(א) שנים אוחזין בטלית. זה אומר אני מצאתיה. וזה אומר אני מצאתיה. זה אומר כולה שלי וזה אומר כולה שלי. זה ישבע שאין לו בה פחות מחציה. וזה ישבע שאין לו בה פחות מחציה ויחלוקו. זה אומר כולה שלי וזה אומר חציה שלי. האומר כולה שלי ישבע שאין לו בה פחות משלשה חלקים. והאומר חציה שלי ישבע שאין לו בה פחות מרביע. זה נוטל שלשה חלקים וזה נוטל רביע:
(1) Two are holding a garment. One says, "I found it," and the other says, "I found it." [If] one says, "all of it is mine" and the other says, "all of it is mine." This one shall swear that he owns no less than half of it, and this one shall swear that he owns no less than half of it, and they shall divide it [between them.] [If] one says, "all of it is mine" and the other says "half of it is mine." The one who says "all of it is mine" shall swear that he owns no less than three quarters of it; and the one who says "half of it is mine" shall swear that he owns no less than one quarter of it. He [the former] takes three quarters and he [the latter] takes one quarter.
(א) שנים אוחזין בטלית זה נוטל עד מקום שתפוס וזה נוטל עד מקום שתפוס במה דברים אמורים בזמן שהיו שניהם תופסין בה אבל אם היתה בידו של אחד מהן המוציא מחבירו עליו הראיה זה אומר כולה שלי וזה אומר שליש שלי האומר כולה שלי ישבע שאין לו בה פחות מה' חלקים והאומר שליש שלי ישבע שאין לו בה פחות משתות כללו של דבר אין נשבע אלא על חצי טוענו בלבד.
(ב) שנים שהיו מושכין את הגמל ומנהיגין את החמור או שהיה אחד מושך ואחד מנהיג כמדה הזאת רבי יהודה אומר המושך את הגמל והמנהיג את החמור הרי זה זכה.
(ג) האומר יזכה לי ביתי במציאה שתפול לתוכו היום לא אמר כלום יצא לו שם מציאה דבריו קיימין.
MISHNA: If two people came to court holding a garment, and this one, the first litigant, says: I found it, and that one, the second litigant, says: I found it; this one says: All of it is mine, and that one says: All of it is mine; how does the court adjudicate this case? This one takes an oath that he does not have ownership of less than half of it, and that one takes an oath that he does not have ownership of less than half of it, and they divide it. If this one says: All of it is mine, and that one says: Half of it is mine, since they both agree that half of the cloak belongs to one of them, the conflict between them is only about the other half. Therefore, the one who says: All of it is mine, takes an oath that he does not have ownership of less than three parts, i.e., three-fourths, of it, and the one who says: Half of it is mine, takes an oath that he does not have ownership of less than one-quarter of it. This one takes three parts, and that one takes one-quarter. If two people were sitting in a riding position on the back of an animal, e.g., a donkey or camel, or one was sitting in a riding position on the animal and one was leading it by its halter, and this one says: All of it is mine, and that one says: All of it is mine, how does the court adjudicate this case? This one takes an oath that he does not have ownership of less than half of it, and that one takes an oath that he does not have ownership of less than half of it, and they divide it. When they admit to the validity of each other’s claims or when they each have witnesses attesting to their claims, they divide the disputed item without taking an oath, as an oath is administered only in a case where the parties have no other way to prove their claims. GEMARA: The Gemara asks: Why do I need the tanna to teach two separate claims made by each party? Why does the tanna say both: This one says: I found it, and that one says: I found it; and in addition: This one says: All of it is mine, and that one says: All of it is mine? Let the tanna teach one case. The Gemara answers: The correct understanding of the mishna is that it teaches one claim of each party, as their claims were as follows: This one says: I found it and all of it is mine, and that one says: I found it and all of it is mine. The Gemara asks: But let the tanna teach a case where each one merely claims: I found it, and I would know that the intention of each litigant is to claim: All of it is mine. The Gemara answers: If the tanna would teach only that each one claimed: I found it, I would say that what is the meaning of the claim: I found it? It means: I saw it. In other words, he is claiming that he saw the item first, and he believes that even though it did not reach his possession, he acquired it through mere sight. Since it would have been possible to think that this is an effective claim, the tanna teaches that the litigant states definitively: All of it is mine, to teach that one does not acquire a lost item through sight alone. The Gemara challenges this explanation: But how can you say that what the term: I found it, means is actually: I saw it? But didn’t Rabbenai say in interpreting the verse: “And so shall you do with every lost item of your brother’s, which he has lost, and you have found it” (Deuteronomy 22:3), that “and you have found it” indicates that it came into his possession? The term find in the Torah refers exclusively to a situation where the item is in the possession of the finder. The Gemara answers: Indeed, the phrase “and you have found it” in the verse certainly indicates that it came into his possession. But one might say that the tanna employed colloquial language in the mishna. And in colloquial language, once a person sees an item, he says: I found it, even if it did not yet come into his possession, because he believes that he acquired the item through mere sight. Since it would have been possible to understand the claim of: I found it, in this manner, the tanna teaches that the litigant states definitively: All of it is mine, to teach that one does not acquire a lost item through sight alone. The Gemara asks: But if that was the objective of the tanna, let him teach that each party need only state: All of it is mine, and the litigant would not need to say: I found it. The Gemara answers: If the tanna had taught