or not, but will not return it to Ruvain unless he is certain that it belongs to Ruvain. If Shimon will remain in doubt, he will keep the money in question.
We must keep in mind that Tosfos maintains that Abaye disagrees with R’ Yochanan. He maintains that if Shimon is suspected of stealing, he is also suspected of swearing falsely. We may assume that whatever level of violation Shimon would perpetrate when stealing money, he would also perpetrate that same level of violation when swearing falsely, i.e. if he would definitely steal, he would definitely swear falsely, if he would steal when in doubt, he would also swear falsely when in doubt.
If possibility b) is true, Shimon would keep the money even if there was a legitimate doubt whether he was allowed to do so or not. So too, when faced with the possible violation of swearing falsely Shimon would do the same. In this case, since Shimon is ready to steal when in doubt, he would also swear falsely when in doubt. Abaye could not suggest that we would allow a person to take an oath, when we know that he would swear falsely even if he was in doubt.
In possibility a) we said that Shimon would not keep the money if he was in doubt whether it belonged to him. In a parallel situation regarding an oath, Shimon would certainly not swear falsely if there was any doubt whether the money belonged to him. Therefore, Tosfos says we must explain the Gemara as discussing possibility a). Shimon may be seizing the garment with the intention of searching for information about the questionable loan in order to remind himself of its status, and if eventually he will not recall that Ruvain definitely owes him the debt, he will return it. He will not keep it if in doubt whether it truly belongs to him. So too, he will not swear falsely if there was any doubt in his mind whether he was truly entitled to keep it. Shimon can seize the money with the intention of returning if he does not recall that Ruvain owes him the money. Returning the money will correct the injustice of taking it illegally, but he cannot swear that the money is his even if he intends to return if he cannot determine that Ruvain owes him because the oath is not retractable.
However, we should not explain that the Gemara means possibility b), that if [Shimon] reminds himself that [Ruvain] is not liable, he will return it, but if he does not remind himself that the opponent is not liable he will keep it even though he knows that he will never remind himself, for if so, since this person treats the prohibition against swearing falsely exactly the same as the prohibition against stealing, he will not desist from swearing falsely, when there is a doubt that the money might be his. Just as he is willing to make peace with the prohibition against stealing when there is a legitimate doubt, so too, he will make peace with the prohibition against swearing falsely when in doubt.

You rented it to him without witnesses? Let us study the Gemara together:
Ruvain and Shimon come to Bais Din, each of them holding the same garment and each claiming it is entirely mine. The court rules that the cloak is to be divided. The litigants leave the room with the intention of dividing the garment. A few moments later they return to Bais Din. Now Ruvain is holding the garment himself. He claims that Shimon admitted to him outside that the garment was Ruvain’s. Shimon claims I never admitted that Ruvain owns the garment, but the reason Ruvain has possession is because I rented my half to Ruvain.
The Gemara tells us that the Baraisa rules in favor of Ruvain, because Shimon’s claim is very difficult to believe. A few moments ago you claimed that Ruvain was a thief, attempting to steal your garment and now you rented it to him without witnesses? That really doesn’t make sense.
Tosfos points out that although Shimon’s present claim is weak, he does however, have a migo to prove that he is telling the truth. Had he claimed that Ruvain has possession because he snatched it from me, we would believe him. If so, why not believe him when he says that he rented his half to Ruvain? Tosfos explains: [Shimon] is not believed with a migo that if he wanted he could have said [Ruvain] snatched it from me¹See רמב"ם פ'ט הלכות טוען ונטען הי'ג who clearly says that we would not believe Shimon even if he claimed that Ruvain snatched it from him outside the Bais Din. Perhaps רמב"ם holds that since our Gemara obviously does not consider the possibility of a migo, it is proof that he has no migo, and would not be believed had he claimed Ruvain snatched it from him. רמב"ם does not believe that this would be the equivalent of a migo against witnesses. Perhaps he maintains that a migo against witnesses is not believed only when there are actual witnesses. In our discussion Tosfos is arguing that Shimon’s claim is the equivalent of witnesses testifying that he is not telling the truth, but there are no actual witnesses. and we would have believed him and returned half the garment to Shimon. For this is the equivalent of a migo against the testimony of witnesses. When a defendant has a migo that contradicts witnesses, we rule in favor of the testimony of witnesses. Nothing can overpower the testimony of witnesses. In this case Shimon’s counterclaim is so weak that it is as if witnesses are testifying that he is lying. His claim is so improbable that we are convinced he is lying as if witnesses had told us so. Therefore, we consider his migo as contradicting the testimony of witnesses and we rule in favor of the ‘witnesses’ who tell us Shimon is lying.

