Commentary for Bava Metzia 3:5

Two are grasping the garment: The mishnah is specifically talking about when the two men are grasping the garment, since they both have a claim to it and neither one has a stronger claim than the other. Because if only one person was holding it, the other person would have to bring a proof with witnesses that it is his; and he wouldn't be believed to take it with [just] an oath.

Two [people are] holding a garment. The subject of our Mishna is how we resolve disputes about ownership. We need to understand why the Mishna’s author R’ Yehudah Hanasi, chose to discuss this subject at this point in the Mishna. As Tosfos points out, there is a precise order to the rulings of the Mishna.
The previous Maseches, Bava Kama, concludes with a Mishna (119a) that discusses whether the shavings of a carpenter belong to the carpenter or to the householder who is employing him.
Since at the end of the latter¹The last two Perakim of Bava Kama each begin with the word Hagozel. The first is called the first Hagozel and the second is called the latter Kagozel. Hagozel (119a) the Mishna is speaking about the division of the shavings of a carpenter with the householder who is employing the carpenter and presumably pays for the wood, where the Mishna teaches:
A) the shavings of an adze,²See Artscroll Bava Kama 119a note 57. which are thin and not very valuable, they belong to [the carpenter] and
B) those shavings made by a hatchet, which are much thicker and more readily usable, they belong to the householder.
The Mishna there is discussing the ownership of disputed property, so [the Mishna] here also teaches the laws of division of property whose ownership is in dispute.
Tosfos now discusses the assumption that there must be a reason for the order in which the Mishna was arranged and that there must be a reason why the first Mishna of Bava Metzia follows the last Mishna of Bava Kama.³Tosfos seems to be asking why it is necessary to provide a reason for why the first Mishna of Bava Metzia follows the last Mishna of Bava Kama. This is puzzling. Even if Tosfos is correct that there is an opinion according to whom it is not necessary to have a a reason for the order of these Mishnayos, it is still necessary for Tosfos to explain the order of the Mishnayos according to those who hold that there must be a reason for the order of the Mishna. See מהר"ם who puts Tosfos question in a slightly different context. Tosfos is to be understood notr as asking a question, but rather as explaining that even the one who holds there is no order for Nezikin as relates to a dispute followed by an anonymous Mishna, there must still be a reason why Rebbe put them in the order that he did. He also offers a second explanation of Tosfos question which is strongly disputed by מהר"ם שי"ף.
We must first familiarize ourselves with two principles about the order of Mishnayos:
The Gemara relates in Bava Kama 102a that Rav Huna ruled in accordance with R’ Yehudah. Rav Yosef was upset with Rav Huna for stating his halachic decision in this matter. It seems that Rav Yosef held there was no need for Rav Huna to state that ruling, because it is elementary that we must rule in accordance with R’ Yehudah. We will now review that Gemara and gain a better understanding of the concept of the order of the Mishna.
But why did Rav Huna need to say that the halacha follows R’ Yehudah? This is a situation where we first have a dispute and then an anonymous Mishna, and when we have a dispute followed by an anonymous Mishna that rules in favor of one of the disputants the halacha follows the anonymous Mishna.
The Gemara explains:
The dispute is in Bav Kama (100b): one who gave wool to a dyer to dye it red and he dyed it black, or to dye it black and he dyed it red. R’ Meir says: [The dyer] gives the [wool owner] the value of his wool. The dyer now owns the dyed wool at the price of raw wool plus his expenses. It is as if he stole the wool and acquired ownership by altering it from raw wool to dyed wool.
R’ Yehudah says: If the improvement of the dyed wool is greater than the expenses paid to dye the wool, [the wool owner] gives the [dyer] the expenses. If the expenses are greater than the improvement, [the wool owner] pays [the dyer] the amount of the improvement. As opposed to R’ Meir who holds that the dyer acquired ownership by dying the wool the wrong color, R’ Yehudah holds that the dyer is treated as one who improved his associate’s property without being asked to do so. He is always on the losing end as was explained. He is paid whatever is less, the expenses of dying the wool or the added value of the dyed wool. Whereas, according to R’ Meir who rules that the dyer acquires the wool, this may be to his advantage if the price of wool rose in the interim or if the color that he dyed it is now worth more than the other color.
