Shiur Supplement - Daf 3a

A. Leima matnitin de-lo ke-Rabbi Yossi... ke-sha'ar dami de-sfeika hu [lines 8-13]

            BACKGROUND: The mishna (daf 37a) deals with a scenario whereby TWO people deposited money in the safe-keeping of a shomer. One deposited a hundred zuz, and the other - two hundred zuz. Each claims that the two hundred is his and neither the shomer nor Beit Din are able to ascertain who is telling the truth. Rabanan rule that each litigant should be allocated 100 zuz - the remaining 100 to be kept in custody until the dispute can be finally resolved (yiyhe munach ad she-yavo Eliyahu - it should be kept until Eliyahu the prophet arrives and is able to inform us as to who really owns the money.) According to R. Yossi, however, the entire 300 must be kept in custody and no payment should be made to either litigant. This ploy is designed to force the charlatan to admit that he is lying - should he continue in his deceit, not only will he not profit the extra cash, but he will in fact forfeit that which is rightfully his. On the other hand, should we award each litigant 100 zuz, the ramai (cheat) will have no motive (other than the desire to be honest) to admit his deceit as he receives his money in any event.

            The gemara (daf 3a) continues to test whether the opinions of Tana'im recorded elsewhere in the Talmud are congruent with that of our mishna, where the talit is divided after both litigants have taken a shevu'a.

            On the surface, it appears that R. Yossi would NOT agree with the verdict of mishna. In the case of pikadon (daf 37a) he requires that the full 300 zuz be kept in custody until we can find out who is telling the truth. Thus, it seems that in the case of our mishna, the talit should be kept in the custody of Beit Din until we can ascertain to whom it actually belongs.

            If R. Yossi disagrees with our mishna, then we must conclude that Rabanan, who argue with him, are in agreement with the ruling of yachloku. However, in the case of pikadon, Rabanan sanction alloting to the litigants only that which is theirs without question. We are sure that 100 zuz belongs to each litigant and therefore, award them with their money. In the case of the talit, on the other hand, we are entirely unsure as to the ownership of the disputed garment. Thus, the talit may be compared to the third hundered (sha'ar) which is kept in custody even according to Rabanan. Consequently, our mishna follows neither the opinion of R. Yossi nor that of Rabanan.

B. Hai mai... eima tarvaihu be-hadei hadadei agbe'uha [lines 13-23] The gemara, faced with the quandry that our mishna is consistent with neither R. Yossi nor Rabanan explains a fundamental difference between the case of pikadon and that of talit: In the former, it is clear that the money under dispute belongs to only ONE of the litigants. In the latter, however, it is entirely possible that the talit belongs to BOTH litigants as there exists the chance that they picked it up SIMULTANEOUSLY. Therefore the decision of yihye munach would not apply in our mishna and both R. Yossi and Rabanan would agree with the decision of yachloku.