1)

DOES R. YOSI ARGUE IN THE FIRST MISHNAH? [line 3 before end on previous Amud]

(a)

(Mishnah - R. Yosi): One may not profit through another's property. Rather, Levi pays Shimon.

(b)

(Rav Yehudah citing Shmuel): The Halachah follows R. Yosi.

(c)

Question (Rav Shmuel bar Yehudah): You said in Shmuel's name that R. Yosi argues even in the first Mishnah (and says that even if a Shomer chooses to pay, the owner receives Kefel). Does the Halachah follow R. Yosi also there?

(d)

Answer (Rav Yehudah): Yes.

(e)

R. Elazar agreed that R. Yosi argues there and that the Halachah follows him.

(f)

(R. Yochanan): R. Yosi agrees with Chachamim in the first Mishnah, because he already paid.

(g)

Question: Is it only because he paid? R. Chiya bar Aba cited R. Yochanan to say that even saying that he will pay is enough!

(h)

Answer: R. Yochanan means that R. Yosi agrees in the first Mishnah, because he already said that he will pay.

2)

ONE WHO DOES NOT KNOW WHOM HE OWES [line 12]

(a)

(Mishnah #1): If Reuven told two people 'I stole from one of you, and I don't know from which', or 'one of your fathers deposited money with me, but I don't know which', he pays both, because he admitted by himself.

(b)

If one person deposited 100 Zuz with Reuven, and another person deposited 200, and each claims that he gave 200, and Reuven does not know who gave which, he gives each 100. We leave the rest until Eliyahu comes;

(c)

R. Yosi says '(this is improper,) for if so, the swindler does not lose (he has no incentive to admit)! Rather, all the money is left until Eliyahu comes (or one admits).

(d)

Similarly, if they deposited Kelim, and each claims the bigger Kli, one gets the smaller Kli, we give the other the value of the smaller from the larger, and we leave the rest (until Eliyahu comes);

(e)

R. Yosi says, we leave all of it.

(f)

(Gemara) Inference: The Reisha teaches that when in doubt, we make someone pay. We do not say 'to take money from another, one must bring proof';

(g)

Contradiction: In the Seifa, Reuven does not pay due to his doubt!

(h)

Answer: If one stole, Chachamim fined him to pay out of doubt. They did not fine one who accepted deposits.

(i)

Contradiction #1: Sometimes one who takes deposits is fined. When one of the fathers deposited money, Reuven pays both!

(j)

Answer (Rava): There, Reuven is liable for forgetting who deposited (like two people who deposited money, each wrapped by itself);

1.

Reuven is exempt when two people deposited in front of each other, for this shows that they trust each other. He is not responsible to ensure that he remembers who gave which (it is like two people who deposited money wrapped together as one).

(k)

Contradiction #2: Sometimes a thief is not fined!

1.

(Mishnah #2 - R. Tarfon): If Reuven stole from one of five people, and he does not know from which, and all of them say 'you stole from me', Reuven leaves in front of them what he stole, and walks away.

2.

Inference: When in doubt, we do not make someone pay. Rather, we follow Chazakah, and leave the money with the one holding it!

3.

Question: What is the source that our Tana is R. Tarfon? (Perhaps it is R. Akiva, who argues!)

4.

Answer (Beraisa): R. Tarfon admits that if one told two people 'I stole from one of you, but I don't know from which'; that he pays both.

(l)

Answer: In Mishnah #2, they claim from him. Letter of the law, he leaves in front of them what he stole, and walks away;

1.

In Mishnah #1, Reuven wants to fulfill his obligation b'Yedei Shamayim, so he pays each.

(m)

Support: Mishnah #1 says that he is liable 'because he admitted by himself.'

(n)

Question: We said that in Mishnah #2, they claim from him. What does he say?

(o)

Answer #1 (Rav Yehudah citing Rav): He is silent.

(p)

Answer #2 (Rav Masnah citing Rav): He says that he does not recognize any of them. If he were silent, this would be considered an admission.

37b----------------------------------------37b

1.

Rav Yehudah holds that here, his silence is not an admission. He can say 'I was silent to each, for I was thinking that perhaps this is the one.'

(q)

(Mishnah): He leaves in front of them what he stole, and withdraws.

(r)

Question: Will they divide it and walk away?!

1.

R. Aba bar Zavda taught that one may not take any Metzi'ah that is Safek Hinu'ach (perhaps it was left intentionally). If he took it, he does not return it! (Rashi - if someone that claims he lost it, he must bring proof. Here also, the thief cannot give it up without proof. Ra'avad - just like one may not take when in doubt, the people who claim to own it may not split it without proof!)

(s)

Answer (Rav Safra): The Mishnah means that he leaves what he stole (until Eliyahu or until one of them brings proof).

3)

R. AKIVA'S OPINION [line 8]

(a)

Question (Abaye): In Mishnah #2, R. Akiva says 'to clear himself from transgression, he must pay every one.' When in doubt, we make someone pay. We do not leave money in its Chazakah;

1.

Contradiction (Mishnah #3): If a house fell on a man and his mother, and his heirs say that she died first (so the son inherited her), and her heirs say that he died first (and they inherit her), Beis Hillel and Beis Shamai agree that they split her property;

2.

R. Akiva says, I admit in this case that the property stays in its Chazakah. (Amora'im argue if he means that the son's or mother's heirs get it.)

(b)

Answer (Rava): There, both parties are unsure. Regarding the theft, the claims against Reuven are definite, Reuven is unsure.

(c)

Question: In our Mishnah (when he stole from one of two people) all the claims are doubtful, and he pays each!

1.

Question: (The question assumes that our Tana is R. Akiva.) What is the source for this?

2.

Answer (Beraisa): R. Tarfon admits that if one tells two people 'I stole from one of you, but I don't know from which', he pays both;

i.

R. Tarfon admits to R. Akiva, with whom he argues in the Mishnah.

3.

Question: What is the source that the claims against the thief are uncertain?

4.

Answer #1: It does not say that they claim from him.

5.

Answer #2 (Beraisa - R. Chiya): The case is, each says that he does not know if he was the victim.

(d)

Answer: We said that our Mishnah discusses one who wants to fulfill his obligation b'Yedei Shamayim.

4)

TWO DEPOSITORS [line 32]

(a)

Question (Ravina): Did Rava really say that when two depositors gave money in two bags, the Shomer must remember who gave which?

1.

Contradiction (Rava - some say, Rav Papa]): All agree that two people who deposited (different numbers of) animals with a shepherd, the shepherd leaves the animals in front of them.

(b)

Answer (Rav Ashi): That is when they deposited the animals in his herd without his knowledge.

(c)

(Mishnah): Similarly, if they deposited Kelim...

(d)

The Mishnah needed to teach both cases.

1.

Had it taught only about money, one might have thought that there Chachamim say to return 100 to each, for there is no loss, but regarding Kelim, there is a loss (Rashi - part of the big Kli is broken off; Nimukei Yosef - we sell the larger Kli, and it will not return to the owner), so Chachamim admit to R. Yosi;

2.

Had it taught only about Kelim, one might have thought that there R. Yosi says that we leave them until Eliyahu comes, but regarding money, since we can give each 100 without a loss, he admits to Chachamim.

(e)

Objection: But R. Yosi's reason is in order that the swindler will admit! (Surely he argues even when there is no loss!)

(f)

Retraction: Rather, both cases come to taught to teach Chachamim's opinion. The case of Kelim is a bigger Chidush than the case of money.