Commentary for Bava Metzia 4:3

But let us see from whom he took: Let us ask the seller from whom he took the money. As we learned (in a baraita) in Kiddushin (73b), "A seller is deemed credible to say, 'I sold to this one, and I did not sell to that one.'" And even though it ends, "In [which case] are these words said? When his item that is being purchased is [still] in his hand. But if his item that is being purchased is not in his hand, he is not deemed credible." For he did not pay so much attention to the thing, that he would remember; since they both pursued him with the giving of its value. [Nevertheless,] we establish [the case] there to be when he took money from both of them, from one willingly, and from the other against his will. As since it is not incumbent upon him to testify, he was not so exacting to be careful after they went away from him [to remember, from] which one he was willing and [from] which one it was against his will. But when he only received money from one, he would certainly remember him.

Let us see from whom the seller took money. Let us first learn a Gemara in Kiddushin 73b that is relevant to understanding our Tosfos.
A seller is believed¹The Gemara does not clearly say why the seller is believed. There is a dispute among the Rishonim as is evident in this Tosfos. An understanding of this dispute will enable us to better understand the underlying movements of this Tosfos. See נחלת דוד for a lengthy exposition of this subject.
A) Rashi holds that the seller is believed because he is the only one that really knows the truth. There are similar situations in Kiddushin 73a, such as a midwife or a judge who are believed primarily because they are the only ones who know the truth. רש"י holds that the seller’s testimony is accepted for the same reason. Thus, according to Rashi as long as we are convinced that the seller actually does know to whom he sold the garment we believe him. If however, the situation is one where we have doubts about the seller’s knowledge, we do not believe him. Therefore, as long as the seller has possession of the garment, he has the responsibility to deliver the garment to the true purchaser. Even if the situation was somewhat confusing, such as when they both gave him money, he still must deliver the garment to the right party. However, as soon as he made his choice and no longer has that responsibility, we do not believe him when the conditions were confusing, but we do believe him when only one customer gave money.
B) Tosfos (Rabbeinu Tam) holds that the basis for believing the seller is that since the garment is in his possession he has a migo, that he could say that he did not sell the garment at all or that he repurchased it. We must therefore believe him when he says that I sold the garment to this one. Of course, this migo is operable only when the seller has the garment is his possession. Thus, after he releases it, we do not believe him at all. Rabbeinu Tam is compelled to say, as we will soon see, that our Gemara is asking that we should believe the seller, just as we believe any single witness. There is no special authority for the seller when he does not have the migo that he could maintain that he never sold the garment. to say: I sold to this one and not to that one. When is this so: When the sold item is still in [the seller’s] possession, but if the sold item is no longer in [the seller’s] possession, he is not believed. The Gemara asks: Let us see from whom he accepted money? Once we know who gave money, we will know that he is the true owner. Why must we rely on the testimony of the seller? No! This Baraisa is needed to teach us about when [the seller] accepted money from both and he tells us: From one I accepted willingly and from the other I accepted money against my will. It is not known from which customer he accepted the money willingly and from which customer he accepted the money against his will.
We can glean from that Gemara that the seller is believed when he still has possession of the article, but not when he has already given the item to the buyers. This presents a problem with our Gemara which asks: We should believe the seller? But in our Gemara the seller no longer has possession. The Mishna is speaking of when the two litigants are holding the garment. The seller has no special say in this matter since he no longer has possession.
רש"י anticipated this problem and explains our Gemara in view of what we have learned in Kiddushin 73b. Tosfos will first quote רש"י and then disagree with his conclusion.
Let us return for a moment to the Gemara in Kiddushin 73a. The Gemara says that we do not believe the seller when he no longer has possession. The Gemara immediately asks: Let us see from whom he accepted money. רש"י explains that the Gemara is asking, that since he received money from only one of the customers he most probably remembers which one it was and we should believe him even if he no longer has possession.²See preceding note. A) The Gemara essentially agrees with this proposal, but says that we are speaking of when the seller accepted money from both.
According to Rashi’s explanation, we may conclude that when he received money only from one of the customers, we believe him even when he no longer has possession of the article. First, let us see how רש"י reconciles our Gemara in Bava Metzia 2b with the Gemara in Kiddushin 73a.
רש"י explained our Gemara’s question: Let us ask the seller which of the litigants is the lawful owner of the disputed garment? Even though we have learned that the seller is not believed when he no longer has possession of the sold article, as can be seen in Perek Asarah Yuchsin (Kiddushin 73b), and our Mishna is speaking of when the seller does not have possession? That we do not believe the seller, was said when he accepted money from both customers, but when he accepted money from only one of the customers, he is believed even when the sold article is not in his possession. Our Gemara assumed that the seller most probably received money from only one of the customers and therefore says, let us see from whom the seller took the money. We would believe him if he said which customer gave him the money. The Gemara answers that our Mishna is speaking of when both gave money and we do not believe the seller who says: I accepted the money from this customer willingly.
According to this analysis of the Gemara, even if the seller who received money from both customers says he is certain that the garment belongs to this one, we do not believe him. We would believe him only if he had received money from only one of the customers.
In view of this analysis, we must take a better look at the next words of our Gemara. Our Gemara reads: ולא ידענא - I do not know. This seems to be a quote of the seller who is admitting that he does not know who the lawful owner is. רש"י quotes a text that reads ולא ידע - he, the seller, does not know. Again this implies that the seller tells us - I do not know who the lawful owner is. What if the seller says I do know? These texts lead us to believe that we would believe him. רש"י says that these texts are incorrect, because we have seen that the Gemara in Kiddushin 73b says that we do not believe a seller who accepted money from both customers.
