Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 37a

in the first [Mishnah]¹  too: now, is the halachah as his view [there too] or not? — He replied: R. Jose did indeed dispute in the first too, and the halachah agrees with him in the first too. It has been stated likewise: R. Eleazar said: R. Jose differed in the first too, and the halachah agrees with him there also. But R. Johanan maintained: R. Jose agreed in the first [Mishnah], seeing that he [the bailee] had already paid for it.²  [What!] only if he actually paid, but not otherwise? Yet did not R. Hiyya b. Abba say in R. Johanan's name: 'HE PAID' is not literally meant, but once he says, 'I will pay', even if he has not done so [the ruling of the Mishnah holds good]? — Say thus: R. Jose agreed in the first [Mishnah], seeing that he had already declared, 'I will pay for it'.

MISHNAH. IF A MAN SAYS TO TWO [OTHERS] I ROBBED ONE OF YOU OF A MANEH, BUT DO NOT KNOW WHICH OF YOU, OR THE FATHER OF ONE OF YOU DEPOSITED A MANEH WITH ME, AND I DO NOT KNOW WHOSE: HE MUST GIVE EACH A MANEH, SINCE HE HIMSELF CONFESSED.³  IF TWO MADE A DEPOSIT WITH ONE PERSON, ONE A MANEH⁴  AND THE OTHER TWO HUNDRED [ZUZ]: — THIS ONE SAID, THE TWO HUNDRED IS MINE, AND THE OTHER SAID LIKEWISE, THE TWO HUNDRED IS MINE: HE MUST GIVE A MANEH TO EACH, WHILST THE REST LIES UNTIL ELIJAH COMES.⁵  SAID R. JOSE: IF SO, WHAT WILL THE DECEIVER LOSE?⁶  BUT THE WHOLE MUST LIE UNTIL ELIJAH COMES. LIKEWISE, IF TWO UTENSILS [ARE DEPOSITED], ONE WORTH A MANEH AND THE OTHER ONE THOUSAND [ZUZ]: THIS ONE CLAIMS, THE BETTER ONE IS MINE, THE OTHER CLAIMS, THE BETTER ONE IS MINE: THE INFERIOR ONE MUST BE GIVEN TO ONE OF THEM, AND OUT OF THE SUPERIOR THE VALUE OF THE INFERIOR IS GIVEN TO THE SECOND, THE REST REMAINING UNTIL ELIJAH COMES. SAID R. JOSE: IF SO, WHAT WILL THE DECEIVER LOSE? BUT THE WHOLE MUST LIE UNTIL ELIJAH COMES.

GEMARA. This proves that money is collected as a result of doubt, and we do not say, Let the money stand in the presumptive ownership of its possessor. But this is contradicted by the following: IF TWO MADE A DEPOSIT WITH ONE PERSON, ONE A MANEH AND THE OTHER TWO HUNDRED [ZUZ], THIS ONE SAID, THE TWO HUNDRED IS MINE, AND THE OTHER SAID LIKEWISE, THE TWO HUNDRED IS MINE: HE MUST GIVE A MANEH TO EACH, WHILST THE REST LIES UNTIL ELIJAH COMES! — Said he to him:⁷  Would you oppose a bailment to robbery! In the case of robbery, since he committed a transgression, the Rabbis penalised him;⁸  whereas in the case of a bailment, where no wrong was committed by him, the Rabbis did not penalise him. But bailment may be opposed to bailment, and robbery to robbery. 'Bailment may be opposed to bailment'. For the first clause teaches, OR, THE FATHER OF ONE OF YOU DEPOSITED A MANEH WITH ME, AND I DO NOT KNOW WHOSE; HE MUST GIVE EACH A MANEH. Now this is contradicted by [the Baraitha just quoted,] 'If two made a deposit, etc.' — Said Raba: In the first clause⁹  it is regarded as though they had entrusted [their money] to him in two separate packages, so that he should have paid particular attention;¹⁰  but in the second clause it is regarded as though they had made their deposits with him in a single package, so that he was not bound to take particular attention.¹¹  [How so?] Both made their deposits with him simultaneously,¹²  so that he [the bailee] can say to them, You yourselves were not particular with each other:¹³  should I then have been particular?

