Commentary for Bava Metzia 7:12
אלא כי איתמר ותנא תונא אאידך דרבי חייא איתמר דאמר ר' חייא מנה לי בידך והלה אומר אין לך בידי אלא נ' זוז והילך חייב
while [several] witnesses are subject to the law of retaliation in case of an alibi? — This presents no difficulty: R. Hiyya attaches no importance to the argument from the law of retaliation in case of an alibi.<span class="x" onmousemove="('comment',' For even though one witness, on being refuted by an alibi, is not liable to suffer the penalty that he intended to impose upon the defendant, he is disbelieved as a result of the refutation, and his evidence is nullified, just as in the case of two witnesses who are refuted by an alibi. ');"><sup>12</sup></span>
Tosafot on Bava Metzia
“The Tanna [of our Mishna] taught this”, [refers to] another [rule taught] by R’ Chiya.
A review of our Gemara is in place:
On 3a R’ Chiya teaches that
A) if a plaintiff claims one hundred zuz and the defendant denies the claim entirely and two witnesses testify that the defendant owes fifty zuz, the defendant must swear that he does not owe the second fifty zuz, just as the defendant would need to swear if he had admitted owing fifty zuz.
This ruling is referred to as the earlier teaching of R’ Chiya. Initially the Gemara said that ‘our Tanna taught’ this ruling in our Mishna. The Gemara on 4a then showed how this ruling cannot be deduced from our Mishna.
The Gemara continues saying that there is a second ruling of R’ Chiya that our Tanna taught in the Mishna. That is the rule of
B) ‘הילך - here, it is yours’. For example: Ruvain says to Shimon you owe me one hundred zuz. Shimon responds: I owe you only fifty and here, it is yours.
Shimon offers immediate payment for the fifty zuz that he admits owing. R’ Chiya says that even in this case Shimon needs to swear. Rav Sheishes disagrees. He holds that one swears only when he does not immediately offer to pay the portion he owes.
The Gemara is now saying that when R’ Chiya said ‘the Tanna taught’ my ruling in the Mishna, he was referring to B) this latter ruling and not to A) his earlier ruling. In order to view this ruling and how it can be deduced from our Mishna from the proper perspective, we must understand that the case of the Mishna is one where there is an oath obligation similar to a) one who partially admits the claim of the plaintiff and b) he is obligated to swear even though he is offering immediate payment for the portion he owes.
We must first see how in our Mishna
a) there is an oath obligation similar to when one admits partial liability and then we can perhaps see R’ Chiya’s second ruling:
b) that even when the defendant offers immediate payment, he is obligated to swear.
For greater clarity let us review Rashi together: The Gemara initially thought that according to R’ Chiya, the reason for our Mishna’s ruling is because, we [the court] testify that the portion of the garment that each of the litigants is holding is his. This is similar to when one claims: you owe me one hundred zuz and the other responds: I owe you nothing. While witnesses testify that [the defendant] owes fifty zuz, as in the other [earlier ruling] of R’ Chiya, where [R’ Chiya] obligates [the defendant] to take a Torah oath.
We will look at this case first from Ruvain’s and then from Shimon’s perspective: Ruvain claims that the garment is entirely mine. This is the equivalent of saying that you Shimon, owe me one hundred zuz.
Shimon claims: it is entirely mine. This is the equivalent of Shimon saying: I owe you nothing!
The court sees that half is definitely Ruvain’s, because he is holding the garment. This the equivalent of witnesses testifying that half of Ruvain’s claim is true.
The Mishna rules that Shimon must swear to defend the half of the garment that he does receive. This is similar to R’ Chiya’s first ruling that the testimony of witnesses accomplishes the same as one’s own admission.
Now, if we just reverse the roles of Ruvain and Shimon, we will have the same exact ruling for Shimon as we do for Ruvain. The Gemara sees this ruling of the Mishna in this light. Thus we have in our Mishna the basis for an oath obligation a) R’ Chiya’s first ruling. The Gemara also sees this case as one of ‘הילך - Here, it is yours!’, since delivery of half the garment to each of the litigants is immediate.
