Rabbi Yosi holds that one cannot profit from someone else’s object. Does he also disagree with the rabbis about the case in the first Mishna of the chapter regarding the shomer who pays for the item and acquires the double payment if the robber is found? The next Mishna raises cases regarding doubts about whose money was stolen from or who gave which amount of money to the shomer to watch. The Gemara raises contradictions between the two cases and with other mishnayot and other principles regarding money in doubt and reconciles the differences.
Bava Metzia 37
April 05, 2024 | כ״ו באדר ב׳ תשפ״ד
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Bava Metzia
Masechet Bava Metzia is sponsored by Rabbi Art Gould in memory of his beloved bride of 50 years, Carol Joy Robinson, Karina Gola bat Huddah v’Yehuda Tzvi.
רבות בנות עשו חיל ואת עלית על־כלנה
This month’s learning is sponsored by Adam, Carolyn, Michal, Josh, Benny, Izzy, Gali, Shim, Zoe, Zachy and Yehuda in loving memory of Judith Rosenfeld Hochstadter, Gittel bat Kreindel v’Binyamin BenZion on her second yahrzeit. “Her curiosity, humor, intellect and devout nature continues to inspire and hold us accountable. We miss her and think of her in all our pursuits, especially in our Hadran learning, where she would be glad to know that she didn’t have to boil more than 1 egg at a time!!”
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Bava Metzia
Masechet Bava Metzia is sponsored by Rabbi Art Gould in memory of his beloved bride of 50 years, Carol Joy Robinson, Karina Gola bat Huddah v’Yehuda Tzvi.
רבות בנות עשו חיל ואת עלית על־כלנה
This month’s learning is sponsored by Adam, Carolyn, Michal, Josh, Benny, Izzy, Gali, Shim, Zoe, Zachy and Yehuda in loving memory of Judith Rosenfeld Hochstadter, Gittel bat Kreindel v’Binyamin BenZion on her second yahrzeit. “Her curiosity, humor, intellect and devout nature continues to inspire and hold us accountable. We miss her and think of her in all our pursuits, especially in our Hadran learning, where she would be glad to know that she didn’t have to boil more than 1 egg at a time!!”
Bava Metzia 37
אַף בָּרִאשׁוֹנָה, הֲלָכָה כְּמוֹתוֹ אוֹ אֵין הֲלָכָה כְּמוֹתוֹ? אֲמַר לֵיהּ: חָלוּק הָיָה רַבִּי יוֹסֵי אַף בָּרִאשׁוֹנָה, וַהֲלָכָה כְּמוֹתוֹ אַף בָּרִאשׁוֹנָה.
even in the first mishna in this chapter, and Rabbi Yosei holds that even when a bailee pays for the deposit and chooses not to take an oath, the thief pays the double payment to the owner. Is the halakha in accordance with his opinion even in that case, or is the halakha not in accordance with his opinion? Rav Yehuda said to him: Rabbi Yosei was in disagreement even in the first mishna in this chapter, and the halakha is in accordance with his opinion even in the first mishna.
אִתְּמַר נָמֵי. אָמַר רַבִּי אֶלְעָזָר: חָלוּק הָיָה רַבִּי יוֹסֵי אַף בָּרִאשׁוֹנָה, וַהֲלָכָה כְּמוֹתוֹ אַף בָּרִאשׁוֹנָה. וְרַבִּי יוֹחָנָן אָמַר: מוֹדֶה הָיָה רַבִּי יוֹסֵי בָּרִאשׁוֹנָה שֶׁכְּבָר שִׁילֵּם.
It was also stated that the amora’im in Eretz Yisrael disagreed about this matter. Rabbi Elazar says: Rabbi Yosei was in disagreement even in the first mishna and the halakha is in accordance with his opinion even in the first mishna. And Rabbi Yoḥanan says: Rabbi Yosei conceded in the first mishna because the bailee already paid and acquired the animal.
שִׁילֵּם – אִין, לֹא שִׁילֵּם – לָא? וְהָאָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: לֹא ״שִׁילֵּם״ שִׁילֵּם מַמָּשׁ, אֶלָּא כֵּיוָן שֶׁאָמַר ״הֲרֵינִי מְשַׁלֵּם״ אַף עַל פִּי שֶׁלֹּא שִׁילֵּם. אֵימָא: מוֹדֶה הָיָה רַבִּי יוֹסֵי בָּרִאשׁוֹנָה שֶׁכְּבָר אָמַר ״הֲרֵינִי מְשַׁלֵּם״.
The Gemara questions the formulation of Rabbi Yoḥanan’s statement: If he paid, yes, the thief pays the double payment to him; if he did not pay, no? But doesn’t Rabbi Ḥiyya bar Abba say that Rabbi Yoḥanan himself says: When the mishna says: If the bailee paid, it does not mean that he actually paid; rather, once the bailee said: I hereby choose to pay, even if he did not yet actually pay, he acquired the double payment? The Gemara answers: Emend the statement of Rabbi Yoḥanan and say: Rabbi Yosei conceded in the first mishna because the bailee already said: I hereby choose to pay.
מַתְנִי׳ אָמַר לִשְׁנַיִם: גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה מִכֶּם. אוֹ: אָבִיו שֶׁל אֶחָד מִכֶּם הִפְקִיד לִי מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה הוּא – נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה, שֶׁהוֹדָה מִפִּי עַצְמוֹ.
MISHNA: If one said to two people: I robbed one of you of one hundred dinars, but I do not know from which of you I took the money, or if one said to two people: The father of one of you deposited one hundred dinars with me, but I do not know the father of which of you he is, then he gives one hundred dinars to this person and one hundred dinars to that person. This is because there is no way to determine which of them is entitled to the money, and he admitted his obligation at his own initiative.
שְׁנַיִם שֶׁהִפְקִידוּ אֵצֶל אֶחָד, זֶה מָנֶה וְזֶה מָאתַיִם. זֶה אוֹמֵר: שֶׁלִּי מָאתַיִם, וְזֶה אוֹמֵר: שֶׁלִּי מָאתַיִם. נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה, וְהַשְּׁאָר יְהֵא מוּנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ.
In the case of two people who deposited money with one person, and this one deposited one hundred dinars and that one deposited two hundred dinars, and when they come to collect their deposit, this one says: My deposit was two hundred dinars, and that one says: My deposit was two hundred dinars, the bailee gives one hundred dinars to this one and one hundred dinars to that one. And the rest of the money, i.e., the contested one hundred dinars, will be placed in a safe place until Elijah comes and prophetically determines the truth.
אָמַר רַבִּי יוֹסֵי: אִם כֵּן, מָה הִפְסִיד הָרַמַּאי? אֶלָּא הַכֹּל יְהֵא מוּנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ.
Rabbi Yosei said: If so, what did the swindler lose? He lost nothing by claiming the one hundred dinars that belongs to another, and he has no incentive to admit the truth. Rather, the entire deposit will be placed in a safe place until Elijah comes. As his fraud will cause him to lose even the one hundred dinars that he deposited, perhaps he will be discouraged from making a fraudulent claim.
