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1) THE DOUBTFUL CASES

(a) Question (Rav Acha mi'Difti): What are the doubtful cases?

1. If doubtful firstborn animals - "(The tenth) will be Kodesh", Ma'aser cannot already have been Kodesh!

(b) Answer: Rather, doubtful redemptions of firstborn donkeys.

1. (Rav Nachman): A Yisrael that has 10 doubtful firstborn donkeys, he sets aside 10 sheep or goats and tithes them; they all belong to him.

(a) Question: What was the conclusion regarding the bathhouse?
(b) Answer (R. Chiya bar Avin): Any property that a man cannot obtain through Beis Din, if he makes it Hekdesh, it is not Hekdesh.
(c) Inference: Any property he can obtain through Beis Din, he can make it Hekdesh, even before receiving it.
(d) Question: But R. Yochanan taught, stolen property that the owner did not despair from - neither the owner nor the thief can make it Hekdesh;

1. The thief cannot, because it is not his; the owner cannot, because it is not in his domain (even though he can obtain it through Beis Din)!

(e) Answer: The bathhouse is not movable, rather, it is land - land obtainable through Beis Din, it is as if it is in his domain.

(a) (Rav Tachlifa bar Ma'arava): Two that are holding a garment - each gets up to where he is holding; the rest they split evenly.
(b) R. Avahu gestured to him - through an oath.
(c) Question: The Mishnah says that they divide (equally), it does not say that each gets up to where he is holding - what is the case?
(d) Answer (Rav Papa): Each is holding it by the fringes.
(e) (Rav Mesharshiya): We learn from this, one who grabs 3 fingers by 3 fingers of a garment (given for Chalipin) - this fulfills "he gave to his fellowman" (he acquires), for we consider the garment to be cut (and he owns what he is holding).
(f) Question: Why is this different than Rav Chisda's law?

1. (Rav Chisda): A man gave a Get to his wife, but he still holds a string attached to it - she is divorced only if he is unable to pull it out of her hands.

(g) Answer: There, the Torah requires "separation"; if he can retrieve it, he is still attached;

1. By Chalipin, we require giving - this is given.

(h) (Rava): By a golden garment, we split it.
(i) Question: This is obvious!
(j) Answer: The case is, the gold is in the middle.
(k) Question: Still, this is obvious!
(l) Answer: The case is, it is closer to one than to the other.

1. One might have thought, we cut the garment widthwise (i.e. along the middle between where they are holding);

i. We hear, this is not so; the one further from the gold can suggest we cut it lengthwise.

(a) (Beraisa #1 - Rebbi): The lender and borrower are holding the loan document. Each claims 'I dropped it' - we validate the document;

1. R. Shimon ben Gamliel says, they divide it;

(b) If it came to the judge, he never gives it back;

1. R. Yosi says, it remains in its Chazakah.

(c) Rebbi said, 'We validate the document' - implying, the lender collects the full value.
(d) Question: Does Rebbi argue on our Mishnah (which says that they divide it)?
(e) Answer (Rava): If the document was validated, all agree that they divide it;

1. They argue when it was not validated. Rebbi says that when a borrower who admits that a document was written for a loan (but claims to have paid it), the lender must validate the document;

i. (Since they both hold it), after it is validated, he collects half;
ii. Question: Why must he validate it?
iii. Answer: An invalidated document is worthless. If our only source to accredit it is the borrower - he says that it was paid!

2. R. Shimon ben Gamliel holds, if the borrower admits that the document was written properly, the lender need not validate it; (since both hold it, he collects half).

(f) Question (Beraisa #1): If it came to the judge, he never gives it back - why is this different?

(g) Answer (Rava): The Beraisa means, one who finds a document that came to a judge, he never gives it back.
(h) Question: What is the case (that he knows it came to a judge)?
(i) Answer: It has been validated.
(j) (Beraisa #1): 'He never gives it back' - not only when it is not validated, perhaps it was never even given;

1. Even if it was validated, surely it was given - perhaps the loan was paid.

(k) R. Yosi says, it remains in its Chazakah - we are not concerned that it was paid.
(l) Question: But R. Yosi is concerned that a document was paid!

1. (Beraisa #2): A Kesuvah was found in the market - if the husband admits (that his wife lost it), we return it to her;

i. If he does not admit, we do not return it to either;

2. R. Yosi says, if she is still married, we return it to her; if she was widowed or divorced, we do not return to either of them.

(m) Answer #1: The opinions in Beraisa #1 must be switched - R. Yosi says, 'He never gives it back'; Chachamim say, it remains in its Chazakah.

1. Question: But then Chachamim contradict themselves!
2. Answer: R. Yosi taught all of Beraisa #2; it is abbreviated, it should say thusly: ...If he does not admit, we do not return it to either; this is when she was widowed or divorced;

i. But if she is still married, we return it to her, for R. Yosi says, if she is still married, we return it to her; if she was widowed or divorced, we do not return it to either.

(n) Answer #2 (Rav Papa): We need not switch the opinions; in Beraisa #2, R. Yosi speaks according to Chachamim's opinion:

1. I say that even if she was widowed or divorced, we do not suspect payment; you say that we are - but you should admit to me, if she is still married that we return it to her, for the husband would not pay her during the marriage!
2. Chachamim are concerned - perhaps he gave her money to hold, so when she is entitled to her Kesuvah so she will not have problems collecting it.

(o) (Ravina): Really, we switch the opinions in Beraisa #1; in Beraisa #2, Chachamim are concerned that 2 Kesuvos were written, R. Yosi is not concerned for this.

(a) (R. Elazar): In Beraisa #1, R. Shimon ben Gamliel said that they divide equally - this is only when both are holding the Toref (the vital information particular to this document) or both are holding the Tofes (the standard text which is the same by all loan documents);

1. But if 1 holds the Toref and the other holds the Tofes; each gets what he is holding.

(b) (R. Yochanan): They always divide equally, even if 1 holds the Tofes and 1 the Toref.
(c) Question (Beraisa): Each gets what he is holding.
(d) Answer: The case is, the Toref is in the middle.
(e) Question: If so, each gets half - what else could we have said?

1. Answer: The case is, the Toref is closer to 1 than the other. One might have thought, we divide the document widthwise (i.e. the 1 closer to the Toref gets the Toref);

i. We hear, this is not so; the one further away can suggest we divide it lengthwise.

(f) Question (Rav Acha mi'Difti): According to R. Elazar - the one closer to the Tofes gets the Tofes - what is it good for, to plug up his bottle?!
(g) Answer (Ravina): (A document with a date is worth more than one without a date, since it can be used to collect from sold property). The one holding the Toref (which includes the date) gets this difference; the rest they split equally (since the other vital information particular to the document also appears in the Tofes).

1. Support: Also when it says that 2 holding a garment divide it, this means the value - if they would cut the garment, this would ruin it!
2. Rejection: No - the halves would be fit for children.
3. Question: But Rava said, by a golden garment, they divide it - what would the halves be fit for?
4. Answer: For children of kings.
5. Question (Mishnah): Two people were riding on an animal...- how could they divide it?

i. By a Tahor animal, they could split the meat - but by a Tamei animal, splitting it would be a great loss!

6. Rather, we must say that they split the value - and similarly, by the document.