Prepared by Rabbi Eliezer Chrysler
of Kollel Iyun Hadaf, Yerushalayim

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(a) In a case where two people arrive in Beis-Din holding a Talis (a cloak), each of whom claims that he found it and that it all belongs to him our Mishnah rules that each one swears that not less than half belongs to him, and takes half (which means that they either divide it in two or sell it and share the proceeds).
(b) If ...
1. ... only one of them is holding it then we apply the principle 'ha'Motzi me'Chavero Alav ha'Re'ayah' (what a person has in his possession belongs to him until proven otherwise), and the one who is holding it takes it.
2. ... neither of them is holding it then we apply the ruling 'Kol de'Alim G'var', meaning that they fight it out among themselves (see Tosfos DH 've'Yachloku').
(c) If one of them claims the whole Talis, and the other one, only half, then the former takes three quarters and the latter, a quarter following the same pattern as the Reisha, where each one takes half of the disputed article. Here too, each one takes of the disputed half. The Shevu'ah (that each one swears that he is not entitled to less than the amount that he ultimately receives) in both the Reisha and the Seifa will be explained later in the Sugya.

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(a) In a case where ...
1. ... both of them lay claim to the animal which they are riding or leading the Din is exactly the same as in the case of the Talis.
2. ... one of them is riding it and the other one, leading it the same applies again.
(b) The Tana finds it necessary to add these cases to teach us that one can acquire an animal by riding it or by leading it, and that both are equally effective.
(c) In the event that they both agree, or if they have witnesses that the article belongs to both of them then they divide it without a Shevu'ah.

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(a) Initially, we explain the Tana's double-case ('Zeh Omer Ani Metzasihah ... Zeh Omer Kulah she'Li ... ') as being one case 'Zeh Omer Ani Metzasihah, ve'Kulah she'Li'.
(b) The claim of 'Ani Metzasihah' will not suffice we suggest because that includes the possibility that he claims the article on the basis of his having seen it first (before the other one picked it up), and the ensuing Halachah would then imply that one acquires an article by merely seeing it. By adding 'Kulah she'Li', he makes it clear that he actually picked it up first (because only then will he have acquired it).
(c) We query this however, from Ravina, who (in connection with the Pasuk in Ki Seitzei "le'Chol Aveidas Achicha", from which we preclude the lost article of a Nochri), learns from the word "u'Metzasah" that even if the finder already picked up the lost article, he is Patur from returning it to a Nochri.
(d) We refute this Kashya however, by drawing a distinction between Lishna di'K'ra (an expression used by the Torah and Lishna de'Alma (the spoken vernacular [a distinction that has a precedent in the realm of Nedarim]). Consequently even if, when the Torah uses a Lashon of 'Metzi'ah', it means that the finder picked it up, in spoken language, 'finding something' has connotations of having seen it first.

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(a) 'Kulah she'Li' does indeed come to teach us that the finder actually picked up the object. Nevertheless, the Tana needs to insert 'Ani Metzasihah' because we would otherwise have thought that really, seeing a Metzi'ah is Koneh, and the Tana here only says 'Kulah she'Li' because it is a stronger argument than 'Ani Metzasihah', and the finder would be more likely to say that.
(b) We reject the current explanation of our Mishnah on the ground that the Tana says 'Zeh Omer' both by Ani Metzasihah' and by 'Kulah she'Li', implying that he is referring to two different cases.
(c) So Rav Papa (or Rav Shimi bar Ashi or K'di) establishes the two cases by Metzi'ah and by Mekach (purchase [where each person claims that he purchased the Talis from the seller']), respectively.
(d) Having presented the case of ...
1. ... Metzi'ah, the Tana nevertheless needs to mention that of Mekach- because we would have thought that it is only by Metzi'ah that we make them swear, because we suspect them of taking advantage of the fact that it cost the other claimant nothing in the first place.
2. ... Mekach, he needed to mention that of Metzi'ah because we would have thought that it is only by Metzi'ah that we make them swear, because we suspect them of taking advantage of the fact that the other claimant can always obtain the object by another seller.


