Traité Bava Metzia

Traduction française en préparation — version anglaise (Steinsaltz) : and there is room to say that it belongs entirely to one of them, and there is also room to say that it belongs entirely to the other one, and nevertheless Sumakhos says that since it is property of uncertain ownership they divide it without taking an oath, then here, where the litigants have no financial association with the item, as there is room to say that it belongs to both of them, all the more so is it not clear that they should divide it without taking an oath?

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara answers: You may even say that the mishna is in accordance with the opinion of Sumakhos: This oath is instituted by rabbinic law in accordance with the statement of Rabbi Yoḥanan. As Rabbi Yoḥanan says: This oath, administered in the case of two people holding a garment, is an ordinance instituted by the Sages so that everyone will not go and seize the garment of another and say: It is mine.

Traduction française en préparation — version anglaise (Steinsaltz) : § The Gemara suggests: Let us say that the mishna is not in accordance with the opinion of Rabbi Yosei. As, if you say that the ruling is in accordance with the opinion of Rabbi Yosei, doesn’t he say that a case cannot be decided in a manner in which there is no deterrent for one taking a false claim to court (37a)? He says this with regard to a case where two people deposited money with the same person. One deposited one hundred dinars and one deposited two hundred, and the bailee forgot which of them deposited the larger sum. Subsequently, each claimed ownership of the larger sum and was prepared to take an oath to that effect. The Rabbis say that each should receive the smaller sum and the remainder should be held until Elijah the prophet prophetically resolves the uncertainty. Rabbi Yosei says: If so, what did the swindler lose? Rather, the entire deposit will be placed in a safe place until Elijah comes.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara counters: Rather, what is suggested? Is it suggested that the mishna is in accordance with the opinion of the Rabbis, who disagree with Rabbi Yosei? Since the Rabbis say there: The remainder is placed in a safe place until Elijah comes, this case of the mishna concerning the garment is also comparable to the remainder in the case of the deposit, as it is uncertain to whom the entire garment belongs. It should therefore be placed in a safe place until the matter is resolved.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara answers: What is this comparison? Granted, if you say that the mishna is in accordance with the opinion of the Rabbis there, in the case of the depositors, where these one hundred dinars certainly belong to only one of them and the Rabbis say that it is placed in a safe place until Elijah comes, here, in the case of this mishna, where there is room to say that it belongs to both of them, the Rabbis say that they divide it with the proviso that they take an oath.

Traduction française en préparation — version anglaise (Steinsaltz) : But if you say that the mishna is in accordance with the opinion of Rabbi Yosei, there is a difficulty. Now consider, if there, in a case where it is certain that there are one hundred dinars that belong to one of the litigants and there are one hundred dinars that belong to the other one, nevertheless, Rabbi Yosei says that the entire sum is placed in a safe place until Elijah comes, here, where there is room to say that it all belongs to only one of them, all the more so is it not clear that it should be placed in a safe place until Elijah comes, as one of the claims may be entirely fraudulent?

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara rejects this suggestion: You may even say that the mishna is in accordance with the opinion of Rabbi Yosei: There, in the case of the deposit, there is certainly a swindler between the two depositors. By contrast, here, in the case of the mishna, who is to say that there is a swindler? Say that both of them lifted the garment at the same time, and therefore there is no reason to penalize them by placing the garment in a safe place.

Traduction française en préparation — version anglaise (Steinsaltz) : Alternatively, there is room to distinguish between the cases: There, Rabbi Yosei penalizes the swindler by confiscating his deposit so that he will admit that he lied in order to receive his original deposit of one hundred dinars from the bailee. Here, in the case of the garment, what loss would a swindler incur that would prompt him to admit that he is lying? If the item is placed in a safe place, he loses nothing.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara rejects this alternative explanation: This distinction works out well in the case of a found item where he did not pay anything for it. Consequently, he has no incentive to admit that he lied. But in a case of buying and selling, what is there to say? Both parties paid for the item and prefer to receive the item. Rather, the distinction is clearly as we explained initially. The difference between the cases is that in the mishna, there is no certainty that one of them is lying.

Traduction française en préparation — version anglaise (Steinsaltz) : The Gemara asks: Both according to the opinion of the Rabbis and according to the opinion of Rabbi Yosei, there, with regard to the case of a storekeeper relying on his ledger, it is unclear why the money is not held until the matter is clarified. This is referring to a case where an employer tells a storekeeper to give food to his laborer in lieu of his salary, and later the storekeeper claims that he gave it to him but the laborer claims that he did not receive it. Both parties therefore claim payment from the employer. As the mishna (Shevuot 45a) teaches that this one, the storekeeper, takes an oath that he gave the food to the laborer and receives payment from the employer, and that one, the laborer, takes an oath that he was not given the food and takes his salary from the employer.

Traduction française en préparation — version anglaise (Steinsaltz) : What is different in that case, that we do not say: Appropriate the money from the employer, and it is placed in a safe place until Elijah comes? Apparently, we should say this because there is certainly a swindler among the litigants, since it is impossible that both the storekeeper and the laborer are telling the truth.

Traduction française en préparation — version anglaise (Steinsaltz) : The Sages say in response: There, this is the reason that the money is not set aside: Because the storekeeper can say to the employer: I carried out your agency to give the food to the laborer, and I have dealings only with you. What business do I have with the hired laborer? Even if he takes an oath to me that he did not receive the food, he is not trustworthy to me by virtue of his oath. You are the one who trusted him, as you did not say to me: Give him the food in the presence of witnesses. Therefore, you are obligated to pay me. If you have a grievance, settle it with your employee.