Bava Metzia - Daf 37
- When a פקדון of unclear ownership must be paid to both
The next Mishnah states that if one tells two people that he stole from one of them, or received a פקדון from one of their fathers, and he does not know which, he pays both. If two people left money with a שומר and disagree who left one maneh and who left two, each receives one maneh, והשאר יהא מונח עד שיבא אליהו – and the remainder is put away until Eliyahu comes (Rebbe Yose says all three maneh are held). The Gemara explains that the case of stealing (where he pays both) does not contradict this final case (where the disputed money is held), because one who stole may be penalized for his transgression. But in the first case of פקדון he also pays both, contradicting the final case!? Rava answers that the first case (where only one gave a פקדון) is like someone who was given פקדונות in two bundles (i.e., at separate times), and was negligent in not knowing who gave what, and must pay. The final case is where they gave their פקדונות together, which is similar to giving them in one bundle. The שומר says: אנת גופייכו לא קפדיתו אהדדי – “You yourselves were not particular with each other; אנא קפידנא – should I be particular to know who gave which amount?”
- When גזל from an unknown victim is paid to both: בבא לצאת ידי שמים
The Mishnah taught that if someone admits to having stolen from one of two people (but does not know which), he must pay both. This contradicts another Mishnah stating that if someone stole from one of five people and does not know from whom, Rebbe Tarfon says: מניח גזילה ביניהם ומסתלק – he places the stolen item between them and withdraws (which the Gemara explains later to mean that he must guard it until its ownership is determined). This proves that money is not taken from the thief out of doubt!?
The Gemara answers that the latter Mishnah is where the claimants are demanding payment, but the thief only agrees to pay what he must, and so withholds the money. Our Mishnah’s case is בבא לצאת ידי שמים – where he comes to fulfill his Heavenly obligation to avoid punishment, which requires him to pay every possible victim. This is supported by the Mishnah’s language: שהודה מפי עצמו – because he admitted to the claim himself.
- Rebbe Akiva holds גזל from unknown victim is paid to both, if each is ברי
Rebbe Akiva disagrees with Rebbe Tarfon and says: לא זו הדרך מוציאתו מידי עבירה – this is not the way to remove [the thief] from transgression, עד שישלם גזילה לכל חד וחד – until he pays for the stolen item to each one of them. Abaye says this proves that Rebbe Akiva holds money is taken away even out of doubt. He asks that this contradicts a Mishnah, where a house fell on a mother and son, and it is unknown who died first. The son’s heirs claim she died first, and the son inherited her, leaving her estate to them, and the mother’s heirs say the son died first, and her estate is theirs. Rebbe Akiva rules שהנכסים בחזקתן – that the properties remain in their prior status (which is defined in Bava Basra), showing that he does not take money away out of doubt!? Rava answered that the second case is שמא ושמא – where the son’s heirs’ claim is uncertain, and the mother’s heirs’ claim is uncertain, so Rebbe Akiva says the money remains in its status. The case of unknown theft is ברי ושמא – each possible victim claims with certainty that it was stolen from him, and the thief is uncertain, so Rebbe Akiva requires him to pay.
