שנים אוחזין בטלית - איידי דאיירי בהגוזל בתרא (ב"ק דף קיט.) מחלוקת נסורת נגר ובעל הבית דקתני במעצד הרי אלו שלו ובכשיל הרי אלו של בעל הבית תני הכא נמי דיני חלוקות ואע"ג דבתרי מסכתא אין סדר למשנה. ואיכא מ"ד כולה נזיקין לאו חדא מסכתא הוא ה"מ לענין מחלוקת ואח"כ סתם לפי שרבי לא היה לומד כסדר אלא כמו שהיו חפצים התלמידים אבל כשחברם על הסדר חברם וצריך בכל מסכתא טעם למה נשנית אחר שלפניה כדדייק בריש מסכת שבועות (דף ב.) מכדי תנא ממכות קסליק כו' וכן בסוטה (דף ב.):
Two [people are] holding a garment. The subject of our Mishna is how we resolve disputes about ownership. We need to understand why the Mishna’s author R’ Yehudah Hanasi, chose to discuss this subject at this point in the Mishna. As Tosfos points out, there is a precise order to the rulings of the Mishna.
The previous Maseches, Bava Kama, concludes with a Mishna (119a) that discusses whether the shavings of a carpenter belong to the carpenter or to the householder who is employing him.
Since at the end of the latter1The last two Perakim of Bava Kama each begin with the word Hagozel. The first is called the first Hagozel and the second is called the latter Kagozel. Hagozel (119a) the Mishna is speaking about the division of the shavings of a carpenter with the householder who is employing the carpenter and presumably pays for the wood, where the Mishna teaches:
A) the shavings of an adze,2See Artscroll Bava Kama 119a note 57. which are thin and not very valuable, they belong to [the carpenter] and
B) those shavings made by a hatchet, which are much thicker and more readily usable, they belong to the householder.
The Mishna there is discussing the ownership of disputed property, so [the Mishna] here also teaches the laws of division of property whose ownership is in dispute.
Tosfos now discusses the assumption that there must be a reason for the order in which the Mishna was arranged and that there must be a reason why the first Mishna of Bava Metzia follows the last Mishna of Bava Kama.3Tosfos seems to be asking why it is necessary to provide a reason for why the first Mishna of Bava Metzia follows the last Mishna of Bava Kama. This is puzzling. Even if Tosfos is correct that there is an opinion according to whom it is not necessary to have a a reason for the order of these Mishnayos, it is still necessary for Tosfos to explain the order of the Mishnayos according to those who hold that there must be a reason for the order of the Mishna. See מהר"ם who puts Tosfos question in a slightly different context. Tosfos is to be understood notr as asking a question, but rather as explaining that even the one who holds there is no order for Nezikin as relates to a dispute followed by an anonymous Mishna, there must still be a reason why Rebbe put them in the order that he did. He also offers a second explanation of Tosfos question which is strongly disputed by מהר"ם שי"ף.
We must first familiarize ourselves with two principles about the order of Mishnayos:
The Gemara relates in Bava Kama 102a that Rav Huna ruled in accordance with R’ Yehudah. Rav Yosef was upset with Rav Huna for stating his halachic decision in this matter. It seems that Rav Yosef held there was no need for Rav Huna to state that ruling, because it is elementary that we must rule in accordance with R’ Yehudah. We will now review that Gemara and gain a better understanding of the concept of the order of the Mishna.
But why did Rav Huna need to say that the halacha follows R’ Yehudah? This is a situation where we first have a dispute and then an anonymous Mishna, and when we have a dispute followed by an anonymous Mishna that rules in favor of one of the disputants the halacha follows the anonymous Mishna.
The Gemara explains:
The dispute is in Bav Kama (100b): one who gave wool to a dyer to dye it red and he dyed it black, or to dye it black and he dyed it red. R’ Meir says: [The dyer] gives the [wool owner] the value of his wool. The dyer now owns the dyed wool at the price of raw wool plus his expenses. It is as if he stole the wool and acquired ownership by altering it from raw wool to dyed wool.