וְכֵן שְׁנֵי כֵלִים, אֶחָד יָפֶה מָנֶה, וְאֶחָד יָפֶה אֶלֶף זוּז, זֶה אוֹמֵר: יָפֶה שֶׁלִּי, וְזֶה אוֹמֵר: יָפֶה שֶׁלִּי – נוֹתֵן אֶת הַקָּטָן לְאֶחָד מֵהֶן, וּמִתּוֹךְ הַגָּדוֹל נוֹתֵן דְּמֵי קָטָן לַשֵּׁנִי, וְהַשְּׁאָר יְהֵא מוּנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ. אָמַר רַבִּי יוֹסֵי: אִם כֵּן מָה הִפְסִיד הָרַמַּאי? אֶלָּא, הַכֹּל יְהֵא מוּנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ.
And likewise, if two people deposited two vessels, one worth one hundred dinars and one worth one thousand dinars, and this one says: The expensive vessel is mine, and that one says: The expensive vessel is mine, the bailee gives the small vessel to one of them, and from the proceeds of the sale of the large vessel he gives the value of the small vessel to the other, and the rest of the money is placed in a safe place until Elijah comes. Rabbi Yosei said: If so, what did the swindler lose? Rather, the entire deposit, i.e., both vessels, are placed in a safe place until Elijah comes or one of them admits his deceit.
גְּמָ׳ אַלְמָא מִסְּפֵיקָא מַפְּקִינַן מָמוֹנָא, וְלָא אָמְרִינַן: אוֹקֵי מָמוֹנָא בְּחֶזְקַת מָרֵיהּ.
GEMARA: From the fact that the mishna teaches that if the bailee does not know whom he robbed, he gives one hundred dinars to this one and one hundred dinars to that one, apparently, in cases of uncertainty, we expropriate property and return it to those claiming it. And we do not say: Establish the money in the possession of its owner. In this case, the bailee is currently the owner of the money, but the money is not left in his possession.
וּרְמִינְהִי: שְׁנַיִם שֶׁהִפְקִידוּ אֵצֶל אֶחָד, זֶה מָנֶה וְזֶה מָאתַיִם, זֶה אוֹמֵר ״שֶׁלִּי מָאתַיִם״ וְזֶה אוֹמֵר ״שֶׁלִּי מָאתַיִם״ – נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה, וְהַשְּׁאָר יְהֵא מוּנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ.
And raise a contradiction from the continuation of the mishna: In the case of two people who deposited money with one person, and this one deposited one hundred dinars and that one deposited two hundred dinars, and when they come to collect their deposit, this one says: My deposit was two hundred dinars, and that one says: My deposit was two hundred dinars, the bailee gives one hundred dinars to this one and one hundred dinars to that one. And the rest of the money will be placed in a safe place until Elijah comes and prophetically determines the truth.
אֲמַר לֵיהּ: פִּקָּדוֹן אַגָּזֵל קָא רָמֵית, גָּזֵל דַּעֲבַד אִיסּוּרָא – קַנְסוּהּ רַבָּנַן, פִּקָּדוֹן דְּלָא עֲבַד אִיסּוּרָא – לָא קַנְסוּהּ רַבָּנַן.
The Sages said to the one who raised the contradiction: Are you raising a contradiction between the halakha stated in the case of a deposit and the halakha stated in the case of a robbery? In the case of robbery, where one transgressed a prohibition, the Sages penalized him and ruled that he must pay both possible robbery victims. In the case of a deposit, where he did not transgress a prohibition, the Sages did not penalize him.
וּרְמִי פִּקָּדוֹן אַפִּקָּדוֹן, וּרְמִי גָּזֵל אַגָּזֵל. פִּקָּדוֹן אַפִּקְדוֹן, דְּקָתָנֵי רֵישָׁא: אוֹ אָבִיו שֶׁל אֶחָד מִכֶּם הִפְקִיד אֶצְלִי מָנֶה, וְאֵינִי יוֹדֵעַ אֵיזֶה הוּא נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה. וּרְמִינְהִי: שְׁנַיִם שֶׁהִפְקִידוּ וְכוּ׳!
And they raised a contradiction between the halakha stated in the case of a deposit and the halakha stated in the case of a deposit, and they raised a contradiction between the halakha stated in the case of a robbery and the halakha stated in the case of a robbery. There is a contradiction between the halakha stated in the case of a deposit and the halakha stated in the case of a deposit, as it is taught in the first clause of the mishna: Or, if one said to two people: The father of one of you deposited one hundred dinars with me, but I do not know the father of which of you he is, he gives one hundred dinars to this person and one hundred dinars to that person. The Gemara raises a contradiction from the continuation of the mishna cited above: In the case of two people who deposited money with one person, the contested sum is placed in a safe place until Elijah comes.
אָמַר רָבָא: רֵישָׁא נַעֲשָׂה כְּמִי שֶׁהִפְקִידוּ לוֹ בִּשְׁנֵי כְרִיכוֹת, דַּהֲוָה לֵיהּ לְמֵידַק. סֵיפָא נַעֲשָׂה כְּמִי שֶׁהִפְקִידוּ לוֹ בְּכֶרֶךְ אֶחָד, דְּלָא הֲוָה לֵיהּ לְמֵידַק, כְּגוֹן דְּאַפְקִידוּ תַּרְוַיְיהוּ בַּהֲדֵי הֲדָדֵי בְּחַד זִימְנָא, דְּאָמַר לְהוּ: אַנְתְּ גּוּפַיְיכוּ לָא קָפְדִיתוּ אַהֲדָדֵי, אֲנָא קָפֵידְנָא?
Rava said: In the first clause of the mishna, in the case where the bailee receives money from the father of one person, he becomes like one with whom they deposited sums of money in two separate bundles, as the bailee should have been discerning with regard to who gave him the money. His failure to do so constitutes negligence, and therefore he pays the sum to both claimants. In the latter clause of the mishna, in the case where he receives money from two people, he becomes like one with whom they deposited sums of money in one bundle, as there is no expectation that he should have been discerning. It is a case where they both deposited their money together at one time, as the bailee says to them: If you yourselves were not suspicious of each other, should I be suspicious? Therefore, he is required to pay them only the sum that they can prove is theirs.
וּרְמִי גָּזֵל אַגָּזֵל, קָתָנֵי הָכָא: אֲמַר לִשְׁנַיִם גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה מִכֶּם, אוֹ אָבִיו שֶׁל אֶחָד מִכֶּם הִפְקִיד לִי מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה הוּא – נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה.
And they raised a contradiction between the halakha stated in the case of a robbery and the halakha stated in the case of a robbery. It is taught here: If one said to two people: I robbed one of you of one hundred dinars, but I do not know from which of you I took the money, or if one said to two people: The father of one of you deposited one hundred dinars with me, but I do not know the father of which of you he is, then he gives one hundred dinars to this person and one hundred dinars to that person.
