Ask A Question about the Daf

Bava Metzia 2

1) TWO PEOPLE HOLDING ON TO A GARMENT

QUESTION: The Mishnah states that when two people are both holding on to one Talis, and each person claims that the entire garment belongs to him, each claimant must swear that he does not own less than half of the garment, and they each then receive half of it.

Why does the Mishnah specifically mention that they are both holding the Talis? Would the Halachah be different if they were not holding the Talis?

ANSWERS:

(a) TOSFOS (DH v'Yachloku) explains that the Halachah indeed would be different if they were not holding the Talis. He bases this on the Gemara in Bava Basra (34b) which teaches that when two people come to Beis Din arguing over the ownership of a boat, Beis Din rules that "Kol d'Alim Gavar" -- whoever is stronger prevails. Beis Din does not rule that the two litigants split the boat. Tosfos explains that the reason for this is because neither claimant is in physical possession of the boat, and thus there is no positive proof that the boat belongs to either of them. In such a case, Beis Din prefers to let the stronger one prevail, rather than to give half of the boat to each person, which might be causing the rightful owner to lose his boat.

The ROSH (1:1) explains this further. He says that Beis Din does not have to prevent one of the claimants from taking the boat for himself, since no proof has been brought that it does not belong to him, and the person that is taking it claims that it does belong to him. Therefore, we allow the one who takes the boat for himself (either with testimony, or through force) to prevail, and we assume that since he put forth so much effort into taking possession of the boat he most likely is the true owner. This is a more just way of handling the case than splitting the boat between the two of them.

In our Mishnah, however, this ruling ("Kol d'Alim Gavar") is not an option, since each of the claimants is holding on to the Talis, which is tantamount to proof that the Talis belongs to him (Gemara 3a: "Anan Sehadi d'Mai d'Tafis Hai, Didei Hu"). Since Beis Din is faced with claims accompanied by proof, Beis Din cannot allow one person to seize the Talis from the other, ignoring the proof that each one has that it belongs to him. Therefore, the best option Beis Din has is to split the Talis between the claimants. (Even splitting is not an option if the claimants are holding on to the objects, and it is impossible for the object to actually belong to both of them, because then Beis Din will certainly be doing an injustice by splitting the object. In such a case, Beis Din rules "Yehei Munach," it remains in escrow until someone brings proof of ownership, as the Gemara later (3a) mentions. However, in the case of our Mishnah, since it is possible that both claimants picked up the Talis together and it indeed belongs to both of them, we split the Talis between the two of them.) This is the way Tosfos explains the Mishnah.

RASHI at the beginning of our Mishnah (DH Shenayim) writes "Davka Ochazin," which implies that if the two claimants were not holding the Talis the Halachah would be different, as Tosfos says. This is indeed the way some Rishonim (RADVAZ cited by Shitah Mekubetzes, HAGAHOS MORDECHAI (2nd set), HAGAHOS MAIMONIYOS to Hilchos To'en v'Nit'an 9:7) understand the intention of Rashi here.

(b) The RIVA (cited by Tosfos in Bava Basra 34b, DH ha'Hu, and by Tosfos ha'Rosh here) explains that the Halachah of the Mishnah applies even when the claimants are not holding on to the Talis. In the case of the Gemara in Bava Basra, in which two people claim ownership of a boat, it is because of a different reason that we do not split the boat. In that case, one of the claimants is lying intentionally, and therefore we do not want him to give him half of the boat and thus cause him to gain through his lie. In the case of our Mishnah, in contrast, it is possible that both claimants think that they are telling the truth and have no intention to lie, because each one thinks that he picked up the item first (or that the seller intended to sell the item to him). Therefore, in the case of our Mishnah it is appropriate to split the Talis, since splitting is the best compromise when there are conflicting claims.

In fact, Rashi at the beginning of the Mishnah (DH Shenayim) also might have learned that it is not necessary for both claimants to be holding on to the Talis. This is evidenced by the end of Rashi's comment there. Even though Rashi begins by saying that the Mishnah applies specifically when they are holding on to the Talis, Rashi concludes by saying that because they are both holding it, neither one has more claim to the object than the other, whereas had one been holding it the Talis would have been given to him. From the end of Rashi's comment it seems that he is explaining why both of them need to be holding it as opposed to only *one* of them holding it, in order for the Halachah of "Yachloku" to apply, and not why they both must be holding it as opposed to *neither* of them holding it. (NACHALAS DAVID)

