POINT BY POINT SUMMARY
Prepared by Rabbi P. Feldman
of Kollel Iyun Hadaf, Yerushalayim
Rosh Kollel: Rabbi Mordecai Kornfeld
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Previous daf Bava Metzia 37
BAVA METZIA 37 - dedicated in honor of the birth of Miriam Breina Katz to
Gidon and Rivka Katz of Bnei Brak.
1) DOES R. YOSI ARGUE IN THE FIRST MISHNAH?
(a) (Mishnah): R. Yosi says, one does not profit through
another's property - rather, Levi pays Shimon.
2) ONE WHO DOES NOT KNOW WHOM HE OWES
(b) (Rav Yehudah citing Shmuel): The Halachah follows R.
(c) Question (Rav Shmuel bar Yehudah): You said in Shmuel's
name that R. Yosi argues even in the first Mishnah (and
says that even if a watchman chooses to pay, the owner
receives the double payment) - does the Halachah follow
R. Yosi also there?
(d) Answer (Rav Yehudah): Yes.
(e) R. Elazar agreed that R. Yosi argues there and that the
Halachah follows him.
(f) (R. Yochanan): R. Yosi agrees with Chachamim in the first
Mishnah, because he already paid.
(g) Question: Is it only because he paid? R. Chiya bar Aba
cited R. Yochanan to say, even saying that he will pay is
(h) Answer: R. Yochanan means, R. Yosi agrees in the first
Mishnah, because he already said he will `pay.
(a) (Mishnah): Reuven told two people: 'I stole from one of
you, I don't know from which'; or, 'One of your fathers
deposited money by me, I don't know which' - he pays
both, because he admitted by himself.
(b) One person people deposited 100 Zuz by Reuven, another
person deposited 200; each claims that he gave 200,
Reuven does not know who gave which - he gives each 100,
the rest we leave it until Eliyahu comes;
(c) R. Yosi argues - if so, the swindler does not lose -
rather, all the money is left until Eliyahu comes (or one
(d) Similarly, if they deposited vessels, and each claims the
bigger vessel - one gets the smaller vessel, we give the
other the value of the smaller from the larger, the rest
we leave until Eliyahu comes; R. Yosi says, we leave it
all for Eliyahu.
(e) (Gemara) Inference: The first case teaches that when in
doubt, we make someone pay, we do not say 'to take money
from another, one must bring proof'!
(f) Contradiction: In the second clause, Reuven does not pay
because of his doubt!
(g) Answer: Chachamim fined one who stole to pay when in
doubt; they did not fine one who accepted deposits.
(h) Contradiction #1: Sometimes one who takes deposits is
fined - when one of the fathers deposited money, Reuven
(i) Answer (Rava): There, Reuven is liable for forgetting who
deposited (like 2 people who deposited money, each
wrapped by itself);
1. Reuven is exempt when two people deposited in front
of each other, for this shows that they trust each
other, he is not responsible to ensure that he
remembers who gave which (it is like two people who
deposited money wrapped together as one).
(j) Contradiction #2: Sometimes a thief is not fined!
1. (Mishnah - R. Tarfon): Reuven stole from one of five
people, he does not know from which; all of them say
'You stole from me' - Reuven leaves what he stole in
front of them and walks away.
(k) Answer: In that Mishnah, they claim from him - letter of
the law says, he leaves what he stole in front of them
and walks away;
2. This says that when in doubt, we do not make someone
pay; rather, we follow Chazakah, and leave the money
by who is holding it!
3. Question: How do we know that our Tana is R. Tarfon?
(Perhaps it is R. Akiva, who argues!)
4. Answer (Beraisa): R. Tarfon admits by one who tells
two people: 'I stole from one of you, I don't know
from which'; that he pays both.
1. Here, Reuven wants to fulfill his obligation at the
hands of Heaven, he pays each.
(l) Question: We said that in that Mishnah, they claim from
him - what does he say?
2. Support: The Mishnah obligates him 'Because he
admitted by himself'.
(m) Answer #1 (Rav Yehudah citing Rav): He is silent.
(n) Answer #2 (Rav Masnah citing Rav): He denies recognizing
any of them - but if he was silent, this would be
considered an admission.
3) R. AKIVA'S OPINION
1. Rav Yehudah says that here, his silence is not an
admission -he can say, I was silent to each one
thinking maybe this is the one.
(o) Question (Mishnah): He leaves what he stole in front of
them and walks away - will they divide it and walk away?!
1. But R. Aba bar Zavda taught, any found object that
one is in doubt if it was left intentionally, he
should not take it; if it was taken, he should not
return it! (Rashi - if someone claims he lost it, he
must bring proof - here also, the thief cannot give
it up without proof; Ra'avad - just as one may not
take when in doubt, the people who claim to own it
may not split it without proof!)
(p) Answer (Rav Safra): The Mishnah means, he leaves what he
stole (until Eliyahu or until one of them brings proof).
(a) Question (Abaye): In that Mishnah, R. Akiva says 'To
clear himself from transgression, he must pay every one'
- when in doubt, we make someone pay, we do not leave
money in its Chazakah;
4) TWO DEPOSITORS
1. Contradiction (Mishnah): A house fell on a man and
his mother; his heirs say that she died first (so
the son inherited her), her heirs say that he died
first (and they inherit her) - Beis Hillel and Beis
Shamai agree that they split her property;
(b) Answer (Rava): There, both parties are unsure; by the
theft, the claims against Reuven are definite, Reuven is
2. R. Akiva says, I admit in this case that the
property stays according to its Chazakah (Amora'im
argue if he means that the son's or mother's heirs
(c) Question: But in our Mishnah (when he stole from one of
two people) all the claims are doubtful, and he pays
1. Question: How do we know that our Tana is R. Akiva
(to ask this)?
(d) Answer: We said, our Mishnah is when Reuven wants to
fulfill his obligation at the hands of Heaven.
2. Answer (Beraisa): R. Tarfon admits by one who tells
two people: 'I stole from one of you, I don't know
from which'; that he pays both;
i. R. Tarfon admits to R. Akiva, with whom he
argues in the Mishnah.
3. Question: How do we know that the claims against the
thief are uncertain?
4. Answer #1: It does not say that they claim from him.
5. Answer #2 (Beraisa - R. Chiya): The case is, each
says that he does not know if he was the victim.
(a) Question (Ravina): Did Rava really say that when two
depositors gave money in two bags, the watchman must
remember who gave which?
1. Contradiction (Rava - some say, Rav Papa): All agree
that two people who deposited (different numbers of)
animals by a shepherd, the shepherd leaves the
animals in front of them.
(b) Answer (Rav Ashi): That is when they deposited the
animals in his herd without his knowledge.
(c) (Mishnah): Similarly, if they deposited vessels...
(d) We must teach both cases.
1. If we only heard by money - one might have thought,
there Chachamim say to return 100 to each, for there
is no loss - but by vessels, there is a loss (Rashi
- part of the big vessel is broken off; Nimukei
Yosef - we sell the larger vessel, it will not
return to the owner), Chachamim admit to R. Yosi;
(e) Retraction: Rather, both cases were taught to teach
Chachamim's opinion - the case of vessels is a bigger
Chidush than the case of money.
2. If we only heard by vessels - one might have
thought, there R. Yosi says that we leave them until
Eliyahu comes - but money, by which we can give each
100 without a loss, he admits to Chachamim.
3. Objection: But R. Yosi's reason is in order that the
swindler will admit (surely he argues even when
there is no loss)!