Commentary for Bava Metzia 5:7
אפי' תימא ר' יוסי התם ודאי איכא רמאי הכא מי יימר דאיכא רמאי אימא תרוייהו בהדי הדדי אגבהוה
the [same] Rabbis would agree that it should be divided among the two claimants when they have taken the oath. But in regard to R. Jose the argument is the other way. If R. Jose decided in his case, where each claimant is undoubtedly entitled to one hundred [<i>zuz</i>],<span class="x" onmousemove="('comment',' V. n. 1 supra. ');"><sup>6</sup></span>
Tosafot on Bava Metzia
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.
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.
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