רש"י therefore amends the text of our Gemara: Our text, after this statement of the Gemara that we are speaking of when the seller accepted money from both customers is: And we do not know. This means that even if the seller insists that he sold it to Ruvain, we do not accept his testimony and we, the court, do not know to whom the garment was sold. It is in this case that the Mishna rules that the garment is to be divided after each party swears.
After quoting רש"י, Tosfos offers his own explanation of our Gemara and insists that it is not necessary to amend the text. Rashi’s difficulty with our text is that the Gemara seems to be saying that we would believe the seller who says - I do know who the lawful buyer is, even if he accepted money from both customers. This is clearly contradicted by the Gemara in Kiddushin 73a.
Tosfos therefore explains that our Gemara’s question: “Let us see from whom he accepted money?”, is not about believing the seller as a special witness³See note 1, B), where I explained that Tosfos holds the authority of the seller is based on a migo, which he has when in possession of the garment, but not when he gives it away. in this matter. Rather, the question is - we should believe him as we would believe any single witness.
Although a single witness is not believed in money matters, he does have the power to compel a litigant to swear by Torah law. For example: If Ruvain claims that Shimon owes him one hundred zuz and Shimon denies it, by Torah law Shimon is exempt from paying and need not swear. If however, a single witness testifies that Shimon does owe the money, he is required to swear by Torah law.
According to Tosfos’ opinion he can also exempt any of the parties in a dispute from swearing. For example: If Ruvain claims that Shimon owes him one hundred zuz and Shimon admits that he owes him fifty zuz, by Torah law Shimon must swear that he only owes fifty zuz. If however, a single witness testifies that Shimon only owes Ruvain fifty zuz, Shimon need not swear. It is this power of the single witness in matters pertaining to an oath that the Gemara refers to, when it asks: Let us see from whom the seller took money.
It is for naught that רש"י said this awkward⁴See Tosfos there. According to Rashi we are forced to say that the Gemara is extending the reliability of the seller to even when he does not have possession of the garment. According to Tosfos, the Gemara is constantly maintaining that the seller is especially believed only when he has possession. Also, according to Rashi, we must amend the text. This is not necessary according to Tosfos. explanation. For here in Bava Metzia [the Gemara]’s question is sensible. For even if the sold article is not in the the seller’s possession, [the seller] should be believed as any single witness is. The Gemara’s question is: Why are both litigants required to swear? The one whom the seller corroborates should be exempt⁵See Tosfos there. According to Rashi we are forced to say that the Gemara is extending the reliability of the seller to even when he does not have possession of the garment. According to Tosfos, the Gemara is constantly maintaining that the seller is especially believed only when he has possession. Also, according to Rashi, we must amend the text. This is not necessary according to Tosfos. Tosfos here says as a matter of fact that when a single witness testifies in favor of one of the litigants, that litigant is exempt from swearing. This ruling does not enjoy universally agreement. See Rosh 3, in our Perek for a lengthy discussion of the pros and cons in this issue. from swearing and the other should be required to swear by Torah law? Now that we have explained that the Gemara’s question is that we should listen to the seller as a single witness, the text “ולא ידע - and he did not know”, is reasonable, for if [the seller] did know which customer he intended to sell the article to, he would be believed as a single witness insofar as swearing is concerned.
However, [the Gemara] could have answered⁶See מהרש"ל and מהר"ם who explain why this is true only according to Tosfos explanation, but not according to Rashi.
A) According to רש"י we believe the testimony of the seller. If the seller was not available, we would not allow the litigants to swear, because upon the seller’s return’ he may testify in favor of one of the litigants. Retroactively, we will see that the court’s ruling caused a false oath. The court will never issue a ruling where it could become obvious that one of the litigants swore falsely.
B) According to Tosfos, we do not especially believe the seller. He has the authority of any single witness to require an oath from one litigant by Torah law and to exempt his opponent. If we rule in his absence that both litigants must swear and he returns and testifies in favor of one of the litigants, we would still not have a situation where we know that there was a false oath, because we do not inherently believe the seller. He only has the authority to require an oath and to exempt from an oath. Even if the litigant whom the seller supports did swear, nothing happened. At the very most, he swore when he wasn’t really required to do so. As far as his opponent is concerned, we required him to swear and the seller also requires him to swear. There is no evidence that he took a false oath. the question by saying that the seller is no longer available to us, so that we might ask him. It is then that the Mishna rules: the garment is divided after both litigants swear.
Both Rashi’s and Tosfos’ explanation of the words: “Let us see from whom he accepted the money?” have legal ramifications, and our ruling will depend on the seller’s testimony. According to Rashi, the garment will be awarded to the customer that the seller supports. According to Tosfos, the customer whom the seller supports will not have to swear at all and his opponent will be required to swear by Torah law.
R’I suggests that the Gemara’s question is simply practical. Let us see what the litigants themselves have to say about the subject and perhaps we can settle the issue. The Gemara does not at all mean that the testimony of the seller is legally binding. R’I explains that the Gemara’s question is as follows: We should ask [the litigants] themselves from whom the seller accepted money. For we do not suspect them of lying about this, to say: I gave the money, when he did not give it at all. And [the litigants] are most probably also not arguing about who gave the money, but about to whom the seller consented to sell the garment. However, they are not arguing about who gave the money. We can therefore expect an honest answer. Once they agree that Ruvain gave the money, we will rule that the seller consented to sell it to Ruvain. Shimon who knows that Ruvain gave the money still believes that the seller wanted to sell the garment to him. We will rule that Shimon’s assumption is incorrect.

No, it is necessary - as he took money from both of them: We follow this version: "And we do not know from which one he was willing and from which one it was against his will." And we do not follow the version: "And he did not know." As even if he did know, the seller is not deemed credible once they have gone, as it was established there (Kiddushin 74a).