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Bava Metzia, 3

1) THE CASE OF "MANAH SHELISHI"

QUESTION: The Gemara cites a Mishnah in which Rebbi Yosi and the Rabanan argue in the case of "Manah Shelishi." In that case, a Shomer was given two bundles of money to watch by two different people. One person gave him 100 Zuz (one Manah), and the other person gave him 200 Zuz (two Manahs). Later, both of the people claimed to be the one who gave 200 Zuz to the Shomer. Rebbi Yosi rules that we take away all of the money from both claimants and leave it in escrow -- "Yehei Munach" -- until we have proof who owns it. The Rabanan rule that we give back 100 Zuz to each of them, and the third Manah ("Manah Shelishi") is left in escrow.

The Gemara questions why we do not split the Manah Shelishi according to the Rabanan. The Gemara answers that in the case of our Mishnah, it is possible that the Talis belongs to both claimants, and therefore we split it in court. In contrast, in the case of Manah Shelishi, the third Manah certainly belongs to only one of the claimants.

Why is it so clear that the Manah Shelishi cannot belong to both claimants? Perhaps the one who gave 200 Zuz was Makneh half of a Manah, or 50 Zuz, to the other person, who gave only 100 Zuz to the Shomer. Even though neither of the claimants makes such a claim, the possibility certainly exists that such a thing occurred. It is for this very reason, according to TOSFOS (2a, DH v'Yachloku), that when a lender and a borrower come to Beis Din holding on to a Shtar together, we split the debt written in the Shtar and require the borrower to pay only half (and we do not rule "Yehei Munach") -- since it is possible that the borrower indeed paid half of the money, even though neither the lender nor the borrower make such a claim (but rather each one claims that the money is completely his)!

ANSWERS:

(a) TOSFOS (2a, DH v'Yachloku) answers that it is not common for a person to give to someone else part of his money or item that is in the hands of a Shomer.

(b) The ROSH (1:1) writes that the reason we do not split the Manah Shelishi according to the Rabanan is because the Shomer knew that the Manah belonged to only one of them before the claimants brought the matter to court. It seems that this is the way the Rosh explains our Gemara; the Gemara does not mean that it is impossible for both of them to own it, but rather we have prior knowledge attesting to the fact that only one of them owned it. In the case of the Shtar being held by both the lender and the borrower, we have no reason to assume that the Shtar was definitely paid or not paid before claimants brought the matter to court. It was possible that the Shtar was half-paid. This also seems to be the way the RAMBAN (2b end of DH u'Lefikach) explains the Gemara. (See, however, the TUMIM 138:2, who understands the Rosh differently.)

QUESTION: After the Gemara explains how the Rabanan who argue with Rebbi Yosi could agree with the ruling of our Mishnah, the Gemara asks whether or not Rebbi Yosi can agree with the ruling of our Mishnah. Rebbi Yosi rules, in the case of Manah Shelishi, that we take away all three Manos, since we see that there is definitely someone who is lying among the two claimants. In the case of our Mishnah, then, we should not split the Talis.

The Gemara answers that Rebbi Yosi could agree with our Mishnah, since, in the case of our Mishnah, it is possible that neither of the claimants is intentionally lying, but rather both of them picked up the Talis together, simultaneously.

At the time that the Gemara asked its question according to Rebbi Yosi, we knew already that it was possible that they picked up and acquired the Talis together. It was for that reason that the Gemara knew that the Rabanan agree with our Mishnah that the Talis should be split. Why, then, does the Gemara think that it is less likely for Rebbi Yosi to agree with the ruling of our Mishnah than for the Rabanan to agree with it? (RASHBA)

ANSWER: The RASHBA answers that the difference between Rebbi Yosi and the Rabanan is as follows. The Rabanan are concerned only that the true owner not incur a definite loss. Rebbi Yosi, on the other hand, is interested in seeing that the liar ("Ramai") incurs a definite loss.

Therefore, according to the Rabanan, even though there might be a liar involved in the case of the Mishnah, nevertheless it is possible that there is no liar and the Talis belongs to both of them, and neither one is losing. However, according to Rebbi Yosi -- who holds that we are interesting in having the liar incur a loss -- even though it is possible that there is no liar, it is also possible that there is a liar and by splitting the Talis we are helping him gain. The Gemara answers that even Rebbi Yosi can agree with the ruling of our Mishnah since we are not certain that there is a liar, but we only suspect that there is a liar. Rebbi Yosi only requires that the object in doubt be taken away when we know for certain that there is a liar among the claimants, but not when there is a doubt whether there is a liar.