The anonymous Mishna is in Bava Metzia which follows Bava Kama. As we learned in a Mishna: Whoever alters the instructions given to him has the lower hand in resolving the ensuing dispute. For example: the dyer who did not follow instructions and dyed the wool the wrong color loses. He will treated as a worker who did not follow instruction as R’ Yehudah holds. Whoever retracts has the lower hand.
Since we do have a situation of an anonymous Mishna following a dispute and we do rule that in such cases we follow the anonymous Mishna, why did Rav Huna need to rule like R’ Yehudah in this matter? It is very plain that the halacha must follow R’ Yehudah.
The Gemara defends Rav Huna:
What does Rav Huna hold? It is necessary to rule like R’ Yehudah. I might think that this situation does not qualify as a dispute followed by an anonymous Mishna because there is no order for the Mishna, and this might be an anonymous Mishna followed by a dispute where we rule in accordance with the opinion that argues with the anonymous Mishna.
What does Rav Yosef say to this argument: If so, in any case of a dispute followed by an anonymous Mishna we should say - there is no order to the Mishna and it may be an anonymous Mishna followed by a dispute? Since we do have the rule that we follow an anonymous Mishna that is preceded by a dispute, we must assume that there is an order to the Mishna and that the Mishnayos were all written in order.
What does Rav Huna say to Rav Yosef’s argument? When do we not apply the concept that - there is no order to the Mishna and we do follow the rule that the halacha is in accordance with an anonymous Mishna that follows a dispute, that is within one Maseches. All the Mishnayos within one Maseches definitely are in order and we must rule in accordance with an anonymous Mishna that follows a dispute, but in two Masechtos, we do say - there is no order to the Mishna. If for example: An anonymous Mishna in Eiruvin follows a dispute in Shabbos, we do not follow the anonymous Mishna in Eiruvin. So too, in the case of a dispute in Bava Kama and anonymous Mishna in Bava Metzia, we would not automatically rule in favor of R’ Yehudah. It was therefore necessary for Rav Huna to state his opinion that the halacha follows R’ Yehudah.
If so why did Rav Yosef feel that it was unnecessary to rule in favor of R’ Yehudah? Because he holds that all of Nezikin (the three Bavas, Bava Kama, Bava Metzia and Bava Basra) are one Maseches. Thus within the thirty Perakim of these three Masechtos, there is an order and a dispute in Bava Kama that is followed by an anonymous Mishna in Bava Metzia or Bava Basra is considered to be in order and we must follow the anonymous Mishna.
In summation:
A) Within one Maseches all agree that there is an order to the Mishnayos and we must follow an anonymous Mishna that is preceded by a dispute.
B) Between two Masechtos there is no order and when there is an anonymous Mishna in Eiruvin preceded by a dispute in Shabbos, we need not follow the anonymous Mishna.
C) Within the three Mascehtos of Bava Kama, Bava Metzia and Bava Basra, there is a dispute. Rav Yosef holds they are considered one Maseches and we must follow an anonymous Mishna in Bava Metzia or Bava Basra that is preceded by a dispute in Bava Kama. Rav Huna holds that they are each separate Masechtos and they are like Shabbos and Eiruvin.
Even though when considering two Masechtos, there is no order to the Mishna, and furthermore, there is one who holds that all of Nezikin is not one Maseches and it would seem that there is no need to explain why the beginning of Bava Metzia follows the end of Bava Kama, [that there is no order to Mishnayos between two Masechtos] has been said only insofar as a dispute followed by an anonymous Mishna. We cannot infer that the halacha follows the anonymous Mishna when it appears in a latter Maseches i.e. when the dispute is in Shabos and the anonymous Mishna in Eiruvin, because Rebbe did not learn the Masechtos according to the common order of the Shas. Rather he learned with his students according to the order that the students wished to learn. For example: When Rebbe finished teaching Shabbos, he may have started Bava Metzia because the students felt that they would be more successful learning Bava Metzia.
However, when he put [the Masechtos] together, he put them together in a logical order. It is necessary Maseches to have a reason why each Maseches was taught after the Maseches that precedes it, as [the Gemara] deduces at the beginning of Maseches Shavuos (2a): Let us see, the Tanna just concluded Makkos etc. [why did he teach Shavuos after Makkos?]. So too, in Sotah (2a) the Gemara explains why it follows Nazir. We see that even if we do not follow an anonymous Mishna that was preceded by a dispute when the anonymous Mishna and the dispute are not in the same Maseches, there is still rhyme and reason for the order of the Masechtos. In our Mishna as well, we must know why Trebbe chose to teach this Mishna after concluding the last Mishna in Bava Kama.

