Bava Metzia 8a

For [half a cloak] is fit for children - The Gemara attempted to prove that “they divide” does not mean physical division, from our Mishna which rules in reference to a disputed cloak “they divide it”. Certainly the Mishna does not mean that we split the cloak in half, because that would damage it. The Gemara counters: The Mishna may indeed mean that the cloak is divided in half, because half a cloak can be used by children and there would be no monetary loss when dividing it. It is evident from Tosfos that there was a variant text of our Gemara, which instead of ‘דחזיא לקטנים - it is fit for children’ read ‘דחזיא לתרוייהו- it is fit for both’. The Gemara is saying that the term “they divide” may actually be speaking of a physical division, when there is no loss, because the cloak is so large that each half is big enough for one of the litigants. Tosfos now explains why he prefers our text - “it is fit for children”. If we have this text, the Gemara’s next question makes perfect sense. [The Gemara] then asks from Rava’s ruling that a gilded cloak is also divided in half. It is a reasonable question because a gilded cloak is not made for children. We can no longer say that we are speaking of a physical division where there is no loss, because a physical division would definitely entail a loss, since half a gilded cloak is not fit for children. But we do not have the text: “for [a half cloak] is usable for both of them”. For if so, what is the Gemara asking from the case of a gilded cloak? Certainly, half a gilded cloak can be used by both litigants if the cloak is large enough for both. What was the Gemara thinking when it asked this question?

Partners who stole [are liable] - Rava is demonstrating that there are areas of halacha where one person cannot be an agent for another, such as when a principal appoints an agent to steal in his behalf. It is clear that the principal/sender is not liable for the actions of the agent. However, if the agent is acting on behalf of himself as well as for the principal, the agency is effective. For example: Ruvain appoints Shimon to steal a sheep for Ruvain and invites Shimon to be a partner in the theft. Ruvain and Shimon are equally responsible for the stolen sheep. But how do we know this to be true? Perhaps even in such a case, Shimon’s theft is effective only on behalf of himself and he alone is responsible for the sheep? Rashi points to a Baraisa in Bava Kama (78b) that clearly says “partners who stole are liable”. Rashi understands that this Baraisa is proof that when Shimon steals a sheep for himself and for Ruvain, both are liable. Tosfos will examine Rashi’s conclusion and eventually disagree with him. For a better understanding of the difference of opinions, we will learn the Gemara in Bava Kama (78b) together: The Gemara there is discussing the liability of one who first steals sheep or cattle and then slaughters or sells it. The Torah says in Mishpatim (Shemos 21, 37): He shall pay five cattle in place of the cattle and four sheep in place of the sheep. The Gemara in Bava Kama (78b) is discussing the rule that one who slaughters the sheep is liable only when his action is totally forbidden. However, if he has the legal right to slaughter half the animal, even though he does not have the right to slaughter the his partner’s share, he is not liable at all for the special payment of four times the value of the sheep. Baraisa a): So too, one who steals an animal owned by partners is liable. Partners who stole an animal and then slaughtered it are exempt. Baraisa b): But we learned in a Baraisa: Partners who stole are liable? Rav Nachman says: There is no contradiction. Here, in Baraisa a) we are speaking of when partner a) stole from his fellow partner b) and then slaughtered the animal. Since he has the legal right to slaughter his own half of the animal, he is not held liable for slaughtering his partner’s half. One is liable only when slaughtering the animal is totally prohibited. Here, in Baraisa