R’ Yehudah says: If the improvement of the dyed wool is greater than the expenses paid to dye the wool, [the wool owner] gives the [dyer] the expenses. If the expenses are greater than the improvement, [the wool owner] pays [the dyer] the amount of the improvement. As opposed to R’ Meir who holds that the dyer acquired ownership by dying the wool the wrong color, R’ Yehudah holds that the dyer is treated as one who improved his associate’s property without being asked to do so. He is always on the losing end as was explained. He is paid whatever is less, the expenses of dying the wool or the added value of the dyed wool. Whereas, according to R’ Meir who rules that the dyer acquires the wool, this may be to his advantage if the price of wool rose in the interim or if the color that he dyed it is now worth more than the other color.
The anonymous Mishna is in Bava Metzia which follows Bava Kama. As we learned in a Mishna: Whoever alters the instructions given to him has the lower hand in resolving the ensuing dispute. For example: the dyer who did not follow instructions and dyed the wool the wrong color loses. He will treated as a worker who did not follow instruction as R’ Yehudah holds. Whoever retracts has the lower hand.
Since we do have a situation of an anonymous Mishna following a dispute and we do rule that in such cases we follow the anonymous Mishna, why did Rav Huna need to rule like R’ Yehudah in this matter? It is very plain that the halacha must follow R’ Yehudah.
The Gemara defends Rav Huna:
What does Rav Huna hold? It is necessary to rule like R’ Yehudah. I might think that this situation does not qualify as a dispute followed by an anonymous Mishna because there is no order for the Mishna, and this might be an anonymous Mishna followed by a dispute where we rule in accordance with the opinion that argues with the anonymous Mishna.
What does Rav Yosef say to this argument: If so, in any case of a dispute followed by an anonymous Mishna we should say - there is no order to the Mishna and it may be an anonymous Mishna followed by a dispute? Since we do have the rule that we follow an anonymous Mishna that is preceded by a dispute, we must assume that there is an order to the Mishna and that the Mishnayos were all written in order.
What does Rav Huna say to Rav Yosef’s argument? When do we not apply the concept that - there is no order to the Mishna and we do follow the rule that the halacha is in accordance with an anonymous Mishna that follows a dispute, that is within one Maseches. All the Mishnayos within one Maseches definitely are in order and we must rule in accordance with an anonymous Mishna that follows a dispute, but in two Masechtos, we do say - there is no order to the Mishna. If for example: An anonymous Mishna in Eiruvin follows a dispute in Shabbos, we do not follow the anonymous Mishna in Eiruvin. So too, in the case of a dispute in Bava Kama and anonymous Mishna in Bava Metzia, we would not automatically rule in favor of R’ Yehudah. It was therefore necessary for Rav Huna to state his opinion that the halacha follows R’ Yehudah.
If so why did Rav Yosef feel that it was unnecessary to rule in favor of R’ Yehudah? Because he holds that all of Nezikin (the three Bavas, Bava Kama, Bava Metzia and Bava Basra) are one Maseches. Thus within the thirty Perakim of these three Masechtos, there is an order and a dispute in Bava Kama that is followed by an anonymous Mishna in Bava Metzia or Bava Basra is considered to be in order and we must follow the anonymous Mishna.
A) Within one Maseches all agree that there is an order to the Mishnayos and we must follow an anonymous Mishna that is preceded by a dispute.
B) Between two Masechtos there is no order and when there is an anonymous Mishna in Eiruvin preceded by a dispute in Shabbos, we need not follow the anonymous Mishna.
C) Within the three Mascehtos of Bava Kama, Bava Metzia and Bava Basra, there is a dispute. Rav Yosef holds they are considered one Maseches and we must follow an anonymous Mishna in Bava Metzia or Bava Basra that is preceded by a dispute in Bava Kama. Rav Huna holds that they are each separate Masechtos and they are like Shabbos and Eiruvin.
Even though when considering two Masechtos, there is no order to the Mishna, and furthermore, there is one who holds that all of Nezikin is not one Maseches and it would seem that there is no need to explain why the beginning of Bava Metzia follows the end of Bava Kama, [that there is no order to Mishnayos between two Masechtos] has been said only insofar as a dispute followed by an anonymous Mishna. We cannot infer that the halacha follows the anonymous Mishna when it appears in a latter Maseches i.e. when the dispute is in Shabos and the anonymous Mishna in Eiruvin, because Rebbe did not learn the Masechtos according to the common order of the Shas. Rather he learned with his students according to the order that the students wished to learn. For example: When Rebbe finished teaching Shabbos, he may have started Bava Metzia because the students felt that they would be more successful learning Bava Metzia.