This one said it is all mine: The Gemara will explain why it taught it twice.

They divide [the garment]. Our Mishna rules that when we have a dispute over a garment and the two litigants are each holding the garment, it is to be divided between them after each of the litigants swears that his claim is true.
There are other places in the Talmud where the Gemara offers different solutions to a dispute about ownership. Tosfos here will explain why in this case we rule that the garment is to be divided after the litigants swear and why elsewhere other solutions are used.
The Gemara that Tosfos quotes in Bava Basra 34b is not an exact quote. The Gemara discusses a dispute between two litigants about the ownership of a boat. According to the conclusion of the Gemara the ruling is: כל דאלים גבר - Whoever is more powerful will win.¹See רא"ש סי' א who says that כל דאלים גברmight mean, whoever brings better evidence, or whoever might physically overpower the other. He explains that the true owner is most likely to work harder to defend his assets. In other words the courts allow the litigants to fight it out and the stronger party will overpower the weaker party. The Gemara there does not say that they should divide the ship as it says here that they must divide the garment. Why?
This is bewildering! Why is this case different than the boat about which [the Gemara] says in Perek Chezkas Habatim (34b): Whoever is stronger will overpower his fellow litigant?
We can answer: That our Mishna where the litigants are each in possession of the garment is different, because it is considered as if each one definitely owns half of the garment, because we, the court, are witnesses,²The literal translation of אנן סהדיis - we are witnesses. Obviously, this is not meant in a literal sense, because we are truly not witnesses since the court never saw anything happen with the disputed garment. In a figurative sense, we are witnesses because we see that each of the litigants is to some degree in possession of the garment. There are many differing opinions about the meaning of “we are witnesses” in regard to the disputed garment:
a) Some are of the opinion that it is purely logical that when we see a garment in Ruvain’s possession that we should assume that the garment is his. We have no reason to suspect that Ruvain stole the garment or acquired it in an illegal way. Thus, by seeing it in Ruvain’s possession, we can testify that it is his. This concept extends even to when both Ruvain and Shimon are holding the garment. Both are assumed to be honest people and “we testify” that each has a right to the garment.
b) Others hold that the concept of “we are witnesses” does not mean that we are truly convinced that whatever is in Ruvain’s possession is actually his. Rather, insofar as ruling in matters of disputed property when we have no other evidence to the contrary, we assume that what is in his possession is his. This “we testify” is merely a way of expressing that the judges can only rule based on what they see, and all they actually see is that it is presently in Ruvain’s possession and they must rule accordingly. This of course more readily extends to when the garment is held by two litigants. We are never convinced that the garment actually belongs to Ruvain when he is holding it himself. It is merely a function of the courts to rule in favor of one who is in possession. Certainly, when both are in possession we are not convinced that the garment actually belongs to both. However, the rule of possession says that we must view the dispute as if both are owners of the garment. by virtue of seeing that each litigant is holding half the garment, that what he is holding is his. When Ruvain and Shimon are both holding the garment, we cannot rule - whoever is stronger will win, because that in effect is taking the rights to half the garment away from the ultimate loser, who is presently in possession of half the garment. We have no right to take away half the garment from him when we have no evidence or any other reason to rule that it does not belong to him. In Bava Basra 34b, neither of the litigants are in possession. The ruling - that the stronger party will win - is not taking away from the ultimate loser that which is definitely his, because neither of the litigants is in possession of the contested boat. The court may choose not to rule in favor of either of the litigants, since there is no evidence for either side.
Tosfos raises a difficulty with this explanation that the reason we divide the garment is because each of the litigants has some degree of possession. The Gemara on 3a quotes a Mishna on 37a, where it appears that the litigants definitely are not in possession of the disputed property and compares it to our Mishna.
The Mishna later on 37a:
Two people, Ruvain and Shimon, deposited money with one custodian, Levi. This one deposited one hundred zuz and that one deposited two hundred zuz. When it comes time to collect their money, this one says two hundred zuz are mine and that one says two hundred zuz are mine. The custodian gives this one a hundred zuz and that one a hundred zuz and the remaining one hundred zuz will be held in abeyance till Eliyahu comes and tells us who the rightful owner is.
The Gemara on 3a compares the third hundred-zuz to the garment in our Mishna. At first glance it seems that the comparison is unfair. In our Mishna the litigants are in possession of the disputed garment. In the Mishna on 37a the disputed money is held by Levi, a third party. According to Tosfos criteria, when the disputed money is not in the litigants’ possession we should rule – כל דאלים גבר whoever is stronger will, win as we do in Bava Basra 34b. Tosfos must explain why the Gemara feels that it is a fair comparison.
So too, the case of the third hundred-zuz, which [the Gemara] 3a compares to the garment of our Mishna, where the Gemara is asking that they should divide the third hundred-zuz even though each of the litigants is not in possession of that hundred zuz? This seems to contradict Tosfos’ explanation that a division is called for only when the litigants are in possession. The third hundred-zuz is not in the possession of the litigants. The custodian is holding it.
[The Gemara] considers the fact that the guard who was empowered by both litigants is holding the third hundred-zuz for both of them, as if they themselves are in possession of it. This case is not similar to the ship, which is not in anybody’s possession. The third hundred zuz is actually in possession of both litigants because the guard is holding it for both litigants.³Tosfos here assumes that the custodian is holding for both depositors and we therefore view the situation as we do - two who are holding a garment. There are some who say that the רא"ש disagrees. He holds that the custodian is holding the third hundred-zuz for the true owner, not for both depositors.
