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1) WHEN DO WE DIVIDE

(a) (Mishnah): Reuven traded a cow for Shimon's donkey, and the cow gave birth; or, he sold a slave, and she gave birth (the cow or slave was not here). Reuven says, the birth was before the sale (so the child is mine); Shimon says, the birth was after the sale - they divide the offspring;
(a) Reuven had two slaves (or fields), one big and one small. Shimon says, 'I bought the big one'; Reuven is unsure which he sold - Shimon gets the big one.

1. If Reuven says, 'I sold the small one' and Shimon is unsure, he gets the small one.
2. If Shimon says, 'I bought the big one'; and Reuven says, 'I sold the small one', Reuven swears that he sold the small one;
3. If each says 'I don't know', they divide them.

(b) (Gemara) Question: (In the first clause) why do they divide? The one in whose premises the baby is, he is Muchzak, the other must bring proof to take from him!
(c) Answer (R. Chiya bar Avin): The case is, the calf is in the swamp, the slave is by the selling-block (the premises of neither).
(d) Question: The seller is Muchzak, the buyer must bring proof to take from him!
(e) Answer: The Mishnah is Sumchus, who says that when we are in doubt, we divide the money without an oath.
(f) Question: Sumchus only said that they divide it without swearing when both parties are unsure - would he say this when both parties make definite claims?
(g) Answer #1 (Rabah bar Rav Huna): Yes, Sumchus' law is even when both make definite claims.
(h) Answer #2 (Rava): Sumchus only said that they divide it without swearing when both parties are unsure;

1. In our Mishnah, each says, 'Maybe it gave birth (before/after) the sale.'

(i) Question (Mishnah): If each says 'I don't know', they divide them.

1. We understand according to Rava - in the beginning and end of the Mishnah, each side is unsure.
2. But according to Rabah bar Rav Huna - the beginning of the Mishnah teaches that they divide when each is certain, there is no need to teach when each is unsure!

(j) Answer: From the end of the Mishnah we deduce that the beginning of the Mishnah is when both are certain - otherwise, we might have thought (like Rava) that both are uncertain.
(k) Question (Mishnah): If Shimon says, 'I bought the big one'; and Reuven says, 'I sold the small one', Reuven swears that he sold the small one.

1. We understand according to Rava - Sumchus only says that we divide the money when neither side is sure.
2. But according to Rabah bar Rav Huna - even when both are sure, Sumchus says that they divide!

(l) Answer: When one party is obligated to take an oath mid'Oraisa, Sumchus admits (he swears and gets as he says).

(a) (Mishnah): Reuven had two slaves, one big and one small...
(b) Questions: (When Shimon claims the big one and Reuven says he sold the small one, why does Reuven swear?

1. Question #1: His admission is not part of what Shimon claimed!
2. Question #2: This is Heilach (he gives him the small slave (or land) he admits to at the time of the admission)!
3. Question #3: We do not swear about slaves (or land)!

(c) Answer #1 (to all 3 questions - Rav): They argue over the money of a big or small slave or field.
(d) Answer #2A (Shmuel): They argue over the clothing of a big or small slave, or the piles of grain of a big or small field.

1. Question: If they argue over the clothing of a big or small slave, Question #1 remains - the admission is unlike what was claimed!
2. Answer #2B: As Rav Papa taught, 'clothing' refers to fabric from which to make clothing.

(e) Objection (R. Hoshaya): The Mishnah does not speak of clothing, it speaks of slaves!
(f) Answer #3A (R. Hoshaya): They argue over a big or small slave with the clothing he wears, or a big or small field with the piles of grain in it.

1. Question: Also regarding a clothed slave, Question #1 remains - the admission is not a portion of the claim! (for a small garment is not a portion of a larger garment)
2. Answer #3B (Rav Papa): 'Clothing' refers to fabric from which to make clothing.

(g) Objection (Rav Sheshes): Does the Mishnah teach that once he must swear about Metaltelim, he must swear about land (or slaves)? Another Mishnah teaches this!

1. One who must swear about Metaltelim must swear about land.

(h) Answer #4A (to Question #3 - Rav Sheshes): The Mishnah is R. Meir, who says that slaves are considered Metaltelim (we swear about them; he must also say, we swear about land).