However, when he put [the Masechtos] together, he put them together in a logical order. It is necessary Maseches to have a reason why each Maseches was taught after the Maseches that precedes it, as [the Gemara] deduces at the beginning of Maseches Shavuos (2a): Let us see, the Tanna just concluded Makkos etc. [why did he teach Shavuos after Makkos?]. So too, in Sotah (2a) the Gemara explains why it follows Nazir. We see that even if we do not follow an anonymous Mishna that was preceded by a dispute when the anonymous Mishna and the dispute are not in the same Maseches, there is still rhyme and reason for the order of the Masechtos. In our Mishna as well, we must know why Trebbe chose to teach this Mishna after concluding the last Mishna in Bava Kama.
ויחלוקו - תימה דמאי שנא מההיא דארבא דאמר כל דאלים גבר פרק חזקת הבתים (ב"ב דף לד: ושם) וי"ל דאוחזין שאני דחשיב כאילו כל אחד יש לו בה בודאי החצי דאנן סהדי דמאי דתפיס האי דידיה הוא וכן במנה שלישי דמדמי בגמרא לטלית חשיב ההוא שהנפקד תופס בחזקת שניהם כאילו הם עצמם מוחזקים בו לכך משני דהתם ודאי דחד מינייהו הוא ואין החלוקה יכולה להיות אמת ולכך יהא מונח אבל טלית דאיכא למימר דתרוייהו הוא יחלוקו וכן שנים אדוקים בשטר דמדמי לקמן (בבא מציעא דף ז.) למתני' משום דשניהם אדוקים בו דהחלוקה יכולה להיות אמת דאפשר שפרע לו החצי ובמנה אין דרך שיקנה לו החצי אחרי שהוא ביד חבירו אבל בארבא אע"ג דאפשר שהיא של שניהם כיון דאין מוחזקין בו הוי דינא כל דאלים גבר ולסומכוס אע"ג דאין מוחזקין בו ואין החלוקה יכולה להיות אמת היכא דאיכא דררא דממונא פירוש שבלא טענותיהם יש ספק לבית דין יחלוקו:
They divide [the garment]. Our Mishna rules that when we have a dispute over a garment and the two litigants are each holding the garment, it is to be divided between them after each of the litigants swears that his claim is true.
There are other places in the Talmud where the Gemara offers different solutions to a dispute about ownership. Tosfos here will explain why in this case we rule that the garment is to be divided after the litigants swear and why elsewhere other solutions are used.
The Gemara that Tosfos quotes in Bava Basra 34b is not an exact quote. The Gemara discusses a dispute between two litigants about the ownership of a boat. According to the conclusion of the Gemara the ruling is: כל דאלים גבר - Whoever is more powerful will win.1See רא"ש סי' א who says that כל דאלים גברmight mean, whoever brings better evidence, or whoever might physically overpower the other. He explains that the true owner is most likely to work harder to defend his assets. In other words the courts allow the litigants to fight it out and the stronger party will overpower the weaker party. The Gemara there does not say that they should divide the ship as it says here that they must divide the garment. Why?
This is bewildering! Why is this case different than the boat about which [the Gemara] says in Perek Chezkas Habatim (34b): Whoever is stronger will overpower his fellow litigant?
We can answer: That our Mishna where the litigants are each in possession of the garment is different, because it is considered as if each one definitely owns half of the garment, because we, the court, are witnesses,2The literal translation of אנן סהדיis - we are witnesses. Obviously, this is not meant in a literal sense, because we are truly not witnesses since the court never saw anything happen with the disputed garment. In a figurative sense, we are witnesses because we see that each of the litigants is to some degree in possession of the garment. There are many differing opinions about the meaning of “we are witnesses” in regard to the disputed garment:
a) Some are of the opinion that it is purely logical that when we see a garment in Ruvain’s possession that we should assume that the garment is his. We have no reason to suspect that Ruvain stole the garment or acquired it in an illegal way. Thus, by seeing it in Ruvain’s possession, we can testify that it is his. This concept extends even to when both Ruvain and Shimon are holding the garment. Both are assumed to be honest people and “we testify” that each has a right to the garment.
