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1) DOES R. YOSI ARGUE IN THE FIRST MISHNAH?

(a) (Mishnah): R. Yosi says, one does not profit through another's property - rather, Levi pays Shimon.
(b) (Rav Yehudah citing Shmuel): The Halachah follows R. Yosi.
(c) Question (Rav Shmuel bar Yehudah): You said in Shmuel's name that R. Yosi argues even in the first Mishnah (and says that even if a watchman chooses to pay, the owner receives the double payment) - does the Halachah follow R. Yosi also there?
(d) Answer (Rav Yehudah): Yes.
(e) R. Elazar agreed that R. Yosi argues there and that the Halachah follows him.
(f) (R. Yochanan): R. Yosi agrees with Chachamim in the first Mishnah, because he already paid.
(g) Question: Is it only because he paid? R. Chiya bar Aba cited R. Yochanan to say, even saying that he will pay is enough!
(h) Answer: R. Yochanan means, R. Yosi agrees in the first Mishnah, because he already said he will `pay.

(a) (Mishnah): Reuven told two people: 'I stole from one of you, I don't know from which'; or, 'One of your fathers deposited money by me, I don't know which' - he pays both, because he admitted by himself.
(b) One person people deposited 100 Zuz by Reuven, another person deposited 200; each claims that he gave 200, Reuven does not know who gave which - he gives each 100, the rest we leave it until Eliyahu comes;
(c) R. Yosi argues - if so, the swindler does not lose - rather, all the money is left until Eliyahu comes (or one admits).
(d) Similarly, if they deposited vessels, and each claims the bigger vessel - one gets the smaller vessel, we give the other the value of the smaller from the larger, the rest we leave until Eliyahu comes; R. Yosi says, we leave it all for Eliyahu.
(e) (Gemara) Inference: The first case teaches that when in doubt, we make someone pay, we do not say 'to take money from another, one must bring proof'!
(f) Contradiction: In the second clause, Reuven does not pay because of his doubt!
(g) Answer: Chachamim fined one who stole to pay when in doubt; they did not fine one who accepted deposits.
(h) Contradiction #1: Sometimes one who takes deposits is fined - when one of the fathers deposited money, Reuven pays both!
(i) Answer (Rava): There, Reuven is liable for forgetting who deposited (like 2 people who deposited money, each wrapped by itself);

1. Reuven is exempt when two people deposited in front of each other, for this shows that they trust each other, he is not responsible to ensure that he remembers who gave which (it is like two people who deposited money wrapped together as one).

(j) Contradiction #2: Sometimes a thief is not fined!

1. (Mishnah - R. Tarfon): Reuven stole from one of five people, he does not know from which; all of them say 'You stole from me' - Reuven leaves what he stole in front of them and walks away.
2. This says that when in doubt, we do not make someone pay; rather, we follow Chazakah, and leave the money by who is holding it!
3. Question: How do we know that our Tana is R. Tarfon? (Perhaps it is R. Akiva, who argues!)
4. Answer (Beraisa): R. Tarfon admits by one who tells two people: 'I stole from one of you, I don't know from which'; that he pays both.

(k) Answer: In that Mishnah, they claim from him - letter of the law says, he leaves what he stole in front of them and walks away;

1. Here, Reuven wants to fulfill his obligation at the hands of Heaven, he pays each.
2. Support: The Mishnah obligates him 'Because he admitted by himself'.

(l) Question: We said that in that Mishnah, they claim from him - what does he say?
(m) Answer #1 (Rav Yehudah citing Rav): He is silent.
(n) Answer #2 (Rav Masnah citing Rav): He denies recognizing any of them - but if he was silent, this would be considered an admission.

1. Rav Yehudah says that here, his silence is not an admission -he can say, I was silent to each one thinking maybe this is the one.

(o) Question (Mishnah): He leaves what he stole in front of them and walks away - will they divide it and walk away?!

1. But R. Aba bar Zavda taught, any found object that one is in doubt if it was left intentionally, he should not take it; if it was taken, he should not return it! (Rashi - if someone claims he lost it, he must bring proof - here also, the thief cannot give it up without proof; Ra'avad - just as one may not take when in doubt, the people who claim to own it may not split it without proof!)

(p) Answer (Rav Safra): The Mishnah means, he leaves what he stole (until Eliyahu or until one of them brings proof).

(a) Question (Abaye): In that Mishnah, R. Akiva says 'To clear himself from transgression, he must pay every one' - when in doubt, we make someone pay, we do not leave money in its Chazakah;

1. Contradiction (Mishnah): A house fell on a man and his mother; his heirs say that she died first (so the son inherited her), her heirs say that he died first (and they inherit her) - Beis Hillel and Beis Shamai agree that they split her property;
2. R. Akiva says, I admit in this case that the property stays according to its Chazakah (Amora'im argue if he means that the son's or mother's heirs get it).

(b) Answer (Rava): There, both parties are unsure; by the theft, the claims against Reuven are definite, Reuven is unsure.
(c) Question: But in our Mishnah (when he stole from one of two people) all the claims are doubtful, and he pays each!

1. Question: How do we know that our Tana is R. Akiva (to ask this)?
2. Answer (Beraisa): R. Tarfon admits by one who tells two people: 'I stole from one of you, I don't know from which'; that he pays both;

i. R. Tarfon admits to R. Akiva, with whom he argues in the Mishnah.

3. Question: How do we know that the claims against the thief are uncertain?
4. Answer #1: It does not say that they claim from him.
5. Answer #2 (Beraisa - R. Chiya): The case is, each says that he does not know if he was the victim.

(d) Answer: We said, our Mishnah is when Reuven wants to fulfill his obligation at the hands of Heaven.

(a) Question (Ravina): Did Rava really say that when two depositors gave money in two bags, the watchman must remember who gave which?

1. Contradiction (Rava - some say, Rav Papa): All agree that two people who deposited (different numbers of) animals by a shepherd, the shepherd leaves the animals in front of them.

(b) Answer (Rav Ashi): That is when they deposited the animals in his herd without his knowledge.
(c) (Mishnah): Similarly, if they deposited vessels...
(d) We must teach both cases.

1. If we only heard by money - one might have thought, there Chachamim say to return 100 to each, for there is no loss - but by vessels, there is a loss (Rashi - part of the big vessel is broken off; Nimukei Yosef - we sell the larger vessel, it will not return to the owner), Chachamim admit to R. Yosi;
2. If we only heard by vessels - one might have thought, there R. Yosi says that we leave them until Eliyahu comes - but money, by which we can give each 100 without a loss, he admits to Chachamim.
3. Objection: But R. Yosi's reason is in order that the swindler will admit (surely he argues even when there is no loss)!

(e) Retraction: Rather, both cases were taught to teach Chachamim's opinion - the case of vessels is a bigger Chidush than the case of money.