Komentarz do Bawa meci’a 1:9

שנים אוחזין בטלית – In the Gemara (Bava Metzia 7a), it maintains our Mishnah [deals with the case] such as one of them grabs hold of threads that are at the border of the garment from this side, and another grabs hold of threads that at the border of the of the garment from that side, but if they were cleaving to the garment itself, this one takes up until the place where hand reaches and that one takes up the place where his hand reaches, and the rest they would divide equally. , and through an oath.

Introduction
The first two mishnayoth of Bava Metzia deal with cases where two people both claim ownership over an object which they are jointly holding.

זה אומר כולה שלי – I purchased it and/or it was sold to me by the seller and not to you. And when the seller sold [it] to one of them and took the money from both of them, one of them with his knowledge and the other one against his will, and he (i.e., the seller) does not know which one was with his knowledge and which one was against his will. For if he had known, and he would have said: “to this one, I sold [it].” There would be here one witness. And the one opposite him would be liable for an oath from the Torah, to contradict the witness. But now that he does not know, both are sworn to this oath that is mentioned in our Mishnah. And by law, they would divide [the garment] without an oath, but the Sages enacted that neither of them at all can take it without an oath, in order that everyone wouldn’t go and seize the garment of his fellow and say, “it is mine.” And it was necessary for the Tanna [of our Mishnah] to teach us that when this one says, “I found it, “that is through [an act of] finding it, and the other who says, “it is all mine,” that is through a commercial transaction. For had the Tanna [of our Mishnah] [only taught] a found object, I might think that it is through a found object [only] that the Rabbis imposed an oath, because they have taught a leniency to grab hold [of the corner of the object] inappropriately, so that my fellow would not have nothing missing in it, I will go and grab hold of it and divide it in public, but [regarding] a commercial transaction, if he had no need for it, he would not go after it to purchase it, and the person who comes to divide it with him and give him half of its monetary value, which is inappropriate, causing him loss and that is not to say that he is teaching that it is permitted to do so. I would say that the Rabbis did not impose upon him an oath. But if [the Mishnah] only taught about commercial transactions, I would say that is only upon commercial transactions that the Rabbis imposed upon him an oath because they are teaching a leniency and he [would] say, my fellow gives me money and I give money, now it is necessary for me, I will take it, and my fellow will have to trouble himself to go and purchase another one. But, regarding a found object, where you don’t have to say this, I would say, no, hence, it is necessary [for the Mishnah to teach both about found objects and commercial transactions].

Mishnah One
1) If two people are grasping a cloak: One says, “I found it” and the other says, “I found it”, or one says “It’s all mine”, and the other says, “It’s all mine”, they each swear that they don’t own more than half of the cloak and they split the cloak.
2) (If) one says, “It’s all mine” and the other says, “It’s half mine”, the one who says, “It’s all mine” swears that he doesn’t own less than ¾ and the one who says “It’s half mine” swears that he doesn’t own less than ¼, and the former takes ¾ and the latter takes ¼.

ישבע שאין לו בה פחות מחציה – but he would not be sworn to an oath [saying] “it is all his,” as he would claim from the outset. For all of it would not be given to him. But if from when he claimed that half of it was his that it should be given to him, he would weaken his position from his first statement – when he said that it was all his. Therefore, he takes an oath that he does not have any less than half, which implies by this – that all of it is mine, as he had said initially; but according to your words, where you do not believe me regarding all of it, [I am taking] an oath that I have [a stake] in it and I have no less than one-half.

Explanation—Mishnah One
This Mishnah describes the common situation in which two people claim ownership of an article and neither can prove that it belongs to him. If they were to bring witnesses the judges would rule according to their testimony. In the absence of witnesses the judges must rule based on other assumptions. The means of ensuring that the person was telling the truth was in many cases, including this one, an oath. One should note that oaths were taken extremely seriously by Jews in ancient times and the assumption is that one would not swear falsely. Therefore taking an oath is a strong deterrent to lying.
Mishnah Two
1) If two men were riding on an animal, or one was riding and the other was leading the animal, and one of them said, “The animal is all mine”, and the other said “It is all mine.”, they each swear that they don’t own less than half of the animal and they split it.
2) If after the case is settled, they both admit to the others claim, or if there are witnesses they can split the animal without an oath.

Explanation—Mishnah Two
This mishnah is similar to the previous mishnah and just deals with a different disputed object. In the second clause the mishnah states that if they agree to the other party’s claim or if there are witnesses that the animal is owned by both parties, they split the animal without an oath. The function of the oath is to ensure that the person is telling the truth. When there is no dispute, or when there are witnesses who testify, there is no need for an oath. Since it is preferable to avoid oaths altogether the two may split the animal without an oath.

