1) TWO PEOPLE HOLDING ON TO A GARMENT

QUESTION: The Mishnah states that when two people are holding on to one garment, and each person claims that the entire garment belongs to him, each claimant must swear that he does not own less than half of the garment, and then each receives half of it.

Why does the Mishnah specifically mention that both are holding the garment? The Halachah apparently would be the same even if they were not holding the garment.

ANSWERS:

(a) TOSFOS (DH v'Yachloku) explains that the Halachah indeed would be different if they were not holding the garment. Tosfos bases this assertion on the Gemara in Bava Basra (34b) which teaches that when two people come to Beis Din with a dispute about the ownership of a boat, Beis Din rules "Kol d'Alim Gavar" -- whoever is stronger prevails. Beis Din does not rule that the two litigants split the boat. Tosfos explains that since neither claimant is in physical possession of the boat, there is no positive proof that the boat belongs to one of them. In such a case, Beis Din prefers to let the stronger one prevail, rather than to give half of the boat to each person, a ruling which might cause the rightful owner to lose his boat.

The ROSH (1:1) elaborates on this. Beis Din does not have to prevent one of the claimants from taking the boat for himself, since no proof has been brought that it does not belong to him, and the person who prevails and takes it claims that it belongs to him. Therefore, Beis Din allows the one who takes the boat for himself (either with testimony or through force) to prevail, and it is assumed that since he put forth so much effort into taking possession of the boat he most likely is the true owner. This is a more just way of handling the case than splitting the boat between the two of them.

In the case of the Mishnah, however, this ruling ("Kol d'Alim Gavar") is not an option since each of the claimants is holding on to the disputed object. Each claimant's physical possession of the object constitutes proof that the garment belongs to him (as the Gemara on 3a says, "Anan Sahadei d'Mai d'Tafis Hai, Didei Hu"). Since Beis Din is faced with two opposing claims supported by proof, Beis Din cannot ignore one person's proof and allow the other to take the garment. Therefore, Beis Din's only option is to split the garment between the claimants. (Even splitting it is not an option when the claimants are holding on to the object and it is not possible that the object actually belongs to both of them, because Beis Din certainly will be doing an injustice by splitting the object. In such a case, Beis Din rules "Yehei Munach," it remains in escrow until someone brings proof of ownership, as the Gemara later (3a) mentions. However, in the case of the Mishnah here, since it is possible that both claimants picked up the garment together and it indeed belongs to both of them, Beis Din divides the garment between the two of them.) This is the way Tosfos explains the Mishnah.

RASHI at the beginning of the Mishnah (DH Shenayim) writes "Davka Ochazin," which implies that if the two claimants are not holding the garment the Halachah would be different, as Tosfos says. This indeed is the way some Rishonim (RADVAZ cited by the Shitah Mekubetzes, HAGAHOS MORDECHAI (second set), HAGAHOS MAIMONIYOS, Hilchos To'en v'Nit'an 9:7) understand the intention of Rashi here.

(b) The RIVA (cited by Tosfos to Bava Basra 34b, DH ha'Hu, and by the Tosfos ha'Rosh here) explains that the Halachah of the Mishnah applies even when the claimants are not holding on to the garment. In the case of the Gemara in Bava Basra in which two people claim ownership of a boat, the reason why Beis Din does not split the boat is not that the claimants are not in physical possession of the boat. Rather, in that case one of the claimants clearly is lying intentionally, and therefore Beis Din does not want him to give him half of the boat and thereby allow him to benefit from lying. In contrast, in the case of the Mishnah here, it is possible that both claimants think that they are telling the truth and have no intention to lie; each one thinks that he picked up the object first (or that the seller intended to sell the object to him). Therefore, it is appropriate to split the garment, since splitting is the best compromise when there are conflicting claims.

In fact, Rashi also may understand that it is not necessary for both claimants to be holding on to the garment. In his comments to the beginning of the Mishnah (DH Shenayim), although Rashi begins by saying that the Mishnah applies specifically when they are holding on to the garment, Rashi concludes by saying that since they are both holding it, neither one has a greater claim to the object than the other. Had only one been holding it, the garment would have been given to him. The end of Rashi's comment seems to be an explanation for why both claimants need to be holding it, as opposed to only one of them holding it, in order for the Halachah of "Yachloku" to apply, and not why both must be holding it as opposed to neither of them holding it. (NACHALAS DAVID)

