Bava Metzia - Daf 6
- שמא ספק מלוה ישנה יש לו עליו
Abaye disagrees with Rebbe Yochanan and holds that one who would steal outright would also swear falsely. Therefore, he explains differently why two people grasping a cloak must swear: חיישינן שמא מלוה ישנה יש לו עליו – we suspect that perhaps [one party] has an old loan against [the cloak’s owner]. The lender grabbed his fellow’s cloak to collect an old loan that the borrower forgot and will not pay. The Gemara asks that if one would only grasp his fellow’s cloak when he is truly owed money, why does he have to swear? It clarifies that we suspect that he has a ספק מלוה ישנה – questionable old loan against his fellow, which he is not entitled to collect, so a shevuah is imposed to dissuade him. However, the Gemara asks that if someone would grab money out of doubt, then he would swear out of doubt as well!? Rav Sheishess brei d’Rav Idi answered: פרשי אינשי מספק שבועה – people withdraw from making a doubtful shevuah, but not from taking doubtful money, because money taken unlawfully can be returned, but a shevuah sworn falsely cannot be undone.
- תקפה אחד בפנינו מהו
Rebbe Zeira asked: תקפה אחד בפנינו מהו – If one grabbed [the cloak] from the other before us (the judges), what is the halachah? The Gemara clarifies that if his counterpart was silent and did not protest, he effectively admitted the cloak belongs to the one who grabbed it. If he did protest, then the grabbing is inconsequential, and they still split it. Rather, the case is: דשתיק מעיקרא והדר צווח – where he was initially silent, and later cried out in protest. Do we interpret his initial silence as an admission that the cloak is not his, or, since he ultimately protested, it indicates that his initial silence was because the judges saw the other litigant grab it, so he did not feel the need to protest? Later the Gemara asks, assuming that one who grabbed it would keep it, what is the halachah if instead of grabbing it physically, one was makdish it? Do we say that since אמירתו לגבוה כמסירתו להדיוט דמי - one’s declaration to give to [hekdesh] is equivalent to his giving over an item to an ordinary person, so being makdish is tantamount to grabbing it?
- תקפו כהן
The Gemara seeks to resolve the latter question from an incident with a bathhouse whose ownership was disputed by two people. One party declared it hekdesh, and the Rabbis refrained from using it, concerned it might be hekdesh. Rav Hamnuna told Rabbah that this case is similar to a Mishnah discussing a doubtful bechor (i.e., unknown if it is the firstborn), which states: המוציא מחבירו עליו הראיה - the one attempting to extract from his fellow, the burden of proof is upon him (i.e., the Kohen must prove it is a bechor to take it). A Baraisa adds: אסורים בגיזה ובעבודה – it is forbidden in shearing and work (because it is possibly a bechor). Rav Hamnuna argues: תקפו כהן אין מוציאין אותו מידו – if a Kohen seized it, we do not take it away from him, because the Mishnah implies that it remains with whoever currently possesses it, including the Kohen, Yet if he does not seize it, it is still hekdesh (out of doubt), as evidenced by its prohibition in shearing and work!? Rabbah rejected the proof, saying that it is possible that if the Kohen seized it, we would take it from him (and he is not included by the Mishnah’s language), yet the animal would still be hekdesh out of doubt, because a bechor’s kedushah is automatic, regardless of ownership.