[If Ruvain] consecrated [the garment] without snatching it, what is [the law]? Since the Gemara depends the second question about consecrating without snatching on the first question, we must conclude that the second question is speaking about the same circumstances as the first question.
[The second question] about Ruvain consecrating the garment is also speaking of a situation where [Shimon] was silent when [Ruvain] consecrated the garment and ultimately when the Temple treasurer asked Shimon to give his half to the Temple treasury he exclaimed in protest that Ruvain had no legal right to consecrate Shimon’s half of the garment.
What is the basis of the Gemara’s question? [The Gemara] is asking as follows: Since one’s statement consecrating an object to the holy domain of the Temple treasury etc. [is as effective as handing an object to a private person],¹When Ruvain says to Shimon “I will give you this car”, the car does not become Shimon’s and Shimon has no legal claim to the car. It will become Shimon’s only after a legal act of acquisition takes place. Insofar as giving that car to the Temple treasury is concerned, when Ruvain says that he is giving it to the Temple treasury, the car automatically belongs to the Temple treasury. Thus his word to the Temple treasury is as effective as handing the car (or performing any other act of acquisition) to a private person. the act of consecration is the equivalent of snatching, for since [Shimon] was silent in the face of Ruvain displaying his ownership by consecrating the garment, he is admitting to [Ruvain] that the garment is Ruvain’s and it is effectively consecrated and now becomes the property of the Temple treasury.
Tosfos will continue with the other side of this question a bit later beginning with the words או דלמא. At this point Tosfos is interjecting a difficulty even if we should assume that Ruvain’s declaration is the equivalent of snatching the garment and we can establish Ruvain’s ownership of the garment by Shimon’s initial silence. Nevertheless, ownership alone is insufficient for consecrating an object. In addition to belonging to Ruvain, the garment must be in his domain and under his control. In the case of our Gemara, even if we are convinced that Ruvain owns the garment, half is still in Shimon’s domain and under his control. This should effectively prevent Ruvain from consecrating the half that is presently in Shimon’s hands. Tosfos needs to explain how Ruvain can consecrate the garment even though half is presently in Shimon’s domain and under his control.
During this discussion Tosfos will also show us the source of the ruling that consecration can only be effective if one is the owner of the article and it is also in his domain.
This case when Ruvain consecrates the half garment that is in Shimon’s hands is not similar to when one stole an object and the owner did not give up hope of retrieving it, where both the owner and the thief cannot consecrate the stolen object. [The thief] cannot consecrate the object because it is not his and [the owner] cannot consecrate it because it is not in his domain. If so, in our case even if the consecration is tantamount to snatching the garment and it is viewed as Shimon’s admission of Ruvain’s ownership, the garment does remain in Shimon’s hands and Ruvain should not be able to consecrate it? Tosfos explains why this is not so.
For since [Shimon] admitted to [Ruvain] that the garment is Ruvain’s, it is tantamount to a deposit that one has in another’s possession, that he can consecrate even though the object is not physically in his possession. A custodian is an agent of the depositor and as such his holding the article is the equivalent the depositor holding the article. It is only when a thief is holding the article and he is doing so specifically because he does not want to return the object to its rightful owner that we say it is not in the domain of the owner. However, when a custodian is holding the article it is considered in the domain of the owner. If we view Shimon’s silence as an admission that the garment belongs to Ruvain, Shimon is a custodian who is holding half for Ruvain and Ruvain may consecrate it.