Questions for Further Thought:

• Mishnah one: When a person claims that the entire cloak is his, why does he swear that he doesn’t own less than half? What would happen if each person swore that it was all his?

• Mishnah one: Why in the second clause does the person who swore that it was all his receive ¾ whereas in the first clause he receives only ½?
If two people are grasping a cloak: One says, “I found it” and the other says, “I found it”, or one says “It’s all mine”, and the other says, “It’s all mine”, they each swear that they don’t own more than half of the cloak and they split the cloak.
( one says, “It’s all mine” and the other says, “It’s half mine”, the one who says, “It’s all mine” swears that he doesn’t own less than ¾ and the one who says “It’s half mine” swears that he doesn’t own less than ¼, and the former takes ¾ and the latter takes ¼.
The first two mishnayoth of Bava Metzia deal with cases where two people both claim ownership over an object which they are jointly holding.
This Mishnah describes the common situation in which two people claim ownership of an article and neither can prove that it belongs to him. If they were to bring witnesses the judges would rule according to their testimony. In the absence of witnesses the judges must rule based on other assumptions. The means of ensuring that the person was telling the truth was in many cases, including this one, an oath. One should note that oaths were taken extremely seriously by Jews in ancient times and the assumption is that one would not swear falsely. Therefore taking an oath is a strong deterrent to lying.

היו שנים רוכבים על גבי בהמה – this comes to the us that a rider purchases, and even though he does not direct the animal [by leading it] as the animal does not move from its place.

If two men were riding on an animal, or one was riding and the other was leading the animal, and one of them said, “The animal is all mine”, and the other said “It is all mine.”, they each swear that they don’t own less than half of the animal and they split it.
If after the case is settled, they both admit to the others claim, or if there are witnesses they can split the animal without an oath.
This mishnah is similar to the previous mishnah and just deals with a different disputed object. In the second clause the mishnah states that if they agree to the other party’s claim or if there are witnesses that the animal is owned by both parties, they split the animal without an oath. The function of the oath is to ensure that the person is telling the truth. When there is no dispute, or when there are witnesses who testify, there is no need for an oath. Since it is preferable to avoid oaths altogether the two may split the animal without an oath.

או שהיה אחד רוכב ואחד מנהיג – at the time when he rides, he stirs it up with his legs so that when the animal moves in consequence of this, the rider and the leader are identical , but if there only was a rider alone, the leader purchased the animal; the rider did not purchase the animal. But if they admitted or witnesses came even after the law was decided for them, that they should divide it with an oath, they divide it without an oath [administered].

אמר לחבירו תנה לי וכו' – but if he said: “I have taken possession of it,” the rider has purchased it, and the leader cannot say: “I have taken possession of it.”

Introduction The third and fourth mishnah of our chapter deal with ownership disputes in which two people lay claim to a found object.

לא אמר כלום – that he acquired it when he drew/seized it from his fellow’s hand, and all the while that it was in the hand of the one who lifted it, it is was ownerless.

If a man was riding on a beast and saw lost property and said to his fellow, “Give it to me”, and the other took it and said, “I have acquired it”, he (the has acquired it. But if after he gave it to him he said, “I acquired it first”, he has said nothing. In the first section of the mishnah a person saw an object while riding on an animal and told his friend to pick it up for him. When his friend picked it up he claimed it for himself. According to the mishnah the person who picked it up can claim title to the object. If, however, the person picked it up and then gave it to his fellow, he cannot subsequently claim title. The person’s claim to ownership must come at the same time that he actually has possession of the object and not after he has already given it to someone else. unable to leave the field; 3) the owner of the field makes a claim of acquisition over the animal.

Questions for Further Thought:
Mishnah three: According to the mishnah by merely telling the other person to pick it up for him the person riding on the animal does not acquire the object. Why not?

זה שהחזיק בה זכה בה – and especially when the lost object was in the public domain, since the four cubits [surrounding] a person do not acquire for him in the public domain, the person who takes hold of it acquires title to it. But in an alley/recess (adjoining an open place to which merchants retire to transact business; alternatively: market stand under a colonnade), which is the path of an individual, or on the sides of the public domain where many are not crowding there, the four cubits of a person take possession for any found object and any ownerless object that is near him is considered like four cubits, and another person may not take seize it. And the Rabbis decreed this so people would not come to quarrel.