Insofar as possession is concerned the third hundred-zuz is comparable to the garment of our Mishna, therefore the Gemara differentiates between the two cases as follows: there in the case of the third hundred-zuz, it definitely belongs to only one of [the litigants], and a division cannot be true justice, therefore it should remain in abeyance till Eliyahu comes and tells us who the true owner is,but in regard to a garment where it can be said that it truly belongs to both of them⁴It is possible that they both picked up the garment at the exact same time. and we are not definitely violating the rights of one of the litigants, we rule they are to divide it.
We now have two criteria for division:
A) The litigants are in possession
B) The division can be true justice, because it is possible that they share ownership.
Tosfos explains another case that the Gemara compares to “two people who are holding a garment”. So too, the case of two, the borrower and the lender, who are holding a document, which [the Gemara] later (7a) compares to our Mishna of two people who are holding a garment, that case is comparable because they are both holding [the document]. The division might be true justice because it is possible that [the borrower] paid [the lender] half and the borrower may only owe the other half. Since we have met both criteria:
A) That both litigants are showing possession and B) it is possible that our ruling is true justice, we must rule that the value of the document is divided.
But why isn’t the same true of the third hundred-zuz that is held by the guard? There too A) it is being held by the guard for both litigants and B) it is possible that one bought into a partnership in the ‘third hundred zuz’, i.e. Ruvain bought something from Shimon and Shimon is using fifty zuz of the third hundred as payment for his purchase.
However, in the case of the third hundred-zuz it is not the norm for one to acquire ownership of half of the third hundred-zuz while it is in the possession of his associate, the custodian.⁵This statement is a bit puzzling. We say that the borrower may have paid half the debt and therefore the division can be truly just. Why would we not say that Ruvain, the original owner of the third hundred-zuz used half to pay a debt to Shimon, the other litigant? See אוצר מפרשי הש"ס` who explains that there is virtually no way that ownership of half the hundred-zuz could possibly be transferred without the knowledge of the custodian. Cash cannot be transferred via חליפין-an exchange. The only possible method of acquisition is מעמד שלשתן, where the owner tells the custodian in the presence of the receiver that half the money would now belong to him. But for this acquisition to be effective it must be done in the presence of the custodian. Tosfos is saying that it is highly unlikely that this method of acquisition was used and the custodian forgot about it.
Tosfos concedes: The case of the contested boat is also one where the division might be true justice? But in the case of the contested boat, even though it is possible that [the boat] belongs to both, which satisfies criteria B) since they are not in possession of [the boat], criteria A) has not been met and the ruling is that whoever is stronger will win.<sup>6</sup>See בבא בתרא לד: ד'ה ההוא ארבאwhere Tosfos there follows the same path as he does here. Towards the end Tosfos presents the opinion of ריב"א who holds that the division does not depend on the fact that the litigants are in possession. He believes that in the case of the third hundred-zuz, the litigants are not in possession and even so the Gemara initially argues that there should be a division. He holds that the deciding factor is that both litigants must be claiming what they truly believe, but if one of them is definitely willfully lying there is no division. In our Mishna each of the litigants believes that he picked up the lost garment first or that he was the true purchaser of the garment. Neither is necessarily attempting to cheat the other. This is not so about the boat. one of the litigants is definitely not telling the truth and we therefore do not rule for a division. See Rashi here 2a ד'ה במקח ובממכרwho seems to say the same as ` ריב"א that division is an option only when we are not dealing with a definite cheater. If each of the litigants claims that he wove the garment, leaving no room for legitimate error, we do not divide the garment.
But according to Sumchus,⁷The commentators are somewhat puzzled about why Tosfos needs to discuss Sumchus’ opinion at all. Why was it necessary to mention his position when discussing the criteria for a division in our Mishna?
A) There are those who say that Tosfos wants to show that Sumchus can agree with the Gemara in Bava Basra 34b, which rules in the case of the boat - whoever is more powerful will win. In that case there is no obvious doubt to the observer and Sumchus’ ruling of division without swearing is not in effect. It was only said when there is an obvious doubt such as in the case of the dead calf that may have been killed by the ox. Otherwise, even he agrees that we follow the ruling of whoever is more powerful will win.
B) Others suggest that Tosfos wants to show that Sumchus can essentially agree with the ruling of our Mishna that when A) the litigants are both in possession of the garment and B) the division can be true justice, the garment is divided with both parties taking an oath. Sumchus’ ruling in the case of the dead calf is an unrelated ruling, because in that case both are not presently in possession of the dead fetus (only the ox owner is in possession of the money that the calf owner is claiming)and a division is definitely not true justice, since only one of the litigants is entitled to the money. Sumchus’ ruling there is based on the fact that there is an obvious doubt without the claims of the litigants. This alone, according to Sumchus, is another basis for division despite the fact that both criteria of our Mishna are lacking. even when [the litigants] are not in possession of the disputed [property] and the division cannot be true justice, when there is a obvious doubt about who the owner of this money is, which means that even if [the litigants] were not making any claims, the courts would have a doubt as to whom the property in question belongs, we rule that they must divide the property.