It is evident from this explanation that according to the Rabanan, we are not concerned about whether there is a liar or not, but we are concerned whether or not the true owner is incurring a loss. Even if we are certain that one of the claimants is a liar, we would split the item if it is possible that the true owner is not sustaining a loss (for example, when they are both saying that they each *made* the entire Talis we would split it, saying that perhaps they really own the Talis together, and not like either of them claims). This is the ruling of most Rishonim. However, RASHI (2a, DH Mekach u'Memkar) rules that when we know that there is a liar, we do not split the Talis. From our Gemara, this seems to be in accordance with the opinion of Rebbi Yosi and not that of the Rabanan (nor is it the Halachic opinion)!

The NACHALAS DAVID answers that Rashi maintains that according to the Gemara's conclusion, we no longer differentiate between whether or not it is possible that they both own the Talis, according to the Rabanan. Rather, we say that according to the Rabanan as well we are interested in making certain that the liar does not gain anything (and not that the true owner does not lose), and the reason we split the Talis in the case of our Mishnah is because we are not certain that there is a liar.

Support for this can be found in the words of the Gemara later on this Daf. The Gemara asks that according to both Rebbi Yosi and the Rabanan, we should rule "Yehei Munach" in the case of "Chenvani Al Pinkaso," because "there certainly is a liar." This implies that both Rebbi Yosi and the Rabanan determine whether or not to rule "Yehei Munach" based on whether or not there is certainly a liar.

3b

QUESTION: Rebbi Chiya maintains that when a lender claims that a borrower owes him 100 Zuz, and witnesses testify that the borrower owes 50 Zuz, and the borrower denies owing anything, the borrower must pay 50 and swear that he does not owe the other 50, similar to the Shevu'ah of "Modeh b'Miktzas."

Rebbi Chiya derives this Halachah through a Kal v'Chomer: if Hoda'as Piv (one's own admission) can require a person to swear, then certainly witnesses can require a person to swear.

The Gemara explains that had there been no Kal v'Chomer, we would have thought that only Hoda'as Piv can require the borrower to swear, but not the testimony of witnesses. The reason for this is that when a person is "Modeh b'Miktzas," it is possible that he denied owing the second half only in order to delay the repayment of the second half, but not because he wanted to default entirely on the loan. He intends to repay as soon as he has the money. It is for this reason that he admitted to owing the first half. However, when he denies owing anything and witnesses testify that he owes half, we must assume that he has no intention to pay back the other half at all, and he is not just trying to gain more time. For this reason, we should not force the borrower to swear, since once we know that he is suspected of stealing someone else's money, we also suspect him of swearing falsely, and his Shevu'ah will not clarify the matter (as Rashi explains in DH d'Leika).

Rebbi Chiya learns from a Kal v'Chomer that we do not follow this logic, but rather we make the borrower swear when witnesses testify that he owes half.

If the reason to exempt the borrower from a Shevu'ah is because since he is ready to steal he will also lie and swear falsely ("Migu d'Chashid a'Mamona, Chashid a'Shevu'asa"), then how can a Kal v'Chomer teach that we require the borrower to swear? Even if testimony of witnesses is a stronger proof than a person's own admission, since, in the case of testimony, we assume that the borrower is a thief, it will not help to make him swear! It is only when a person's own admission makes him obligated to pay half that we make him swear, since we have reason to assume that he is not a thief but that he is merely trying to get more time in order to repay. (RAMBAN and Rishonim cited by the Shitah Mekubetzes)

ANSWERS:

(a) Many Rishonim argue with Rashi's explanation of this Sugya for this reason. TOSFOS (DH b'Chulei) explains that even when a person is suspected of being a thief, we do not suspect him of swearing falsely. According to Tosfos, it seems that when the Gemara concludes that Rebbi Chiya's ruling is based not on a Kal v'Chomer but on a Tzad ha'Shaveh from Hoda'as Piv and Ed Echad, the Gemara is proving from Ed Echad that even when we suspect a person of stealing, we make him swear in order to clarify whether or not he stole, for even a thief will not swear falsely. (In the case of Ed Echad, since the defendant denies the entire loan, we have no reason to assume that he is merely trying to gain time, but rather that he has no intention of ever paying back.)

When the Gemara originally thought that Rebbi Chiya derives his ruling through a Kal v'Chomer from Hoda'as Piv, and not from Ed Echad, why did the Gemara not ask immediately on the Kal v'Chomer that when witnesses testify against the borrower, he should not swear since he is suspected of being a thief and a thief might swear falsely? At that point in the Gemara, the Gemara was basing the Kal v'Chomer on Hoda'as Piv, in which case the borrower might simply be stalling for time and is not a thief.

TOSFOS (DH Aval) and the TOSFOS HA'ROSH answer that the Gemara indeed could have rejected the Kal v'Chomer for this reason, but it provides a better reason for rejecting the Kal v'Chomer.

