Commentary for Bava Metzia 5:15

And it can be said it all [belongs] to one: Moreover, per force, it is all [this] one's or all [that] one's. [Yet] in spite of this, we divide it without an oath.

Here, where there is no financial association: Moreover, it can be said that both of them picked it up together.

Is it not all the more so: That we divide it without an oath.

And attack: Grab.

Of Rabbi Yose: Later in [the chapter entitled] HaMafkid (Bava Metzia 37a): Two people who deposited [money] with one person; this one deposited one hundred dinars and that one deposited two hundred dinars. This one says, "The two hundred is mine"; and that one says, "The two hundred is mine," So the first teacher said, "He gives one hundred dinars to this one and one hundred dinars to that one. And the rest of the money will remain (in keeping) until Elijah comes [to decide]." Rabbi Yose said, "If so, what did the swindler lose" - and why should he confess; behold he received his [money]. "Rather, all of it will remain until Elijah comes," so that the swindler will lose [something]. And here too, it should remain.

As this is also comparable to the remainder: As there, they were judging about the second hundred dinars, whereas [here] they are judging about the whole garment.

Belong to one of them: Such that, "They divide it," may not be said.

Here, where it can be said that it all belongs to one of them: And his fellow has no portion in it - is it not all the more so that he does not subscribe [to the position that] they divide it.

There, [in the case of the third hundred-zuz], there definitely is a cheater. The Gemara seeks to reconcile our Mishna with R’ Yose of the Mishna on 37a, where he says that when one of the two litigants gave a custodian two hundred zuz and the other gave him one hundred zuz and they are now disputing ownership of the third hundred-zuz. R’ Yose rules that the court impounds all the money and holds it in abeyance until Eliyahu comes and tells us which loitigant is telling the truth.
The Gemara differentiates between our Mishna of 2a, where two are holding a garment and each claims that the garment is his and the Mishna about the third hundred-zuz on 37a. In the case of the third hundred-zuz, one of the litigants is definitely cheating, therefore, [the Rabanan] fined him by taking from him even that one hundred zuz which is definitely his. It is only the third hundred-zuz whose ownership is in doubt. We are certain that each of the litigants owns one hundred zuz and even so we take away one hundred zuz from each of the litigants.
But here in 2a when the two litigants are holding a garment and each is claiming that he is the sole owner, I can say that both lifted it up together and the garment actually belongs to both, but there is no definite cheater, for each one believes that he lifted it up first.

What loss is there to the one who does not have a portion in it, if it remains.

Alternatively, there [in R’ Yose’s case on 37a], he fines [the cheater] so that he should admit [that the third hundred-zuz is not his.] In that case we have leverage that will force the cheater to admit that the third hundred-zuz is not his. We are impounding not only the hundred zuz whose ownership is in doubt, but even the hundred zuz, which definitely belongs to the cheater. The cheater will ultimately realize that his attempt to cheat is costing him the one hundred zuz that is legitimately his and admit that he is wrong in order to retrieve his one hundred zuz, but here in our Mishna, even if there definitely is a cheater, for example when this one says I found it today and his opponent says, I found it yesterday. One of the two is definitely lying, but R’ Yose concedes that they should divide the garment, and we do not say that [the garment] should be held in abeyance until Eliyahu comes and tells us who the rightful owner is, because this will not cause the cheater to withdraw his claim, for he is not losing anything by the courts impounding the garment. It is not his and he is losing nothing. There is no point in holding the garment in abeyance.

To concede: Since he does not have a portion in it, what does he take when he concedes?

Buying and selling, what can be said: Behold we establish it to be when he received money from both of them. So if we say [to] let the garment and the money remain, there would be a loss to the swindler; so he would confess the truth before he loses.

