Bava Metzia - Daf 2
- שנים אוחזין בטלית
The opening Mishnah states: שנים אוחזין בטלית – Two people came before a Beis Din holding a cloak. זה אומר אני מצאתיה וזה אומר אני מצאתיה – This one says, “I found it,” and this one says, “I found it”; זה אומר כולה שלי וזה אומר כולה שלי – this one says, “It is all mine,” and this one says, “it is all mine,” the law is that each one swears שאין לו בה פחות מחציה – that he owns not less than half of it, ויחלוקו – and they divide it. If one claimed the entire cloak is his, and the other claimed that half of it is his, then the first swears that he owns no less than three-fourths of it, and the second swears that he owns no less than one-fourth, and it is divided accordingly.
- רישא במציאה וסיפא במקח וממכר וצריכא
The Gemara asks why the Mishnah describes two cases, where each claims “I found it,” and where each claims, “It is all mine.” After the first suggestion is rejected, it concludes: רישא במציאה וסיפא במקח וממכר – the first case (“I found it”) refers to a found [cloak], and the second case (“It is all mine”) refers to a case of buying and selling (where each claims to be the buyer). The Gemara explains that if only one case was taught, one might have thought that only in that case, one might rationalize that he is not stealing outright: regarding a found item, the finder is not losing anything he had, as opposed to a purchase, where he troubled himself to obtain it because he needs it. On the other hand, regarding a purchase, the buyer will not lose monetarily since this person is prepared to give money, as opposed to a found item, where the finder will lose monetarily. One would think that only where one is rationalizing, a shevuah is effective to discourage him, but where he is not rationalizing but stealing outright, a shevuah will not deter him, so the cloak cannot be given to anyone without proof. The Mishnah therefore teaches that a shevuah is administered in both cases.
- Sumchos agrees with the Mishnah, the shevuah is to prevent people from grabbing others’ cloaks
The Gemara asks that the Mishnah, which rules the cloak is divided with a shevuah, does not accord with Sumchos, who holds: ממון המוטל בספק חולקין בלא שבועה – money whose ownership is uncertain is divided between them without a shevuah. Although the Rabbonon normally hold המוציא מחבירו עליו הראיה, that is where the property is in the owner’s possession, but here, דתרוייהו תפסי – that both are physically grasping it, they hold it is divided with a shevuah. The Gemara first answers that Sumchos agrees where both parties are certain (ברי וברי) that a shevuah would be required, but this is a matter of dispute. It then attempts to answer that Sumchos does not require a shevuah only when there is דררא דממונא – a loss of money, such as paying for a killed cow fetus, but would require a shevuah in our Mishnah, where there is no true monetary loss (the found item was a windfall, and regarding the purchase, the purchase money is refunded). The Gemara rejects this as contrary to logic and concludes that the shevuah is a special Rabbinical enactment: שלא יהא כל אחד ואחד הולך ותוקף בטליתו של חבירו ואומר שלי הוא – so that every person should not go and seize his fellow’s cloak and claim, “It is mine!”
