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Adaptation of "Hatzoas Tochen Sicha"

Adaptation of "Hatzoas Tochen Sicha"

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Published by YehoishophotOliver
Adaptation of the Rebbe's explanation of the first Mishnah in Bava Metzia.
Adaptation of the Rebbe's explanation of the first Mishnah in Bava Metzia.

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Published by: YehoishophotOliver on Aug 09, 2013
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02/16/2014

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Boruch Hashem

Explanation of the First Mishnah of Bava Metzia

Based on the Lubavitcher rebbe’s Reshimos.
Adapted by Rabbi Yehoishophot Oliver Elul, 5773
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This booklet of Reshimos is entitled “Hatzoas Tochen Sicha/Shnayim Ochazin Betalis.”

Concerning a case in which two litigants came to the court holding on to a cloak, and both claim ownership, the Mishnah2 states: If this one says, “It is all mine,” and this one says, “Half of it is mine,” the one who says “It is all mine” must take an oath that he owns not less than three parts, and the one who says “half of it is mine” must take an oath that he owns not less than one quarter. The first person then takes three quarters [of the value of the cloak], while the other one takes one quarter. The Rishonim3 ask: Why is the one who merely claims that “half of it is mine” required to take an oath? It would seem that he has a migo,4 for he could have claimed that “it is all mine”; thus, the Beis Din should accept his claim and exempt him from taking an oath. The Nimukei Yosef answers that in this case the concept of migo does not apply because we have a specific reason to doubt his claim. For if the one who claims that “half of it is mine” were to receive half his claim without swearing, a liar who wishes to slip out of swearing may claim that “half of it is mine” and receive half without swearing, instead of saying “it is all mine” and being required to take an oath in order to receive the same half. Some have questioned this explanation5 in light of a similar statement of the Tosefta:

2 3

Bava Metzia 2b. See ibid., Tosfos s.v. vezeh noteil. 4 A migo (He. ‫ )מיגו‬is a legal rule whereby the Beis Din believes a claimant who chooses to make a lesser or weaker claim since it is presumed that had he wished to deceive them, he would have chosen to present a more compelling claim. One consequence of believing the claimant is that the Beis Din would then exempt him from taking an oath. 5 See Tiferes Yerushalayim on Mishnayos.

If this one says, “It is all mine,” and this one says, “A third of it is mine,” the one who says “it is all mine” must take an oath that he owns not less than five parts, and the one who says “half of it is mine” must take an oath that he owns not less than a sixth. The first person then takes five parts quarters [of the value of the cloak], while the other one takes a sixth. The reasoning of the Nimukei Yosef that the reason that the claimant has no migo is that it is easier for him to claim less and receive the same amount appears to conflict with this statement of the Tosefta. For in the case of the Tosefta, the claimant stands to gain more by lying—asserting “half of it is mine” instead of “it is all mine”—than exempting himself from an oath. For if the claimant were to claim that “it is all mine,” he would indeed receive more than the amount he seeks to receive upon claiming a mere third—he would receive a half. Thus, by claiming that “a third of it is mine,” it would appear that he should be exempted from taking an oath, for he does have a migo that he could have claimed that “it is all mine” and received a half. Perhaps this is indeed the reason that Tosfos does not see fit to mention the Nimukei Yosef’s answer. Instead, Tosfos answers that the concept of migo is only effective when the claimant is in sole possession of the object, and he seeks to defend his ownership from someone else who claims ownership and seeks to have him surrender the object. However, in the case of the Mishnah in which two people are holding onto a cloak, no one claimant has possession, and so the rule of migo does not suffice to establish ownership. This is also the reason that one who claims, “A third of it is mine,” only takes a sixth and is not believed with the migo that he could have argued, “It is all mine.” This also explains the ruling of the Tosefta nicely.

However, this can be questioned, for if so, it would seem that the Mishnah should have been worded differently. To explain, later on6 the Gemara asks why the Mishnah needs to add the apparently superfluous second clause concerning one who claims that “half of it is mine”; why isn’t the first clause, in which two people claim that “it is all mine” sufficient? The Gemara answers that it has been established7 that one who returns a lost object is not required to take an oath in a case in which his right to the property that he keeps is challenged. Likewise, one might have assumed that since by claiming “half of it is mine,” the claimant in effect concedes that the other half belongs to the other claimant, he should be considered like one who returns a lost object, and therefore ought to be exempt from taking an oath on the amount that he claims. In order to clarify that this is not so, the Mishnah rules explicitly that even in a case in which one side claims “half of it is mine,” an oath is required. The Gemara explains that the reason that we do not consider the admission of half a form of returning a lost object is that the Sages were concerned that this dispensation might be consciously abused. An unscrupulous person who is not entitled to lodge a claim, but wishes to slip out of taking an oath, might be tempted to claim that “half of it is mine,” knowing that the Beis Din will exempt him from an oath because he is considered to be returning a lost object. In order to forestall such trickery, the Sages instituted that even one who claims that “half of it is mine” must swear on it. In light of this explanation, however, it would appear more logical for the Mishnah to have stated the clause of the Tosefta in which one side claims that “a third of it is mine” instead of the clause in
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Bava Metzia 8a. Gittin 48b, 51b.