Rashi, however, does not accept this approach, for we find that Rashi writes that one who is suspected of stealing *is* suspected of swearing falsely. (See Rashi here, DH v'Hai; 2b, DH Aval Mekach u'Memkar; 4a, DH Tomar; see Tosfos here, DH b'Chulei.) According to Rashi, the reason why a person swears against an Ed Echad is that before a thief is caught lying in court, there still is a possibility that he will refrain from lying because of the need to make a Shevu'ah. In the case of Rebbi Chiya, since the thief was already caught lying with regard to the first fifty, he should not be believed with regard to the second fifty. (See TOSFOS here, DH d'Chashid, in the name of Rebbi Yehudah ha'Chasid.)

(b) The RAMBAN, RASHBA, and RITVA also disagree with Rashi. They write that a thief is not suspected of swearing falsely. The Gemara means that without a Kal v'Chomer, we would believe the borrower when he says that he does not owe the other fifty because of a Chazakah that "Ein Adam Me'iz Panav Bifnei Ba'al Chovo" -- a person is not so brazen to deny owing money to the person who did him the favor of lending him money. Rebbi Chiya learns from a Kal v'Chomer that if Hoda'as Piv can require the borrower to swear, then certainly witnesses can require the borrower to swear.

The CHEMDAS SHLOMO asks that this answer does not seem to address the question. How can we learn through a Kal v'Chomer from Hoda'as Piv that the borrower must swear? In the case of Hoda'as Piv, there is no Chazakah that the person will not be brazen, because he might be denying the debt simply because he is trying to get more time to pay it all back. In contrast, in the case where witnesses obligate him to pay half, we cannot assume that the borrower is just stalling for time, and thus we should have a Chazakah that he is telling the truth! (This should be a Pircha on the Kal v'Chomer.)

From the words of the Ramban and Rishonim it seems that they answer this question as follows. In truth, even when a person is "Modeh b'Miktzas," we should believe him because a person would not be so brazen to deny owing the lender. The only reason why we do not believe him is because since we have strong evidence (i.e. the Hoda'as Piv) supporting part of the claim of the lender, this weakens the Chazakah of the borrower and we look for a way to circumvent the Chazakah. The way we succeed in bypassing the Chazakah is by suggesting that since the borrower admitted to owing part, perhaps he is just trying to stall for time. Accordingly, we can learn from a Kal v'Chomer that if two witnesses testify that a person owes half of the money, this should certainly weaken the Chazakah, and we should certainly look for a way to bypass the Chazakah. In this case, we cannot bypass the Chazakah by saying that the borrower is stalling. Instead, we bypass the Chazakah by saying that since the witnesses proved him to be a liar with regard to the first half of the money, he is probably lying with regard to the second half as well. Therefore, we make the borrower swear.

(c) The RITVA explains how Rashi might have learned the Kal v'Chomer. He suggests that the Kal v'Chomer teaches that even though, normally, a person who lied in Beis Din is suspected that he might swear falsely, when a person denies a loan and the lender brings testimony that the person owes the money (or part of it), we do not suspect that he will swear falsely. The reason for this is because no one of sound mind would deny a loan when he knows that the lender has witnesses who will contradict his claim and force him to pay. We must therefore assume that the borrower is simply stalling for time ("Ishtamutei"), even though we normally assume that a person who is "Kofer ba'Kol" is not "Ishtamutei." When Rashi rules that one who is suspected of stealing is suspected of swearing falsely, that applies only to a person who attempted to steal when there were no witnesses who could contradict his claim (such as a case of "Kofer ba'Kol" where the lender has no witnesses, as in Rashi 3b, DH v'Hai). This is also the way the RA'AVAD (cited by the Shitah Mekubetzes on 6a) explains (see Insights there and to Daf 4:1:b). When a person is forced by witnesses in court to pay back a loan, we assume that he was just stalling for time and that is why we do not suspect him of swearing falsely.

According to this approach as well, we must explain the Kal v'Chomer the way we explained it according to the Ramban and Rishonim (in (b) above). The Kal v'Chomer is that once we find an excuse to assume that the borrower will not swear falsely because of Hoda'as Piv, we should certainly find an excuse to assume that the borrower will not swear falsely because of testimony of witnesses.

(d) TOSFOS RABEINU PERETZ answers that the Gemara means to say as follows. Had we not learned a Kal v'Chomer, we would not make a person swear because of testimony of witnesses, because we would only make a person swear when we have strong reason to assume that the threat of a Shevu'ah will make him admit to the truth. Examples of this are "Modeh b'Miktzas" -- where the person will probably admit since he is only stalling for money, and a case of an Ed Echad -- since the person will probably admit since the witness is contradicting his statement. However, in the case of testimony of two witnesses who are not contradicting him with regard to the other half of the money, there is no reason for us to assume that he will probably admit to the truth. The Kal v'Chomer teaches us that, nevertheless, we make the borrower swear because of testimony of witnesses, because they provide a stronger proof than Hoda'as Piv.

According to Tosfos Rabeinu Peretz, it is clear that the Gemara cannot ask a Pircha on the Kal v'Chomer from this logic.