וּרְמִינְהִי: גָּזַל אֶחָד מֵחֲמִשָּׁה, וְאֵינוֹ יוֹדֵעַ אֵיזֶה מֵהֶן גָּזַל, זֶה אוֹמֵר: אוֹתִי גָּזַל, וְזֶה אוֹמֵר: אוֹתִי גָּזַל, מַנִּיחַ גְּזֵילָה בֵּינֵיהֶם וּמִסְתַּלֵּק, דִּבְרֵי רַבִּי טַרְפוֹן. אַלְמָא מִסְּפֵקָא לָא מַפְּקִינַן מָמוֹנָא, וְאָמְרִינַן: אוֹקֵים מָמוֹנָא בְּחֶזְקַת מָרֵיהּ.
The Gemara raises a contradiction from a mishna (Yevamot 118b): If one robbed one of five people and he does not know which of them he robbed, and this one says: He robbed me, and that one says: He robbed me, the robber places the stolen item between them and withdraws from them; this is the statement of Rabbi Tarfon. Apparently, contrary to the mishna, we do not expropriate property due to an uncertainty and return it to those claiming it, and instead we say: Establish the money in the possession of its owner.
וּמִמַּאי דְּמַתְנִיתִין דְּהָכָא רַבִּי טַרְפוֹן הִיא? דְּקָתָנֵי עֲלַהּ דְּהַהִיא מוֹדֶה רַבִּי טַרְפוֹן בְּאוֹמֵר לִשְׁנַיִם גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה מִכֶּם שֶׁנּוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה.
The Gemara asks: And from where is it known that the mishna here is in accordance with the opinion of Rabbi Tarfon? Perhaps the mishna is in accordance with the opinion of Rabbi Akiva, who holds the robber must pay each of the five possible victims, and there is no contradiction at all. The Gemara answers: It is known that the mishna here is in accordance with the opinion of Rabbi Tarfon, as it is taught in a baraita concerning the halakha taught in that mishna, in tractate Yevamot: Rabbi Tarfon concedes that in a case where a robber says to two people: I robbed one of you of one hundred dinars, but I do not know which of you it was, he gives one hundred dinars to this person and one hundred dinars to that person, as he has already admitted his obligation on his own. There is an apparent contradiction between the two statements of Rabbi Tarfon.
הָתָם דְּקָא תָבְעִי לֵיהּ, הָכָא בְּבָא לָצֵאת יְדֵי שָׁמַיִם. דַּיְקָא נָמֵי דְּקָתָנֵי: שֶׁהוֹדָה מִפִּי עַצְמוֹ. שְׁמַע מִינַּהּ.
The Gemara answers: There, in the mishna where one robbed one of five people of money, it is referring to a case where the claimants demand payment from him. He is required to pay them only one hundred dinars, as the burden of proof rests upon the claimant. By contrast, here, i.e., in this mishna and the statement of Rabbi Tarfon in the baraita, it is referring to a case where the robber comes to fulfill his obligation to Heaven. Only by returning the money to the person he robbed can he atone for his transgression. Therefore, he goes beyond the halakhic requirement and pays both claimants. The Gemara notes: The language of this mishna is also precise, as the tanna teaches: Because he admitted his obligation at his own initiative. The Gemara affirms: Learn from the wording of the mishna that this is the explanation of the mishna.
אָמַר מָר: הָתָם דְּקָא תָבְעִי לֵיהּ. וְהַלָּה מָה טוֹעֵן? רַב יְהוּדָה אָמַר רַב: הַלָּה שׁוֹתֵק. רַב מַתְנָה אָמַר רַב: הַלָּה
With regard to returning stolen money, the Master said: There, it is referring to a case where the claimants demand payment from him. The Gemara asks: And the other person, the thief, what does he claim in response? Rav Yehuda says that Rav says: The other person is silent, as he does not know to whom he owes the money. Rav Mattana says that Rav says: The other person
צוֹוֵחַ. מַאן דְּאָמַר הַלָּה צוֹוֵחַ, אֲבָל שְׁתִיקָה – כְּהוֹדָאָה. וּמַאן דְּאָמַר הַלָּה שׁוֹתֵק, שְׁתִיקָה דְּהָכָא לָאו כְּהוֹדָאָה הוּא, מָצֵי אֲמַר לֵיהּ: הַאי דִּשְׁתִיקִי לְכֹל חַד וְחַד, דְּאָמֵינָא דִּלְמָא הַאי הוּא.
screams and says to each of the claimants: I do not recognize you and I find no basis for your claim. The Gemara comments: The one who says that the other screams holds that he need not return the money to each of them if he is screaming that he does not accept their claims. But a reaction of silence is tantamount to admission that the demands of the claimants are legitimate. And the one who says that the other is silent holds that the silence here is not tantamount to admission, as the robber could say to him: The fact that I was silent to each and every one of the claimants is because I said: Perhaps this is he, the robbery victim, but I do not admit that I owe money to more than one person.
אָמַר מָר: מַנִּיחַ גְּזֵילָה בֵּינֵיהֶם וּמִסְתַּלֵּק. וְשָׁקְלִי לַהּ כּוּלְּהוּ וְאָזְלִי? וְהָאָמַר רַבִּי אַבָּא בַּר זַבְדָּא אָמַר רַב: כֹּל סְפֵק הִינּוּחַ לְכַתְּחִילָּה לֹא יִטּוֹל, וְאִם נָטַל – לֹא יַחֲזִיר. אָמַר רַב סָפְרָא: וְיַנִּיחַ.
The Master said: The robber places the stolen item between them and withdraws from them. The Gemara challenges: And all of them take it and go, possibly resulting in the robbery victim losing his property. But doesn’t Rabbi Abba bar Zavda say that Rav says concerning found items: In any case of uncertainty whether the placement of a found item was deliberate, the finder may not take the item ab initio, and if he took it, he should not return it to one who claims ownership without conclusive proof? Here too, the robber should keep the money until one of the claimants provides conclusive proof that the money is his. Rav Safra says: The baraita means: And the robber should place it in his possession or before the court.
אֲמַר לֵיהּ אַבָּיֵי לְרָבָא: מִי אָמַר רַבִּי עֲקִיבָא לֹא זוֹ הַדֶּרֶךְ מוֹצִיאָתוֹ מִידֵי עֲבֵירָה עַד שֶׁיְּשַׁלֵּם גְּזֵילָה לְכֹל חַד וְחַד? אַלְמָא מִסְּפֵיקָא מַפְּקִינַן מָמוֹנָא, וְלָא אָמְרִינַן ״אוֹקֵים מָמוֹנָא בְּחֶזְקַת מָרֵיהּ״.
Abaye said to Rava: In disputing Rabbi Tarfon’s opinion with regard to one who robbed money from one of five people, did Rabbi Akiva say: This is not the way to spare him from transgression; he is not considered to have returned the stolen item until he pays the value of the stolen item to each and every one of the five? Apparently, in his opinion, in cases of uncertainty, we expropriate property and return it to those claiming it, and we do not say: Establish the money in the possession of its owner.