b) we are speaking of when a partner stole from anybody else. Since, he has no right to slaughter any part of the stolen animal, his slaughtering is totally forbidden and he is liable for the penalty of four times the sheep’s value. Rava challenged Rav Nachman ’s reconciliation of the two contradicting Baraisos: Baraisa c): It might be that a partner who stole from his fellow thief or partners who stole from anyone else are liable? [The Torah] therefore states: And he will slaughter it, which implies that for liability it is required that slaughtering the animal must be entirely illegal. In these cases slaughtering the animal is not entirely illegal and this requirement is lacking. Rav Nachman’s resolution of the contradiction between Baraisa a) and Baraisa b) is that: Baraisa a) which says that partners who stole are exempt is speaking of when partners stole from each other. Since partner a) who slaughters the animal is permitted to slaughter his half, there is no liability even for partner b)’s half. Baraisa b) which says that partners who stole are liable is speaking of when partners stole from anybody else. Regardless of which of the partners slaughters the animal, it is totally illegal, since it belongs entirely to a third party. However, in Baraisa c) we see that in addition to an exemption for partners who stole from each other, there is another case of partners who stole from anybody else and they are exempt. We must now find a resolution for Baraisos b) and c) in which both are not speaking of partners who stole from each other, but of partner’s who stole from elsewhere, and yet in Baraisa b) they are liable and in Baraisa c) they are exempt. Rather, Rav Nachman says there is no contradiction: Here in Baraisa b) which says that partners who stole from anybody else are liable we are speaking of when partner a) to this theft slaughtered the sheep with partner b)’s consent. He is acting in behalf of both partners and they are both liable. Here in Baraisa c) which says that partners who stole are exempt we are speaking of when partner a) slaughtered the animal stolen together without the consent of partner b). Insofar as one of the stolen halves is concerned partner a) would be liable because he has stolen and slaughtered, but he is exempt because he has not slaughtered an entire animal in a way that carries liability, for in regard to the second half of the animal it is as if partner b) stole the animal and partner a) slaughtered it, since partner a) slaughtered the animal without partner b)’s consent. When a) steals and b) slaughters an animal there is no liability for four times it value on either a) or b). Rashi explains: When our Gemara speaks of partners who stole, it is speaking of when partner a) carried the animal out of the victim’s domain for himself and for his partner b), as in Bava Kama (78b), where the Baraisa speaks of partner a) stealing an animal and the animal is considered a partnership theft with both partners sharing liability for the subsequent slaughtering or selling of the animal. [Rashi’s explanation] is not appealing. For there (Bava Kama 78b), [the Baraisa] is speaking about liability for four or five times the value of the animal for slaughtering it. And in regard to slaughtering the animal, even if one said to his agent go and slaughter this animal for me, [the principal] is liable even though we usually rule there is no agency for a prohibited act, because we expound the superfluous word ‘תחת - in place of’ in the verse ‘five cattle in place of the ox’ to include an agent, who can act in behalf of the principal in this forbidden action of slaughtering a stolen animal. It is for this reason that when partner a) slaughters an animal stolen by himself and partner b) that both are liable. There is absolutely no proof from this case that when partner a) steals for himself and partner b), that both are liable. Rather, the term partners who stole is speaking of when both partner a) and partner b) lifted the stolen item together.