'And robbery may be opposed to robbery'. Here we learn IF A MAN SAYS TO TWO OTHERS, I ROBBED ONE OF YOU OF A MANEH, BUT I DO NOT KNOW WHICH OF YOU, OR, THE FATHER OF ONE OF YOU DEPOSITED A MANEH WITH ME, AND I DO NOT KNOW WHOSE: HE MUST GIVE EACH A MANEH. But the following is opposed thereto: If a man robbed one out of five, and does not know which one he robbed, and each claims, 'It was me he robbed': he may place the stolen article among them and depart: this is R. Tarfon's view.¹⁴  This proves that money is not collected as a result of doubt, but we say, Let the money stand in the presumptive ownership of its possessor!¹⁵  And whence [does it follow] that our Mishnah here agrees with R. Tarfon?¹⁶  Because It was taught thereon:¹⁷  R. Tarfon admits that if one says to two people, 'I robbed one of you of a maneh, but do not know which of you,' he must give each a maneh!¹⁸  — There they were claiming from him; here it means that he came to fulfil his duty in the sight of Heaven.¹⁹  This may be proved too, for it is stated SINCE HE HIMSELF CONFESSED.²⁰  This proves It.

The Master said: 'There they were claiming from him.' And what does he plead? — Rab Judah said in Rab's name: He is silent. R. Mattena said in Rab's name: He

1. Supra 34b, R. Jose maintaining: How can the bailee pocket the double repayment due on account of the theft of the bailor's property?
2. And thereby acquired all rights in it.
3. This is discussed in the Gemara.
4. = 100 Zuz.
5. V. p. 6, n. 2.
6. There is nothing to induce him to confess.
7. The answerer to the questioner, though their names are unmentioned. [This is, however, omitted in several MSS, v. D.S. a.l.]
8. Therefore the first clause of the Mishnah rules that he must pay both.
9. Where only one person deposited money with him.
10. Who gave him the money; just as had two people made deposits at different times, hence in different packages, it would have been the bailee's duty to see which package belonged to each. Since he did not pay close attention, he must satisfy both claimants.
11. What part of the package belonged to each other.
12. Each in the other's presence.
13. To prevent the other from seeing how much he deposited, lest he claim it as his own.
14. B.K. 103b.
15. And the robber is not bound to repay each, as in our Mishnah.
16. Perhaps it reflects R. Akiba's views, who differs from R. Tarfon, v. B.K. ibid.
17. If a man robbed one out of five etc.
18. In agreement with our Mishnah.
19. Legally he is not bound to pay all claimants, and the second Mishnah quoted treats of this aspect. But morally he can atone for his sin only by repaying all, so that none shall have suffered through his theft.
20. Which shews that he was not being dunned, but wished to clear himself.

protests.¹  On the view that he protests — but silence is as admission.²  But on the view that he is silent — this silence here³  is not an admission, because he can say, 'The reason that I was silent before each is that I thought, Perhaps it was this one.'

The Master said: 'He may place the stolen article among them and depart.' And can all of them take it and go! Did not R. Abba b. Zabda say in Rab's name: Whenever he is doubtful if an article was left [in a certain spot], he must not take it in the first instance; but if he took, must not return it?⁴  — Said R. Safra: It is laid by.⁵