This interpretation of Rashi is consistent with the words of Rashi later (DH b'Mekach u'Memkar), where Rashi explains, like the Riva, that when it is known that one of the two claimants is lying intentionally, Beis Din does not divide the disputed object between them, but rather Beis Din rules "Yehei Munach." Accordingly, the Gemara in Bava Basra is no proof that Beis Din does not divide the garment when the claimants are not holding on to it, since the reason the boat is not divided in that case is that one of the claimants is lying intentionally, as the Riva writes. (PNEI YEHOSHUA)

Therefore, it appears that when Rashi states (at the beginning of his first comment on the Mishnah) that the Mishnah applies specifically to when both are holding the garment ("Davka Ochazin"), he means something else. The Gemara later (7a) explains that the Halachah of the Mishnah applies only when both parties are holding on to the fringes of the garment, but not to the garment itself. If either one of them is holding on to the garment itself, the portion of the garment which he is holding is given to him right away, without the need for a Shevu'ah. Perhaps Rashi means to say that the Mishnah alludes to this condition by using the word "Ochazin," which means that they are grasping the garment by holding on to the fringes at the edge, rather than using the word "Adukin" (as the Beraisa and Gemara (7a) use), which means that they are holding on to the garment itself, and rather than omitting mention of who is holding the garment altogether. (See CHESHEK SHLOMO. See also MAHARAM SHIF to Rashi here.)

Rashi means to say that the Mishnah is discussing the specific case of two people who are holding on to the fringes as opposed to the garment itself, because it is in this way that they split the entire garment. Had one of them been holding the garment itself, the part in his hands would have been declared to belong to him because of the principle of "ha'Motzi me'Chaveiro Alav ha'Re'ayah," and they would have split only the remaining part of the garment.

This interpretation is supported by the words of Rashi on the Rif. Rashi there writes not that "they are both Muchzakim and one does not have more than the other," but that "they are both Muchzakim and one does not have in his hand more than the other." This implies that Rashi's point is that neither claimant is holding the actual garment in his hand, but rather both are holding only the fringes. (See also the wording of the NIMUKEI YOSEF.) This is also how the RADVAZ and RASHBATZ (cited by the Shitah Mekubetzes) explain these words in Rashi (although they do not attribute this meaning to Rashi's opening words).

According to the Riva and Rashi, why does the Mishnah mention that both claimants are holding on to the garment, if the Halachah would apply even when they are not holding on to it? Perhaps the Mishnah means to teach that even when they are holding on to the garment, Beis Din still splits the garment between them, with a Shevu'ah, and does not rule "Yehei Munach" (or split the garment between them without a Shevu'ah), which is a possibility the Gemara considers (2b; see Rashi there, DH Alav ha'Re'ayah).

2) WHEN THE TWO CLAIMANTS CLAIM TO HAVE WOVEN THE GARMENT

QUESTION: Rav Papa explains that the Mishnah discusses two different cases: in one case, two people claim to have found a garment, and in the second case, two people claim to have bought a garment. RASHI (DH b'Mekach u'Memkar) points out that the Halachah of the Mishnah would apply only in these situations but not in a situation in which the two people each claim that they wove the garment.

Apparently, Rashi is bothered by a question on the Gemara. Why does the Gemara say that the second case involves two people who each claim to have bought the garment? Perhaps each claims to have made the garment! Rashi answers that if each claims to have woven the garment, the Halachah of the Mishnah would not apply.

Why does Rashi not suggest a simpler answer? The Gemara is looking for two cases, each of which teaches a Chidush which cannot be learned from the other case. The Gemara must say that the second case is where each claims to have bought the garment. Had the Mishnah taught only that case, one would not have known that both claimants must swear when they each claim to have found the garment, since one would have thought that only when each claims to have bought the garment does Beis Din administer a Shevu'ah, since each one paid money and would find grounds to be "Moreh Heter" (see Rashi and Tosfos, 2b). Therefore, the Mishnah teaches that Beis Din administers a Shevu'ah even when both claim to have found the garment.

Had the Gemara said that the second case is one in which each of the claimants claims that he wove the garment and nevertheless both must swear, it would not have been necessary for the Mishnah to teach that they both swear in a case in which each claims to have found the garment. That would be obvious; Beis Din administers a Shevu'ah even in a case in which each claims to have woven it, where there is no reason to be "Moreh Heter." (RASHASH)

ANSWER: The MAHARAM SHIF explains that Rashi is bothered by another question on the Gemara. Rashi does not mean to ask that the Gemara should have said that the Mishnah refers to a case in which each claimant says that he wove the garment. Rather, Rashi means that the Mishnah should have taught a single case in which each party claims that he wove the garment, and then the Mishnah would not have needed to teach a second case; it is already clear that each claimant must swear even when he cannot be "Moreh Heter." In fact, had the Mishnah said only the second case (of "Kulah Sheli"), one would not have thought that it refers specifically to a case in which each claimant says that he bought it. "Kulah Sheli" applies even to a case in which each claimant says that he wove it, and thus it is not necessary to teach a second case in which they swear when they both claim to have found it.