Thus we have demonstrated R’ Chiya’s second ruling
b) that even in a case of ‘הילך - Here, it is yours!’, there is an oath obligation. We, the court, testify that which this etc. [litigant is holding is his, and as if the other litigant said , “Here, it is yours.”1The words אנן סהדי in the Gemara are in brackets. It appears that at some point they were added to the text. They do appear in Rashi’s explanation of the Gemara. It is unclear whether Rashi had those words in his text of the Gemara. It is interesting to note that Tosfos wrestles with the meaning of these words as they pertain to our Gemara. He does not mention that there is an alternative text. See Artscroll’s translation of the text and note 28. Rashi explains that since our perception of what we see, is that Ruvain and Shimon each own at least half of the garment, this is equivalent to the testimony of witnesses who testify that Shimon owes Ruvain half of Ruvain’s claim. Shimon must swear that at least half is his because of R’ Chiya’s earlier ruling, that the testimony of witnesses (in this case, the court’s perception that Ruvain owns at least half of the garment) can generate an oath obligation on the other half of the garment.
As explained earlier, we must first have an oath obligation and then we can apply R’ Chiya’s second ruling that even when immediate payment is offered the defendant is also obligated to take an oath. According to Rashi’s explanation, the basis for the oath obligation in our Mishna is R’ Chiya’s earlier ruling. Thus, by demonstrating that the Mishna is teaching R’ Chiya’s second ruling, we automatically have proof of his first ruling. If not for the first ruling, there would be no oath obligation at all.
This is difficult, for since we cannot prove this latter2We have corrected the text to conform with רש"ש. ruling b) about when the defendant says, הילך - Here, it is yours!’, only because of the earlier ruling of R’ Chiya a) that one is obligated to swear upon the testimony of witnesses who say that the defendant is partially liable, we should also say ‘the Tanna taught’ about the earlier ruling of R’ Chiya. Since we can prove ruling b) only if ruling a) is true, any proof of ruling b) is automatically proof of ruling a).3See ריטב"א רמב"ן, and ר"ן who offer a defense of Rashi. In general their explanation is that when the Gemara said “our Tanna taught it” in reference to the latter ruling of R’ Chiya, the Gemara was referring to the conclusion of the Gemara later where R’ Chiya admits that the oath in our Mishna is of Rabbinic origin. Thus, we have no proof of R’ Chiya’s earlier ruling. However, when the Gemara initially begins its conversation about proving R’ Chiya’s second ruling from our Mishna because the oath in our Mishna is required by Torah law, the Gemara could have in fact used the very same proof to prove R’ Chiya’s earlier ruling. R’ Chiya ultimately admits that the oath in our Mishna must be of Rabbinic origin and at that point we no longer have proof of R’ Chiya’s earlier ruling, but we can prove his latter ruling, for if ‘Here, it is yours!’ is exempt from an oath by Torah law, it would also be exempt in Rabbinic law. בעל המאור quoted in ,שיטה מקובצת offers a different approach.
We are compelled to say that it is possible that ruling b) can exist without ruling a), and that our Mishna need not be understood specifically as a case of b) R’ Chiya’s latter ruling being imposed on an oath obligation established by his a) earlier ruling. There must be a way of explaining the initial oath obligation other then as a result of R’ Chiya’s earlier ruling.
We already know that
a) one’s partial admission generates a Torah oath obligation. We are considering that
b) the testimony of witnesses about part of the plaintiff’s claim might also generate a Torah oath obligation.
R’ Chiya’s latter ruling that even when the defendant says, “Here, it is yours!”, he must swear by Torah law is applicable in both instances, when the original claim is a) partially admitted by the defendant or b) when we hear from witnesses that he owes part of the claim.