that it is sufficient for each party to claim only: All of it is mine, I would say that in general, when the tanna teaches that one claims: I found it, he means that the finder acquires the item through mere sight. Therefore, he taught that the litigants claimed: I found it, and he then taught that the litigants claimed: All of it is mine, to teach that only when the litigants each make both of these claims does the court divide the item, as from the superfluous expression in the mishna he teaches us that one does not acquire the item through sight alone. After explaining the viability of this interpretation, the Gemara asks: But how can you say that the mishna is teaching one claim of each party? But doesn’t the mishna teach: This one says, and again: This one says? In other words, the mishna writes: This one says: I found it, and that one says: I found it; and it states additionally: This one says: All of it is mine, and that one says: All of it is mine. From the fact that the tanna introduced each of the claims with the phrase: This one says, it is apparent that they are two separate claims, not one compound claim. Rav Pappa said, and some say it was said by Rav Shimi bar Ashi, and some say it was an unattributed [kedi] statement: The first clause, where each party says: I found it, is referring to a case of a found item, where two people found one item. And the latter clause, where each party says: All of it is mine, is referring to a case of buying and selling, where each party claims that he is the one who bought the item from its seller. And it is necessary for the mishna to teach its ruling both with regard to a found item and with regard to a purchase. As had the tanna taught the case of a found item alone, I would say that it is only in the case of a found item that the Sages imposed an oath upon him, as in that case one can rationalize his actions and say: The other party, the one who in fact found the item, is not losing anything by not keeping all of it, as it was not his to begin with. I will go seize it from him and divide it with him. But in the case of buying and selling, where that cannot be said, say that the Sages did not impose an oath upon him. And had the tanna taught the case of buying and selling alone, one might say that it is specifically in this case that the Sages imposed an oath upon him, because he could rationalize his actions, saying to himself: The other party gave money to the seller and I gave money to the seller; now that I need it for myself, I will take it and let the other one go to the trouble to buy another item like the first item. But in the case of a found item, where that cannot be said, say that the Sages did not suspect that he seized an item that did not belong to him, and therefore there is no need to impose an oath upon him. Therefore, both cases are necessary. The Gemara asks: How can the mishna be referring to a case of buying and selling? But let us see from whom the seller took the money. Obviously, the one who gave him the money is the one who bought it. The Gemara answers: No, it is necessary in a case where he took money from both of them. He accepted the money willingly from the one to whom he wanted to sell the item, and he received the money against his will from the one to whom he did not want to sell the item, and I do not know who is the one from whom he took it willingly, and who is the one from whom he received it against his will. Consequently, the matter is clarified by means of an oath. § The Gemara suggests: Let us say that the mishna is not in accordance with the opinion of ben Nannas, as, if it were in accordance with the opinion of ben Nannas, doesn’t he say that an oath is not administered to two parties in court when one of them is certainly lying? As it is stated in a mishna (Shevuot 45a): With regard to a case where a man said to his laborer: Go to the storekeeper and he will give you food in lieu of your salary, and sometime later the laborer claimed that the storekeeper did not give him anything while the storekeeper claimed that he did, the Rabbis say: The storekeeper and the laborer must each take an oath to support their claims, and the employer must pay them both. Ben Nannas says in response: How can you allow these people, i.e., the laborer, and those people, i.e., the storekeeper, to come to take an oath in vain? Since one of them is definitely lying, the Sages would not impose the taking of an oath that by definition must be false. Similarly, in the case of the mishna here, since the found item is divided between the parties in any case, according to the opinion of ben Nannas they should receive their portions without taking an oath. The Gemara rejects this suggestion: It is even possible for you to say that the mishna is in accordance with the opinion of ben Nannas. There, in the case of the laborer and the storekeeper, an oath is certainly taken in vain, as it is clear that one of them is lying. Here, there is room to say that there is no oath taken in vain. Say that they are both taking an oath truthfully, as they lifted the item together, and therefore each of them owns half of it. In this case, ben Nannas would agree that they both take an oath. The Gemara suggests further: Let us say that the mishna is not in accordance with the opinion of Sumakhos, as, if it were in accordance with the opinion of Sumakhos, doesn’t he say the following principle: In a case of property of uncertain ownership, the parties divide it without taking an oath. The Gemara rejects this suggestion: Rather, what opinion does the mishna follow? Does the mishna follow the opinion of the Rabbis, who disagree with Sumakhos? Don’t they say that in a case of property of uncertain ownership the burden of proof rests upon the claimant? In the case of the mishna neither side offers proof. The Gemara answers: What is this comparison? Granted, if you say that the