On Gitin 35a we learned a story about the severity of an oath, from which we learn several restrictions on when we are imposing an oath on a widow whether she has received anything from her kesubah. It points out a difference between a widow and a divorcee, that only the widow is moreh heter: she is justifying herself since she is making efforts on behalf of the orphans, therefore she might be more likely to swear falsely than the divorcee.
But on Bava Metziah 2b we see an opposite reasoning: according to the assumption at the top of the page, one might have thought that we introduce an oath only on either the case of the found object, or on the bought object, because they have different reasons by which they can justify themselves. Here we see that moreh heter is actually a reason to make one to swear, not that it is a reason to withhold swearing, which seems to contradict our Gemara.
From Gitin 35a I would assume that whenever an oath reaches a level of self-justification which is already dangerous, we won't allow one to swear. Therefore, I don't understand how were the same Chachamim introducing a swear exactly for the purpose of restraining people of such self-justification.
Thank you very much,
Binyomin Szanto-Varnagy
Binyomin Szanto-Varnagy, Budapest, Hungary
This is a very important question. Here is a possible way of answering it.
1) The distinction is between when a person knows that he is wrong and when a person genuinely believes that he is right. Rashi (Gitin 35a, DH Asya) writes that the widow thinks that she is entitled to receive a small payment from the orphans, because she worked on their behalf. Therefore, she will be prepared to take an oath that she did not receive anything from them, because she really thinks that she did not receive anything that she was not entitled to receive. This is why they did not allow her to swear.
(See Yad David, cited by the Mesivta edition of the Gemara, who asks: Why did the Beis Din not warn her that if she has received something from the orphans she must not swear? He answers that this warning will not help, because she will not believe them, since she thinks that the small payment that she gets from the orphans is not considered as stealing, but is a well-earned salary.)
2) In contrast, in Bava Metzia (2b) the person who grabbed the Talis that his friend found in the street knows in his heart that he is not allowed to do this. Everyone knows that one is not allowed to take a lost item away from someone who legally picked it up from the public domain.
Rav Moshe Feinstein zt'l (in Igros Moshe, Choshen Mishpat 1:47, DH Ach) explains that the person in Bava Metzia is a thief, but this is a lighter form of theft. Since he grabbed from the other person merely a found item, he is not suspected of stealing an item which his friend had purchased with his own money. Therefore, he is not considered "Chashud a'Mamona" (see Shitah Mekubetzes, Bava Metzia, beginning of 2b; he is also not suspected of taking a false oath, -DB). The Igros Moshe compares this to the Mishnah in Bechoros 30a which says that if someone is suspected of transgressing a lighter prohibition, he is not automatically suspected of transgressing a more severe prohibition. Similarly, a person who is suspected of stealing a "Metzi'ah" from his friend is not supected of taking a false oath.
Therefore, if he is required to take an oath, he will acknowledge that what he did is wrong, and in order to avoid a false oath he will return the stolen item.
Kol Tuv,
Dovid Bloom
Here is another way of answering your very thoughtful question:
1) In fact, the Me'iri in Gitin (end of 35a, DH l'Inyan) asks a question very similar to yours. However, he does not ask from Bava Metzia 2b, but rather he asks from Shavuos 48b, which states that the reason why the Mishnah there (45a) states that business partners take an oath even though there is no particular claim is because they are Moreh Heter. That is, since they worked hard they feel that they are entitled to take a bit more, so they are required to swear that they received only what they deserved. The Me'iri asks that if this is so, then the fact that the widow is Moreh Heter should be a reason to make her take an oath!
2) The Me'iri cites an answer that distinguishes between whether the oath is actually required by the Halachah and whether the oath is something extra that Chazal imposed only because of Moreh Heter. When the widow collects from the orphans, the oath is essential because there is a general Halachah (end of Gitin 34b) that nobody may ever collect from orphans without an oath. Since the oath is essential, and since there is a significant concern that she will be Moreh Heter, we say that we cannot believe her oath. In contrast, the only reason why business partners must swear is because they might be Moreh Heter, but for no more basic reason. It follows that the worry of Moreh Heter is not sufficient to deter us from the oath, because, on the contrary, that is the only reason we required it for the partners.
3) Now we need to try and think how the above logic can be extended to Bava Metzia 2b. I suggest that the latter can indeed be compared to Shavuos 48b. We see from our Sugya that the oath mentioned by the Mishnah is not a basic one required generally by the Halachah. On the contrary, the Gemara tries to find out why the oath is required at all, and in the end (3a) Rebbi Yochanan states that it is an institution of the Rabanan, made so that everyone should not grab other people's clothing and claim it belongs to him. So we may use the Me'iri's logic to distinguish between Gitin 35a and Bava Metzia. In Gitin 35a, the oath is strictly required by the basic Halachah which states that one may never take property from orphans without an oath, and since the widow is Moreh Heter we are concerned that there is not sufficient trust to ensure that her oath is credible. In Bava Metzia, the oath is an extra one imposed by the sages, and for this less-basic requirement we do not need to be concerned about the possibility of Moreh Heter.
4) It is also worth considering why the Me'iri did not ask his question from Bava Metzia 2b. I suggest that the reason is simply because Moreh Heter is not the conclusion of the Sugya in Bava Metzia. The Me'iri preferred to ask from Shavuos because Moreh Heter is the accepted reason for the oath of the business partners.
Kol Tuv,
Dovid Bloom