This would be consistent with the words of Rashi later (DH b'Mekach u'Memkar), where Rashi explains, like the Riva, that when we know that one of the two claimants is lying intentionally, we do not split the item between them, but rather we rule "Yehei Munach." Accordingly, it cannot be proven from the Gemara in Bava Basra that we do not split the Talis when the claimants are not holding on to it, since the reason the boat is not split is because one of the claimants is lying intentionally, as the Riva writes. (PNEI YEHOSHUA)

Therefore, it appears that when Rashi states (at the beginning of his first comment on the Mishnah) that the Mishnah applies specifically to when they are both holding the Talis ("Davka Ochazin"), he means something else. The Gemara later (7a) explains that the Halachah of the Mishnah applies only when both parties are holding on to the *fringes* of the Talis, but not to the Talis itself. If either one of them is holding on to the Talis itself, then the portion of the Talis that he is holding is given to him right away, without the need for a Shevu'ah. Perhaps Rashi is teaching that the Mishnah is hinting to this condition by using the word "Ochazin," which means that they are seizing the Talis by holding on to the fringes at the edge, rather than using the word "Adukin" (as in the Beraisa and Gemara on 7a), which means that they are holding on to the Talis itself, or leaving out mention of who is holding the Talis altogether (see CHESHEK SHLOMO; see also MAHARAM SHIF on Rashi here).

Rashi means to say that the Mishnah is discussing specifically a case where the two people are holding on to the fringes *as opposed to the Talis itself*, for it is in this way that they split the entire Talis. Had one of them been holding the Talis itself, then the part that is in his hands would have been declared as belonging to him because of the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," and they would only have split the remaining part of the Talis.

This interpretation is supported by the words of Rashi as they appear in the Rashi on the Rif. Rashi there says not that "they are both Muchzakim and one does not have more than the other," but that "they are both Muchzakim and one does not have *in his hand* more than the other." This implies that Rashi's point is that neither of the litigants is holding the actual Talis in his hand, but rather they are both only holding the fringes. (See also the wording of the NIMUKEI YOSEF.) This is also how the RADVAZ and RASHBATZ (cited by Shitah Mekubetzes) explain these words in Rashi (although they do not attribute this meaning to Rashi's opening words as well, as we did).

According to the Riva and Rashi, why does the Mishnah mention that both claimants are holding on to the Talis, if the Halachah would apply even when they are not holding on to it? Perhaps the Mishnah means to teach that *even* when they are holding on to the Talis, we still split the Talis between them with a Shevu'ah and we do not rule "Yehei Munach" (or that we split the Talis between them without a Shevu'ah), which is a possibility that the Gemara considers (2b; see Rashi there, DH Alav ha'Ra'ayah).

QUESTION: Rav Papa explains that the Mishnah is teaching two different cases: when two people claim to have found a Talis, and when two people claim to have bought a Talis. RASHI (DH b'Mekach u'Memkar) points out that the Halachah of the Mishnah would apply only in these situations, but not in a situation in which the two people each claim that they *wove* the garment.

Apparently, Rashi is bothered by a question on the Gemara. Why does the Gemara say that the second case involves two people who each claim to have bought the garment? Perhaps they are each claiming to have *made* the garment! To this Rashi answers that if they claim to have woven the garment, the Halachah of the Mishnah would not be correct.

Why does Rashi not suggest a simpler answer? The Gemara is looking for two cases, each of which teaches a Chidush that cannot be learned from the other case. Because of this, the Gemara must say that the second case is a case in which two people each claim to have bought the garment. If the Mishnah had taught only that case, we would not know that both of the claimants have to swear when they each claim to have *found* the garment, since we would think that only when each claims to have bought the garment do we administer a Shevu'ah, since each one paid money and would find grounds to be "Moreh Heter" (see Rashi and Tosfos on 2b). Therefore the Mishnah must teach that we administer a Shevu'ah even when they both claim to have *found* the garment.

Had the Gemara said that the second case is one in which each of the claimants claims to have woven the garment and, even so, they both must swear, it would no longer be necessary to teach that they both swear in a case where they each claim to have found the garment. That would be obvious, for we administer a Shevu'ah even in a case in which they each claim to have woven it, where there is no grounds to be "Moreh Heter." (RASHASH)

ANSWER: The MAHARAM SHIF explains that Rashi had another question on the Gemara. Rashi did not mean to ask that the *Gemara* should have said that the Mishnah is discussing a case where each claimant says that he wove the garment. Rather, Rashi means that the *Mishnah* should have taught a single case in which each party claims to have woven the garment, and then it would no longer be necessary to teach a second case -- since it is already clear that they each must swear even when they cannot be "Moreh Heter." In fact, had the Mishnah said only the second case (of "Kulah Sheli"), why would we have thought that it is referring specifically to a case in which the claimants say that they bought it? "Kulah Sheli" applies even to a case in which the claimants say that they wove it, making it no longer necessary to teach a second case in which they swear when they both claim to have found it!