This one swears: The Gemara (Bava Metzia 3a) will explain why [he takes] this oath.

That he doesn't have less than half: The Gemara (Bava Metzia 5b) will explain why this oath was established with this phrasing.

And that one says, "Half of it is mine": He concedes that the half belongs to his friend, so we only judge about half of it (which is what he is claiming). Therefore, "This one says, 'It is all mine,' he swears, etc." like the first verdict (i.e.: the first case in the mishnah). [And regarding] that which they are judging about (the other half), they both take an oath that he has at least half of it, and each one takes his half.

This [one, who claimed only half is mine,] receives a quarter [of the garment]. In Maseches Kesubos 13b and 14a, we discussed the concept of migo. We will once again review this concept. The word migo literally means - since or because. In the context of this Tosfos, we are saying that when a litigant claims A), even though his claim per se is not necessarily a winning claim, we must believe him since he could have claimed B) which is a winning claim. The word migo is now used virtually in all Talmudic lterature as a noun, which means the better claim that one might have claimed, if he is not telling the truth.
What emerges from this discussion is that when considering the claims of a litigant in a court proceeding, the court must look not only at what a litigant is actually claiming, but also at what other claims were available to him.
For a better understanding of migo, let us take a look at Bava Basra 45b. Rava cited a Baraisa to support Rabah’s ruling: One who gave his garment to a craftsman and there is now a disagreement about the fee. The craftsman says: You stipulated two zuz as payment. The other says: I stipulated only one zuz. The burden of proof is on the householder that he stipulated only one zuz. Otherwise, he must pay two zuz as the craftsman claims.
A bit later the Gemara speculates about the reason for this ruling: Rather, it must be speaking of when there are no witnesses to verify either claim and even so the Baraisa teaches: the craftsman is believed, since if he wanted to cheat, he would have claimed that he purchased the garment and he would have won with that claim because he has possession, therefore we believe him when he says that the garment is not mine, but the householder owes him two zuz for his labor.
We see that when the craftsman claims, A) my fee is two zuz and the householder claims it is only one zuz, there is no special reason to believe the craftsman anymore than the householder. However, since he could have claimed B) the article is mine because I purchased it and then we would believe him because he has possession, we must therefore believe claim A) because he could have claimed claim B).
This is the concept of migo. When a litigant could have used a winning claim, we must believe his present claim, because if he was a liar, he would have simply claimed the winning claim. The fact that he is using a non-winning claim is proof of his honesty.
If you ask: The litigant who claims half is mine, should be believed that half the garment is his, since if he wanted to cheat he could have said - it is all mine, and he would have received half. Tosfos proves that this is an acceptable migo:¹Why does Tosfos need to prove that this is a usable migo? It is quite evident that he could have claimed - it is all mine, and he would have received half. This seems to be a perfect migo. See שיטה מקובצת who quotes a גליון who says that one who is sharing possession of the garment with his opponent might find it difficult to claim - it is all mine. He may feel that it is somewhat pretentious to claim “it is all mine” when his opponent is equally in possession of the garment as he is. Tosfos must prove that even so, this is an functional migo.
The Gemara on 8a discusses using this migo to exempt him from taking an oath: I might think: That by saying only half is mine, he should be thought of as one who is returning a lost object, since he could have just as easily claimed - it is all mine and he should be exempt from swearing. The Mishna speaks of this case to inform us - that he is attempting to deceive us. He thinks: If I claim it is all mine, I will have to swear. I will say that only half is mine, so that I will be like one who is returning a lost object and I will be exempt from swearing. The court insists that he must swear in order to discourage this deception.
As [the Gemara] (8a) says this very same migo to exempt him from swearing.²The Gemara later on 8a does not use the term migo when explaining why we might think that the litigant who claims “half is mine” should be exempt from swearing. The Gemara there uses the term - he is “returning a lost object”. Tosfos understands that the rule that one who “returns a lost object” is exempt from swearing is based on migo. He could have easily kept the found article and he would have no problem. We should believe him when he says that this is all that he found, because he could have simply kept the whole thing. Since he is returning the object, we will not require an oath. There are other interpretations of that Gemara, which we will discuss when we reach 8a. According to those interpretations, there is no proof to Tosfos’ migo. The Gemara would consent to this migo, if not for the concern that he is attempting to deceive us.
Tosfos must now explain why the concept of migo is inoperable in our Mishna. ריב"ם explains: That we do not say the concept of migo to extract money from a litigant. It is only used for defending a litigant from having to pay. Migo works only for the defendant. It does not work for the plaintiff.
But why is this thought of as ‘extracting’, the litigant who claims half is mine - is in possession of the half that he wants? For even insofar as the second half³One might understand that when A and B are each holding a garment, A is in possession of the portion that is closest to him and B is in possession of the portion closest to him. If that were so, when A claims the entire garment is mine and B claims half is mine, it is only B who is in possession of the portion that is closest to him. He is not attempting to extract anything from A. He only wants to maintain ownership of the portion which is in his possession and this would not be a migo to extract, rather a migo to maintain. Tosfos is explaining that each of the litigants is in possession of the entire garment and any claim to any portion of the garment is inherently a migo to extract from his opponent who has possession of all of the garment, even though it is also in his own possession. See שיטה מקובצת in the name of גליון who vehemently disagree with Tosfos’ understanding that both litigants are equally in possession of the entire garment. He argues that the migo in this case is not to extract, but rather to protect or maintain the portion of the garment that is in the possession of the one who claims “half is mine”. See there for his explanation of why the migo is ineffective. of the garment about which they are arguing, this litigant who is claiming - the entire garment is mine, is equally in possession of the portion of the garment closest to his opponent who is claiming - half is mine, as is [the litigant] who is claiming only half.