Rashi answers that when each one claims that he wove it, the garment is not divided among them. (See the discussion of the TIFERES SHMUEL on Rashi's comment.)

As mentioned earlier (see previous Insight), TOSFOS (DH v'Yachloku) maintains that the garment is divided even when it is clear that one of the claimants is lying, because there is a possibility that they both own the garment. Therefore, the question remains unanswered according to Tosfos: why does the Mishnah not mention a case in which each claimant claims that he wove the garment? Tosfos deals with this question (2b, DH Iy Tana) by offering a different explanation for the Gemara's discussion of the necessity to teach each of the two cases in the Mishnah.

2b----------------------------------------2b

3) ACQUIRING MORE THAN HALF OF AN ITEM IN A JOINT ACQUISITION

QUESTION: The Gemara explains that even according to Ben Nanas who does not allow conflicting Shevu'os to be made in court, the two Shevu'os required by the Mishnah may be made since it is possible that both Shevu'os are true. Perhaps the two claimants picked up the garment together and both acquired it (and each owns half of the garment). It is clear from the Gemara that it is not enough for there to be a possibility that each one owns half of the garment. There also must be a possibility that each one's alleged ownership of half of the garment came about in a manner which matches his claim.

How does the Gemara understand the second case of the Mishnah, in which one person claims that the entire garment belongs to him, and the other claims that half of the garment belongs to him? In that case, the first person must swear that not less than three-fourths of the garment belongs to him, and the second person must swear that not less than one-fourth belongs to him. Their Shevu'os cannot both be true; even if they picked it up together, one claimant would not have more ownership than the other (because picking it up together gives each person ownership over half). (TOSFOS HA'ROSH)

ANSWER: The TOSFOS HA'ROSH answers that perhaps one of the two claimants picked up three-fourths of the garment in his hand and not just the fringes, while the other picked up only the fringes, and in that manner they lifted it up together. Each person immediately acquires for himself the part that is in his hands, and only the part in between their hands do they own together. (See also Tosfos to 8a, DH Ela.)

The Tosfos ha'Rosh points out that according to the Gemara later (8a), this part of the Mishnah might not be discussing a Metzi'ah (an object that was found) altogether. Rather, it might be discussing a case of two people who attempted to purchase a garment. In such a case, it is possible that the seller had intention to sell three-fourths to one buyer and one-fourth to the other buyer.

4) THE TANA OF THE MISHNAH

QUESTION: The Gemara suggests that the Mishnah does not conform with the opinion of Sumchus, who says that when the ownership of an object is in doubt, Beis Din divides it between the claimants and does not require the claimants to swear. The Mishnah, however, states that Beis Din divides the object between the two claimants only after the claimants swear. The Gemara immediately responds that the Mishnah also does not conform with the opinion of the Rabanan who argue with Sumchus, because they maintain that when an object's ownership is in dispute, Beis Din rules "ha'Motzi me'Chaveiro Alav ha'Re'ayah," which is not the ruling of the Mishnah.

The Gemara answers that the Mishnah's ruling is consistent with the opinion of the Rabanan, because the Rabanan apply "ha'Motzi me'Chaveiro Alav ha'Re'ayah" only when the object is not in the physical possession of both claimants. In the case of the Mishnah, both claimants are holding on to the object, and therefore they split it only after they both swear.

In what way does the ruling of the Mishnah contradict the principle of "ha'Motzi me'Chaveiro Alav ha'Re'ayah" according to the Gemara's initial assumption (in its question)? Moreover, according to the Gemara's answer, how exactly is the Mishnah's ruling consistent with the principle of "ha'Motzi me'Chaveiro Alav ha'Re'ayah"?

ANSWERS:

(a) RASHI (DH Alav ha'Re'ayah) explains that the Gemara's question is that the Rabanan normally require a claimant to bring witnesses as proof in order to receive anything in court, but in the case of the Mishnah each claimant receives half without bringing any witnesses. Rashi apparently understands that the question of the Gemara is that neither party should receive any of the garment until he brings proof that it belongs to him.

Rashi seems to understand that since both parties are holding on to the garment, both are considered to be "Muchzak." Therefore, neither claimant can take away the garment from the other claimant who is also "Muchzak" in the garment.

