Commentary for Bava Metzia 5:9
תינח מציאה מקח וממכר מאי איכא למימר אלא מחוורתא כדשנין מעיקרא
whilst in our case no one can say for sure that one of the disputants is a fraud,<span class="x" onmousemove="('comment',' Therefore R. Jose would agree that the garment should be divided in accordance with the decision of the Mishnah. ');"><sup>8</sup></span>
Rashi on Bava Metzia
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.
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Tosafot on Bava Metzia
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?
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?
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