Rather, it is clear that our original answer [is correct]. We find in the Mishna on 37a that R’ Yose holds that when there is a dispute about the third hundred-zuz, we confiscate all the money, even the two hundred zuz that definitely belongs to each of the litigants and it is held in abeyance until Eliyahu comes and identifies the true owner. The Gemara argues that since R’ Yose holds that we must confiscate one hundred zuz that definitely belongs to the cheater, by kal v’chomer in our Mishna we should definitely not allow him to take even half of the disputed garment, since it might belong to his opponent. If we confiscate that which is definitely his, we certainly should not award him that which may belong to his opponent.
The Gemara offers two possible answers to this question. There are two inherent differences between R’ Yose’s case and our Mishna that might result in a different ruling.
A) In R’ Yose’s case we confiscate all the money, because one of the two litigants is definitely cheating and attempting to steal, but in our Mishna, it is not definite that either of the litigants is attempting to steal. It is conceivable that they both lifted up the garment simultaneously and that each one believes that he was first. Therefore, in our Mishna R’ Yose might agree that division of the garment is a valid solution.
B) In R’ Yose’s case when we confiscate one hundred zuz that definitely belongs to the cheater, we are using it as leverage to force him to admit that he is the cheater. However, in our Mishna, there is no portion of the disputed funds that belongs exclusively to the cheater. We have no leverage that would compel him to confess. Even if we should leave the money in abeyance forever, the cheater is losing nothing. Therefore it is best to divide the garment between the two litigants. According to this answer, whenever we have the option of pressuring the cheater to confess by impounding the disputed property, there should be no division.
Eventually, the Gemara shows that in one of the cases of our Mishna we do have leverage that would force the cheater to confess. That is in the case where they are disputing who purchased the garment, and each one paid the money for the garment to the seller. The seller actually has twice the price of the garment in his possession. The court can confiscate all the money with the garment and use it as leverage to persuade the cheater to confess. Since the Mishna rules that even in the case of a purchase, the garment is to be divided, obviously the Mishna does not hold that when one can pressure the cheater to confess, we do not divide the disputed property. If we take the approach of answer B), the Mishna cannot be reconciled with R’ Yose. The Gemara retracts from answer B) and holds that the first answer A) that R’ Yose rules in favor of confiscation only when one of the litigants is definitely cheating, is correct.
Upon analysis of R’ Yose’s original statement on 37a, it appears that R’ Yose does hold that we should use available money to pressure the cheater into confessing. R’ Yose uses the phrase “if so, what will the cheater lose?”. This phrase seems to say that R’ Yose holds that confiscation is called for only when it can be used to pressure the cheater into confessing. When the Gemara says that we must reject answer B) in favor of answer A), we must ask - to what degree are we rejecting answer B)? Is it a total rejection or only a modified rejection? Do we say that pressuring the cheater to confess is not a factor at all, or do we say that it is not the only factor? Tosfos will explain how we might live with answer B) despite the Gemara’s refutation of this answer.
We can say that [the Gemara] retracts from [answer B)] and it is insufficient to say that the reason for confiscation is dependent only on whether the cheater will lose because we have demonstrated that even when there is a way of pressuring the cheater to confess, such as when they are disputing who purchased the garment, our Mishna rules that the garment is to be divided. It is evident that our Mishna holds that when the litigants are not definitely attempting to cheat, we do not impound the disputed property. Even so, it is still possible to say, that R’ Yose does not penalize the litigants by impounding the disputed property only when both criteria are met:
a) there is definitely a cheater, and
b) the cheater will lose unless he confesses;
but when there definitely is a cheater, but he will not incur a loss, such as when they are arguing about certain funds or property where there is no room for legitimate error, and there is nothing other than the disputed funds to confiscate, [R’ Yose] will not penalize the cheater by impounding the disputed property.
A critical reading of the text seems to support this modified position: As it can be understood from the wording of R’ Yose’s statement “if so, that you confiscate only the third hundred-zuz, what will the cheater lose?”¹Ultimately, Tosfos concludes that even when we cannot exert pressure on the cheater, the disputed property or money is to be impounded and held in abeyance until Eliyahu comes and identifies the true owner. If so, how do we explain the expression “If so, what will the cheater lose?”, which seems to be saying that we impound the funds only when this will exert pressure on the cheater to confess. See the digest at the end of our Maseches who quotes an answer from חכמת מנוח. He explains that R’ Yose is arguing that even though we might impound disputed funds even when there is no loss for the cheater, we certainly should take advantage of the opportunity to expound disputed funds when this can be used to exert pressure on the cheater. His argument to his opponents is that by returning one hundred zuz to each of the litigants, you are throwing away the advantage of using the one hundred zuz to coerce the cheater to confess. This does not mean that we impound money only when this condition exists, it merely means that we should take advantage of the opportunity when we have it. This expression indicates that R’ Yose’s ruling is only in effect when we can penalize the cheater by impounding something that is definitely his. This expression leans in favor of Tosfos’ position that when our Gemara rejects answer B) it is only saying that it is not the sole criteria for R’ Yose’s ruling, but this does not mean that it is not a criteria at all.
A close look at the text of our Gemara indicates otherwise. However, the expression ‘אלא-rather’ in the heading of our Tosfos, indicates a total retraction of answer B). The word אלא says that we are rejecting approach B) entirely and that pressuring the cheater is not a criteria at all.
Tosfos offers further proof that answer B) is totally rejected:
The Gemara immediately following the words of our Tosfos:
Both according to the Rabanan and R’ Yose, there in the case of a storekeeper who swears about the information in his records, where he claims he paid the worker as per the instructions of the householder and the worker claims he never received payment, where the Mishna taught - this one, the employee, swears and collects and that one, the storekeeper, swears and collects. The Gemara asks: How come we do not exact the disputed funds from the householder and they should be held in abeyance until Eliyahu comes and informs us who the true owner is?
In this case there
A) is a definite cheater.
B) However, there are no funds to be used to pressure the cheater into confessing.
Even so, the Gemara asks that we should confiscate the disputed funds.
So too, in the adjoining passage, [the Gemara] asks: Both according to the Rabanan who favor impounding only the third hundred-zuz whose ownership is disputed, and according to R’ Yose²On the surface, this seems to be an extremely strong question on Tosfos proposal that both elements are required - A) a definitye cheater, and B) the ability to pressure the cheater. See 41 אילת השחר by Moreinu R’ Aharon Leib Shteinman שליט"א who explains how this may not be such a strong question. who rules that all three hundred zuz must be impounded, we should say in the case of the storekeeper whose records show that he was asked by the householder to pay his employee and that he did as instructed, we should impound the payment from the householder and it should be held in abeyance until Eliyahu comes and informs us who the rightful owner is, even though there would be no loss for the cheater. It is evident that the Gemara’s conclusion was that causing the cheater a loss is not a factor at all. We rule that disputed funds are impounded based on one criterion - is there a definite cheater or not?