Rashi answers that in a case in which each one claims to have woven it, the Talis will *not* be split among them. (See the discussion of the TIFERES SHMUEL on Rashi's comment .)

As we mentioned earlier (see previous Insight), TOSFOS (DH v'Yachloku) maintains that the Talis is split even when we know that one of the claimants is intending to lie, because there is a possibility that they both own the Talis. Therefore, this question remains a question according to Tosfos: why does the Mishnah not mention a case in which each claimant claims that he wove the Talis? Tosfos deals with this question (2b, DH Iy Tana) by offering a different explanation for the Gemara's discussion of the necessity of teaching each of the two cases in the Mishnah.

2b

QUESTION: The Gemara explains that even according to Ben Nanas, who does not allow conflicting Shevu'os to be made in court, we allow the two Shevu'os of our Mishnah to be made since it is possible that both claimants picked up the Talis together and they both acquired it, and thus both Shevu'os are true (and they both own half of the Talis). From the Gemara it is clear that it is not enough for there to be a possibility that each one owns half of the Talis; there must also be a possibility that each one came about owning half of the Talis in a manner which matches his claims.

How are we to understand the second case of the Mishnah, in which one person claims that the entire Talis belongs to him, and the other person claims that half of the Talis belongs to him? In that case, the first person must swear that not less than three-fourths of the Talis belongs to him, and the second person must swear that not less than one-fourth belongs to him. Even if they picked up the Talis together, their Shevu'os cannot both be true, for even if they picked it up together, that would not give one person more ownership than the other (rather, picking it up together would give each person half of it)! (TOSFOS HA'ROSH)

ANSWER: The TOSFOS HA'ROSH answers that perhaps one of the two claimants picked up three-fourths of the Talis in his hand, and not just the fringes, while the other one picked up only the fringes, and they lifted it up in that manner together. A person immediately acquires for himself the part that is in his hands, and only the part in between their hands do they own together. (See also Tosfos 8a DH Ela.)

In addition, the Tosfos ha'Rosh points out that according to the Gemara later (8a), this part of the Mishnah might not be discussing a Metzi'ah (an object that was found) altogether. Rather it can be discussing a case of two people who attempted to purchase a Talis. In such a case, it is possible that the seller had intention to sell three-fourths to one buyer and one-fourth to the other buyer.

QUESTION: The Gemara suggests that our Mishnah does not conform with the opinion of Sumchus, who says that when the ownership of an item is in doubt, we split it without requiring the claimants to swear. Our Mishnah, though, states that we split the item between the two claimants only after the claimants swear. The Gemara immediately responds that the Mishnah also does not conform with the opinion of the Rabanan who argue with Sumchus, because they maintain that when an item's ownership is in dispute, we rule "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," which is not the ruling of our Mishnah.

The Gemara answers that the Mishnah's ruling *is* consistent with the opinion of the Rabanan, because the Rabanan rule "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" only when the item is not being held by both claimants. In the case of our Mishnah, though, both of the claimants are holding on to the item, and therefore they split it only after they both swear.

In what way does the ruling of our Mishnah contradict the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" according to the Gemara's initial assumption in its question? In addition, according to the Gemara's answer, how exactly is the Mishnah consistent with the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah?"

ANSWERS:

(a) Rashi (DH Alav ha'Ra'ayah) explains that the Gemara's question is that the Rabanan normally require a person to bring witnesses as proof in order to receive anything in court, while, in our case, the Tana of our Mishnah is giving each claimant half without bringing any witnesses. According to Rashi, the question of the Gemara seems to be that neither party should receive any of the Talis until he brings proof that it belongs to him.

Rashi seems to be learning that since both parties are holding on to the Talis, they are both considered to be "Muchzak," and therefore neither claimant can take away the Talis from the other claimant who is also Muchzak in the Talis.