1. Question #1 remains - the admission is not a portion of what was claimed!
2. Answer #4B (to Question #1 - Rav Sheshes): R. Meir holds like R. Gamliel.
3. (Mishnah): If Yehudah claimed wheat and Levi only admitted to owing barley, Levi is (totally) exempt;

i. R. Gamliel says, he is liable (to swear that he does not owe wheat; most explain, he also must pay the barley).

4. Question #2 remains - this is Heilach!
5. Answer #4C (to Question #2 - Rava): Reuven does not return the small slave or land intact - he cut a limb off the slave, or dug pits in the land.

(i) Question: But R. Meir holds that slaves are like land!

1. (Mishnah): A man stole an animal or slaves and they grew old - he pays as at the time of the theft;
2. R. Meir says, regarding slaves, he can say behold, here are your slaves (because slaves are like land, they are never considered to be stolen).

(j) Question: How do we know that R. Meir equates land to slaves, to teach that we swear about land? Perhaps we swear about slaves, but not about land!
(k) Answer (Beraisa - R. Meir): Reuven traded a cow for a donkey, and the cow gave birth; or, he sold a slave, and she gave birth (the cow or slave was not here). One party says, I owned the mother at the time of birth (so the child is mine); the other party is silent - the party claiming the child gets it;

1. If both parties are unsure, they each own half the child;
2. If both parties claim the child, the original owner of the mother swears that he still owned her at the time of birth (and he gets the child), for mid'Oraisa, the one who swears does not pay.

i. Chachamim say, we do not swear on land or slaves.

1. Since Chachamim say, we do not swear about land, we infer that R. Meir says that we swear about land!

(l) Rejection: Perhaps Chachamim just came to argue with R. Meir about slaves - 'You should admit that we do not swear about slaves, just as you admit that we do not swear about land!'
(m) Support (Mishnah - R. Meir): There are things that are (attached) like land, but they are not considered land (we swear about them) - Chachamim disagree;

1. Reuven claims that he entrusted ten laden vines to Shimon, who only admits to five - Shimon must swear;
2. Chachamim say, anything attached is like land (we do not swear about it);
3. (R. Yosi bar Chanina): They argue about grapes ready to be harvested - R. Meir considers them as if they are already harvested, Chachamim do not.
4. (Rav Sheshes' answer does not answer Question #3 (why does he swear about land)? Rather, we can defend R. Hoshaya's answer:)

(n) Answer (to Objection (g)): Even though another Mishnah teaches that one who must swear about Metaltelim must swear about land, our Mishnah is needed;

1. One might have thought, a slave's clothes are considered like a slave (and we do not swear about them), and piles of grain in a field are like a field - the Mishnah teaches, this is not so.

(o) (Beraisa): If each says 'I don't know', they divide them.
(p) The Beraisa is Sumchus, who says that when we are in doubt, we divide the money.
(q) Question: But the end of the Beraisa says, if both parties claim the child, the original owner of the mother swears that he still owned her at the time of birth.

1. According to Rabah bar Rav Huna, Sumchus' law is even when both make definite claims - why does the seller swear? They should divide it!

(r) Answer: When one party is obligated to take an oath mid'Oraisa, Sumchus admits he swears and gets as he says;

1. We must establish it as Rava, he cut a limb off the slave, therefore it is not Heilach.

(a) (Mishnah): Reuven sold his olive trees to Shimon for the wood; before he cut them, they produced poor olives, which yield less than a Revi'is of oil per Sa'ah of olives - Shimon keeps them;

1. If they produced olives which yield a Revi'is of oil per Sa'ah, and Shimon (Reuven) claims 'It is due to my trees (land)' - they divide them.

(b) If a river flooded Levi's trees and deposited them in Shimon's land, and they produced olives, and each claims 'It is due to my trees (land)' - they divide them.
(c) (Gemara) Question: What is the case?

1. If Reuven told Shimon to cut the trees immediately - even if the olives yield less than a Revi'is, they belong to Reuven (Shimon had no right to leave the trees standing)!
2. If he told Shimon to cut them whenever he wants - even if the olives yield a Revi'is, they belong to Shimon!

(d) Answer: He did not specify;

1. A person is not concerned about poor olives which yield less than a Revi'is; he is concerned about olives which yield a Revi'is.

(e) (R. Shimon ben Pazi): When the Mishnah speaks of producing a Revi'is, this refers to profit (above the expenditures of harvesting and pressing them).