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Bava Metzia, 37

1) MAKING THE "SHOMER" PAY EACH CLAIMANT

QUESTION: The Mishnah discusses the case of "Maneh Shelishis." Two people deposited money with a Shomer. One person gave one Maneh to the Shomer, and another person gave two Maneh to the Shomer. Each person now claims that it is he who gave two to the Shomer. The Tana Kama rules that the Shomer gives one Maneh to each claimant, and the third Maneh is left in escrow until Eliyahu comes, or until one of the claimants can prove that it is his.

Why is the Shomer not obligated to give *two* Maneh to each of the claimants? The Shomer admits that each person deposited at least one Maneh with him, and to each claimant he says that he does not know whether it was that claimant who gave him the second Maneh. Since the Shomer admits to part of each claimant's claim, he should have to make a Shevu'ah of "Modeh b'Miktzas." However, since he does not know if the claimant gave him the second Maneh, he cannot swear that he does not owe the second Maneh to that claimant. Consequently, he should be obligated to pay, because there is a rule (Bava Metzia 98a) that whenever a person is obligated to make a Shevu'ah and he is unable to swear, he must pay ("Mitoch she'Eino Yachol li'Shava, Meshalem"). (RAMBAN, RASHBA)

ANSWERS:

(a) The RAMBAN answers that the Torah only requires a person to make a Shevu'ah when he denies owing money and keeps that money for himself. The Shevu'ah is intended to motivate the person to admit that he owes the money. (This would apply in our case if the Shomer claimed that each person only gave him one Maneh, and no one gave him two. He would have to make a Shevu'ah of "Modeh b'Miktzas" to confirm his claim.) In our case, though, the Shomer admits to owing all of the money -- he admits that he owes three Maneh, and thus there is no reason to obligate him to make a Shevu'ah (and to obligate him to pay *four* since he cannot make a Shevu'ah). He is not denying anything, and he is admitting to everything, and thus there is no purpose in requiring him to make a Shevu'ah (for the purpose of a Shevu'ah is to motivate a person to admit that he owes).

The RASHBA explains further. Had the Shomer known to which claimant the extra Maneh belonged, he certainly would have been believed and he would not have had to make any Shevu'ah, because he would have been admitting to the entire claim (of three Maneh) and not denying anything. Therefore, when he says that he does not know who owns the third Maneh, there is no obligation for him to make a Shevu'ah because he is not denying anything.

(The NESIVOS (76:2) also writes that in such a case, when the Shomer says that he knows which claimant gave him only one Maneh, he is believed because he has a Chazakah that a person does not sin with someone else's money. That is, the Shomer is not stealing the Maneh for himself and therefore he is not suspected of lying.)

(b) The NESIVOS (76:2) gives an answer similar to that of the Ramban. He adds that when the Shomer says to one of the claimants, "I know for sure that you are the one who gave me only a Maneh and the other person is the one who gave me two," he does not have to make a Shevu'ah of "Modeh b'Miktzas," even though he is denying part of one of the claimant's claim, because the whole purpose of the Shevu'ah of "Modeh b'Miktzas" is to ensure that the defendant is not bluffing and is merely trying to gain more time to pay back. Here, that reason does not apply, because the Shomer clearly states that the other Maneh which is being claimed from him belongs to the second claimant. Hence, there is no obligation to make a Shevu'ah.

(c) RAV ISER ZALMAN MELTZER zt'l in EVEN HA'EZEL (in additions at the end of Sefer Mishpatim) answers this question based on the words of the KETZOS HA'CHOSHEN (#73). The Ketzos ha'Choshen writes that we only find an obligation to make a Shevu'ah d'Oraisa when the Beis Din tells the defendant that he must either swear or pay. Here, Beis Din cannot tell the Shomer to pay two Maneh to each claimant, because he certainly is not obligated to give back more than three Maneh. Therefore, he has no obligation to make a Shevu'ah. (I. Alsheich)

37b

QUESTION: The Gemara cites a Mishnah (Yevamos 118b) which discusses a case in which a person stole something from one of five people. Each of the five people claims that the Ganav stole the item from him, and the Ganav does not know from which person he stole. Rebbi Tarfon rules that the Ganav "places the stolen item among them and leaves." The Gemara questions this ruling from the statement of Rebbi Aba bar Zavda, who states that an item which is "Safek Hinu'ach" may not be picked up, and if it was picked up then the person may not return it. Rather, as Rashi explains, the item must remains in the hands of someone until the identity of the owner is clarified. So, too, in the case of the Ganav who does not know from whom he stole, the stolen item should remain in his hands until the identity of the owner becomes known. The Gemara answers that this indeed is what Rebbi Tarfon is saying. He is saying that the Ganav should first place the stolen item in front of the claimants in Beis Din and say, "Clarify to whom this belongs," and then he should take the item and leave, keeping the item in his possession until the owner's identity becomes known.