And what is the “since” [principle that allows the deaf-mute to acquire the found object, even when the competent person does not acquire his half of the found object?] “Since” two deaf-mutes [would both acquire this found object, we view the competent person as if he is a deaf-mute and this allows his deaf-mute partner to acquire half of the cloak.] Rami bar Chama and Rava agree that understanding our Mishna requires some special principle. For if we were to apply our previous understanding to the case of the Mishna, we would rule that neither of the litigants acquires the found object, because we would view the section of the garment in Ruvain’s hands as if it is on the ground in regard to Shimon and the section in Shimon’s hands as if it is on the ground in regard to Ruvain acquiring his half of the found object. Since neither has lifted the entire cloak from the ground, they both do not acquire it. We are compelled to say that each is lifting the cloak for himself and for his partner. Rami bar Chama concluded that our Mishna proves that one can act in behalf of his fellow when lifting a found object. Rava disagrees. He maintains that the ruling of the Mishna is limited to when Ruvain is lifting the cloak for himself and for Shimon and Shimon is also lifting the cloak for himself and for Ruvain. However, if Ruvain would lift only for Shimon, he could not acquire it for Shimon. We only say: Since Ruvain is acquiring the cloak for himself, he can also acquire it for Shimon, but he cannot acquire it solely for Shimon. Once this “since” principle has been established, Rava takes it to the next level. Concerning a situation where Ruvain was a competent person and Shimon was a deaf-mute, he says that Shimon, the deaf-mute cannot assist Ruvain in acquiring his half, but Ruvain can assist Shimon, the deaf-mute, in acquiring his half. But if Ruvain is not acquiring any of the cloak, how can he act in behalf of Shimon, the deaf-mute? Rava answers: “Since” if Shimon’s partner was also a deaf-mute, Shimon would acquire at least half, so too, even when Shimon’s partner is a competent person, Shimon acquires half the cloak. (See Artscroll note 20.) Rava in his second ruling is expanding the “since” principle to a second level. Tosfos questions the legitimacy of this approach. Let us remember that the original “since” principle is accepted only because it is manifest in the Mishna. Rava insisted that we cannot accept the principle that one who lifts a found object for his fellow acquires it for his fellow, because that is not evident from the Mishna. The Mishna only proves that Ruvain and Shimon can act for each other only when acquiring for themselves as well. If we are limited to what is evident from the Mishna, Tosfos wonders how Rava can expand the “since” principle to a second level. This is bewildering! How do we know that we can expand the “since” principle to include Ruvain, the competent person, acting in behalf of Shimon, the deaf-mute? Perhaps we do not say two “migos”? But why must we concede that we are dealing with an expanded level of the “since” principle? For the ruling that two deaf-mutes can acquire is because of the “since” principle, “since” each of the deaf-mutes is acquiring for himself, he may acquire for his fellow. If not for this first application of the “since” principle, we would rule that we view each end of the cloak as if it is on the ground. It is only because of the “since” principle that we say, each can acquire for his fellow when acquiring for himself. The next application of the “since” principle, since two deaf-mutes can acquire for each other etc. is a second level of the “since” principle and we have no proof from the Mishna that we can move to a second level.

Rather, [Rami bar Chama’s principle can be derived] from the end [of the first paragraph of our Mishna, which reads]: This [litigant] says it is all mine and this [litigant] says half is mine. Tosfos will discuss two variant texts of our Gemara. We will refer to the text as it is printed in our Gemara as text a) and to the variant text as text b). Rami bar Chama says that our Mishna proves his principle: One who lifts up a found object for his fellow acquires it for him. We find two methods of deducing a legal principle from a Mishna or Baraisa. A) The simplest way is that the ruling of the Mishna makes sense only if the principle we are attempting to prove is true. B) Redundancy. The particular ruling of the Mishna may not necessarily prove that the principle is true. There may be another way of understanding the Mishna, which would not prove the principle in question. However, if the Tanna repeated an unnecessary case, we may assume that his purpose was to teach us this principle. Of course the principle must be a reasonable explanation of the ruling, even if not compelling. The Gemara refers to this method as ‘משנה יתירה - a redundant Mishna’. The major difference between text a) and text b) is whether the Gemara is attempting to prove Rami bar Chama’s principle from the redundancy of a seemingly unneeded case in the Mishna (text a) or from the ruling of the Mishna (text b). Text a) the Gemara continues to demonstrate how we can see Rami bar Chama’s principle from our Mishna: Why was it necessary for the