[bm 37b: We begin on the next to the last line of bm 37a. The mishna in Yebamot describes the case of a robber who robbed one of five people, but does not know from which one. At least two of the people claim to be the victim; the mishna rules that the ro bber lets the claimants work it out (literally, "he places the robbed object between them and leaves").]
A master said: The mishna there refers to a case where the claimants sue (the robber) [in contrast to our mishnah, where he confesses his guilt voluntarily]. And what does the robber claim? Rav Yehuda said in the name of Rav: He is silent. Rav Matna said in the name of Rav: He cries out. [Rashi: He says to each claimant "I do not recognize you."]
According to the one who says that he (the robber) cries out [that he does not recognize each claimant, it is because] silence would be an admission [of liability, so he would have to pay each of them].
[There is a general principle in rabbinic civil law that silence in the face of a direct claim is equivalent to an admission of liability.]
According to the one who says that he (the robber) is silent, silence in this case is not an admission because he (the robber) can say, "The reason I was silent to each was because I believed that perhaps this _was_ he (the victim)". [In other words, the silence was not an admission of guilt, but reflected uncertainty.]
A master said [quoting the mishna]: "He places the stolen item between them and leaves." This implies that they all take it and leave [i.e., the claimants divide the disputed item, and the person whose property it was loses most of it.]. But R. Abba b. Za vda said in the name of Rav: Any item for which there is a doubt whether it was deliberately placed [i.e., an item is found, and it is not clear whether it was intentionally left or whether it was unintentionally lost, and there is no identifying mark], i nitially one should not take it. But if one took it, one should not return it [to any claimant; cf bm 25b, available at our website]. [Given the ruling by R. Abba b. Zavda, which is even more binding in the case of an object that is known to be deliberate ly placed and may be identifiable, why does the mishna in Yebamot advise the robber to let the claimants divide the disputed item?]
Rav Safra said: He (the robber) shall place it. [Rav Safra interprets the mishna not to mean that the robber places the object before claimants and leaves, letting them work it out, but that he "places" the stolen item in the hands of the court where it r emains indefinitely until one of the claimants can produce proof of ownership. When mishna said that the robber "leaves," it meant that he has fulfilled his legal obligation.]
Abbaye said to Rava: Didn't R. Akiva say that this (placing the item among the claimants and withdrawing) is not the way to relieve himself of the sin, but (instead) that he must pay each one of them? From here we may derive (that R. Akiva holds) that we extract payment even in cases of doubt, and that we do not say (following a general talmudic principle that in the absence of proof to the contrary) the money should remain in the possession of the current holder. (i.e., the robber, who now has the stolen item).
But there is a contradiction (from a mishna in Baba Batra 158b): If a house collapsed on a man and his mother [killing them both, but we do not know which one died first], the heirs of the son say that the mother died first (and we inherit the son's estat e), and the heirs of the mother say that the son died first (and _we_ inherit the mother's estate).
[Rashi explains that the case involves a widow and an only son who himself had no children. But the son had paternal brothers (i.e., from the deceased father with a different mother). If the mother died first, the son would inherit the estate; when he die d, his estate would be passed on to his paternal brothers. If the son died first, the woman's estate would pass to her family.]
Both (Beit Shammai and Beit Hillel, major protagonists in that mishna) agree that they divide [the mother's property, because there is no way to determine who died first.] R. Akiva said that he concedes in this case that the estate remains (undivided) in its current status.
[The gemara there discusses the issue of who retains the estate. But the central point is that in the mishna in Baba Batra, R. Akiva - whose use of the word "concedes" is somewhat problematic but is irrelevant to the present topic - rules that the propert y remains undivided, which appears to contradict his ruling in Yebamot that the robber must pay each claimant.]
He (Rava) said (to Abbaye): There (in Baba Batra's case of inheritance) it is a case of "possible versus possible" [i.e., each claim is presented as a possible alternative, so R. Akiva ruled that the estate remains undivided]. But the case of one who robb ed one of five [the mishna in Yebamot] is "definite versus possible" [i.e., each claimant says that he is definitely the victim, and the robber can only say that each one may possibly have been the victim. The "definite" claim over-rides the "possible" de fense, and R. Akiva rules that the robber must pay each claimant.]
[The gemara objects:] But our mishna deals with a case in which the robber says to two people "I robbed a maneh from one of you," which is a case of "possible versus possible" [neither the robber nor the two people are certain of who was robbed] -- yet he give each one a maneh [i.e., even in such a case of doubt, the robber must pay each possible victim].