וּרְמִינְהִי: נָפַל הַבַּיִת עָלָיו וְעַל אִמּוֹ, יוֹרְשֵׁי הַבֵּן אוֹמְרִים: הָאֵם מֵתָה רִאשׁוֹנָה. וְיוֹרְשֵׁי הָאֵם אוֹמְרִים: הַבֵּן מֵת רִאשׁוֹן. אֵלּוּ וָאֵלּוּ מוֹדִים שֶׁיַּחְלוֹקוּ. וְאָמַר רַבִּי עֲקִיבָא: מוֹדֶה אֲנִי בָּזוֹ שֶׁהַנְּכָסִים בְּחֶזְקָתָן!
The Gemara raises a contradiction from a mishna (Bava Batra 158b): A house collapsed on a person and on his mother, and it is unclear which of them died first. The son’s heirs say: The mother died first and her property was inherited by her son, who then died, and therefore the heirs of the son inherit the property of both. And the mother’s heirs say: The son died first, and therefore the mother’s heirs should inherit all of her property. In this case, both these tanna’im, Beit Shammai, and those tanna’im, Beit Hillel, agree that they should divide the disputed property, although they disagree in similar cases. And Rabbi Akiva said: I concede in this case that the property retains its previous ownership status. Apparently, Rabbi Akiva himself holds that property is not removed from one’s possession in cases of uncertainty.
אֲמַר לֵיהּ, הָתָם – שֶׁמָּא וְשֶׁמָּא, גָּזַל אֶחָד מֵחֲמִשָּׁה – בָּרִי וְשֶׁמָּא. וְהָא מַתְנִיתִין דְּהָכָא אָמַר לִשְׁנַיִם: גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה, דְּשֶׁמָּא וְשֶׁמָּא הוּא, וְקָתָנֵי: נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה.
Rava said to Abaye: There, in the case where the house collapsed, it is where there is an uncertain claim and an uncertain claim, as neither party knows what transpired. By contrast, in a case where one robbed money from one of five people, it is a case where there is a certain claim and an uncertain claim, as the robber does not know from whom he robbed the money, but the victims’ claims are based on certainty. The Gemara challenges: But in the mishna here, where one said to two people: I robbed one of you of one hundred dinars, but I do not know from which of you I took the money, it is a case where there is an uncertain claim and an uncertain claim, and it is taught: He gives one hundred dinars to this person and one hundred dinars to that person.
וּמִמַּאי דְּרַבִּי עֲקִיבָא הִיא? דְּקָתָנֵי עֲלַהּ דְּהַהִיא: מוֹדֶה רַבִּי טַרְפוֹן בְּאוֹמֵר לִשְׁנַיִם ״גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה מִכֶּם כּוּ׳״, לְמַאן מוֹדֶה? לָאו לְרַבִּי עֲקִיבָא בַּר פְּלוּגְתֵּיהּ?
The Gemara asks: And from where is it known that the mishna here is in accordance with the opinion of Rabbi Akiva? The Gemara answers: This is known, as it is taught in a baraita concerning the halakha taught in that mishna: Rabbi Tarfon concedes that in a case where one says to two people: I robbed one of the two of you of one hundred dinars and I do not know from which of you I robbed the money, the robber gives one hundred dinars to each of them. To whom does Rabbi Tarfon concede? Is it not to Rabbi Akiva, who is his usual disputant?
וּמִמַּאי דְּשֶׁמָּא וְשֶׁמָּא הוּא? חֲדָא דְּלָא קָתָנֵי תּוֹבְעִין אוֹתוֹ. וְעוֹד, הָא תָּנֵי רַבִּי חִיָּיא: זֶה אוֹמֵר ״אֵינִי יוֹדֵעַ״ וְזֶה אוֹמֵר ״אֵינִי יוֹדֵעַ״.
The Gemara asks: And from where is it known that in the mishna it is a case where there is an uncertain claim and an uncertain claim? Perhaps the victims are certain that they were robbed. The Gemara answers: This is unlikely for several reasons. One, it is not taught in the mishna that they demand payment from him. And furthermore, didn’t Rabbi Ḥiyya teach in a baraita that the mishna is referring to a case where this party says: I do not know, and that party says: I do not know, indicating that these are uncertain claims?
הָא אוֹקֵימְנָא לַהּ בְּבָא לָצֵאת יְדֵי שָׁמַיִם.
The Gemara resolves the contradiction between the statements of Rabbi Akiva: Didn’t we establish the mishna as referring to a case in which the robber is coming to fulfill his obligation to Heaven? Therefore, the robber gives one hundred dinars to each, although he has no legal obligation to do so, as they made uncertain claims.
אֲמַר לֵיהּ רָבִינָא לְרַב אָשֵׁי: וּמִי אָמַר רָבָא כֹּל בִּשְׁתֵּי כְּרִיכוֹת הֲוָה לֵיהּ לְמֵידַק? וְהָאָמַר רָבָא, וְאִי תֵּימָא רַב פָּפָּא: הַכֹּל מוֹדִים בִּשְׁנַיִם שֶׁהִפְקִידוּ אֵצֶל רוֹעֶה, שֶׁמַּנִּיחַ רוֹעֶה בֵּינֵיהֶן וּמִסְתַּלֵּק! אֲמַר לֵיהּ: הָתָם כְּשֶׁהִפְקִידוּ בְּעֶדְרוֹ שֶׁל רוֹעֶה שֶׁלֹּא מִדַּעְתּוֹ.
Ravina said to Rav Ashi: And did Rava say that in every case where the deposits are given in two separate bundles that the bailee should have been discerning with regard to the identity of the ones giving him the deposits? But didn’t Rava say, and some say that it was Rav Pappa who said: Everyone concedes in the case of two people who deposited animals with a shepherd, that if each claims that his deposit included a greater number of animals than that of the other, the shepherd places the animals among them and leaves? Rav Ashi said to Ravina: There, it is referring to a case where the shepherds deposited animals in the shepherd’s flock without his knowledge. Clearly there is no expectation that the shepherd will discern how many animals belong to each party.
וְכֵן שְׁנֵי כֵלִים אֶחָד יָפֶה מָנֶה וְאֶחָד יָפֶה אֶלֶף זוּז כּוּ׳. וּצְרִיכָא.
The mishna teaches: And likewise, in the case of two people who deposited two vessels, one worth one hundred dinars and one worth one thousand dinars, and each of the claimants claims that the expensive vessel is his, the bailee gives the small vessel to one of them, and from the proceeds of the sale of the large vessel he gives the value of the small vessel to the other, and the rest of the money is placed in a safe place until Elijah comes. The Gemara comments: And it is necessary for the tanna to cite both the case of money and the case of vessels.