If a man saw lost property and fell upon it and someone else came along and seized it, he that seized it acquired it. If a person saw a lost object and fell upon it in an attempt to take the object, and someone else came along and took it before the other person got to it, the person that took it gets to keep it. In the previous mishnah we learned that merely a person’s saying that he wished to take the object does not cause it to belong to him. In our mishnah we learn that even physically making a move to get it is also insufficient. The lost object is not his until he actually takes possession.

אחר צבי שבור – which is incapable of running and is well-guarded in the field (i.e., fenced in), if others will not take it, it is like a found object.

If a man saw people running [in his field] after lost property [such as] a deer with a broken leg, or pigeons that couldn’t fly, and he said, “My field acquires [them] for me”, he has acquired them. But if the deer was running normally or the pigeons flying, and he said, “My field acquires [them] for me”, he has said nothing. In this section we learn that under certain circumstances a person’s field can acquire something for him. In such a case the animal is acquired not by physical possession by the claimant but by the animal being on his field. If the person sees people running after a lost object in his field and that lost object cannot move off his field he can acquire it by saying that his field acquires it. If, however, the animal can run or fly and therefore is not “stuck” on the person’s field, the field cannot acquire the animal. In other words in order for the field to acquire the animal on behalf of its owner three conditions must be fulfilled: 1) other people have not claimed it (in the mishnah others are running after it but have not reached it; 2) the animal is physically unable to leave the field; 3) the owner of the field makes a claim of acquisition over the animal.

זכתה לו – and he stands at the side of his field, and as such is able to run after them and reaches them before they leave from his field.

Questions for Further Thought:
Mishnah four: If my animal runs onto another person’s field and the other person claims that his field acquires the animal for him, does the animal now belong to him? How can you figure out the answer to this question from the mishnah?

הקטנים – all who are supported by/rely upon the father’s table, even if he is an adult, we call him a minor, and anything he finds belongs to his father for the sake of preventing ill-feeling. But a daughter, whether she is a minor or a maiden, her found object belongs to her father, since the Torah makes assignment of all gains/profits of her maidenhood belong to her father (see Numbers 30:17 – בנעוריה בית אביה /”while in her father’s household by reason of her youth”).

Introduction Mishnah five deals with the issue of ownership over lost objects found by a man’s children or wife. Mishnah six (and the remainder of the chapter) deals with returning lost documents to their owners.

עבדו ושפחתו הכנענים – for their bodies are owned by him, as it is written (Leviticus 25:46): “You shall keep them as a possession [for your children after you, for them to inherit as property for all time. Such you may treat as slaves].”

That which is found by a man’s minor son or daughter, and that which is found by his Canaanite slave or female slave, and that which is found by his wife belongs to him. A father (assumed in the Mishnah to be the head of the household) who is financially supporting his children can claim ownership over any financial benefit they might bring him including, as we learn here, found objects. In other words in return for his financial support, they must give him any of their earnings. A Canaanite (i.e. non-Jewish) slave or female slave is totally owned by their owner. They do not have the ability to own possessions and therefore anything they find belongs to their master. Finally, a married woman who is receiving financial support from her husband, gives him in return any of her earnings, including found objects. Note, that the relationship between a father and his children and a husband and his wife is one in which the latter are guaranteed support, even if they earn nothing. In such a familial structure allowing the child or wife to keep found objects while still receiving financial support from their father/husband may cause him to resent them, ultimately to their detriment.

מציאת אשתו – The Rabbis ordained this for the sake of preventing ill-feeling.

That which is found by his son or daughter that are of age, and that which is found by his Hebrew slave or female slave, and that which is found by his wife whom he has divorced, even though he has not yet paid her ketubah, belongs to them. On the other hand, a father’s financial control over his children does not extend to his adult children who are not supported by him. What they find belongs to them. Also, a Hebrew slave is treated in the Mishnah to be more similar to a hired worker who can own his own possession. Anything the slave finds therefore, belongs to him/her. Finally, a divorced woman does not owe her husband any financial gains she accrues after the divorce. This is true even if he has not paid her ketubah, meaning the divorce settlement. In such a case he is still obligated to provide her with food, clothing and shelter. Nevertheless, since he divorced her, he does not receive any object she might find.

Questions for Further Thought:
• Mishnah five: Why doesn’t the mishnah say that as long as the husband has not given his divorcee her ketubah and is therefore supporting her, he would receive any object which she found? What might be a problem caused by such a law?

אחריות נכסים – landed security (i.e., that the debtor’s landed property is pledged to the creditor) that he can collect from them.