The Gemara in Bava Basra 32b seems to say that migo is effective even for the plaintiff: That man who said to his friend: Give me one hundred zuz that you owe me, and this is the document. [The defendant] said: It is a forged document. [The plaintiff] bent over and said to Rabah: It is so, the document is a forgery. However, I had a true document and it was lost. I thought: I will hold this forged document in my hand as some bit of evidence. Rabah said: Why should he lie? If he wanted to lie, he would just say that it is a true document.
That [Gemara] in Perek Chezkas Habatim 32b where the plaintiff presented his document showing that the defendant owed him money. The defendant claimed that the document was a forgery, whereupon the plaintiff bent over and whispered to Rabah: It is so, the document is a forgery. However, I did have a true document, but it was lost. Rabah believed [the plaintiff] to extract money from the defendant with a migo, since he could have claimed that this was a true document. It is evident from Rabah’s ruling that a migo is effective even for extracting money, not only for defending money.
Tosfos is compelled to say that there are two types of migo. One type which is effective only for the defendant and another type that is effective even for the plaintiff. There in Bava Basra 32b, this is the reason that the migo is effective even for extracting funds from the defendant, for even if he would have remained silent, as long as he would not have admitted that [the document] was a forgery, he would have been believed, because the signatures were so well forged that to those who were standing there in the courtroom, they were recognized as the signatures of the witnesses. Since there was no need to respond to the charge of forgery, because it was so well done, a migo that he could have remained silent is effective even to extract funds. However, when one must respond to the charges of his opponent, migo is only effective for maintaining money, but not for extracting it. Here, in Bava Metzia 2a, when one litigant claims that the entire garment is mine, the other litigant cannot remain silent. He must respond with his claim. Since a response is required, the migo is only effective for defending money, but not for the extraction of funds.
The Gemara in Bava Basra 32b continues: Rav Yosef said to [Rabah]: What evidence are you relying on to rule in this matter? This document! This document is merely a shard.
But if the migo in Bava Basra 32b is so strong that it is effective even for extracting money, why does Rav Yosef disagree with Rabah? Rav Yosef holds that not only is there no special migo capable of extracting funds, but there is not even a migo at all. Since the first claim that he is claiming with this document is admittedly false.
We are only to invoke migo when we will ultimately show that [the litigant’s] first claim is true, which we prove by saying that since he could have claimed a different winning claim B) it is proof that what he is presently saying, claim A), is true. But in Bava Basra 32b his initial claim that the defendant owes him money as his document attests, is admittedly untrue. He has admitted that the document is a forgery. For this reason Rav Yosef holds that this is not an acceptable migo, even for maintaining money as is evident in the first story⁴Earlier the Gemara there 32a cites a similar story about the ownership of a field. The plaintiff claimed that the field was his. The defendant responded by saying - I purchased the field from you and this is the document. The plaintiff insisted that the document was a forgery. The defendant privately admitted to Rabah that the document was indeed a forgery, but that he once had a real document which was lost. In that case as well, Rabah ruled in favor of the defendant because he had a migo and Rav Yosef ruled in favor of the plaintiff. He did not accept the migo even for maintaining ownership of the field. mentioned in that Gemara, and certainly not for extracting funds from a defendant.
Tosfos now wonders why in the case, where one litigant claims - it is all mine, and the other claims - half is mine, we do not rule in favor of the litigant who claims - it is all mine? Tosfos’ question is based on a Gemara in Yevamos 38a. The Gemara is discussing a case of when Ruvain married Leah and passed away childless. His brother Shimon, then took Leah in Yibum, but he did not wait the required three months needed to ascertain that Leah was not pregnant. Leah gives birth to Chanoch, but his paternity is in doubt. Is he the son of Ruvain the deceased brother or of Shimon the yavam? Yaakov, father of Ruvain and Shimon passes away. If Chanoch is the son of Ruvain, he inherits his father’s share of Yaakov’s estate. If he is the son of Shimon, he inherits nothing, because his father Shimon is still alive and Shimon will inherit all of Yaakov’s estate.
Chanoch, whose paternity is dubious and Shimon, the yavam are now coming to divide the estate of Yaakov, the grandfather. [Chanoch] the dubious heir says: This man, referring to himself, is the son of the deceased Ruvain, and half of Yaakov’s estate is mine, since I inherit my father Ruvain’s share. Shimon the yavam says to Chanoch: You are my son and you have nothing at all from Raakov’s estate.
The ruling: Shimon the yavam is definitely an heir of Yaakov. Chanoch, whose paternity is in doubt, is a dubious heir of Yaakov. The doubtful heir, Chanoch, cannot extract funds from the definite heir, Shimon.
If you ask: Let us apply the ruling that a dubious owner of this garment cannot extract from a definite owner?For the litigant who says: The entire garment is mine, definitely has half the garment. Whereas, in regard to the litigant who says: half the garment is mine, there is a doubt whether he owns any portion at all. The situation is one of a definite owner versus a doubtful owner. We should rule in favor of the definite owner, as [the Gemara] says in Perek Hacholetz (Yevamos 38a): a dubious heir, Chanoch, and the yavam, Shimon, who come to divide the estate of Chanoch’s grandfather, Yaakov. Chanoch, the dubious heir says: I am the son of Ruvain, the deceased son of Yaakov. I am entitled to my father Ruvain’s share in Yaakov’s estate. Half of Yaakov’s estate is mine. Shimon the yavam says: You Chanoch are my son and you own nothing of Yaakov’s estate. The ruling is: Shimon is a definite heir of Yaakov, while Chanoch is a dubious heir of Yaakov, and a dubious heir cannot extract any of the estate from a definite heir. In our Mishna as well, the litigant who claims it is all mine is definitely an owner of at least half of the garment by common agreement, the litigant who claims half is mine is only a dubious owner of some of the garment, we should rule the dubious owner cannot extract from the definite owner and he should receive nothing.
We can answer: That there in Yevamos 38a, the yavam Shimon, who is the son of the grandfather Yaakov, is definitely [Yaakov]’s heir. The dubious heir, Chanoch, cannot extract any of [Shimon]’s assets with his dubious claim. However, here in our case where one litigant is claiming all of the garment and his opponent claiming only half, it is not logical that because [Shimon] is definitely the owner of half the garment, that this should help him win the second half.