Our Gemara seems to be saying4See note 1. In Shulchan Aruch C.M. 75, 4, we do in fact rule like the earlier ruling of R’ Chiya that when liability of fifty zuz is established by witnesses, the defendant must swear by Torah law. that the basis for the oath in our Mishna is that the court who sees that half of the garment belongs to Ruvain is the equivalent of b) the ' testimony. But must we say that the court’s view of this situation is equivalent to b) witnesses’ testimony? Perhaps it is equivalent to hearing an admission from Shimon that half the garment belongs to Ruvain?
For this reason we can say, that the words in brackets in our text ‘we, the court, are witnesses’ used to describe our perception that Shimon owes Ruvain half the garment is imprecise, rather, now we consider that which [Ruvain] is holding [the garment] even more than the testimony of witnesses. It is considered as if [Shimon] admits to [Ruvain] that [half] is [Ruvain’s]. Thus the Mishna is an example of when R’ Chiya’s latter ruling is imposed on a) one’s own partial admission. There is no evidence at all that witnesses’ testimony that Ruvain owns half the garment would generate a Torah oath.
Tosfos will now show that his explanation of the Gemara’s phrase ‘אנן סהדי - we are witnesses’ as meaning ‘we perceive an admission’ is not problem free. As usual, we will need to review the Gemara’s rejection of R’ Chiya’s earlier ruling.
The Gemara is discussing whether R’ Chiya’s earlier ruling was ‘taught by the Tanna’ of our Mishna: But that which [R’ Chiya] said “and our Tanna taught this” in our Mishna, is it comparable? There, in R’ Chiya’s case, the lender has witnesses that the borrower borrowed fifty zuz, but the borrower has no witnesses that he does not owe the lender more than the fifty zuz that the witnesses testified about. For if the borrower had witnesses that he does not owe the lender anymore, R’ Chiya would not require an oath for the balance, since the borrower has witnesses who testify that he owes no more than fifty zuz.
Here, in the case of our Mishna, just as we are witnesses that [Ruvain] owns half, we are also witnesses that [Shimon] owns half, and even so an oath is required! It seems that the Gemara’s rejection of R’ Chiya’s earlier ruling is because whatever evidence we have on behalf of Ruvain, we also have that very same evidence on behalf of Shimon. Just as we have the equivalent of witnesses testifying that Ruvain owns half, we have witnesses who testify that Shimon owns half. When discussing R’ Chiya’s latter ruling, the Gemara neglects to cite the very same difficulty.
Tosfos will now re-examine the basis for the oath in our Mishna, before we reach the issue of ‘Here, it is yours! But this remains difficult! For in any case we can challenge R’ Chiya’s deduction of his latter ruling from our Mishna by arguing that in our Mishna, just as [Shimon] admits to [Ruvain] that half is his, so too, [Ruvain] is admitting to [Shimon] that half is his and even so an oath is required, as [the Gemara] asks this very question about R’ Chiya’s earlier ruling. If so, how is this attempt to say that R’ Chiya was not discussing his first ruling but his latter ruling an improvement over the previous discussion about the earlier ruling of R’ Chiya? The same problem we have with the earlier ruling re-emerges with the latter ruling.
Eventually, our Gemara says that even if the oath obligation in our Mishna is inherently Rabbinic, the Rabanan would not institute an oath that is not at all similar to an oath required by Torah law. Thus, if in a case of ‘הילך - Here, it is yours!’ there would be no obligation to swear by Torah law, the Rabanan would not institute a Rabbinic oath in a similar situation. Tosfos suggest that even at this earlier point in the dialogue, the Gemara was utilizing this approach, even though it is first articulated later in the Gemara. We can answer: That now in this earlier point in the dialogue as well [the Gemara] is proving that in a case of ‘הילך - Here, it is yours!’ there is an oath obligation because of the reason that will soon be mentioned in the Gemara:
If when a defendant who has admitted half says ‘Here, it is yours!’, he is exempt from an oath by Torah law, the Rabanan would not have instituted a Rabbinic oath that is not comparable to any oath prescribed by the Torah. Thus, the fact that in our Mishna an oath is required, even if this happens to be a situation where the oath is only Rabbinic, because the evidence on both sides is equal,it still proves that by Torah law in a situation of ‘Here, it is yours!’, there is an obligation to swear.