b) Others hold that the concept of “we are witnesses” does not mean that we are truly convinced that whatever is in Ruvain’s possession is actually his. Rather, insofar as ruling in matters of disputed property when we have no other evidence to the contrary, we assume that what is in his possession is his. This “we testify” is merely a way of expressing that the judges can only rule based on what they see, and all they actually see is that it is presently in Ruvain’s possession and they must rule accordingly. This of course more readily extends to when the garment is held by two litigants. We are never convinced that the garment actually belongs to Ruvain when he is holding it himself. It is merely a function of the courts to rule in favor of one who is in possession. Certainly, when both are in possession we are not convinced that the garment actually belongs to both. However, the rule of possession says that we must view the dispute as if both are owners of the garment. by virtue of seeing that each litigant is holding half the garment, that what he is holding is his. When Ruvain and Shimon are both holding the garment, we cannot rule - whoever is stronger will win, because that in effect is taking the rights to half the garment away from the ultimate loser, who is presently in possession of half the garment. We have no right to take away half the garment from him when we have no evidence or any other reason to rule that it does not belong to him. In Bava Basra 34b, neither of the litigants are in possession. The ruling - that the stronger party will win - is not taking away from the ultimate loser that which is definitely his, because neither of the litigants is in possession of the contested boat. The court may choose not to rule in favor of either of the litigants, since there is no evidence for either side.
Tosfos raises a difficulty with this explanation that the reason we divide the garment is because each of the litigants has some degree of possession. The Gemara on 3a quotes a Mishna on 37a, where it appears that the litigants definitely are not in possession of the disputed property and compares it to our Mishna.
The Mishna later on 37a:
Two people, Ruvain and Shimon, deposited money with one custodian, Levi. This one deposited one hundred zuz and that one deposited two hundred zuz. When it comes time to collect their money, this one says two hundred zuz are mine and that one says two hundred zuz are mine. The custodian gives this one a hundred zuz and that one a hundred zuz and the remaining one hundred zuz will be held in abeyance till Eliyahu comes and tells us who the rightful owner is.
The Gemara on 3a compares the third hundred-zuz to the garment in our Mishna. At first glance it seems that the comparison is unfair. In our Mishna the litigants are in possession of the disputed garment. In the Mishna on 37a the disputed money is held by Levi, a third party. According to Tosfos criteria, when the disputed money is not in the litigants’ possession we should rule – כל דאלים גבר whoever is stronger will, win as we do in Bava Basra 34b. Tosfos must explain why the Gemara feels that it is a fair comparison.
So too, the case of the third hundred-zuz, which [the Gemara] 3a compares to the garment of our Mishna, where the Gemara is asking that they should divide the third hundred-zuz even though each of the litigants is not in possession of that hundred zuz? This seems to contradict Tosfos’ explanation that a division is called for only when the litigants are in possession. The third hundred-zuz is not in the possession of the litigants. The custodian is holding it.
[The Gemara] considers the fact that the guard who was empowered by both litigants is holding the third hundred-zuz for both of them, as if they themselves are in possession of it. This case is not similar to the ship, which is not in anybody’s possession. The third hundred zuz is actually in possession of both litigants because the guard is holding it for both litigants.3Tosfos here assumes that the custodian is holding for both depositors and we therefore view the situation as we do - two who are holding a garment. There are some who say that the רא"ש disagrees. He holds that the custodian is holding the third hundred-zuz for the true owner, not for both depositors.
Insofar as possession is concerned the third hundred-zuz is comparable to the garment of our Mishna, therefore the Gemara differentiates between the two cases as follows: there in the case of the third hundred-zuz, it definitely belongs to only one of [the litigants], and a division cannot be true justice, therefore it should remain in abeyance till Eliyahu comes and tells us who the true owner is,but in regard to a garment where it can be said that it truly belongs to both of them4It is possible that they both picked up the garment at the exact same time. and we are not definitely violating the rights of one of the litigants, we rule they are to divide it.
We now have two criteria for division:
A) The litigants are in possession
B) The division can be true justice, because it is possible that they share ownership.