דְּאִי אַשְׁמְועִינַן הָךְ קַמַּיְיתָא: בְּהַהִיא קָאָמְרִי רַבָּנַן מִשּׁוּם דְּלֵיכָּא פְּסֵידָא. אֲבָל בְּהָא, דְּאִיכָּא פְּסֵידָא דְגָדוֹל אֵימָא מוֹדוּ לֵיהּ לְרַבִּי יוֹסֵי. וְאִי אִתְּמַר בְּהָא, בְּהָא קָאָמַר רַבִּי יוֹסֵי. אֲבָל בְּהָךְ אֵימָא מוֹדֵי לְהוּ לְרַבָּנַן. צְרִיכָא.
The reason is that if the tanna had taught us this first case with regard to money alone, one would conclude that it is in this case that the Rabbis say that each party receives one hundred dinars, and one hundred dinars is kept in a safe place, because in this case there is no loss. But in that case of the vessels, where there is a loss of the large vessel, as it must be broken or sold in order to pay the value of the small vessel to the other party, say that they concede to Rabbi Yosei that both vessels are kept in a safe place. And had the dispute been stated only in that case of vessels, one would conclude that it is in that case that Rabbi Yosei said that both vessels are kept in a safe place. But in this case of money, say that he concedes to the Rabbis. Therefore, it is necessary to cite both cases.
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Bava Metzia 37
אַף בָּרִאשׁוֹנָה, הֲלָכָה כְּמוֹתוֹ אוֹ אֵין הֲלָכָה כְּמוֹתוֹ? אֲמַר לֵיהּ: חָלוּק הָיָה רַבִּי יוֹסֵי אַף בָּרִאשׁוֹנָה, וַהֲלָכָה כְּמוֹתוֹ אַף בָּרִאשׁוֹנָה.
even in the first mishna in this chapter, and Rabbi Yosei holds that even when a bailee pays for the deposit and chooses not to take an oath, the thief pays the double payment to the owner. Is the halakha in accordance with his opinion even in that case, or is the halakha not in accordance with his opinion? Rav Yehuda said to him: Rabbi Yosei was in disagreement even in the first mishna in this chapter, and the halakha is in accordance with his opinion even in the first mishna.
אִתְּמַר נָמֵי. אָמַר רַבִּי אֶלְעָזָר: חָלוּק הָיָה רַבִּי יוֹסֵי אַף בָּרִאשׁוֹנָה, וַהֲלָכָה כְּמוֹתוֹ אַף בָּרִאשׁוֹנָה. וְרַבִּי יוֹחָנָן אָמַר: מוֹדֶה הָיָה רַבִּי יוֹסֵי בָּרִאשׁוֹנָה שֶׁכְּבָר שִׁילֵּם.
It was also stated that the amora’im in Eretz Yisrael disagreed about this matter. Rabbi Elazar says: Rabbi Yosei was in disagreement even in the first mishna and the halakha is in accordance with his opinion even in the first mishna. And Rabbi Yoḥanan says: Rabbi Yosei conceded in the first mishna because the bailee already paid and acquired the animal.
שִׁילֵּם – אִין, לֹא שִׁילֵּם – לָא? וְהָאָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: לֹא ״שִׁילֵּם״ שִׁילֵּם מַמָּשׁ, אֶלָּא כֵּיוָן שֶׁאָמַר ״הֲרֵינִי מְשַׁלֵּם״ אַף עַל פִּי שֶׁלֹּא שִׁילֵּם. אֵימָא: מוֹדֶה הָיָה רַבִּי יוֹסֵי בָּרִאשׁוֹנָה שֶׁכְּבָר אָמַר ״הֲרֵינִי מְשַׁלֵּם״.
The Gemara questions the formulation of Rabbi Yoḥanan’s statement: If he paid, yes, the thief pays the double payment to him; if he did not pay, no? But doesn’t Rabbi Ḥiyya bar Abba say that Rabbi Yoḥanan himself says: When the mishna says: If the bailee paid, it does not mean that he actually paid; rather, once the bailee said: I hereby choose to pay, even if he did not yet actually pay, he acquired the double payment? The Gemara answers: Emend the statement of Rabbi Yoḥanan and say: Rabbi Yosei conceded in the first mishna because the bailee already said: I hereby choose to pay.
מַתְנִי׳ אָמַר לִשְׁנַיִם: גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה מִכֶּם. אוֹ: אָבִיו שֶׁל אֶחָד מִכֶּם הִפְקִיד לִי מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה הוּא – נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה, שֶׁהוֹדָה מִפִּי עַצְמוֹ.
MISHNA: If one said to two people: I robbed one of you of one hundred dinars, but I do not know from which of you I took the money, or if one said to two people: The father of one of you deposited one hundred dinars with me, but I do not know the father of which of you he is, then he gives one hundred dinars to this person and one hundred dinars to that person. This is because there is no way to determine which of them is entitled to the money, and he admitted his obligation at his own initiative.
שְׁנַיִם שֶׁהִפְקִידוּ אֵצֶל אֶחָד, זֶה מָנֶה וְזֶה מָאתַיִם. זֶה אוֹמֵר: שֶׁלִּי מָאתַיִם, וְזֶה אוֹמֵר: שֶׁלִּי מָאתַיִם. נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה, וְהַשְּׁאָר יְהֵא מוּנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ.
In the case of two people who deposited money with one person, and this one deposited one hundred dinars and that one deposited two hundred dinars, and when they come to collect their deposit, this one says: My deposit was two hundred dinars, and that one says: My deposit was two hundred dinars, the bailee gives one hundred dinars to this one and one hundred dinars to that one. And the rest of the money, i.e., the contested one hundred dinars, will be placed in a safe place until Elijah comes and prophetically determines the truth.
אָמַר רַבִּי יוֹסֵי: אִם כֵּן, מָה הִפְסִיד הָרַמַּאי? אֶלָּא הַכֹּל יְהֵא מוּנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ.
Rabbi Yosei said: If so, what did the swindler lose? He lost nothing by claiming the one hundred dinars that belongs to another, and he has no incentive to admit the truth. Rather, the entire deposit will be placed in a safe place until Elijah comes. As his fraud will cause him to lose even the one hundred dinars that he deposited, perhaps he will be discouraged from making a fraudulent claim.
וְכֵן שְׁנֵי כֵלִים, אֶחָד יָפֶה מָנֶה, וְאֶחָד יָפֶה אֶלֶף זוּז, זֶה אוֹמֵר: יָפֶה שֶׁלִּי, וְזֶה אוֹמֵר: יָפֶה שֶׁלִּי – נוֹתֵן אֶת הַקָּטָן לְאֶחָד מֵהֶן, וּמִתּוֹךְ הַגָּדוֹל נוֹתֵן דְּמֵי קָטָן לַשֵּׁנִי, וְהַשְּׁאָר יְהֵא מוּנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ. אָמַר רַבִּי יוֹסֵי: אִם כֵּן מָה הִפְסִיד הָרַמַּאי? אֶלָּא, הַכֹּל יְהֵא מוּנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ.