(The words "with a Shevu'ah," which appear in our text of Rashi, imply that the question of the Gemara is: why is it necessary to make a Shevu'ah in the case of the Mishnah? The object should be split without a Shevu'ah (as the other Rishonim understand the Gemara, as will be explained below). However, this phrase appears in none of the manuscripts or early printings of Rashi. It is clear from the Rishonim (as cited by the Shitah Mekubetzes) that they did not have this phrase in their text of Rashi. It is also evident from Rashi's words at the beginning of this comment and in an earlier comment (DH Tarvaihu) that Rashi understands that the Gemara initially assumes that the rule of "ha'Motzi me'Chaveiro" should apply to prevent either party from receiving any of the garment.)

According to Rashi, it is clear that the Chazakah of each claimant extends to the entire garment and not just to the half he receives, and each person's Chazakah can prevent the other person from receiving any of the garment.

The Gemara answers that the case must be viewed differently. The case is viewed as though each claimant does have a Chazakah on the entire garment, and therefore he should be able to receive all of the garment for himself without a Shevu'ah. However, the Chazakah of his opponent reduces the power of his Chazakah because it is "Mechusar Guvaina" -- something prevents it from being used by this claimant. In order to counter that weakness in each claimant's Chazakah, the Mishnah requires that they both make a Shevu'ah.

(b) The RASHBA and TOSFOS HA'ROSH (see also TORAS CHAIM) explain that the Gemara's question is: why is it necessary to make a Shevu'ah in the case of the Mishnah, according to the Rabanan? Since the Rabanan rule "ha'Motzi me'Chaveiro Alav ha'Re'ayah," the garment should be split without a Shevu'ah since each of the two claimants is "Muchzak" in half of the garment. (The Gemara later on 5b indeed asks such a question.)

The Rashba explains that each of the two claimants has a Chazakah on only half of the garment and, therefore, Beis Din should give half of the garment to each claimant without requiring any further proof.

This is consistent with the Gemara later (3a, 4a) which teaches that according to Rebbi Chiya, each claimant has a Chazakah on half of the garment which serves in place of testimony (or admission from the opposing claimant) that half of the garment belongs to him. (See Rashi to 3a, DH Anan Sahadei.) This is also the opinion of Tosfos (2a, DH v'Yachloku).

Rashi apparently learns that the Gemara does not accept the approach of Rebbi Chiya, but rather it maintains that each claimant has a Chazakah on the entire garment. The Gemara itself (4a) retracts its explanation of the Mishnah according to Rebbi Chiya and maintains that each claimant are not viewed as though he has testimony supporting his claim (or an admission from the opposing party) that half of the garment is his. According to Rashi, at that point the Gemara maintains that each of the two claimants does not have even a separate Chazakah on each half of the garment, but rather together they have a mutual Chazakah on the entire garment.

According to the Rashba, the Gemara answers that although each one has a Chazakah on half of the garment, each one's Chazakah is weakened by the fact that the opposing claimant is holding on to the other part of the garment. (The words of the RITZBASH in the Shitah Mekubetzes imply that the answer of the Gemara, according to the Rashba, is based on the same logic of "Mechusar Guvaina" that Rashi mentions.) This also seems to be the intention of the RIVAM (cited by Tosfos to 2a, DH v'Zeh) who writes that splitting the garment is considered an act of taking away an object from one who is "Muchzak." (See, however, KOVETZ SHI'URIM 2:9:14.)

The Rishonim (cited by the Shitah Mekubetzes) cite proof to the approach of the Rashba from the specific wording of the Gemara's answer. According to Rashi's explanation that the Gemara asks why Beis Din splits the garment, it should answer that Beis Din splits it because both claimants have a Chazakah. The Gemara should not need to mention the Shevu'ah of the Mishnah, since its question did not involve the Shevu'ah. However, the Gemara says in its answer that since they are both holding it, they split it "with a Shevu'ah." This implies that the Gemara's question was why is there a Shevu'ah in the case of the Mishnah, as the Rashba explains.

It seems that Rashi learns the Gemara's answer the same way as the Rashba, as explained above. The Gemara is explaining not only why the garment is divided, but it is explaining also why the garment is divided with a Shevu'ah. Why, then, does Rashi explain that the question of the Gemara did not involve the Shevu'ah of the Mishnah?

Perhaps Rashi infers from the Gemara's question that the Gemara assumed that the ruling of the Mishnah is more problematic according to the Rabanan than according to Sumchus, since the Gemara did not phrase its question by saying, "According to the Rabanan also the Mishnah is problematic." According to the Rashba's understanding, the question on Sumchus and the question on the Rabanan are the same: a Shevu'ah should not be necessary. Rashi therefore explains that the Gemara initially thought that according to the Rabanan, the garment should not even be divided.

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