In the gemara's answer on 2b that the seller took money from both people one willingly and one unwillingly and we don't know which one he meant to sell it to, why do they split the tallis if that's the case, it should be a chaluka shei efshar liyos emes? Also, it should be a shevuas shav and not like ben nanas?
Last, what is the case of mekach umemkar in the case of the mishnah where one claims the full tallis and one claims half of the tallis?
Thank You!
1) Yehoshua, Baruch she'Kivanta! Your first question is asked by the Ketzos ha'Choshen (Shulchan Aruch CM 138:1).
The Ketzos ha'Choshen gives an answer based on the words of the Shach (Choshen Mishpat 300:5) who writes that it is not actually dependent on whether "ha'Chalukah Yecholah Liheyos Emes"
but rather it is dependent on whether there is certainly a cheat in the picture. According to this, in the case where he took money from two people, it is not certain that one of them is a cheat, because each one of the two buyers may genuinely believe that the seller willingly sold to him, and unwillingly sold to his competitor.
2) The Chidushei ha'Ramban (Herschler edtion) writes that the since the seller took money from both of them, he is not believed when he says that he sold to one willingly and the other unwillingly. It follows that we can say that he agreed to sell to both of them, so they are both making a true oath when they say that he sold willingly to them and there is no Shevu'as Shav.
3) The case of Mekach u'Memkar, where one claims the full Talis and one claims half of the Talis, is where the seller received money from both of them. From one of them he received the full value of the Talis and from the other he received only half of the value. The seller claims that from one of them he received the money willingly and from the other he received the money unwillingly.
Kol Tuv,
Dovid Bloom
Thank you very much for answering my questions! I took a look at the ketzos hachoshen regarding my first question but I had a kashya on what he says. The gemara on 3a says that our mishnah seems not to be going like R' Yosi by Maneh Shlishi, but the gemara says that our mishnah for sure can be going like the rabanan. The reason why it can be going like the rabanan is because by the case of maneh shlishi we know that the third maneh belongs to one person. Therefore, if we would split it, it would be a chalukah shei efshar liyos emes. However, in the case of our mishnah we do split it because it can very well be both of theirs. It seems from here that it is dependent if the chalukah is efshar liyos emes or not which is not like the ketzos in the name of the shach?
If we would say that this gemara is not going l'maskana because l'maskana once we answer for R' Yosi it can also be the answer for the rabanan still tosfos brings this down which would seem like we still hold this in the maskana?
Thank you so much for helping me with this sugya!
Yehoshua
Yehoshua, thank you very much for your comments!
The concept of "Ein ha'Chalukah Yecholah Lihiyos Emes" is not stated anywhere in the Gemara. It is the Chidush of Tosfos (2a, DH v'Yachloku) and it seems that the Shach does not agree with it. According to the Shach, it all depends on whether or not there is certainly a cheat. The Gemara (3a) does not mention explicitly the idea that the Chalukah may be genuine while it does mention the distinction between whether or not there is a Ramai.
Kol Tuv,
Dovid Bloom
Thank you for your explanation! However, I still don't understand because when the gemara says that by maneh shlishi we know it belongs to one person but here it can belong to two people so we say they split it with a shevuah, what does the gemara mean to say, what is the difference if it can belong to two people or it only belongs to one person, it would seem that the gemara means if it is efshar liyos emes or not even though it doesn't say those words explicitly. What else can be the explanation of the gemara, what is the difference if it belongs to one person or if it can belong to two people?
Also, even though the gemara ends up saying the difference of if there is a vadai ramai or not, the gemara is trying to answer for R' Yosi also because we only answered for the rabanan, the gemara doesn't seem to be chozer from this svara for any other reason but the fact that we want to answer acc. to R' Yosi also.
Thank you so much!
1) If it for certain belongs only to one person, but two people are claiming it, that means that one of the claimants is certainly a cheat. However, if it can belong to two people, that means there is not a Vadai Ramai in the picture.
According to the Shach, we do not require that the way we distribute the money or property is necessarily a true distribution. Rather, the crucial thing is that a proven cheat should not gain from the way that Beis Din splits it up.
2) The Nachalas David (2a, on Tosfos DH v'Yachloku) writes that in the conclusion of the Sugya it is not only Rebbi Yosi who makes the distinction between whether or not there is a Ramai, but the Rabanan also agree to this. The Rabanan also agree that it does not depend on "ha'Chalukah Yecholah Lihiyos Emes" but it depends on Ramai.
Kol Tuv,
Dovid Bloom
I don't understand how that would fit into the gemara, because if the gemara means that the difference between maneh shlishi and our mishnah is if there is a vadai ramai or not, then why first in the rabanan does the gemara use the lashon of there it only belongs to one person but here it belongs to two people, and then later the gemara uses the lashon of vadai ramai, why doesn't the gemara in the rabanan also just say explicitly vadi ramai or not? Also, if that's the answer for the rabanan, then what did the gemara have shver with R' Yosi, why did it say it can be like the rabanan for this reason but what about R' Yosi, it makes sense acc. to R' Yosi also if that's the answer, in fact, that's what the gemara answers for R' Yosi in the end?
Thank You!
1) According to the conclusion of the Sugya, the Shitah Mekubetzes (3a, DH Ela Mechavarta ked'Shaninan) writes that according to Rashi, the Rabanan agree that it depends on Ramai. He writes that "here it belongs to two people" means that they might have lifted it up together. This shows that the Rabanan are concerned about the Ramai. According to this explanation, "here it belongs to two people" and "there is not a Vadai Ramai" are equivalent.
2) Rebbi Yosi uses explicitly the word "Ramai" in the Mishnah below, 37a. This can be the reason why the Gemara (3a) uses the word "Ramai" explicitly in connection with Rebbi Yosi, but in fact the Rabanan agree with Rebbi Yosi that it depends on Ramai, but they do not go as far as Rebbi Yosi to give the Ramai a fine to lose everything, as Rebbi Yosi does.
Dovid Bloom