If a man found debt documents he should not return them [to the creditor] if they recorded a lien on the [debtor’s] property, since the court would exact repayment from the property. But if they did not record a lien on the [debtor’s] property he may return them, since the court would not exact payment from the property, according to Rabbi Meir. But the Sages say: “In either case he should not return them, since [in either case] the court would exact payment from the property.” Generally, when a debtor pays back his debt he would take the document and tear it up, so that the creditor could not collect it again. If one found a debt document, one could therefore assume that it came from the creditor. However, according to our mishnah in most circumstances one should not return it to the creditor. Our mishnah is concerned concerned that the debtor and creditor colluded to defraud a third party. We will explain. If the debtor had written a lien on his property in the document the creditor could take from this property if the debtor defaulted. For example let us say that Reuven loaned Shimon 1000 dollars and Shimon put a lien over all his property. After the loan Shimon sold his property to Levi and then Shimon lost all of his money (probably in high tech stocks!). Reuven can now collect his debt from the property sold to Levi. Our mishnah is concerned that Reuven might make a deal with Shimon for Shimon to pay back, let’s say 500 dollars, and then to deny that he paid back anything and then Reuven would collect Shimon’s sold property from Levi. Lest such collusion had been committed one should not return debt documents that have written in them liens. According to Rabbi Meir, if no lien was written in the document there is nothing to fear and one may return it to the creditor. According to the Sages all loans done through documents imply a lien on the debtor’s property, whether or not this is written specifically in the document. Therefore no debt documents may be returned to the creditor.

לא יחזיר – for we are suspicious of collection and conspiracy to fraud and divide the profits. Lest it was a collected/paid off document and it fell from the borrower, and when he admits: “I did not pay,” there is a council of deception between them to seize the sold mortgaged property which cannot be resorted to (in the event of non-payment) and it will be divided between them.

Questions for Further Thought:
• Mishnah six: According to Rabbi Meir, if one finds a debt document in which there is no lien, he may return it to the creditor. Why is he allowed to do so, and why would you think he should not?

בין כך ובין כך לא יחזיר – a document which cannot be resorted to (i.e., movable property) is mortgaged, and can be collected from, and surety (i.e., property which may be resorted to in the event of non-payment) is the error made by the scribe; and we are suspicious of collection and conspiracy to fraud, and the Halakha is according to the Sages. And specifically, with a document where property may be resorted to in the event of non-payment is not mentioned in it, the Sages said that it is an error made by the scribe, and we collect from mortgaged property as if the surety was written in it (i.e., the document). But if it was spelled out in the document that he (i.e., the borrower) did not want to accept upon himself surety [for non-payment], the Sages admit that he may return it, for now there is no fear for a conspiracy to fraud.

דייתיקי – the verbal will of someone on his death-bed, that this is what should occur and happen.

Introduction Mishnayoth seven and eight continue to deal with returning lost documents, a topic which was also discussed in the previous mishnah.

ושוברים – [receipts] that the creditor makes for the borrower when his loan document has been repaid.

If a man found bills of divorce, or writs of emancipation or wills, or deeds of gifts, or receipts, he should not return them, for I might say, “they were written out, and the writer might have changed his mind and decided not to give them.” In this short mishnah are listed types of documents where one person gives something to another person, whether it be a divorce given to a wife by her husband, freedom to a slave from his master, inheritance to an inheritor, a present, or a receipt. These documents would normally be kept by the recipient. If one of these was found one might have expected to return it to the recipient, i.e. the wife, slave, etc. However, the mishnah states that they should not be returned. Since it is possible that the writer wrote the document and subsequently changed his mind and did not give the document, we cannot be sure that the recipient lost it.

Questions for Further Thought:
If the giver of one of the documents mentioned in this mishnah told the finder that he had indeed given the document to the recipient, would the finder then return it to the recipient? How is this different from the case in the previous mishnah?

אגרות שום – that the Jewish court estimated the [value of the] property of the borrower to the creditor in his loan document

If a man found letters of evaluation, or letters of sustenance, or documents of halitzah or refusal, or documents of arbitration or any document drawn out by the court he should return them. The documents listed in this section are all executed by a court. In such a case we need not fear that the court wrote the document and then did not fulfill what was stated in it, as we feared with regards to the documents mentioned in the previous mishnah. Therefore they can be returned to those named in the documents. A “letter of evaluation” is an evaluation of a person’s property should it need to be sold to pay off his debts. A “letter of sustenance” is permission given to a wife to sell her husband’s property should he not properly provide her with food (or other financial obligations). “Documents of halitzah” are documents that testify to a man’s having declared that he will not perform the levirate marriage (see Deuteronomy 25:5-10). “Documents of refusal” are documents that testify that a woman whose mother or brother (but not father) arranged her marriage when she was a minor refused the marriage when she became an adult. In such a case the woman does not need a regular divorce document, a get. “Documents of arbitration” are documents that state the litigants choices for judges.