We cannot say the same for R’ Chiya’s earlier ruling. It is possible that even if the testimony of witnesses cannot generate an oath obligation, the litigants in our Mishna would still be obligated to swear. However, according to the earlier ruling of R’ Chiya, even if witnesses’ testimony cannot generate an oath obligation and when witnesses testify that the defendant owes half the plaintiff’s claim he is exempt from an oath, the Rabanan would institute an oath in the case of our Mishna, because the fact that the litigants are each holding the garment is tantamount to an admission, which certainly generates an oath obligation.
When we consider the source of information in our Mishna, which is that we see the two litigants each holding the garment, we may view this either as witnesses’ testimony or as an admission that half the garment belongs to each of the litigants. Even if we reject R’ Chiya’s earlier ruling that the testimony of witnesses generates an oath obligation, the case of two litigants holding a garment requires an oath because the fact that they are holding the garment is tantamount to an admission. Thus, the Gemara is correct in its rejection of R’ Chiya’s earlier ruling. However, if when a litigant says, “Here, it is yours!,’ he is exempt from taking an oath, there could be no requirement for an oath in our Mishna, because our Mishna is clearly a case of ‘Here, it is yours!’.
Although Tosfos is satisfied with the logic of his explanation of the Gemara, he is unhappy with how it conforms to the text of our Gemara.
This explanation is awkward! For according to this explanation, the reason that [the Gemara] could not say “and the Tanna taught it” in reference to the earlier ruling of R’ Chiya is because we can view [the litigants’] holding the garment as an admission and not as witnesses’ testimony, but that was not the gist of[the Gemara’s] challenge earlier. Rather, the reason for saying that R’ Chiya’s earlier ruling is not taught by the Tanna of our Mishna was articulated as: because just as we are witnesses for [Ruvain], we are also witnesses for [Shimon] etc., but according to Tosfos’ explanation that is not the reason at all, it is because each litigant’s holding the garment can be viewed as an admission by his opponent.
A review of our Gemara is in place:
On 3a R’ Chiya teaches that
A) if a plaintiff claims one hundred zuz and the defendant denies the claim entirely and two witnesses testify that the defendant owes fifty zuz, the defendant must swear that he does not owe the second fifty zuz, just as the defendant would need to swear if he had admitted owing fifty zuz.
This ruling is referred to as the earlier teaching of R’ Chiya. Initially the Gemara said that ‘our Tanna taught’ this ruling in our Mishna. The Gemara on 4a then showed how this ruling cannot be deduced from our Mishna.
The Gemara continues saying that there is a second ruling of R’ Chiya that our Tanna taught in the Mishna. That is the rule of
B) ‘הילך - here, it is yours’. For example: Ruvain says to Shimon you owe me one hundred zuz. Shimon responds: I owe you only fifty and here, it is yours.
Shimon offers immediate payment for the fifty zuz that he admits owing. R’ Chiya says that even in this case Shimon needs to swear. Rav Sheishes disagrees. He holds that one swears only when he does not immediately offer to pay the portion he owes.
The Gemara is now saying that when R’ Chiya said ‘the Tanna taught’ my ruling in the Mishna, he was referring to B) this latter ruling and not to A) his earlier ruling. In order to view this ruling and how it can be deduced from our Mishna from the proper perspective, we must understand that the case of the Mishna is one where there is an oath obligation similar to a) one who partially admits the claim of the plaintiff and b) he is obligated to swear even though he is offering immediate payment for the portion he owes.