Mishna to say more? The underlying principles governing the ruling in the second case, that each receives half of what they are arguing about can be seen from the first case. See Rashi (2a) ד'ה וזה אומר חציה שלי, also Rashi here ד'ה ממשנה יתירה. Rather, from the redundancy of this Mishna, we learn that one who lifts up a found object for his fellow, has acquired it for his fellow. The Gemara rejects this proof: Why are you certain that this case in the Mishna is speaking about a found object, perhaps it is speaking of a sale item? The ruling of the Mishna would then have nothing to do with lifting up a found object for one’s fellow. If you counter: If we are speaking of a sale item, what is the Mishna teaching us? It is needed. I might think: This [litigant] who claims half is mine should be thought of as one who is returning a lost object, since he could have just as easily claimed it is all mine, and he should be exempt from taking an oath, [the Mishna] teaches us even so he must swear. When analyzing the dialogue of the Gemara we are faced with a severe difficulty. When the Gemara deflects the proof from this case of the Mishna it suggests: Perhaps it is speaking of purchasing and selling? The Gemara then goes on to explain that the need for this case is to teach us that we do not consider the litigant who claims only half as one who is returning a lost object and he is still required to swear. But this lesson is needed even in the case of a found object? There too, we might think that the litigant who claims half is mine should be exempt from swearing. Why did the Gemara first say that the Mishna is speaking of a sale item? In the course of analyzing texts a) and b), Tosfos will show how we might deal with this difficulty. Text b): There are those who at this point in the Gemara’s dialogue do not have the text: Why was it necessary for the Mishna to say any more? This leading sentence tells us that by (method A) studying the Mishna’s ruling that the litigant who claims it is all mine receives three quarters and his opponent who claims half receives one quarter, we could not reach the conclusion that one who lifts a found object for his fellow acquires it for his fellow. It is only because the ruling is redundant (method B) that we say the Tanna intended to teach us this principle. But, Tosfos argues, in this section of the Mishna, we could derive Rami bar Chama’s principle from (method A) the very ruling that one of the litigants receives a quarter of the cloak! For it is from the very ruling of the Mishna, not its redundancy, that [the Gemara] deduces that one who lifts up a found object in behalf of his fellow, his fellow has acquired it. Because [the litigant] says: Half is mine. This implies that it was acquired in a way that half belongs to each of the litigants. How can this be accomplished? This must mean that he lifted it together with his fellow litigant, with each of them intending to acquire it for himself and for his fellow. If lifting for one’s fellow is ineffective, then according to his own claim he has acquired nothing. As explained earlier in the Gemara, when lifting the found object each of the litigants can acquire some part of it only if both are lifting the cloak for each other as well as for themselves. Since we honor his claim by awarding him a quarter of the cloak, we are ruling that lifting the found object for one’s fellow is effective. Otherwise, he would own nothing of the cloak. Rather, it is certain that one who lifts a found object acquires it for his fellow. Thus he has assisted his fellow in acquiring half the cloak, just as the fellow has assisted him in acquiring his share of the cloak. Tosfos explains how according to text b) the Gemara deflects this proof: [The Gemara] challenges this proof by arguing: How do you know the Mishna is speaking about a found object which would prove that one can lift up a found object for his fellow? Perhaps [the Mishna] is speaking about two litigants who claim that they acquired this cloak through purchasing and selling. Lifting an object for the benefit of another person is problematic only when lifting a found object. This found object can be acquired by anybody. Taking it for one’s fellow is detrimental to the interest of all other people who might want to acquire it. Perhaps one cannot act in behalf of his fellow when his action is detrimental to others? This does not apply to a sale where the seller has the right to choose to whom he wishes to sell it. Certainly, anybody may lift a sale object in behalf of the intended purchaser. There are two other possible interpretations of our Mishna that would yield no light on whether one may acquire a found object for his fellow. It is conceivable that one of the litigants could have acquired half the cloak without the assistance of his fellow. So too, [the Gemara] could have deflected the proof from this second case of the Mishna by saying that [the litigant] who claims “half is mine” is a situation where he says: I grasped half in my hand. We learned earlier (7a) that any portion of the cloak that is actually in the hand of a litigant belongs to that litigant and is not subject to division. It is only the portion suspended between the two litigants that is subject to division. Thus, if