There were two people riding, etc.: It is coming to teach that riding and leading are equal in terms of acquiring an animal that was ownerless.

When they concede: The Gemara (Bava Metzia 8a) will explain [that with this,] it is coming to let us know that [in a case of] one who picks it up for his fellow, it is his fellow who acquires [it].

Gemara - I saw it: Before you picked it up.

He acquired [it] through sight. The Gemara is suggesting that if the Mishna had only written - אני מצאתיה - I found it - one might think that the litigant is claiming that I saw it first and that by seeing it, he acquires the garment. The second phrase of the Mishna - כולה שלי - it is all mine - indicates that seeing is insufficient for acquiring a lost object. One must actually lift up the garment to acquire it.
Tosfos will quote two Mishnayos where it is evident that one cannot acquire a lost object by seeing it. If so, why was it necessary for our Mishna to repeat the same ruling?
The Mishna on 9b: Even though the Mishna teaches (below 9b): [Ruvain] who saw a lost object and said to [Shimon] “give it to me”. The Mishna rules that Shimon who was asked to pick it up may acquire it for himself. We see that [Ruvain] did not acquire it by seeing it, since Ruvain who asked Shimon to pick it up, obviously was the first to see it and even so Shimon may lift it up for himself. It is evident that Ruvain did not acquire it by seeing it.
The Mishna on 10a: So too, we learned in another Mishna: [Ruvain] saw a lost object and fell on it, but did not lift it up and Shimon comes and lifts it up, the Mishna teaches us that [Ruvain] did not acquire it since he did not make a proper act of acquisition. But Ruvain did see it first? Once again we see that seeing the lost object is not a way of acquiring it. Why does our Mishna need to stress this lesson?
[The Gemara] could have deflected the proof from those Mishnayos, that seeing is not an act of acquisition, by saying, since [Ruvain] said to Shimon in the Mishna on 9b “give it to me”, or in the Mishna on 10a he fell on it, he is showing his mindset, that he is not satisfied to acquire it by any method of acquisition until it actually reaches his hand. It is only then that those Mishnayos rule that seeing the lost object is not a valid method of acquiring it. However, when one did not in any way indicate that he does not want to acquire the lost object by seeing it, it may very well be that seeing is a proper way of acquiring it. Our Mishna must therefore teach us that even when there is no indication that he is dissatisfied to acquire it by seeing, he cannot acquire it.