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(a) The case of Mekach, where they both claim that they purchased the Talis, speaks where we actually did ask the seller who paid him the money, and he replied that they both paid him, one of them with his consent, and one, against his will, but we don't know which is which.
(b) A storekeeper ...
1. ... is always believed to say to whom he sold a disputed article, provided it is still has in his domain.
2. ... is only believed, assuming that he has already given it into the disputants' hands, as long as they have not left his presence, but not if they have.
(c) Consequently, the correct text must be 've'Lo Yad'inan (and we don't know, as we explained) me'Hei mi'Da'atei ... ', rather than 've'Lo Yada' (and he does not know) because, since they both paid, they had the article and they have left the seller's presence, he would not have been believed even if he claimed that he did know.

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(a) In the case of 'Chenvani al Pinkaso' it is both the employee (who claims that he has not yet received his wages) and the store-keeper, (who argues that he paid him) who are claiming from the employer.
(b) The Rabanan there rule that both claimants swear and claim their due from the Balabos. According to Ben Na'nes we cannot allow them to swear, since that is bound to lead to a false oath. Consequently, they both claim from him without a Shevu'ah.
(c) We reconcile our Mishnah with ben Na'nes by pointing out that whereas in his case, one of them is bound to swear falsely, this is not the case in our Mishnah, where it is possible that they both picked up the Talis simultaneously, and that the seller sold it to both of them simultaneously.

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(a) In the case of an ox that gored a cow and we do not know whether the dead stillborn calf that is lying beside it was born before the goring or after it, Sumchus says 'Mamon ha'Mutal be'Safek Cholkin' (money which lies in doubt is divided by the claimants).
(b) We initially think that the author of our Mishnah cannot be Sumchus because if in the above case of the cow and the calf they divide the calf without a Shevu'ah, then why do the two disputants require a Shevu'ah in our Mishnah?
(c) There is no problem with establishing our Mishnah like the Rabanan there who say 'ha'Motzi me'Chavero Alav ha'Re'ayah, because there the Mazik is not holding the calf, whereas here, each one automatically counters his disputant's claim to the other half by the fact that he is holding it.
(d) We cannot use the same Sevara to reconcile it with Sumchus though because if Sumchus does not require a Shevu'ah even when they are not holding the article, then 'Kal va'Chomer' when they are.

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(a) To reconcile Sumchus with our Mishnah, we initially draw a distinction between 'Shema ve'Shema' and 'Bari u'Bari' by confining Sumchus ruling to 'Shema ve'Shema' (where a Shevu'ah is not possible), but that by 'Bari u'Bari', he will concede that a Shevu'ah is required.
(b) This answer will not work however, according to Rabah bar Rav Huna, who maintains that Sumchus' ruling extends to 'Bari u'Bari'.

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(a) We try to reconcile Sumchus with our Mishnah by confining his opinion to where there is a D'rara de'Mamona which means a loss of pocket (because either the Mazik might have to pay unjustifiably, or the Nizak might lose payment for his dead calf unjustifiably). (See also Tosfos DH 'Heicha').
(b) We refute this suggestion however by reversing the logic; because if when there is a loss of pocket, Sumchus does not require a Shevu'ah, how much more so when there is not.
(c) The other objection to establishing our Mishnah like Sumchus is that if, in his case, where the calf is bound to belong to one of them, yet Sumchus does not require a Shevu'ah, then here, where both by Metzi'ah and by Mekach, it could belong to both of them (as we explained earlier), no Shevu'ah should be necessary.
(d) We answer both Kashyos with a statement of Rebbi Yochanan who said that the Shevu'ah in our Mishnah is a Takanas Chachamim to prevent people from grabbing other people's Talisos and claiming it is theirs. Consequently, even Sumchus, who does not require a Shevu'ah in other cases, will concedes here that a Shevu'ah is required.

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