Halakhah for Bava Kamma 205:10

נתן לו את הקרן ונשבע לו על החומש

Where they differed was regarding one who robbed one out of five persons without knowing whom he robbed, R. Tarfon maintaining that he may leave the value of the misappropriated article among them and depart, whereas R. Akiba says that there could be no remedy for him unless he pays for the misappropriated article to each of them.<a rel="footnote" href="#103b_10">¹⁰</a> Now, if you assume that an oath was taken here, what difference is there between purchasing and misappropriating?<a rel="footnote" href="#103b_11">¹¹</a> Raba further objected [from the following]: It once happened that a certain pious man bought an article from two persons without knowing from whom he had bought it, and when he consulted R. Tarfon, the latter said to him: 'Leave the purchase money among them and depart', but when he came to R. Akiba he said to him: 'There is no remedy for you unless you pay each of them.' Now, if you assume that a [false] oath was taken here, would a pious man swear falsely?<a rel="footnote" href="#103b_12">¹²</a> Nor can you say that he first took an oath and subsequently became a pious man, since wherever we say that 'it once happened with a certain pious man,' he was either R. Judah b. Baba or R. Judah b. Il'ai,<a rel="footnote" href="#103b_13">¹³</a> and, as is well known, R. Judah b. Baba and R. Judah b. Il'ai were pious men from the very beginning!<a rel="footnote" href="#103b_14">¹⁴</a> — [The ruling of the Mishnah] must therefore be in accordance with R. Tarfon, for R. Tarfon would agree where a false oath was taken,<a rel="footnote" href="#103b_15">¹⁵</a> the reason being that Scripture stated, And give it unto him to whom it appertaineth in the day of his trespass offering.<a rel="footnote" href="#103b_16">¹⁶</a> but R. Akiba maintained that even where no oath was taken, a fine has to be imposed. Now, according to R. Tarfon, let us see. Where he took an oath he would surely not be subject [to the law]<a rel="footnote" href="#103b_17">¹⁷</a> unless he admitted his guilt.<a rel="footnote" href="#103b_18">¹⁸</a> Why then only in the case where HE TOOK AN OATH? Would not the same hold good even where no oath was taken, as indeed taught: 'R. Tarfon agrees that if a man says to two persons, I have robbed one of you and do not know whom, he would have to pay each of them a <i>maneh</i><a rel="footnote" href="#103b_19">¹⁹</a>

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