Regarding the shopkeeper concerning his ledger, let us take the money from the householder and hold it in abeyance until Eliyahu comes.
The Gemara seems to be searching for cases where we do not apply the ruling - it should be held in abeyance. Tosfos holds that there is another case where this ruling could be applied. The Gemara should have placed it on the table as well.
The Mishna in Yevamos 118b speaks of a person who stole from one of five people. Each of the five claims that he was the victim and is entitled to be paid. R’ Akiva holds that the thief must pay each of the five possible victims in order to be definitely free from sin. Within the text of the Gemara there, it is evident that some hold that R’ Akiva’s ruling is in effect even for one who purchased from one of five people and they are each claiming that they were the seller. In order to be free of sin, one must pay to all of the possible sellers.
Tosfos is referring to this opinion in the Gemara in Yevamos 118b. According to R’ Akiva who says (Yevamos 118b): When one purchased from one of five people and he does not know from which one of them he purchased, and each one of them claims that he was the seller, he must pay to each and every one of them, [the Gemara] does not ask: Why must he pay to each and every one who claims that he was the seller? We should rule that [the payment] should be taken from the buyer and held in abeyance until Eliyahu comes and identifies the true seller, as the Gemara says here in regard to the case of the storekeeper?
Because there the buyer was negligent, he should have remembered from whom he purchased the article. By his negligence he damaged himself and must pay each of those who claims to be the buyer. At this point in the dialogue of our Gemara, the Gemara does not believe that the householder was negligent and therefore suggests that the money be taken from him and held in abeyance.

There, this is the reason, both of them make an oath and take: Because the storekeeper can say to the homeowner, "I carried out your agency that you ordered me and gave the money to your worker."