Why does the Gemara question Rebbi Tarfon's ruling from a statement of Rebbi Aba bar Zavda? It could have asked from our Mishnah (37a) which -- in the case of "Maneh Shelishis" -- teaches that an item whose ownership is in doubt must be left in the possession of the person holding it! (SHITAH MEKUBETZES)

ANSWERS:

(a) The MAHARSHA and MAHARAM SHIF answer that the Mishnah does not pose a question on the ruling of Rebbi Tarfon. In the case of the Mishnah, the money of doubtful ownership came into the hands of the Shomer in a permissible manner (it was deposited with him). The owner of the money should have been careful to make it clear that he was the one depositing the additional Maneh. Therefore, the Shomer keeps the money until the true owner brings proof that it belongs to him. In contrast, in the case of the Ganav, the item came into the hands in a prohibited manner -- he stole it. Perhaps in such a case he is not permitted to keep the item in his possession, but he must remove it from his possession. Therefore, the Gemara questions Rebbi Tarfon's ruling from the statement of Rebbi Aba bar Zavda, who is discussing a case in which the item also came into the hands of the bearer in a prohibited manner, and yet he rules that the item must remain in the possession of the bearer until the true owner brings proof that it is his.

This answer suffices only according to the opinion that maintains that the third Maneh remains in the hands of the Shomer until the identity of the owner is clarified. According to that opinion, it makes sense to differentiate between the case of our Mishnah and the case of the Ganav who stole from one of five people. However, according to the opinion (that of the MORDECHAI cited by the REMA CM 300:1) that maintains that the third Maneh is left in escrow in Beis Din and is not left in the hands of the Shomer, there should be no difference between the case of our Mishnah and the case of the Ganav who stole from one of five people. If, in the case of our Mishnah, the third Maneh is left in escrow in Beis Din, then certainly the Ganav should leave the stolen item in Beis Din and not abandon it in front of the claimants!

(b) The MA'AYAN HA'CHOCHMAH answers based on the RITVA as follows. The Gemara could not have questioned Rebbi Tarfon's ruling from our Mishnah, because in the case of our Mishnah, if the Shomer were to leave the third Maneh in front of the claimants, then the claimant who is lying might take it for himself, causing the true owner to lose. The Shomer -- by leaving the money in front of the claimants -- will effectively be aiding the liar in his unlawful gain. Therefore, it is better that the third Maneh be left in Beis Din than to allow for the possibility that the liar will take it (even though, by leaving it in Beis Din, the true owner also does not get it, but at least this way he has a chance of retrieving it in the future). In contrast, the Ganav who stole the item has an obligation to return it, and as long as that obligation has not been fulfilled, the item is in his hands b'Isur, illegally. Therefore, there are grounds to suggest that he should leave the item in front of the claimants, because doing so will allow for the possibility that the rightful owner will take it, thereby absolving the Ganav of the Isur that he did. If he leaves the item in his possession, or in Beis Din, then he *certainly* will not fulfill his obligation to return it.

(c) The ERECH SHAI answers that the Gemara could not question Rebbi Tarfon's ruling from the ruling in our Mishnah, because there is a basic difference between a stolen item and a Pikadon. In the case of a Shomer holding a Pikadon, the Shomer's possession of the item that was deposited with him by the owner is considered a Chezkas Mamon on behalf of the owner. In the case of our Mishnah, the Shomer's hold on the money gives each of the owners a Chezkas Mamon on the money. (This is like the opinion of Tosfos at the beginning of the Masechta. Tosfos says that we do not apply the rule of "Kol d'Alim Gavar" when the two claimants are each holding on to the item and have a Chezkas Mamon. In the case of the third Maneh, it is as if each claimant is holding the Maneh because their Shomer is holding it. Therefore, the Shomer is not permitted to remove the Maneh from his possession, because doing so would thereby be removing the Maneh from the Chazakah of its rightful owner.

In contrast, a Ganav who is holding a stolen item is not considered to be holding it on behalf of the owner, such that the owner has a Chezkas Mamon on the item (proof for this is the fact that the owner cannot be Makdish the item or sell it while it is in the hands of the Ganav). Therefore, we might have thought that the Ganav can leave the stolen item in front of the different claimants, and let the rule of "Kol d'Alim Gavar" take effect.

Therefore, the Gemara questions Rebbi Tarfon's ruling from Rebbi Aba bar Zavda's statement, and not from our Mishnah. In Rebbi Aba bar Zavda's case of "Safek Hinu'ach," the finder is not holding the object on behalf of anyone, and yet he still may not remove it from his possession. The Gemara asks that the same should apply to the case of the Ganav. (I. Alsheich)