And likewise, if two people deposited two vessels, one worth one hundred dinars and one worth one thousand dinars, and this one says: The expensive vessel is mine, and that one says: The expensive vessel is mine, the bailee gives the small vessel to one of them, and from the proceeds of the sale of the large vessel he gives the value of the small vessel to the other, and the rest of the money is placed in a safe place until Elijah comes. Rabbi Yosei said: If so, what did the swindler lose? Rather, the entire deposit, i.e., both vessels, are placed in a safe place until Elijah comes or one of them admits his deceit.
גְּמָ׳ אַלְמָא מִסְּפֵיקָא מַפְּקִינַן מָמוֹנָא, וְלָא אָמְרִינַן: אוֹקֵי מָמוֹנָא בְּחֶזְקַת מָרֵיהּ.
GEMARA: From the fact that the mishna teaches that if the bailee does not know whom he robbed, he gives one hundred dinars to this one and one hundred dinars to that one, apparently, in cases of uncertainty, we expropriate property and return it to those claiming it. And we do not say: Establish the money in the possession of its owner. In this case, the bailee is currently the owner of the money, but the money is not left in his possession.
וּרְמִינְהִי: שְׁנַיִם שֶׁהִפְקִידוּ אֵצֶל אֶחָד, זֶה מָנֶה וְזֶה מָאתַיִם, זֶה אוֹמֵר ״שֶׁלִּי מָאתַיִם״ וְזֶה אוֹמֵר ״שֶׁלִּי מָאתַיִם״ – נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה, וְהַשְּׁאָר יְהֵא מוּנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ.
And raise a contradiction from the continuation of the mishna: In the case of two people who deposited money with one person, and this one deposited one hundred dinars and that one deposited two hundred dinars, and when they come to collect their deposit, this one says: My deposit was two hundred dinars, and that one says: My deposit was two hundred dinars, the bailee gives one hundred dinars to this one and one hundred dinars to that one. And the rest of the money will be placed in a safe place until Elijah comes and prophetically determines the truth.
אֲמַר לֵיהּ: פִּקָּדוֹן אַגָּזֵל קָא רָמֵית, גָּזֵל דַּעֲבַד אִיסּוּרָא – קַנְסוּהּ רַבָּנַן, פִּקָּדוֹן דְּלָא עֲבַד אִיסּוּרָא – לָא קַנְסוּהּ רַבָּנַן.
The Sages said to the one who raised the contradiction: Are you raising a contradiction between the halakha stated in the case of a deposit and the halakha stated in the case of a robbery? In the case of robbery, where one transgressed a prohibition, the Sages penalized him and ruled that he must pay both possible robbery victims. In the case of a deposit, where he did not transgress a prohibition, the Sages did not penalize him.
וּרְמִי פִּקָּדוֹן אַפִּקָּדוֹן, וּרְמִי גָּזֵל אַגָּזֵל. פִּקָּדוֹן אַפִּקְדוֹן, דְּקָתָנֵי רֵישָׁא: אוֹ אָבִיו שֶׁל אֶחָד מִכֶּם הִפְקִיד אֶצְלִי מָנֶה, וְאֵינִי יוֹדֵעַ אֵיזֶה הוּא נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה. וּרְמִינְהִי: שְׁנַיִם שֶׁהִפְקִידוּ וְכוּ׳!
And they raised a contradiction between the halakha stated in the case of a deposit and the halakha stated in the case of a deposit, and they raised a contradiction between the halakha stated in the case of a robbery and the halakha stated in the case of a robbery. There is a contradiction between the halakha stated in the case of a deposit and the halakha stated in the case of a deposit, as it is taught in the first clause of the mishna: Or, if one said to two people: The father of one of you deposited one hundred dinars with me, but I do not know the father of which of you he is, he gives one hundred dinars to this person and one hundred dinars to that person. The Gemara raises a contradiction from the continuation of the mishna cited above: In the case of two people who deposited money with one person, the contested sum is placed in a safe place until Elijah comes.
אָמַר רָבָא: רֵישָׁא נַעֲשָׂה כְּמִי שֶׁהִפְקִידוּ לוֹ בִּשְׁנֵי כְרִיכוֹת, דַּהֲוָה לֵיהּ לְמֵידַק. סֵיפָא נַעֲשָׂה כְּמִי שֶׁהִפְקִידוּ לוֹ בְּכֶרֶךְ אֶחָד, דְּלָא הֲוָה לֵיהּ לְמֵידַק, כְּגוֹן דְּאַפְקִידוּ תַּרְוַיְיהוּ בַּהֲדֵי הֲדָדֵי בְּחַד זִימְנָא, דְּאָמַר לְהוּ: אַנְתְּ גּוּפַיְיכוּ לָא קָפְדִיתוּ אַהֲדָדֵי, אֲנָא קָפֵידְנָא?
Rava said: In the first clause of the mishna, in the case where the bailee receives money from the father of one person, he becomes like one with whom they deposited sums of money in two separate bundles, as the bailee should have been discerning with regard to who gave him the money. His failure to do so constitutes negligence, and therefore he pays the sum to both claimants. In the latter clause of the mishna, in the case where he receives money from two people, he becomes like one with whom they deposited sums of money in one bundle, as there is no expectation that he should have been discerning. It is a case where they both deposited their money together at one time, as the bailee says to them: If you yourselves were not suspicious of each other, should I be suspicious? Therefore, he is required to pay them only the sum that they can prove is theirs.
וּרְמִי גָּזֵל אַגָּזֵל, קָתָנֵי הָכָא: אֲמַר לִשְׁנַיִם גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה מִכֶּם, אוֹ אָבִיו שֶׁל אֶחָד מִכֶּם הִפְקִיד לִי מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה הוּא – נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה.
And they raised a contradiction between the halakha stated in the case of a robbery and the halakha stated in the case of a robbery. It is taught here: If one said to two people: I robbed one of you of one hundred dinars, but I do not know from which of you I took the money, or if one said to two people: The father of one of you deposited one hundred dinars with me, but I do not know the father of which of you he is, then he gives one hundred dinars to this person and one hundred dinars to that person.
וּרְמִינְהִי: גָּזַל אֶחָד מֵחֲמִשָּׁה, וְאֵינוֹ יוֹדֵעַ אֵיזֶה מֵהֶן גָּזַל, זֶה אוֹמֵר: אוֹתִי גָּזַל, וְזֶה אוֹמֵר: אוֹתִי גָּזַל, מַנִּיחַ גְּזֵילָה בֵּינֵיהֶם וּמִסְתַּלֵּק, דִּבְרֵי רַבִּי טַרְפוֹן. אַלְמָא מִסְּפֵקָא לָא מַפְּקִינַן מָמוֹנָא, וְאָמְרִינַן: אוֹקֵים מָמוֹנָא בְּחֶזְקַת מָרֵיהּ.
The Gemara raises a contradiction from a mishna (Yevamot 118b): If one robbed one of five people and he does not know which of them he robbed, and this one says: He robbed me, and that one says: He robbed me, the robber places the stolen item between them and withdraws from them; this is the statement of Rabbi Tarfon. Apparently, contrary to the mishna, we do not expropriate property due to an uncertainty and return it to those claiming it, and instead we say: Establish the money in the possession of its owner.