mishna is in accordance with the opinion of the Rabbis, there is room to distinguish between two cases: There, in the case of property of uncertain ownership, where both parties are not grasping the property, the Rabbis say that the burden of proof rests upon the claimant since the one with possession of the property ostensibly has the right to that property. Here, in the case of the mishna, where both are grasping the property and neither has exclusive possession of the item, they divide it with the proviso that they take an oath. The Gemara continues to state its proof that the mishna is not in accordance with the opinion of Sumakhos: But if you say that the mishna is in accordance with the opinion of Sumakhos, how do you resolve the following contradiction: Now, if there, in a case where they are not both grasping the property, they nevertheless divide it without taking an oath, here, where they are both grasping the property, is it not all the more so that they should divide it without taking an oath? The Gemara rejects this suggestion: You may even say that the mishna is in accordance with the opinion of Sumakhos. When Sumakhos states that in a case of property of uncertain ownership, the parties divide it without taking an oath, that is in the case of an uncertain claim and an uncertain claim, i.e., when the circumstances are such that neither party can state definitively that he is entitled to the property. But in a case of a certain claim and a certain claim, where each party states definitively that he is entitled to the property, Sumakhos does not say that they divide the property without taking an oath. The Gemara asks: And according to the opinion of Rabba bar Rav Huna, who said that Sumakhos says that even in a case of a certain claim and a certain claim the parties divide the property without an oath, what is there to say to establish the mishna in accordance with the opinion of Sumakhos? The Gemara answers: You may even say that the mishna is in accordance with the opinion of Sumakhos. When Sumakhos says that property of uncertain ownership is divided, he is referring to a case where the litigants have a financial association with the item independent of their claims to it. But where the litigants do not have a financial association with the item beyond their claims, they do not divide it without taking an oath. The Gemara asks: But is it not an a fortiori inference? If there, in a case where this Master has a financial association with the item, and that Master has a financial association with the item, and there is room to say that it belongs entirely to one of them, and there is also room to say that it belongs entirely to the other one, and nevertheless Sumakhos says that since it is property of uncertain ownership they divide it without taking an oath, then here, where the litigants have no financial association with the item, as there is room to say that it belongs to both of them, all the more so is it not clear that they should divide it without taking an oath? The Gemara answers: You may even say that the mishna is in accordance with the opinion of Sumakhos: This oath is instituted by rabbinic law in accordance with the statement of Rabbi Yoḥanan. As Rabbi Yoḥanan says: This oath, administered in the case of two people holding a garment, is an ordinance instituted by the Sages so that everyone will not go and seize the garment of another and say: It is mine. § The Gemara suggests: Let us say that the mishna is not in accordance with the opinion of Rabbi Yosei. As, if you say that the ruling is in accordance with the opinion of Rabbi Yosei, doesn’t he say that a case cannot be decided in a manner in which there is no deterrent for one taking a false claim to court (37a)? He says this with regard to a case where two people deposited money with the same person. One deposited one hundred dinars and one deposited two hundred, and the bailee forgot which of them deposited the larger sum. Subsequently, each claimed ownership of the larger sum and was prepared to take an oath to that effect. The Rabbis say that each should receive the smaller sum and the remainder should be held until Elijah the prophet prophetically resolves the uncertainty. Rabbi Yosei says: If so, what did the swindler lose? Rather, the entire deposit will be placed in a safe place until Elijah comes. The Gemara counters: Rather, what is suggested? Is it suggested that the mishna is in accordance with the opinion of the Rabbis, who disagree with Rabbi Yosei? Since the Rabbis say there: The remainder is placed in a safe place until Elijah comes, this case of the mishna concerning the garment is also comparable to the remainder in the case of the deposit, as it is uncertain to whom the entire garment belongs. It should therefore be placed in a safe place until the matter is resolved. The Gemara answers: What is this comparison? Granted, if you say that the mishna is in accordance with the opinion of the Rabbis there, in the case of the depositors, where these one hundred dinars certainly belong to only one of them and the Rabbis say that it is placed in a safe place until Elijah comes, here, in the case of this mishna, where there is room to say that it belongs to both of them, the Rabbis say that they divide it with the proviso that they take an oath. But if you say that the mishna is in accordance with the opinion of Rabbi Yosei, there is a difficulty. Now consider, if there, in a case where it is certain that there are one hundred dinars that belong to one of the litigants and there are one hundred dinars that belong to the other one, nevertheless, Rabbi Yosei says that the entire sum is placed in a safe place until Elijah comes, here, where there is room to say that it all belongs to only one of them, all the more so is it not clear that it should be placed in a safe place until Elijah comes, as one of the claims may be entirely