Tosfos explains another case that the Gemara compares to “two people who are holding a garment”. So too, the case of two, the borrower and the lender, who are holding a document, which [the Gemara] later (7a) compares to our Mishna of two people who are holding a garment, that case is comparable because they are both holding [the document]. The division might be true justice because it is possible that [the borrower] paid [the lender] half and the borrower may only owe the other half. Since we have met both criteria:
A) That both litigants are showing possession and B) it is possible that our ruling is true justice, we must rule that the value of the document is divided.
But why isn’t the same true of the third hundred-zuz that is held by the guard? There too A) it is being held by the guard for both litigants and B) it is possible that one bought into a partnership in the ‘third hundred zuz’, i.e. Ruvain bought something from Shimon and Shimon is using fifty zuz of the third hundred as payment for his purchase.
However, in the case of the third hundred-zuz it is not the norm for one to acquire ownership of half of the third hundred-zuz while it is in the possession of his associate, the custodian.5This statement is a bit puzzling. We say that the borrower may have paid half the debt and therefore the division can be truly just. Why would we not say that Ruvain, the original owner of the third hundred-zuz used half to pay a debt to Shimon, the other litigant? See אוצר מפרשי הש"ס` who explains that there is virtually no way that ownership of half the hundred-zuz could possibly be transferred without the knowledge of the custodian. Cash cannot be transferred via חליפין-an exchange. The only possible method of acquisition is מעמד שלשתן, where the owner tells the custodian in the presence of the receiver that half the money would now belong to him. But for this acquisition to be effective it must be done in the presence of the custodian. Tosfos is saying that it is highly unlikely that this method of acquisition was used and the custodian forgot about it.
Tosfos concedes: The case of the contested boat is also one where the division might be true justice? But in the case of the contested boat, even though it is possible that [the boat] belongs to both, which satisfies criteria B) since they are not in possession of [the boat], criteria A) has not been met and the ruling is that whoever is stronger will win.6See בבא בתרא לד: ד'ה ההוא ארבאwhere Tosfos there follows the same path as he does here. Towards the end Tosfos presents the opinion of ריב"א who holds that the division does not depend on the fact that the litigants are in possession. He believes that in the case of the third hundred-zuz, the litigants are not in possession and even so the Gemara initially argues that there should be a division. He holds that the deciding factor is that both litigants must be claiming what they truly believe, but if one of them is definitely willfully lying there is no division. In our Mishna each of the litigants believes that he picked up the lost garment first or that he was the true purchaser of the garment. Neither is necessarily attempting to cheat the other. This is not so about the boat. one of the litigants is definitely not telling the truth and we therefore do not rule for a division. See Rashi here 2a ד'ה במקח ובממכרwho seems to say the same as ` ריב"א that division is an option only when we are not dealing with a definite cheater. If each of the litigants claims that he wove the garment, leaving no room for legitimate error, we do not divide the garment.
But according to Sumchus,7The commentators are somewhat puzzled about why Tosfos needs to discuss Sumchus’ opinion at all. Why was it necessary to mention his position when discussing the criteria for a division in our Mishna?
A) There are those who say that Tosfos wants to show that Sumchus can agree with the Gemara in Bava Basra 34b, which rules in the case of the boat - whoever is more powerful will win. In that case there is no obvious doubt to the observer and Sumchus’ ruling of division without swearing is not in effect. It was only said when there is an obvious doubt such as in the case of the dead calf that may have been killed by the ox. Otherwise, even he agrees that we follow the ruling of whoever is more powerful will win.
B) Others suggest that Tosfos wants to show that Sumchus can essentially agree with the ruling of our Mishna that when A) the litigants are both in possession of the garment and B) the division can be true justice, the garment is divided with both parties taking an oath. Sumchus’ ruling in the case of the dead calf is an unrelated ruling, because in that case both are not presently in possession of the dead fetus (only the ox owner is in possession of the money that the calf owner is claiming)and a division is definitely not true justice, since only one of the litigants is entitled to the money. Sumchus’ ruling there is based on the fact that there is an obvious doubt without the claims of the litigants. This alone, according to Sumchus, is another basis for division despite the fact that both criteria of our Mishna are lacking. even when [the litigants] are not in possession of the disputed [property] and the division cannot be true justice, when there is a obvious doubt about who the owner of this money is, which means that even if [the litigants] were not making any claims, the courts would have a doubt as to whom the property in question belongs, we rule that they must divide the property.