Abaye said to Raba: Did then R. Akiba Say,⁶  'That is not the way to clear him of his crime, but he must restore the theft to each one;' thus proving that money is collected as a result of doubt, and we do not say, Let the money stand in the presumptive ownership of its possessor? But the following is opposed thereto: If a house collapsed on a person and his mother:⁷  the son's heirs maintain, 'The mother died first;'⁸  whilst the mother's heirs maintain, 'The son died first:'⁹  both¹⁰  agree that they must divide. And R. Akiba said thereon: I agree in this case that the property remains in its presumptive ownership!¹¹  — There, he replied to him, both [heirs] plead 'perhaps';¹²  but in the case of a person robbing one man of five, there is certainty against doubt.¹³  But our Mishnah here, IF A MAN SAYS TO TWO [OTHERS], 'I ROBBED ONE OF YOU OF A MANEH,' which is a case of 'perhaps' on both sides, nevertheless states HE MUST GIVE EACH A MANEH! (Whence do you know that it agrees with R. Akiba? — Because it is taught thereon:¹⁴  R. Tarfon admits that if one says to two people, 'I robbed one of you of a maneh, but do not know which,' [he must give each a maneh]. Now, to whom does he admit? [Surely] to R. Akiba, his opponent? And whence do you know that both sides plead 'perhaps?' Firstly, because it is not stated, They demand of him; and secondly, R. Hiyya taught: Each replies, 'I do not know!')¹⁵  — But we have already interpreted it of one who wishes to fulfil his duty in the sight of heaven!

Rabina said to R. Ashi: Did then Raba say that whenever [deposits are made] in two separate packages, he [the bailee] should have paid particular attention?¹⁶  But Raba — others state, R. Papa — said: All admit in the case of two people who entrusted [their lambs] to a shepherd, that the shepherd places [them] between them and is quit!¹⁷  — He replied: The circumstances there are that they deposited [the lambs] in the shepherd's fold without his knowledge.

LIKEWISE, IF TWO UTENSILS [ARE DEPOSITED], ONE WORTH A MANEH AND THE OTHER ONE THOUSAND [ZUZ] etc. And both [instances] are necessary. For if the first alone were stated, I might argue, Only there [sc. in the case of money] do the Rabbis rule [thus], because no loss is caused; but in the latter case, where great loss is involved [in the breaking of the larger utensil], they agree with R. Jose. And if the latter case [alone] were stated, I might argue, Only here does R. Jose rule [thus], but in the former, he agrees with the Rabbis.¹⁸  Thus both are necessary.

1. To each claimant, 'I do not know you', thus denying the claim.
2. Therefore he would have to pay each.
3. [Despite the generally accepted principle that silence is treated as admission (Yeb. 87b).]
4. This refers to an object bearing no mark of identification, found in a place where it is somewhat guarded, so that it is doubtful whether it was lost or intentionally put there. (V. Supra 25b.) Now, 'he must not return it' means that it must not be given to a claimant who cannot prove his ownership, for the true owner may come later and prove, by means of witnesses, that he deposited it there. Hence here too, if the money is left among the five, and all take it, the true victim suffers a permanent loss.
5. The phrase means, he places the stolen article before them at court, and departs, i.e., he is now clear in the eyes of the law. Nevertheless, the money is kept until ownership is proved.
6. In reference to R. Tarfon's ruling where one of five persons was robbed.
7. And it is not known who predeceased whom, whilst the mother possessed property in her own rights.
8. Hence her son inherited her property; and on his death, we inherit it.
9. Hence we are the mother's direct heirs in his absence.
10. Beth Shammai and Beth Hillel, who dispute in other cases.
11. B.B. 155b. It is disputed by Amoraim a.l. whose presumptive ownership is meant. But whosoever Is meant, we see that R. Akiba admits that money cannot be collected when doubt arises.
12. Neither can really pretend to know with certainty which died first.
13. Whereas the thief himself is doubtful, each of the five declares positively that he was the victim.
14. Sc. the other Mishnah.
15. And R. Hiyya's Baraithas were authoritative expositions of the Mishnah. Hence the difficulty remains: the two rulings of R. Akiba are contradictory.
16. V. supra 37a.
17. This too refers to a controversy between R. Akiba and R. Tarfon. A and B: one deposited one lamb with a shepherd, and the other two, each subsequently maintaining that the two were his; then the shepherd merely puts the three lambs before them. Now, lambs are certainly as deposits in separate packages, yet the shepherd is not required to return two lambs to each. This contradicts Raba's former statement.
18. Inverting the reasoning.