ואגרות מזון – that he accepted upon himself to feed the daughter of his wife. Another explanation: that they would sell from the landed property of the husband to support the wife and the daughters.

If he found documents in a satchel or bag, or a bundle of documents he should return them. How many count as a bundle of documents? Three tied up together. If a person finds documents in an identifiable bag he should return them to the person who can identify the bag. In the upcoming chapter we will learn about identifying lost objects.

ומיאונין – that they would write in the document: “In our presence, so-and-so has refused this particular gentleman as her husband.” And this is regarding when a minor whose mother and/or brothers married her off, she does not require a Jewish bill of divorce.

Rabban Shimon ben Gamaliel says: [If one found three documents in which] one borrowed from three others, they should be returned to the borrower. But if [one found three documents in which] one loaned to three, they should be returned to the lender. A set of three documents found together and all containing one name, was in all likelihood lost by that named person. Therefore if three documents state that one person borrowed from three others, it is reasonable that they belonged to the borrower. If the three documents all contain the name of the same creditor who loaned to three different debtors, it is reasonable that the documents belonged to the creditor.

שטרי בירורין – this one chooses one [judge] and the other party chooses one [judge] who will adjudicate for them.

If a man found a document among his documents and he does not know what is its nature, it must be left until Elijah comes. If a person finds a document amongst his documents that contains the name of a creditor and a debtor, but he doesn’t know who gave him the document, and therefore he doesn’t know if it was paid off, he should hold the document until Elijah comes. In other words he shouldn’t get rid of the document but neither is he permitted to give it to either the creditor or the debtor.

מצא – [he found] documents.

If there were postscripts amongst them, he should do what is stated in the postscript. If he finds amongst his documents torn or unreadable documents which have with them postscripts which state what needs to be done with the document, he should do what is in the postscript, even though the document itself is torn or unreadable.

בחפיסה – a small leather bag

Questions for Further Thought:
Mishnah eight, section two: Why in this case is the finder supposed to return the lost documents? Why don’t we worry that they were lost by the writer who changed his mind after writing them and before giving them?

ודלוסקמא – a leather utensil/box that the elderly hide their utensils so that they don’t have to search after them.

ותכריך של שטרות – three documents or more which are wrapped up one with the other.

ואגודה – that are lying one on top of the other, the length of this one on the length of that one.

הרי זה יחזיר – since it is something that has a sign; for the utensil is sign when the owners say, “in this particular utensil you found them.”

אחד הלוה משלשה – if there are three [loan] documents of one borrower who borrowed from three [different] people, the finder [of these lost documents] should be returned to the borrower, since they had surely fallen from his hand, for if they had fallen from their hands (i.e., the three lenders), who gathered them to one place? And specifically when the documents were authenticated by the Jewish court. But if they were not authenticated, we suspect that perhaps, in order to authenticate them, the three lenders brought them to the scribe of the judges and they fell from the hand of the scribe. And we should not suspect lest after they had been authenticated, they fell from the hand of the scribe, for a person does not delay their confirmation in the hand of the scribe. And if they (i.e., the loan documents) are from three [different] borrowers, who borrowed from one individual, the finder should return them to the lender for the matter is known that they fell from him. And if all three of them were in the writing of one scribe, we suspect lest they fell from the hand of the scribe and they were not [ever] loaned. And therefore, we do not return them.

מצא שטר בין שטרותיו ואינו יודע מה טיבו – with him – if the borrower deposited it with him or the lender, or lest it was partially paid-off, and they delivered it to him to be the intermediary between them (i.e., the lender and the borrower).

יהא מונח – in his hand, and he should not return it to either this one or the other one.

ואם יש עמהן סמפון – [codicil]. The one who finds it amongst his documents a receipt that was written on one of his documents.

יעשה מה שבסמפון – And the [loan] document was under the presumption of having been paid-off, and even though it would have been appropriate for this receipt to have been placed in the hand of the borrower and not in the hand of the lender/creditor, we say that the borrower trusted the lender and said: “tomorrow give it [the receipt] to me,” and he forgot. And this is the case of when a lender found this document upon which was written the receipt, between his torn documents even though it was not torn.