You did not instruct me to give him [his wages] with witnesses. It is because of your negligence in not telling me to pay your employee in the presence of witnesses that we now have this problem. I, the storekeeper, need not suffer for your negligence by the court impounding your money.
The Gemara seems to accept this argument that it was incumbent upon the householder to instruct the storekeeper to pay only in the presence of witnesses. We do not expect the storekeeper to suspect that the employee might attempt to cheat and the storekeeper should have thought of using witnesses on his own. Tosfos will now present a Gemara in Kesubos 85a, where it seems that an agent, even if not specifically instructed, is expected to use his good sense to assure that his payment will free the principal from having to pay again.
This is bewildering! Let the householder say to the storekeeper, I made you an agent to pay my employee for my benefit, so that I would no longer be liable to pay, but not for my detriment, to pay the employee without documentation of the payment. Even though [the householder] did not specifically tell [the storekeeper]: Pay him in the presence of witnesses, on his own [the storekeeper] should have exercised caution and should not have paid unless witnesses were present.
Where do we see that it is incumbent on the agent to consider the possibility that the recipient might deny that he was paid? As [the Gemara] says in Perek Hakosev (Kesubos 85a) in regard to Avimi who owed money to the people of Bei Chozai. He sent [payment] in the hands of Chama son of Rabah bar Abuhu and he paid [the people of Bei Chozai]. [Chama] said to them: Give me the document so that you will not be able to collect again. They said to [Chama]: The money that you paid was for another debt. Avimi still owes us money to satisfy the debt of this document. We will not return it to you. Chama had obviously been deceived into paying the debt without destroying the document and the people of Bei Chozai would again collect the debt of the document. Who must assume the loss, Avimi the principal or Chama the agent?
The Gemara there concludes that no matter whether [Avimi] told [Chama]: Take the document and then pay, or whether he said: Pay the money and take the document, the agent Chama, is liable, because [Avimi] can say to [Chama] I sent you for my benefit not for my detriment. You were obliged to use common sense and make sure to take back the document so that I would not have to pay again. So too, in the case of the storekeeper who paid the employee for the benefit of the householder, it should be incumbent on the storekeeper to pay the employee his wages in a way that would not subject the householder to pay a second time.
We can answer: That there in Kesubos 85a, since [Avimi] mentioned that Chama should take back the document, it is as if he said: Do this in a way that the document will come into your possession and I will not have to pay again, but here [the householder] did not mention witnesses at all. In the absence of even a mention that there might be a problem with the employee’s honesty, the storekeeper did not have to anticipate that he might eventually deny that he was paid. In Avimi’s case, it was brought o Chama’s attention that the people of Chozai might be dishonest and attempt to secure payment a second time. It was incumbent upon Chama to exercise caution and be sure that he had the document in his hands before paying the cash.

What [business] do I have with the hired laborer to challenge [his claim].

He is not trustworthy to me: I do not trust him with an oath; I say that he is evil. And I do not have to trust a person with an oath against my will, unless I trusted him from the beginning, to deposit [something] with him or to make a stipulation with him.

You trusted him: And you are the one who fouled up, so I should not have to lose through your fouling up, such that my money should remain until Eliyahu comes.

