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Mishna: Two people come into Beis Din holding together onto a cloak. Both claim that he found it and he picked it up first so it belongs to him. Both swear that they don’t own less than half and they split it.
Tosfos “Shnayim Oychazim” :Tosfos wants to ponder what is the connection between the end of the last Misechta, Bava Kama, and the beginning of Baba Metzia. Thus he starts saying that the last Mishna in Bava Kama refers to a carpenter that was contracted by his customer to make something out of his wood. The question is, who keeps the scraps? It depends on what tool he was using. If the tool made sawdust, this, the customer usually doesn’t care to keep, so we say he lets the carpenter keep it. If the tool makes larger pieces, since it’s worth more, we say the customer cares to keep it, so it must be given back to the customer. The connection between the Mesechtos, that since Bava Kama ends off dealing with the splitting of the scraps between the carpenter and the customer. This fits in to the beginning of Bava Metzia that deals with the splitting between the two litigants.
The Tosfos continues by stating even though there shouldn’t have to be a connection between two Mesechtos. We have a rule that there is no order to Meschtos (since Rebbi taught them out of order.) Granted there is those who hold that the whole Nizikim (the 3 “Bavas”) is realy one Mesechta split into three, so then it was taught in order. However, to those that hold that they are separate Mesechtos, there should be no order. Tosfos answers that only concerning an argument in a Mishna and afterwards a Mishna brings one of the sides anonymously without an argument, where the Halacha is like the later Mishna, that’s when we say that Mesechtos wasn’t taught in order, (but what the students wanted to learn at that time.) (This will be explained below in the brackets.) Regarding the order of the Mesechtos, since they were compiled afterwards in order, we must give a reason why they put it together in this order. This we find many places in Shas that the Gemarrah asked why does one Mesechta follows a second Mesechta.
[We have a rule the Halacha is like an anonymous Mishna that doesn’t mention anyone who argues on it (Stam Mishna.) If at first there is an argument in a Mishna and then in a later Mishna it brings down only one side (Machlokes Vachar Kach Stam) then the Halacha is like the later Mishna. The reason is that when Rebbi taught the earlier one, the reason why he wrote it as an argument, because at that point he didn’t conclude whom the Halacha is like. When he got to the later Mishna he decided the Halacha should be like one of them. So we say the Halacha is like him, since this was the outcome of Rebbi. However, if it was in the oppisite order, the first Mishna only brings one side and the later one an argument, then originally Rebbi thaught to say the Halacha is like one of them and later changed his mind that it’s inconclusive. So we can’t conclude from the Mishna whom the Halacha is like, since the outcome of Rebbi is that it’s inconclusive. If the two Mishnius are in two different Mesechtos, even though the one that’s one sided is in a later Misechta, since there is no order to the Misechtos, we don’t know which Mishna was taught last and the conclusion of Rebbi whom the Halacha is like]
Next Tosfos: “VaYachloku”: Question: Over here, when both are grabbing onto the cloak, we say they split it. Why then, in BB 34b, if two people both claim a boat to be his, we settle it by saying, “whoever is stronger wins? Answer: That only by the case of the cloak, since both are grabbing onto it, we say that both have a definite claims on his half. This is because we always take on that the one who is holding an object it belongs to him. This is why the Gemarrah compared the case of the cloak to the case of a watchman over money (and asks why should have different judgements). (When two people give someone money to watch, one gave $200 and the other $100. When they come back, they both claim to be the owner of the $200, so at least the $100 in contention is left by the watcher to watch until Eliyahu Hanavi comes to say who is the proper owner.) The comparision is as follows. Since the watchman is holding the money for both of them, it’s as if both litigants are holding the money jointly. The Gemmarah answers that only by the cloak you split it, since the splitting could be true (it’s possible they picked it up together,) while the case of watching the money, since it’s definitely belongs to one and not the other, it can’t be a true split.
The case of two people holding onto a loan document, that the lender claims it’s his that the borrower didn’t pay him back yet. The lender claims it’s his, he paid back the loan and the lender already returned the document to him. This we also say we split it. Even though we said the criteria to split it that it could be true that each has half, since it could be that the borrower paid back only half the debt, we say the splitting could be true. The case of watching the money, even though it’s possible that the person with the $200 could of gave over $50 to the one that had $100, since it’s uncommon to do that while the money is in someone else’s possession, we don’t consider it to be a practical true splitting.
The boat, however, is at the port, and no one is physically holding on to it, so no one has any definite claims on it. So even if the splitting could be true (that they own it jointly), we say the stronger one wins.
These rules are according to the Rabanan that rules that when in doubt, you don’t remove it from whom is holding it without proof. However, according to Sumchis that hold all doubts in monies we split it 50/50, that applies even if they are not holding onto it (like the boat) or if the splitting cannot be true, as long as there is “Drarah D’mimonah”. Which means that Beis Din is in doubt to whom it belongs even before they make any claims. (Like when they come into Beis Din holding the cloak, before they say anything we don’t know who it belongs to. This excludes a case where one is holding onto the cloak, so without the second person claiming that it’s his, we don’t have a doubt whom it belongs to.) |
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