Bava Metzia - Daf 3
- Why the Mishnah rules יחלוקו and not יהא מונח עד שיבא אליהו like the case of the disputed third coin
The Gemara asks that the Mishnah’s ruling to divide the cloak does not accord with Rebbe Yose’s ruling where two people deposited money with someone, one leaving one maneh, and the other leaving two maneh, and they later dispute who left two maneh. The Rabbonon say the third maneh is withheld until proof is brought, but Rebbe Yose says: אם כן מה הפסיד רמאי – if so, what does the deceiver lose by deceiving? אלא הכל יהא מונח עד שיבא אליהו – Rather, it all should be set aside until Eliyahu comes, to induce him to confess. Here, too, the cloak should be withheld!? Although the Rabbonon agree the disputed maneh is withheld, the Gemara explains that it is because it definitely belongs to only one of them, and cannot be divided; in our Mishnah, it is possible they picked it up simultaneously, and jointly own it. The Gemara answers that Rebbe Yose only penalizes the “deceiver” when there definitely is a deceiver; in our Mishnah, where each party may truly believe he is the owner, Rebbe Yose would agree to divide it. Another answer is given but is rejected.
- Rebbe Chiya: one swears when part of a debt is established by witnesses
Rebbe Chiya taught that if one claims a maneh (one hundred zuz) from his fellow, which the defendant denies completely, and witnesses testify that he owes fifty zuz, he pays the fifty zuz and swears on the remainder, like one who confesses to part of a claim: שלא תהא הודאת פיו גדולה מהעדאת עדים מקל וחומר – for the admission of his own mouth should not be greater than the testimony of witnesses, based on a kal vachomer. Without a kal vachomer, one could argue that the Torah only imposed a shevuah for a מודה במקצת, as Rabbah explained (below) that we are not concerned a מודה במקצת would swear falsely, because he is not trying to steal, but to stall (so the shevuah deters him). But someone who fully denied his debt, and was discredited by witnesses, perhaps should not swear. The kal vachomer teaches otherwise which is later explained: ומה פיו שאין מחייבו קנס מחייבו שבועה – If the admission of one’s mouth, which cannot obligate him in a penalty, nevertheless obligates him in a shevuah of מודה במקצת, עדים שמחייבין אותו קנס אינו דין שמחייבין אותו שבועה – then witnesses, who can obligate him in a penalty, is it not certain they obligate him in a shevuah through testifying to part of the claim?
- Reason why מודה במקצת swears – borrower not brazen enough to deny all to face of lender
Rabbah asked: מפני מה אמרה תורה מודה במקצת הטענה ישבע – Why did the Torah say that one who admits to part of a claim must swear about his denial? He should be exempt for having volunteered the partial admission! He answered: חזקה אין אדם מעיז פניו בפני בעל חובו – It is because there is a presumption that a person is not so brazen as to deny his obligation to the face of his creditor (Tosafos explains because the creditor knows he is lying). One who partially admits does so because he cannot bring himself to fully deny the debt. According to Rashi, the Gemara then explains that the reason we do not say that since he is willing to lie and steal (part of the debt), he would also swear falsely, is because this person would really want to admit to the full debt. He did not, because אשתמוטי הוא דקא מישתמט מיניה – he is merely evading [the creditor], to stall until he has the money to pay. Therefore, the Torah required him to swear, so he admits completely.