Why did the Torah say etc. [that one who admits to partial liability must swear]? As we learn this Gemara together we will see that if a defendant totally denies the plaintiff’s claim, for example: Reuven claims that Shimon owes him one hundred zuz. Shimon says it is untrue: I owe you nothing. Shimon is not liable to pay nor to swear to defend his denial by Torah law.
This scenario is referred to as כופר הכל - the defendant totally denies the claim.
If however, Shimon admits partial liability, for example: He says - I owe you only fifty zuz, he must pay the fifty that he admits to owing and must also swear that he does not owe Reuven the other fifty.
This is called מודה במקצת - partial admission.
In our Gemara, Rabah is attempting to explain this phenomena. The Gemara begins with a general question: Why did the Torah say that one who admits to partial liability must swear? The implication of this question is that that there is reason to say that this oath is not necessary. What is that logic?
[Tosfos] explains the underlying logic of the Gemara’s question: [The defendant] should be believed when he admits to partial liability with a migo,¹See 2Ac Tosfos ד'ה זה נוטל רביע for a general explanation of the concept of migo. since if he had wanted to lie, he could have totally denied the plaintiff’s claim. As we will soon learn, he would not have to swear if he did totally deny the claim. We should therefore believe his partial admission and he should not have to swear to defend his denial of a portion of the debt.
It is fairly obvious that a partial admission requires an oath despite the migo that the defendant has. How do we deal with Rabah’s question if we do not have the option of saying that one who partially admits liability does not have to swear?
Or, we should learn from this ruling that partial admission requires an oath that we do not use a migo elsewhere. As Tosfos has pointed out, the oath required of one who partially admits to the claim against him is an inherent contradiction to the concept of migo. We should conclude that migo is not a viable method of proving the truthfulness of one’s claim.
[The Gemara] answers: Ordinarily a migo is acceptable proof of one’s truthfulness, however,this is not a viable migo, because a person does not have the audacity to totally deny a claim against him, since his neighbor, the plaintiff, is aware of his lie. It is psychologically easier for him to admit to partial liability than to totally deny that claim. Migo says: believe my first claim because if I was a liar I have a better claim. In the case of partial admission this is not true. Totally denying the claim is extremely difficult for him, because it requires a level of audacity of which he is not capable.
Tosfos proves his point by showing that when one can easily totally deny the claim against him, he actually does not need to swear since he has a migo.
However, in a situation where one does have the audacity to totally deny the claim against him, for example: when his opponent is the son²The father who lent the money to the borrower is well aware of the borrower’s lying. The borrower does not have the audacity to lie in his face. The son of the lender who is attempting to recover money that he believes belongs to him, does not really know the truth and it is easier to lie in his face. of the lender as opposed to the lender himself, and [the borrower] says: Your father left a hundred zuz in my possession, i.e. I owed him a hundred zuz, but I paid half, he is believed because he has a migo that he could have totally denied the claim against him, as it is stated in the second Perek of Kesubos (18a) and in Perek Shavuos HaDayanim (Shavuos 42a). It is evident that when the defendant does have an acceptable migo, he is in fact exempt from swearing. In the classic case of a partial admission, he must swear because he does not have a viable migo. He cannot muster the audacity to totally deny the claim on the plaintiff.
The migo we are discussing is based on the ability to totally deny the plaintiff’s claim. This brings us to Tosfos’ next question.
If you ask: How do we know that one who entirely denies the plaintiff’s claim is exempt from swearing?
Tosfos first rejects two possible sources for this ruling.
We should not say that this is because of a chazakah³An assumption of fact. that a person does not have the audacity to totally deny his debt. Since he is denying it, he is obviously being truthful. For even in a situation where one can be brazen, such as when the plaintiff is the son of the lender, the borrower who totally denies the claim against him is believed. Furthermore, even one who admits to partial liability is exempt [when it is the lender’s son who is the plaintiff] since if he wanted to lie, he would have denied the claim entirely. It is clear that a total denial is accepted even when there is no chazakah that he would not have the audacity to brazenly deny the claim against him. So much so, that in such a situation we say that the partial admitter is also exempt from swearing because of a migo.
The second possible solution that Tosfos rejects: We should not say that we derive that one who totally denies the claim is exempt from swearing, from that which the Torah needed to write that a single witness against a plaintiff, obligates him to swear in defense of his denial. Now, if one who totally denies the claim against him is obligated to swear, what difference is the testimony of the single witness, he is obligated to swear without this testimony? It must be that he is exempt from swearing when he totally denies the plaintiff’s claim and is obligated to swear when there is a single witness against him. Tosfos explains that this argument is also incorrect. Even if one who totally denies the plaintiff’s claim is obligated to swear, there is still a need for the Torah to tell us of the oath generated by a single witness.
For it is necessary to tell us that a single witness obligates the defendant to swear in a situation where [the plaintiff] is not making any claim at all and he does not know that the defendant owes him money, but the witness is testifying that [the defendant] stole from the plaintiff, or that the plaintiff’s father lent [the defendant] money. The plaintiff has no idea that the defendant owes him money. There is no claim by the plaintiff and no denial of such claim by the defendant. It is only the testimony of the single witness that obligates the defendant to swear. It is therefore possible to say that even when one is in total denial of the plaintiff’s claim he is obligated to swear and the Torah found it necessary to write about an oath generated by a single witness’ testimony, for a situation where there is no claim and counterclaim at all.
In order to understand Tosfos’ answer, we must have some background information about the source of the obligation of a defendant to swear. In Shemos 22, 8, the Torah speaks of the obligation to defend one’s claim by taking an oath. The exact wording of the verse is: אשר יאמר כי הוא זה - That [the defendant] will say in response to the claim against him but this is it.
The Gemara in Bava Kama 106b comments about the meaning of this verse: He is not obligated to swear until he denies some of the claim and admits some of the claim. What is the reason for this requirement? The verse says: That he will say, but only this is it.
The Gemara understands that the words “but this is it” mean that he is agreeing to some of the claim against him, but not to all of it a partial admission. It is for such partial admission that an oath is called for. We can answer: That from the verse “כי הוא שה - but this is it”, it is understood that it is a decree of the Torah, that only one who admits to part of the claim against him is obligated to swear, but not one who totally denies the claim. [See at length about this in Tosfos Bava Kama 107a [ד'ה עירוב - We see from the verse that the Torah required an oath only in the case of partial admission and not when the claim is totally denied.