which one side claims that “half of it is mine.” This would have taught us two concepts: 1) The ruling that that the claimant receives a sixth and not a third would have taught us that a migo is not effective to extract an object from one who has possession of it. This ruling could not necessarily have been derived from the formulation of “half of it is mine,” for then the Mishnah’s wording could have been interpreted in the way of the Nimukei Yosef above; however, the expression “a third of it is mine” cannot be interpreted in the way of the Nimukei Yosef, as explained above. 2) The requirement of the claimant to swear in order to receive a portion of the object’s value would have taught us that we are concerned that the claimant may be engaging in deception. Now, it might be argued that for the Mishnah to move from the claim that “all of it is mine” to “a third of it is mine” is disorderly, for logically the claim “half of it is mine” should be listed in between, and the compiler of the Mishnah would have preferred to avoid such a formulation. However, the question stands, for the Mishnah, which seeks to inform us the relevant lessons from all the variants of the case in which two litigants were holding on to a cloak, could have listed all three claims. To explain, let us preface with a question of Rabbi Akiva Eiger. As stated above, the Gemara explains later on that the clause containing the claim that “half of it is mine” was included in order to forestall the possibility of deception. Rabbi Akiva Eiger asks why the Gemara says that this is what the Mishnah seeks to inform us, for in his estimation this is not such a novel lesson, that the Mishnah should have to go out of its way to indicate it. Why doesn’t the Gemara explain that the Mishnah is telling us that one’s claim for half cannot

be accepted with a migo, for a migo cannot be used to extract an object from one who is in possession of it? He considers this a difficult question for which he has no answer. Perhaps this question can be resolved as follows. The Mordechai8 writes, as does the Shita Mekubetzes in the name of the Rosh, that since the oath required in the Mishnah is merely a rabbinic enactment, in order to exempt oneself of it, even the weakest form of migo is sufficient. So when the Gemara answers that we are concerned for deception, the reason is that the Gemara believes that it is a much bigger novelty to suggest that we are concerned that the claimant will employ trickery, and that therefore no migo whatsoever will be accepted, than to explain that the Mishnah seeks to tell us that a migo cannot be used to extract an object from one who is in possession of it. This can also be used to explain why the Mishnah does not include a clause with the claim, “A third of it is mine.” Perhaps the author of the Mishnah believed that the legal concept that a migo cannot be used to extract an object is self-evident, and so the Mishnah did not need to go to the trouble to inform us of it. The Tosefta, in telling us the case of “a third of it is mine,” informs us of the fact that this concept was thought to be self-evident. This is also why the Gemara indicates that we cannot suggest it would have been more logical for the clause “half of it is mine” to have been intended to inform us that a migo cannot be used to extract an object (as the Nimukei Yosef asks). For if that were the case, the Mishnah should have included the clause, “A third of it is mine,” for from “half of it is mine” we would not have been able to derive that a migo cannot be used to extract an object, for a different
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Bava Metzia 2a.

reasoning could have been used to explain the novelty of this clause. It could have been meant to inform us that the claimant has no migo because we suspect that he deliberately prefers to avoid making a greater claim and being required to take an oath, as the Nimukei Yosef resolves it, as explained. Conversely, we cannot say that the “half of it is mine” clause is intended to tell us the answer of the Nimukei Yosef, for the same clause can also be explained (as Tosfos explains), albeit with difficulty, as meant to inform us that a migo is not effective to extract an object. Either way of explaining the clause—suggesting that it is telling us that a migo is not effective to extract an object, or suggesting that it is telling us that a migo is not effective in this case because the claimant may want to claim less and receive the same amount without an oath—is problematic. This is why the Gemara rejected both these reasons, and explained that the real reason for this clause is in order to forestall the possibility of calculated deception. However, Tosfos9 explains that the “half of it is mine” clause means to tell us that we do not accept a migo to extract an object, because Tosfos already knows from the Tosefta, which predated Tosfos, that the explanation of the Nimukei Yosef cannot be employed.

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S.v. vezeh noteil.

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