one litigant claims that he grasped half the cloak in his hands, that portion is his without the benefit of his fellow-litigant lifting the other half for him. The claim “half is mine”, does not necessarily mean that the litigants lifted it up in a way where each of them needs his fellow litigant to assist him in acquiring it. The Mishna may very well be speaking of a case where one can acquire half the cloak without the benefit of his fellow’s assistance. The second: or he might claim I lifted the entire cloak with the intention of acquiring only half. One can certainly acquire only half of the cloak, if that is his wish. It is therefore conceivable that the claim “half is mine” does not necessarily mean that I lifted the cloak in a manner that requires my fellow-litigant’s assistance to acquire it. It can also mean I lifted the entire cloak myself, which is a perfect act of acquisition, with the intention of acquiring only half. Tosfos demonstrated that there are three ways of understanding the claim “half is mine”, which would not reflect on whether one who lifts a found object for his fellow has acquired it for his fellow. a) The answer that the Gemara uses: The Mishna may be speaking not of a found object, but of a sale item. b) The Mishna may be speaking of a litigant who claims that he acquired half the cloak by grasping it in his hands. c) The Mishna may be speaking of when the litigant claims he lifted the entire cloak, but only with the intention of acquiring half. Obviously, with all these available interpretations of the Mishna, we cannot deduce from the Mishna per se, that one who lifts a found object for his fellow has acquired it for him, but even though it is not evident from (method A) the ruling of the Mishna, [the Gemara] could still have deduced Rami bar Chama’s principle from (method B) the redundancy of the Mishna. Therefore, [the Gemara] deflects [the proof from this case in our Mishna] in such a way that even from the redundancy we cannot deduce that one who lifts a found object for his fellow has acquired it for him. The Gemara says that this case is in fact needed to teach us that the litigant who claims half is mine must also take an oath. If so, there is no redundancy to teach Rami bar Chama’s principle. Tosfos now explains text a). First, Tosfos explains the strength of text a): Concerning those manuscripts who do have the text: “Why was it necessary to say any more?”, which indicates that it is only from (method B) the redundancy, that we can deduce Rami bar Chama’s principle, it can be said that this is because [the Gemara] could not have deduced this from the Mishna itself since there are three other ways to understand this case of the Mishna as we explained. Thus, an attempt to prove Rami bar Chama’s principle from the ruling of the Mishna is inherently weak. The Gemara was proving his principle from the redundancy of this case. Tosfos now explains the weakness of text a): However, there is a difficulty with text a). Why does [the Gemara] say: Perhaps [the Mishna] is speaking about purchasing and selling and there is no discussion at all about lifting a found object for one’s fellow. Since the Gemara will argue that the Mishna is needed to teach us that even one who claims half must swear, even if [the Mishna] is speaking about a found object, we can deflect the proof from the Mishna as it is deflected when speaking about buying and selling. We can say that the Mishna is teaching us that in a case of a found object, when a litigant claims half is mine he still must swear. That novelty is equally applicable to a lost object as it is to buying and selling. Tosfos is convinced that any answer is not as good as the question. We can answer even if it is a bit awkward. The dialogue of the Gemara according to text a) is as follows: The deflector is arguing: Why are you so sure that the Mishna is speaking about a found object and thus you are convinced that the Tanna’s intent must be to teach us through (method B) redundancy, that one who lifts up a found object for his fellow acquires it for him? It is most probably for this reason that you do not interpret the Mishna as speaking about buying and selling: because you cannot find any novelty in this ruling other then if it is teaching us about one who lifts a found object for his fellow. However, in reality, even if it would be speaking about buying and selling there is a novelty: that we do not say that one who claims only half is thought of as returning a lost object and is therefore exempt from taking an oath. Now that the deflector demonstrated that there is a novelty even if the Mishna is speaking about buying and selling, we can move a step further and say: The same is true if the Mishna] is speaking about a found object. The Mishna is teaching us that in the case of a found object a litigant who claims half is mine is not thought of as returning a lost object and must swear. There are three steps to the deflector’s approach. 1) He first takes us all the way to the opposite end of the spectrum, buying and selling, where it seems least likely to find a novelty in the Mishna. 2) He shows us that even in that extreme case there is a novelty. 3) We can then adopt that same novelty and apply it to a found object.