We must first see how in our Mishna
a) there is an oath obligation similar to when one admits partial liability and then we can perhaps see R’ Chiya’s second ruling:
b) that even when the defendant offers immediate payment, he is obligated to swear.
For greater clarity let us review Rashi together: The Gemara initially thought that according to R’ Chiya, the reason for our Mishna’s ruling is because, we [the court] testify that the portion of the garment that each of the litigants is holding is his. This is similar to when one claims: you owe me one hundred zuz and the other responds: I owe you nothing. While witnesses testify that [the defendant] owes fifty zuz, as in the other [earlier ruling] of R’ Chiya, where [R’ Chiya] obligates [the defendant] to take a Torah oath.
We will look at this case first from Ruvain’s and then from Shimon’s perspective: Ruvain claims that the garment is entirely mine. This is the equivalent of saying that you Shimon, owe me one hundred zuz.
Shimon claims: it is entirely mine. This is the equivalent of Shimon saying: I owe you nothing!
The court sees that half is definitely Ruvain’s, because he is holding the garment. This the equivalent of witnesses testifying that half of Ruvain’s claim is true.
The Mishna rules that Shimon must swear to defend the half of the garment that he does receive. This is similar to R’ Chiya’s first ruling that the testimony of witnesses accomplishes the same as one’s own admission.
Now, if we just reverse the roles of Ruvain and Shimon, we will have the same exact ruling for Shimon as we do for Ruvain. The Gemara sees this ruling of the Mishna in this light. Thus we have in our Mishna the basis for an oath obligation a) R’ Chiya’s first ruling. The Gemara also sees this case as one of ‘הילך - Here, it is yours!’, since delivery of half the garment to each of the litigants is immediate.
Thus we have demonstrated R’ Chiya’s second ruling
b) that even in a case of ‘הילך - Here, it is yours!’, there is an oath obligation. We, the court, testify that which this etc. [litigant is holding is his, and as if the other litigant said , “Here, it is yours.”1The words אנן סהדי in the Gemara are in brackets. It appears that at some point they were added to the text. They do appear in Rashi’s explanation of the Gemara. It is unclear whether Rashi had those words in his text of the Gemara. It is interesting to note that Tosfos wrestles with the meaning of these words as they pertain to our Gemara. He does not mention that there is an alternative text. See Artscroll’s translation of the text and note 28. Rashi explains that since our perception of what we see, is that Ruvain and Shimon each own at least half of the garment, this is equivalent to the testimony of witnesses who testify that Shimon owes Ruvain half of Ruvain’s claim. Shimon must swear that at least half is his because of R’ Chiya’s earlier ruling, that the testimony of witnesses (in this case, the court’s perception that Ruvain owns at least half of the garment) can generate an oath obligation on the other half of the garment.
As explained earlier, we must first have an oath obligation and then we can apply R’ Chiya’s second ruling that even when immediate payment is offered the defendant is also obligated to take an oath. According to Rashi’s explanation, the basis for the oath obligation in our Mishna is R’ Chiya’s earlier ruling. Thus, by demonstrating that the Mishna is teaching R’ Chiya’s second ruling, we automatically have proof of his first ruling. If not for the first ruling, there would be no oath obligation at all.