וּמִמַּאי דְּמַתְנִיתִין דְּהָכָא רַבִּי טַרְפוֹן הִיא? דְּקָתָנֵי עֲלַהּ דְּהַהִיא מוֹדֶה רַבִּי טַרְפוֹן בְּאוֹמֵר לִשְׁנַיִם גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה מִכֶּם שֶׁנּוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה.
The Gemara asks: And from where is it known that the mishna here is in accordance with the opinion of Rabbi Tarfon? Perhaps the mishna is in accordance with the opinion of Rabbi Akiva, who holds the robber must pay each of the five possible victims, and there is no contradiction at all. The Gemara answers: It is known that the mishna here is in accordance with the opinion of Rabbi Tarfon, as it is taught in a baraita concerning the halakha taught in that mishna, in tractate Yevamot: Rabbi Tarfon concedes that in a case where a robber says to two people: I robbed one of you of one hundred dinars, but I do not know which of you it was, he gives one hundred dinars to this person and one hundred dinars to that person, as he has already admitted his obligation on his own. There is an apparent contradiction between the two statements of Rabbi Tarfon.
הָתָם דְּקָא תָבְעִי לֵיהּ, הָכָא בְּבָא לָצֵאת יְדֵי שָׁמַיִם. דַּיְקָא נָמֵי דְּקָתָנֵי: שֶׁהוֹדָה מִפִּי עַצְמוֹ. שְׁמַע מִינַּהּ.
The Gemara answers: There, in the mishna where one robbed one of five people of money, it is referring to a case where the claimants demand payment from him. He is required to pay them only one hundred dinars, as the burden of proof rests upon the claimant. By contrast, here, i.e., in this mishna and the statement of Rabbi Tarfon in the baraita, it is referring to a case where the robber comes to fulfill his obligation to Heaven. Only by returning the money to the person he robbed can he atone for his transgression. Therefore, he goes beyond the halakhic requirement and pays both claimants. The Gemara notes: The language of this mishna is also precise, as the tanna teaches: Because he admitted his obligation at his own initiative. The Gemara affirms: Learn from the wording of the mishna that this is the explanation of the mishna.
אָמַר מָר: הָתָם דְּקָא תָבְעִי לֵיהּ. וְהַלָּה מָה טוֹעֵן? רַב יְהוּדָה אָמַר רַב: הַלָּה שׁוֹתֵק. רַב מַתְנָה אָמַר רַב: הַלָּה
With regard to returning stolen money, the Master said: There, it is referring to a case where the claimants demand payment from him. The Gemara asks: And the other person, the thief, what does he claim in response? Rav Yehuda says that Rav says: The other person is silent, as he does not know to whom he owes the money. Rav Mattana says that Rav says: The other person
צוֹוֵחַ. מַאן דְּאָמַר הַלָּה צוֹוֵחַ, אֲבָל שְׁתִיקָה – כְּהוֹדָאָה. וּמַאן דְּאָמַר הַלָּה שׁוֹתֵק, שְׁתִיקָה דְּהָכָא לָאו כְּהוֹדָאָה הוּא, מָצֵי אֲמַר לֵיהּ: הַאי דִּשְׁתִיקִי לְכֹל חַד וְחַד, דְּאָמֵינָא דִּלְמָא הַאי הוּא.
screams and says to each of the claimants: I do not recognize you and I find no basis for your claim. The Gemara comments: The one who says that the other screams holds that he need not return the money to each of them if he is screaming that he does not accept their claims. But a reaction of silence is tantamount to admission that the demands of the claimants are legitimate. And the one who says that the other is silent holds that the silence here is not tantamount to admission, as the robber could say to him: The fact that I was silent to each and every one of the claimants is because I said: Perhaps this is he, the robbery victim, but I do not admit that I owe money to more than one person.
אָמַר מָר: מַנִּיחַ גְּזֵילָה בֵּינֵיהֶם וּמִסְתַּלֵּק. וְשָׁקְלִי לַהּ כּוּלְּהוּ וְאָזְלִי? וְהָאָמַר רַבִּי אַבָּא בַּר זַבְדָּא אָמַר רַב: כֹּל סְפֵק הִינּוּחַ לְכַתְּחִילָּה לֹא יִטּוֹל, וְאִם נָטַל – לֹא יַחֲזִיר. אָמַר רַב סָפְרָא: וְיַנִּיחַ.
The Master said: The robber places the stolen item between them and withdraws from them. The Gemara challenges: And all of them take it and go, possibly resulting in the robbery victim losing his property. But doesn’t Rabbi Abba bar Zavda say that Rav says concerning found items: In any case of uncertainty whether the placement of a found item was deliberate, the finder may not take the item ab initio, and if he took it, he should not return it to one who claims ownership without conclusive proof? Here too, the robber should keep the money until one of the claimants provides conclusive proof that the money is his. Rav Safra says: The baraita means: And the robber should place it in his possession or before the court.
אֲמַר לֵיהּ אַבָּיֵי לְרָבָא: מִי אָמַר רַבִּי עֲקִיבָא לֹא זוֹ הַדֶּרֶךְ מוֹצִיאָתוֹ מִידֵי עֲבֵירָה עַד שֶׁיְּשַׁלֵּם גְּזֵילָה לְכֹל חַד וְחַד? אַלְמָא מִסְּפֵיקָא מַפְּקִינַן מָמוֹנָא, וְלָא אָמְרִינַן ״אוֹקֵים מָמוֹנָא בְּחֶזְקַת מָרֵיהּ״.
Abaye said to Rava: In disputing Rabbi Tarfon’s opinion with regard to one who robbed money from one of five people, did Rabbi Akiva say: This is not the way to spare him from transgression; he is not considered to have returned the stolen item until he pays the value of the stolen item to each and every one of the five? Apparently, in his opinion, in cases of uncertainty, we expropriate property and return it to those claiming it, and we do not say: Establish the money in the possession of its owner.
וּרְמִינְהִי: נָפַל הַבַּיִת עָלָיו וְעַל אִמּוֹ, יוֹרְשֵׁי הַבֵּן אוֹמְרִים: הָאֵם מֵתָה רִאשׁוֹנָה. וְיוֹרְשֵׁי הָאֵם אוֹמְרִים: הַבֵּן מֵת רִאשׁוֹן. אֵלּוּ וָאֵלּוּ מוֹדִים שֶׁיַּחְלוֹקוּ. וְאָמַר רַבִּי עֲקִיבָא: מוֹדֶה אֲנִי בָּזוֹ שֶׁהַנְּכָסִים בְּחֶזְקָתָן!
The Gemara raises a contradiction from a mishna (Bava Batra 158b): A house collapsed on a person and on his mother, and it is unclear which of them died first. The son’s heirs say: The mother died first and her property was inherited by her son, who then died, and therefore the heirs of the son inherit the property of both. And the mother’s heirs say: The son died first, and therefore the mother’s heirs should inherit all of her property. In this case, both these tanna’im, Beit Shammai, and those tanna’im, Beit Hillel, agree that they should divide the disputed property, although they disagree in similar cases. And Rabbi Akiva said: I concede in this case that the property retains its previous ownership status. Apparently, Rabbi Akiva himself holds that property is not removed from one’s possession in cases of uncertainty.