And how do we know that our mishna reflects the opinion of R. Akiva? Because a braita on that mishna [in Yebamot]: R. Tarfon conceded that, if a man told two people "I robbed a maneh from one of you but I don't know from which one, [the robber gives a man eh to each one]." To whom does R. Tarfon concede? Is it not to R. Akiva, the person with whom he disagrees (in the mishna)?
And how do we know that (the mishna's) case is "possible versus possible" [i.e., that the robber is not sure of the identity of the victim, and that the possible victims are not sure that they are indeed victims]? First, because the mishna did not teach t hat they (the claimants) are suing the robber. R. Hiyya taught (that the braita referred to a case in which) this one says "I do not know (if you robbed me)" and that one says "I do not know (if you robbed me)." [Thus, the gemara has established that both the mishna and the braita deal with cases of "possible versus possible;" R. Akiva thus seems to have made inconsistent rulings!]
[The gemara answers:] We have determined (that the mishna is considering a case in which the robber wishes to)fulfil his Heavenly obligation. [Thus, R. Akiva's position is that, in case of doubt, disputed property remains with whoever currently possesses it. That explains his ruling in the case of the house that fell on the woman and her son. With respect to strict financial liablilty, R. Akiva would rule that the person who robbed five people should hold on to the money until it is clear who should recei ve the payment. But if the robber wishes to "cleanse himself of the transgression," he must pay all the claimants.]
Ravina said to Rav Ashi: Did Rava actually say that in any case in which there are two deposits in separate bundles [made at different times], the custodian must pay attention (to who made which deposit)? But Rava said -- and others say that Rav Papa said -- that everyone agrees that when two people deposit (lambs) with a shepherd, the shepherd places (the lamb) between them and withdraws?
[Rashi reminds us of a case discussed in Bechorot 18b: One person asked the shepherd to guard one lamb; the other person asked the shepherd to guard two lambs. Later, both "depositors" claim to have given the shepherd two lambs. In the case of the lambs, Rava rules that each claimant gets one lamb, and that the shepherd holds on to the disputed lamb until the matter can be resolved. But in our case, Rava rules that the custodian was responsible for remembering who made which deposit -- an apparent inconsi stency!]
He (Rav Ashi) said (to Ravina): There (in Bechorot's case of the lambs), they deposited the lambs in the flock without the knowledge of the shepherd. [Tosfot: Or with his knowledge but not in his sight.]
[In these circumstances, the shepherd cannot be expected to pay both claimants, and thus the apparent inconsistency with Rava's statement is resolved.]
[The gemara cites our mishna:] Similarly, (when two people deposited) two utensils, one worth a maneh and one worth a thousand zuz. [Our mishna says that, if both claim to have deposited the more expensive utensil, the Rabbis rule that one claimant is giv en the cheaper utensil, and that the second utensil is sold, and that the second claimant gets the value of the cheaper utensil, and that the remainder is held until the matter is resolved. R. Yosei rules that both utensils are held pending resolution of the dispute.]
And it is necessary (for the mishna to have described both the case of deposited money and of deposited utensils): If we had learned only the first part (deposits of money), I might have assumed that the Rabbis said [that each claimant gets the unconteste d part of the claim] because there is no loss (when the cash deposits are divided and distributed). But, in the case of utensils [where there is loss; i.e. if and when the ownership of the valuable utensil is established, it cannot be returned to its owne r.] the Rabbis might concede to R. Yosei (that both utensils remain undivided and in escrow).
And if only _that_ (the case of the utensils) was stated, I might have inferred that R. Yosei's ruling (no division or distribution) only applies to that case (where division causes a loss of value), but _there_ (in the case of cash deposits, where there is no loss when the disputed money is divided) R. Yosei might concede to the Rabbis. Therefore, both cases are necessary.
But R. Yosei's rationale is "the deceiver's loss!" [R. Yosei's ruling that the disputed items are held in escrow is to provide a disincentive for the deceiver; he will not make a spurious claim if it will cause him to lose money. There, R. Yosei's rationa le applies whether the deposit is money or utensils. So why would we ever assume that R. Yosei might concede to the Rabbis, even in the case of monetary deposits?]
Instead, both cases were needed for (clarifification of) the Rabbis' position. [Rashi explains: If they had only stated that the undisputed value of the case of utensils, where the division causes "loss", it would have been clear that it also applies to m oney, where "there is no loss". However, they chose to begin with the case of money - where "there is no loss", from which we cannot infer the ruling in the case of utensils, in which "there is loss".]
[Therefore,] they taught in a "not only this, but even that" style. [Not only do the Rabbis rule that money is divided, but even utensils are divided].
[We end at the mishna on the top of 38a.]
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