He acquired it through sight: From that which it taught, "They divide it."

"He teaches, "All of it is mine": With complete control, since I picked it up first, and you grabbed it from my hands after I acquired it.

But didn’t Rabbenai say: In Bava Kamma (113b) in [the chapter entitled] HaGozel veMakhil.

"Find it," implies it come into one's hands: And even with this, [it states,] "your brother," and not an idolater. And you should not say [that] when [the Torah] excluded idolaters, it was when it did not come to the hands of a Jew; [that] that is when you are not obligated to be burdened by it and return it; but when it comes into his hands, he is obligated to return it, since his lost object is forbidden [for you to keep].

The teacher employed colloquial language: Had the teacher not also said, "It is all mine," I would have said, "What is, 'I found it,' that the teacher taught? It is the language of people that the mishnah employed, and not the language of Scripture - and many people call it a found object from the time of seeing [it].

[H]e does not acquire [it] through sight. The Mishna teaches us that by merely seeing a lost object, one does not acquire it.
There seems to be a contradiction to this ruling from a Gemara later on 118a. The Gemara there quotes a Mishna in Shekalim which cites a dispute about whether those who guard the growing barley in the Shemittah year must be paid for their labor or not. The first Tanna holds that they must be paid. Otherwise, the barley they are guarding would belong to them and the barley for the Omer offering must belong to the public, not to an individual. R’ Yose holds that the guards can work for free if they so desire.
The Gemara explains that the first Tanna holds that “guarding” the ownerless barley is a way of acquiring it. If the guards are not paid from public funds, they become the legal owners and the Omer offering must be owned by the public. R’ Yose holds that “guarding” the ownerless barley is not an acceptable method of acquiring it. Thus, even if the guards are not paid, the barley does not become their property and may be used for the Omer offering. The Gemara continues to suggest other ways of explaining the dispute, but they all focus around whether “guarding” the growing barley is an acceptable method of acquisition.
The Gemara uses the expression הבטה which literally means looking or watching. Tosfos understands that this is the same as ראיה - seeing, of our Gemara. Thus, we have what appears to be a contradiction. That which [the Gemara] says in Perek Habayis Vehaliyah (below 118a): “watching” an ownerless item is an effective act of acquisition, that is when he did some minimal action, such as constructing a small fence around the barley. Even though he did nothing at all to the barley, “watching” or “guarding” it is an effective act of acquisition, but by merely seeing a lost object and taking no action whatsoever, one does not acquire the object.

In general, when he teaches, "I found it": In every place that we taught that one who finds a lost object, acquires it - I would have said that he acquires it from the time of seeing [it]. For no teacher made us understand that one only acquires it by picking it up. That is why we are made to understand this here from the extra [words in the] mishnah.

But doesn’t it teach, "This one," and, "This one": Concerning, "I found it," it taught, "This one said"; and concerning, "It is all mine," it taught, "This one said." And if it was one, this is how it should have taught: This one says, "I found it and it is all mine."

But doesn't [the Mishna] teach: this [one] and this [one]? The Gemara suggested that even though the Mishna uses the phrase אני מצאתיה - I found it, and the phrase כולה שלי - it is all mine, it is not speaking of two different cases. Each of the litigants is simply saying - I found it and it all mine. The Gemara then rejects this suggestion because the Mishna did not need to repeat the words זה אומר - this one says, twice. The Gemara then concludes that the Mishna is in fact speaking of two distinct cases.
Tosfos comments: There are places throughout the Talmud, that [the Gemara] asks this question: Why did the Mishna need to repeat “this one says”? There are places where [the Gemara] does not ask this question. [See Tosfos Bechoros 31b 7-8 (ד'ה אם כן] where Tosfos elaborates on this subject and cites many more instances throughout the Talmud. Tosfos does suggest some reason for this inconsistency.

About buying and selling: I bought if from the hands of x. And it is only about buying and selling that we say [that] they divide [it] with an oath. For it is possible to say [that] both of them bought it and that the seller agreed to both of them. But [if] this one said, "I wove it," they would not divide it; for one of them would certainly be a swindler. So it would remain in place until Eliyahu comes.