This is difficult, for since we cannot prove this latter2We have corrected the text to conform with רש"ש. ruling b) about when the defendant says, הילך - Here, it is yours!’, only because of the earlier ruling of R’ Chiya a) that one is obligated to swear upon the testimony of witnesses who say that the defendant is partially liable, we should also say ‘the Tanna taught’ about the earlier ruling of R’ Chiya. Since we can prove ruling b) only if ruling a) is true, any proof of ruling b) is automatically proof of ruling a).3See ריטב"א רמב"ן, and ר"ן who offer a defense of Rashi. In general their explanation is that when the Gemara said “our Tanna taught it” in reference to the latter ruling of R’ Chiya, the Gemara was referring to the conclusion of the Gemara later where R’ Chiya admits that the oath in our Mishna is of Rabbinic origin. Thus, we have no proof of R’ Chiya’s earlier ruling. However, when the Gemara initially begins its conversation about proving R’ Chiya’s second ruling from our Mishna because the oath in our Mishna is required by Torah law, the Gemara could have in fact used the very same proof to prove R’ Chiya’s earlier ruling. R’ Chiya ultimately admits that the oath in our Mishna must be of Rabbinic origin and at that point we no longer have proof of R’ Chiya’s earlier ruling, but we can prove his latter ruling, for if ‘Here, it is yours!’ is exempt from an oath by Torah law, it would also be exempt in Rabbinic law. בעל המאור quoted in ,שיטה מקובצת offers a different approach.
We are compelled to say that it is possible that ruling b) can exist without ruling a), and that our Mishna need not be understood specifically as a case of b) R’ Chiya’s latter ruling being imposed on an oath obligation established by his a) earlier ruling. There must be a way of explaining the initial oath obligation other then as a result of R’ Chiya’s earlier ruling.
We already know that
a) one’s partial admission generates a Torah oath obligation. We are considering that
b) the testimony of witnesses about part of the plaintiff’s claim might also generate a Torah oath obligation.
R’ Chiya’s latter ruling that even when the defendant says, “Here, it is yours!”, he must swear by Torah law is applicable in both instances, when the original claim is a) partially admitted by the defendant or b) when we hear from witnesses that he owes part of the claim.
Our Gemara seems to be saying4See note 1. In Shulchan Aruch C.M. 75, 4, we do in fact rule like the earlier ruling of R’ Chiya that when liability of fifty zuz is established by witnesses, the defendant must swear by Torah law. that the basis for the oath in our Mishna is that the court who sees that half of the garment belongs to Ruvain is the equivalent of b) the ' testimony. But must we say that the court’s view of this situation is equivalent to b) witnesses’ testimony? Perhaps it is equivalent to hearing an admission from Shimon that half the garment belongs to Ruvain?
For this reason we can say, that the words in brackets in our text ‘we, the court, are witnesses’ used to describe our perception that Shimon owes Ruvain half the garment is imprecise, rather, now we consider that which [Ruvain] is holding [the garment] even more than the testimony of witnesses. It is considered as if [Shimon] admits to [Ruvain] that [half] is [Ruvain’s]. Thus the Mishna is an example of when R’ Chiya’s latter ruling is imposed on a) one’s own partial admission. There is no evidence at all that witnesses’ testimony that Ruvain owns half the garment would generate a Torah oath.
Tosfos will now show that his explanation of the Gemara’s phrase ‘אנן סהדי - we are witnesses’ as meaning ‘we perceive an admission’ is not problem free. As usual, we will need to review the Gemara’s rejection of R’ Chiya’s earlier ruling.
The Gemara is discussing whether R’ Chiya’s earlier ruling was ‘taught by the Tanna’ of our Mishna: But that which [R’ Chiya] said “and our Tanna taught this” in our Mishna, is it comparable? There, in R’ Chiya’s case, the lender has witnesses that the borrower borrowed fifty zuz, but the borrower has no witnesses that he does not owe the lender more than the fifty zuz that the witnesses testified about. For if the borrower had witnesses that he does not owe the lender anymore, R’ Chiya would not require an oath for the balance, since the borrower has witnesses who testify that he owes no more than fifty zuz.
Here, in the case of our Mishna, just as we are witnesses that [Ruvain] owns half, we are also witnesses that [Shimon] owns half, and even so an oath is required! It seems that the Gemara’s rejection of R’ Chiya’s earlier ruling is because whatever evidence we have on behalf of Ruvain, we also have that very same evidence on behalf of Shimon. Just as we have the equivalent of witnesses testifying that Ruvain owns half, we have witnesses who testify that Shimon owns half. When discussing R’ Chiya’s latter ruling, the Gemara neglects to cite the very same difficulty.