fraudulent? The Gemara rejects this suggestion: You may even say that the mishna is in accordance with the opinion of Rabbi Yosei: There, in the case of the deposit, there is certainly a swindler between the two depositors. By contrast, here, in the case of the mishna, who is to say that there is a swindler? Say that both of them lifted the garment at the same time, and therefore there is no reason to penalize them by placing the garment in a safe place. Alternatively, there is room to distinguish between the cases: There, Rabbi Yosei penalizes the swindler by confiscating his deposit so that he will admit that he lied in order to receive his original deposit of one hundred dinars from the bailee. Here, in the case of the garment, what loss would a swindler incur that would prompt him to admit that he is lying? If the item is placed in a safe place, he loses nothing. The Gemara rejects this alternative explanation: This distinction works out well in the case of a found item where he did not pay anything for it. Consequently, he has no incentive to admit that he lied. But in a case of buying and selling, what is there to say? Both parties paid for the item and prefer to receive the item. Rather, the distinction is clearly as we explained initially. The difference between the cases is that in the mishna, there is no certainty that one of them is lying. The Gemara asks: Both according to the opinion of the Rabbis and according to the opinion of Rabbi Yosei, there, with regard to the case of a storekeeper relying on his ledger, it is unclear why the money is not held until the matter is clarified. This is referring to a case where an employer tells a storekeeper to give food to his laborer in lieu of his salary, and later the storekeeper claims that he gave it to him but the laborer claims that he did not receive it. Both parties therefore claim payment from the employer. As the mishna (Shevuot 45a) teaches that this one, the storekeeper, takes an oath that he gave the food to the laborer and receives payment from the employer, and that one, the laborer, takes an oath that he was not given the food and takes his salary from the employer. What is different in that case, that we do not say: Appropriate the money from the employer, and it is placed in a safe place until Elijah comes? Apparently, we should say this because there is certainly a swindler among the litigants, since it is impossible that both the storekeeper and the laborer are telling the truth. The Sages say in response: There, this is the reason that the money is not set aside: Because the storekeeper can say to the employer: I carried out your agency to give the food to the laborer, and I have dealings only with you. What business do I have with the hired laborer? Even if he takes an oath to me that he did not receive the food, he is not trustworthy to me by virtue of his oath. You are the one who trusted him, as you did not say to me: Give him the food in the presence of witnesses. Therefore, you are obligated to pay me. If you have a grievance, settle it with your employee. And the hired laborer can also say to the employer: I worked for you. What relationship do I have with the storekeeper? Even if he takes an oath to me that he gave me the change, he is not trustworthy to me by virtue of his oath. Therefore, both parties take an oath and take payment from the employer. § Rabbi Ḥiyya taught a baraita: If one says to another: I have one hundred dinars [maneh] in your possession that you borrowed from me and did not repay, and the other party says: Nothing of yours is in my possession, and the witnesses testify that he has fifty dinars that he owes the claimant, he gives him fifty dinars and takes an oath about the remainder, i.e., that he did not borrow the fifty remaining dinars from him. This ruling is derived via an a fortiori inference from the halakha that one who admits to part of a claim that is brought against him is obligated to take an oath that he owes no more than the amount that he admits to have borrowed. The inference is: As the admission of one’s own mouth should not carry greater weight than the testimony of witnesses. Since in this case witnesses testify that he owes an amount equal to part of the claim, he is all the more so obligated to take an oath with regard to the rest of the sum. The Gemara comments: And the tanna of the mishna also taught a similar halakha: In a case of two people who came to court holding a garment, where this one says: I found it, and the other one says: I found it, each litigant takes an oath and they divide the garment. And here, in the case of a found item, since each litigant is holding part of the garment, it is clear to us that what is in this one’s grasp is his, and what is in that one’s grasp is his. This is tantamount to witnesses testifying that part of the claim of each litigant is legitimate. And the mishna teaches that each of them takes an oath. The Gemara clarifies: For what reason is it necessary to have the a fortiori inference: As the admission of one’s own mouth should not carry greater weight than the testimony of witnesses? Isn’t the comparison to the case of an admission to part of a claim self-evident? The Gemara answers: It is necessary so that you will not say that it is only in a case of the admission of one’s own mouth that the Merciful One imposes an oath upon him, in accordance with the explanation of Rabba. As Rabba says: For what reason did the Torah say that one who admits to part of the claim must take an oath? It is because there is a presumption that a person does not exhibit insolence by lying in the presence of his creditor, who had done him a favor by lending money to him. And this person who denies part of the claim actually wants to deny all of the debt, so as to be exempt, and this fact that he does not deny all of it is because a person does not exhibit insolence.