(In our printing of Rashi, Rashi adds the word "with a Shevu'ah," implying that the question of the Gemara is: why is it necessary to make a Shevu'ah in the case of the Mishnah? The item should be split without a Shevu'ah (as we will explain the Gemara according to the other Rishonim, below). However, this word does not appear in any of the manuscripts or early printings of Rashi. It is clear from the Rishonim (cited by the Shitah Mekubetzes), such as the RIVASH, that they did not have those words in their text of Rashi. It is also evident from Rashi's words at the beginning of this comment, and in an earlier comment (DH Tarvaihu), that the Gemara originally thought that the rule of "ha'Motzi me'Chaveiro" would apply here to prevent either of the parties from receiving any of the Talis.)

According to Rashi, it is clear that the Chazakah of each claimant extends to the entire Talis, and not just to the half that we give him. According to this, each person's Chazakah can prevent the other person from receiving any of the Talis.

The Gemara answers that we view the case differently. We view it as though each claimant does have a Chazakah on the entire Talis, and therefore he should be able to receive all of the Talis for himself without a Shevu'ah. However, the Chazakah of his opponent reduces the power of his Chazakah, because it is "Mechusar Guvaina," meaning that it has something that prevents it from being used by this claimant. In order to counter that, the Mishnah requires that they both make a Shevu'ah.

(b) The RASHBA and TOSFOS HA'ROSH (see also TORAS CHAIM) explain that the Gemara's question is: why is it necessary to make a Shevu'ah in the case of the Mishnah, according to the Rabanan? Since the Rabanan rule "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," the Talis should be split without a Shevu'ah, since each of the two claimants is Muchzak in half of the Talis. (The Gemara in fact asks just such a question on Daf 5b.)

The Rashba explains that each of the two claimants has a Chazakah on only half of the Talis, and, therefore, we should give half of the Talis to each claimant without requiring any further proof.

This is consistent with the Gemara later (3a, 4a) which teaches that according to Rebbi Chiya, each claimant has a Chazakah on half of the Talis which serves in place of testimony (or admission from the opposing claimant) that half of the Talis belongs to him. (See Rashi 3a, DH Anan Sahadei.) This is also the opinion of Tosfos (2a, DH v'Yachloku).

Rashi apparently learns that our Gemara does not accept the approach of Rebbi Chiya, and it learns that each claimant has a Chazakah on the entire Talis. The Gemara itself (4a) retracts its explanation of the Mishnah according to Rebbi Chiya and maintains that we do not view it as though each claimant has testimony, or an admission from the opposing party, to prove that half of the Talis is his. According to Rashi, at that point the Gemara maintains that each of the two claimants do not have even a separate Chazakah on each half, but rather they have a mutual Chazakah on the entire Talis.

According to the Rashba, the Gemara answers that even though each one has a Chazakah on half of the Talis, each one's Chazakah is weakened by the fact that the opposing claimant is holding on to the other part of the Talis. (From the words of the RITZBASH in the Shitah Mekubetzes it seems that the answer of the Gemara according to the Rashba is based on the same logic of "Mechusar Guvaina" that Rashi mentions.) This also seems to be the intention of the RIVAM (cited by Tosfos 2a, DH v'Zeh) who writes that splitting the Talis is considered to be taking away from the one who is Muchzak. (See, however, KOVETZ SHI'URIM 2:9:14.)

The Rishonim cited by the Shitah Mekubetzes cite proof to the approach of the Rashba from the wording of the Gemara's answer. According to Rashi, the Gemara asked why do we split it, and the answer should be that since they both have a Chazakah we split it. The Gemara should not have to mention the Shevu'ah of the Mishnah since the question did not involve the Shevu'ah. However, the Gemara says in its answer that since they are both holding it they split it "with a Shevu'ah!" This implies that the Gemara's question was why is there a Shevu'ah in the case of the Mishnah, as the Rashba explains.

It seems that Rashi learns the Gemara's answer the same way as the Rashba, as we explained above. The Gemara is not only explaining why we split the Talis, but it is explaining why we split the Talis with a Shevu'ah. Why, then, does he explain that the question of the Gemara did not involve the Shevu'ah of the Mishnah?

Perhaps Rashi infers from the Gemara's question that the Gemara thought that the ruling of the Mishnah is more problematic according to the Rabanan than according to Sumchus, since the Gemara did not phrase its question by saying, "According to the Rabanan *also* the Mishnah is problematic." The way the Rashba learns, the questions on Sumchus and the Rabanan are the same question -- a Shevu'ah should not be necessary. Rashi therefore explains that the Gemara originally thought that according to the Rabanan, we should not even split the Talis.