אֲמַר לֵיהּ, הָתָם – שֶׁמָּא וְשֶׁמָּא, גָּזַל אֶחָד מֵחֲמִשָּׁה – בָּרִי וְשֶׁמָּא. וְהָא מַתְנִיתִין דְּהָכָא אָמַר לִשְׁנַיִם: גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה, דְּשֶׁמָּא וְשֶׁמָּא הוּא, וְקָתָנֵי: נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה.
Rava said to Abaye: There, in the case where the house collapsed, it is where there is an uncertain claim and an uncertain claim, as neither party knows what transpired. By contrast, in a case where one robbed money from one of five people, it is a case where there is a certain claim and an uncertain claim, as the robber does not know from whom he robbed the money, but the victims’ claims are based on certainty. The Gemara challenges: But in the mishna here, where one said to two people: I robbed one of you of one hundred dinars, but I do not know from which of you I took the money, it is a case where there is an uncertain claim and an uncertain claim, and it is taught: He gives one hundred dinars to this person and one hundred dinars to that person.
וּמִמַּאי דְּרַבִּי עֲקִיבָא הִיא? דְּקָתָנֵי עֲלַהּ דְּהַהִיא: מוֹדֶה רַבִּי טַרְפוֹן בְּאוֹמֵר לִשְׁנַיִם ״גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה וְאֵינִי יוֹדֵעַ אֵיזֶה מִכֶּם כּוּ׳״, לְמַאן מוֹדֶה? לָאו לְרַבִּי עֲקִיבָא בַּר פְּלוּגְתֵּיהּ?
The Gemara asks: And from where is it known that the mishna here is in accordance with the opinion of Rabbi Akiva? The Gemara answers: This is known, as it is taught in a baraita concerning the halakha taught in that mishna: Rabbi Tarfon concedes that in a case where one says to two people: I robbed one of the two of you of one hundred dinars and I do not know from which of you I robbed the money, the robber gives one hundred dinars to each of them. To whom does Rabbi Tarfon concede? Is it not to Rabbi Akiva, who is his usual disputant?
וּמִמַּאי דְּשֶׁמָּא וְשֶׁמָּא הוּא? חֲדָא דְּלָא קָתָנֵי תּוֹבְעִין אוֹתוֹ. וְעוֹד, הָא תָּנֵי רַבִּי חִיָּיא: זֶה אוֹמֵר ״אֵינִי יוֹדֵעַ״ וְזֶה אוֹמֵר ״אֵינִי יוֹדֵעַ״.
The Gemara asks: And from where is it known that in the mishna it is a case where there is an uncertain claim and an uncertain claim? Perhaps the victims are certain that they were robbed. The Gemara answers: This is unlikely for several reasons. One, it is not taught in the mishna that they demand payment from him. And furthermore, didn’t Rabbi Ḥiyya teach in a baraita that the mishna is referring to a case where this party says: I do not know, and that party says: I do not know, indicating that these are uncertain claims?
הָא אוֹקֵימְנָא לַהּ בְּבָא לָצֵאת יְדֵי שָׁמַיִם.
The Gemara resolves the contradiction between the statements of Rabbi Akiva: Didn’t we establish the mishna as referring to a case in which the robber is coming to fulfill his obligation to Heaven? Therefore, the robber gives one hundred dinars to each, although he has no legal obligation to do so, as they made uncertain claims.
אֲמַר לֵיהּ רָבִינָא לְרַב אָשֵׁי: וּמִי אָמַר רָבָא כֹּל בִּשְׁתֵּי כְּרִיכוֹת הֲוָה לֵיהּ לְמֵידַק? וְהָאָמַר רָבָא, וְאִי תֵּימָא רַב פָּפָּא: הַכֹּל מוֹדִים בִּשְׁנַיִם שֶׁהִפְקִידוּ אֵצֶל רוֹעֶה, שֶׁמַּנִּיחַ רוֹעֶה בֵּינֵיהֶן וּמִסְתַּלֵּק! אֲמַר לֵיהּ: הָתָם כְּשֶׁהִפְקִידוּ בְּעֶדְרוֹ שֶׁל רוֹעֶה שֶׁלֹּא מִדַּעְתּוֹ.
Ravina said to Rav Ashi: And did Rava say that in every case where the deposits are given in two separate bundles that the bailee should have been discerning with regard to the identity of the ones giving him the deposits? But didn’t Rava say, and some say that it was Rav Pappa who said: Everyone concedes in the case of two people who deposited animals with a shepherd, that if each claims that his deposit included a greater number of animals than that of the other, the shepherd places the animals among them and leaves? Rav Ashi said to Ravina: There, it is referring to a case where the shepherds deposited animals in the shepherd’s flock without his knowledge. Clearly there is no expectation that the shepherd will discern how many animals belong to each party.
וְכֵן שְׁנֵי כֵלִים אֶחָד יָפֶה מָנֶה וְאֶחָד יָפֶה אֶלֶף זוּז כּוּ׳. וּצְרִיכָא.
The mishna teaches: And likewise, in the case of two people who deposited two vessels, one worth one hundred dinars and one worth one thousand dinars, and each of the claimants claims that the expensive vessel is his, the bailee gives the small vessel to one of them, and from the proceeds of the sale of the large vessel he gives the value of the small vessel to the other, and the rest of the money is placed in a safe place until Elijah comes. The Gemara comments: And it is necessary for the tanna to cite both the case of money and the case of vessels.
דְּאִי אַשְׁמְועִינַן הָךְ קַמַּיְיתָא: בְּהַהִיא קָאָמְרִי רַבָּנַן מִשּׁוּם דְּלֵיכָּא פְּסֵידָא. אֲבָל בְּהָא, דְּאִיכָּא פְּסֵידָא דְגָדוֹל אֵימָא מוֹדוּ לֵיהּ לְרַבִּי יוֹסֵי. וְאִי אִתְּמַר בְּהָא, בְּהָא קָאָמַר רַבִּי יוֹסֵי. אֲבָל בְּהָךְ אֵימָא מוֹדֵי לְהוּ לְרַבָּנַן. צְרִיכָא.
The reason is that if the tanna had taught us this first case with regard to money alone, one would conclude that it is in this case that the Rabbis say that each party receives one hundred dinars, and one hundred dinars is kept in a safe place, because in this case there is no loss. But in that case of the vessels, where there is a loss of the large vessel, as it must be broken or sold in order to pay the value of the small vessel to the other party, say that they concede to Rabbi Yosei that both vessels are kept in a safe place. And had the dispute been stated only in that case of vessels, one would conclude that it is in that case that Rabbi Yosei said that both vessels are kept in a safe place. But in this case of money, say that he concedes to the Rabbis. Therefore, it is necessary to cite both cases.
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