(יא) שור שהיה רודף אחר שור אחר והוזק. זה אומר שורך הזיק. וזה אומר לא כי אלא בסלע לקה. המוציא מחבירו עליו הראיה. היו שנים רודפים אחר אחד. זה אומר שורך הזיק וזה אומר שורך הזיק שניהם פטורין. אם היו שניהן של איש אחד שניהן חייבים. היה אחד גדול ואחד קטן. הניזק אומר גדול הזיק. והמזיק אומר לא כי אלא קטן הזיק. אחד תם ואחד מועד. הניזק אומר מועד הזיק. והמזיק אומר לא כי אלא תם הזיק. המוציא מחברו עליו הראיה. היו הניזוקין שנים אחד גדול ואחד קטן. והמזיקים שנים אחד גדול ואחד קטן. הניזק אומר גדול הזיק את הגדול וקטן את הקטן. ומזיק אומר לא כי אלא קטן את הגדול וגדול את הקטן. אחד תם ואחד מועד. הניזק אומר מועד הזיק את הגדול ותם את הקטן. והמזיק אומר לא כי אלא תם את הגדול ומועד את הקטן. המוציא מחברו עליו הראיה:
(11) [If] an ox was chasing after another ox, and caused damage. This one says "Your ox damaged," and this one says, "No, your ox was injured on a rock," the burden of proof is upon the one who wishes to be compensated. If two [oxen] were chasing after one [ox], this one says, "Your ox damaged," and this one says, "Your ox damaged," both are exempt. If both [oxen] belonged to a single owner, both are liable. If one was large and one was small, and the injured [owner] says, "The large one damaged," and the one who damaged says, "No, the small one damaged" ... [Or If] one was a "tam" (not observed to habitually inflict damage) and one was a "muad" (observed to habitually inflict damage), and the injured [owner] says, "The 'muad' damaged," and the injurer says, "No, the 'tam' damaged" ... ... [in these cases] the burden of proof is upon the one who wishes to be compensated. If two [oxen] were damaged, one large and one small, and two [oxen] caused the damage, one large and one small... ... The injured [owner] says, "The large one damaged the large one and the small one damaged the small one," and the one who damaged says, "No, the small one injured the large one and the large one injured the small one" ... [Or if] one was a "tam" and one was a "muad," and the injured [owner] says, "The 'muad' damaged the large one and the 'tam' damaged the small one," and the one who damaged says, "No, the 'tam' injured the large one and the 'muad' injured the small one" ... ... [in these cases] the burden of proof is upon the one who wishes to be compensated.
(א) שור שנגח את הפרה ונמצא עוברה בצדה. ואין ידוע אם עד שלא נגחה ילדה. אם משנגחה ילדה. משלם חצי נזק לפרה. ורביע נזק לולד. וכן פרה שנגחה את השור ונמצא ולדה בצדה. ואין ידוע אם עד שלא נגחה ילדה. אם משנגחה ילדה. משלם חצי נזק מן הפרה ורביע נזק מן הולד:
(1) If an ox gored a cow [and it died] and its newly born offspring was found [dead] at its side, and it is not known if the cow gave birth before the ox gored, or if after the ox gored the cow gave birth, he [ox's owner] pays half damages for the cow and one quarter damages for the newborn. And if a cow gored an ox and its [cow] newly born young was found at its side, and it is not known if it gave birth before she gored, or if after she gored she gave birth, he [cow's owner] pays half damages from the [value of the] cow and one quarter damages [from the value] of the newborn.