Tosfos will now re-examine the basis for the oath in our Mishna, before we reach the issue of ‘Here, it is yours! But this remains difficult! For in any case we can challenge R’ Chiya’s deduction of his latter ruling from our Mishna by arguing that in our Mishna, just as [Shimon] admits to [Ruvain] that half is his, so too, [Ruvain] is admitting to [Shimon] that half is his and even so an oath is required, as [the Gemara] asks this very question about R’ Chiya’s earlier ruling. If so, how is this attempt to say that R’ Chiya was not discussing his first ruling but his latter ruling an improvement over the previous discussion about the earlier ruling of R’ Chiya? The same problem we have with the earlier ruling re-emerges with the latter ruling.
Eventually, our Gemara says that even if the oath obligation in our Mishna is inherently Rabbinic, the Rabanan would not institute an oath that is not at all similar to an oath required by Torah law. Thus, if in a case of ‘הילך - Here, it is yours!’ there would be no obligation to swear by Torah law, the Rabanan would not institute a Rabbinic oath in a similar situation. Tosfos suggest that even at this earlier point in the dialogue, the Gemara was utilizing this approach, even though it is first articulated later in the Gemara. We can answer: That now in this earlier point in the dialogue as well [the Gemara] is proving that in a case of ‘הילך - Here, it is yours!’ there is an oath obligation because of the reason that will soon be mentioned in the Gemara:
If when a defendant who has admitted half says ‘Here, it is yours!’, he is exempt from an oath by Torah law, the Rabanan would not have instituted a Rabbinic oath that is not comparable to any oath prescribed by the Torah. Thus, the fact that in our Mishna an oath is required, even if this happens to be a situation where the oath is only Rabbinic, because the evidence on both sides is equal,it still proves that by Torah law in a situation of ‘Here, it is yours!’, there is an obligation to swear.
We cannot say the same for R’ Chiya’s earlier ruling. It is possible that even if the testimony of witnesses cannot generate an oath obligation, the litigants in our Mishna would still be obligated to swear. However, according to the earlier ruling of R’ Chiya, even if witnesses’ testimony cannot generate an oath obligation and when witnesses testify that the defendant owes half the plaintiff’s claim he is exempt from an oath, the Rabanan would institute an oath in the case of our Mishna, because the fact that the litigants are each holding the garment is tantamount to an admission, which certainly generates an oath obligation.
When we consider the source of information in our Mishna, which is that we see the two litigants each holding the garment, we may view this either as witnesses’ testimony or as an admission that half the garment belongs to each of the litigants. Even if we reject R’ Chiya’s earlier ruling that the testimony of witnesses generates an oath obligation, the case of two litigants holding a garment requires an oath because the fact that they are holding the garment is tantamount to an admission. Thus, the Gemara is correct in its rejection of R’ Chiya’s earlier ruling. However, if when a litigant says, “Here, it is yours!,’ he is exempt from taking an oath, there could be no requirement for an oath in our Mishna, because our Mishna is clearly a case of ‘Here, it is yours!’.
Although Tosfos is satisfied with the logic of his explanation of the Gemara, he is unhappy with how it conforms to the text of our Gemara.
This explanation is awkward! For according to this explanation, the reason that [the Gemara] could not say “and the Tanna taught it” in reference to the earlier ruling of R’ Chiya is because we can view [the litigants’] holding the garment as an admission and not as witnesses’ testimony, but that was not the gist of[the Gemara’s] challenge earlier. Rather, the reason for saying that R’ Chiya’s earlier ruling is not taught by the Tanna of our Mishna was articulated as: because just as we are witnesses for [Ruvain], we are also witnesses for [Shimon] etc., but according to Tosfos’ explanation that is not the reason at all, it is because each litigant’s holding the garment can be viewed as an admission by his opponent.
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