Comentário sobre Baba Metzia 1:1

שְׁנַיִם אוֹחֲזִין בְּטַלִּית, זֶה אוֹמֵר אֲנִי מְצָאתִיהָ וְזֶה אוֹמֵר אֲנִי מְצָאתִיהָ, זֶה אוֹמֵר כֻּלָּהּ שֶׁלִּי וְזֶה אוֹמֵר כֻּלָּהּ שֶׁלִּי, זֶה יִשָּׁבַע שֶׁאֵין לוֹ בָהּ פָּחוֹת מֵחֶצְיָהּ, וְזֶה יִשָּׁבַע שֶׁאֵין לוֹ בָהּ פָּחוֹת מֵחֶצְיָהּ, וְיַחֲלֹקוּ. זֶה אוֹמֵר כֻּלָּהּ שֶׁלִּי וְזֶה אוֹמֵר חֶצְיָהּ שֶׁלִּי, הָאוֹמֵר כֻּלָּהּ שֶׁלִּי, יִשָּׁבַע שֶׁאֵין לוֹ בָהּ פָּחוֹת מִשְּׁלשָׁה חֲלָקִים, וְהָאוֹמֵר חֶצְיָהּ שֶׁלִּי, יִשָּׁבַע שֶׁאֵין לוֹ בָהּ פָּחוֹת מֵרְבִיעַ. זֶה נוֹטֵל שְׁלשָׁה חֲלָקִים, וְזֶה נוֹטֵל רְבִיעַ:

Dois estão segurando uma peça de roupa. O primeiro diz: "Encontrei"; o segundo: "Encontrei". [A Gemara interpreta a instância em nossa Mishnah como aquela em que a primeira estava segurando os fios de um lado da roupa, e o segundo, os fios do outro lado. Mas se eles estavam segurando a roupa em si, o primeiro leva até a mão dele e o segundo, até a mão. E o resto, eles se dividem igualmente com um juramento.] O primeiro diz: "É tudo meu"; o segundo: "É todo meu". [ou seja, eu comprei e o vendedor vendeu para mim e não para você. E o vendedor vendeu para um deles e pegou o dinheiro de ambos; um, por consentimento, e o outro, contra sua vontade. E ele não sabe qual é qual. Pois se ele soubesse e dissesse: "Eu o vendi a este", uma testemunha obteria, caso em que um juramento da Torá seria imposto à outra para refutar a testemunha. Agora que ele não sabe, ambos juram esse juramento especificado em nossa Mishnah. Por lei, eles deveriam se dividir sem juramento; mas os sábios ordenaram que nenhum deles fizesse nada sem juramento, para que um homem não fosse pegar a roupa do próximo e dizer: "É meu!" E era necessário que o tanna nos avisasse de "eu encontrei"— (uma instância de) encontrar um objeto perdido e: "É todo meu" —(uma instância de) compra e venda. Pois se apenas o primeiro fosse ensinado, eu diria que é apenas nesse caso que a Torá impôs um juramento, sendo capaz de racionalizar para levar um objeto perdido ilegalmente, a saber: "Meu amigo não perderá nada. Eu irei e apreenda e divida com ele ". Mas, no caso de compra e venda, onde, se ele não precisasse, não procuraria o vendedor para comprá-lo, aquele que vem dividir com ele e dar metade do preço causa uma perda ilegalmente, sem uma racionalização—para que eu possa dizer (a menos que seja especificado o contrário) que os rabinos não lhe impuseram juramento. E se fôssemos informados apenas sobre compra e venda, eu diria que é apenas nesse caso que os rabinos impuseram um juramento, pois nesse caso ele poderia dizer: "Meu amigo deu dinheiro e eu também, dinheiro. Agora , que eu preciso disso, vou levá-lo e deixar meu amigo ir e comprar outro. " Mas, no caso de um objeto perdido, onde tal (uma racionalização) não é obtida, eu poderia dizer que não (ou seja, que nenhum juramento é imposto.) Portanto, somos avisados de outra forma.] O primeiro jura que ele tem nele nada menos que meio, e o segundo jura que ele tem nada menos que meio, e eles se dividem: [Ele não jura que é todo dele, de acordo com sua reivindicação original, pois não lhe dará tudo isso . E se ele jurar que metade é dele, de acordo com o que lhe é dado, vicia sua afirmação original de "É tudo meu". Portanto, ele jura que não tem menos de metade, o que implica: é tudo meu, como eu disse no começo; e, de acordo com você, que não acredita em mim como um todo, juro que tenho (possessão) nela e que tenho nela nada menos que meio.] Se o primeiro disser: "É tudo meu"; e a segunda: "Metade é minha", quem diz "É toda minha" jura que ele não tem menos de três quartos, e quem diz "Metade é minha" jura que não tem menos de um quarto. O primeiro ocupa três quartos e o segundo, um quarto.

Bartenura on Mishnah Bava Metzia

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.

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English Explanation of Mishnah Bava Metzia

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.

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Bartenura on Mishnah Bava Metzia

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].

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English Explanation of Mishnah Bava Metzia

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.

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Bartenura on Mishnah Bava Metzia

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.

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English Explanation of Mishnah Bava Metzia

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.

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English Explanation of Mishnah Bava Metzia

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.

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English Explanation of Mishnah Bava Metzia

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.

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