Tosfos will now quote a Gemara (Bava Basra 88a) to prove that there is a difference between one who is holding the object for the owner and one who is not. There was a certain person who brought gourds to Pum Nahara. Everybody came and took some of the gourds with the intention of purchasing them. He said to them: Behold, they are consecrated to heaven. The question arises as to whether he has the authority to consecrate the gourds, since they were for sale. Perhaps the purchasers already acquired the gourds and the previous owner could no longer consecrate them?They came before Rav Kahana to inquire about the status of the gourds. He said to them: A person cannot consecrate that which is not his. The buyers had already acquired the gourds and they no longer belonged to the previous owner. He could not consecrate them.
The Gemara adds a stipulation to this ruling: This ruling is so, when the price was fixed and whoever picked up the gourds intended to acquire them at the fixed price. But if the price was not fixed, [the gourds] are in the domain of their original owner and he rightfully consecrated the gourds. They were still his when he consecrated them, since no price had yet been established the customers could not acquire them. Now the gourds were in the hands of the customers, even so the Gemara ruled that the original owner could consecrate them, because they were not intending to steal them. Their intention was to return the gourds to the owner if they could not negotiate a price that was agreeable to both parties. Since they were holding the gourds with the intention of giving them back to the owner if need be, the owner was able to consecrate them.
As is evident in HaMocher es HaSefinah (Bava Basra 88a) in regard to that certain person who brought gourds etc. [to Pum Nahara], where the Gemara concludes that if the price was not fixed the buyers did not acquire the gourds and they are consecrated even though they were in the hands of the customers when the owner consecrated them. It is evident that even though the gourds were in the hands of the customers, since their intention was to return them to the owner, it is as if they were in his possession and he is able to consecrate them.
Tosfos now explains the second side of the question raised earlier: Or, perhaps consecrating is not tantamount to snatching, for why should [Shimon] protest because of [Ruvain’s] words? [The Gemara] cites the case of that pool where one of the litigants consecrated and the other litigant was silent.²The simple reading of these words tends to lead us to the conclusion that the legal question in the case of the disputed bath was also about Shimon’s initial silence followed by his protest. The Gemara eventually rules that the bath was not consecrated, so we have proof that initial silence during consecration is not tantamount to an admission. See מהר"ם ,מהרש"א and מהר"ם שי"ף who all discuss a very pertinent problem in understanding this Tosfos. In the very next Tosfos, there is a lengthy discussion about the legal question in the case of the bathhouse. Tosfos does not even mention that the issue was whether Shimon’s initial silence is considered an admission. If so, how can Tosfos just a few lines earlier tell us that the question there was also about whether Shimon’s initial silence is construed as an admission? מהר"ם שי"ף explains that Tosfos here certainly agrees with his own analysis of the legalities of that case as he himself says in the very next Tosfos. However, the Gemara that resolves the question of initial silence from Rav Huna’s ruling must have known that this was in fact part of the story of the pool. Although the legalities of that case were different as Tosfos will explain, the story was the same. As Rav Huna deals with that question and rules that the bath did not become consecrated, he is simultaneously ruling that it also did not become consecrated due to the initial silence. Thus the Gemara’s resolution of the issue of initial silence is correct. In the next Tosfos we will discuss why Tosfos could not say that the issue of the bath was not the initial silence. The conclusion is that [the bath] was not consecrated. Rav Huna ruled that since Ruvain could not win the bath via legal proceedings in Bais Din, it is not considered his and he does not have the authority to consecrate it. It is obvious that Rav Huna does not hold that Shimon’s silence is an admission, for if it was an admission, Ruvain could win the bath in court with testimony that Shimon was silent when he consecrated it and effectively admitted that it was Ruvain’s. Since Rav Huna ruled that the bath was not consecrated, he obviously maintains that Shimon’s silence if the face of Ruvain’s consecration is not an admission. Thus we see that [the litigant’s] silence is not tantamount to an admission.