For the week ending 1 October 2016 / 28 Elul 5776

Bava Metzia 2 - 8

by Rabbi Mendel Weinbach zt'l
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  • Settling disputes of ownership through oath-taking
  • Analysis of the text of the first mishna
  • Comparing the ruling of the mishna to those of Sages like Ben Nanass, Sumchus and Rabbi Yossi
  • Does the testimony of witnesses on part of a monetary claim demand the same oath of defendant as his own denial does
  • Is an oath required when the defendant admitting to part of the claim against him produces payment of it
  • The reason for the oath mentioned in the mishna regarding dispute over ownership of found object
  • Gilgul shvuah – one oath bringing along another
  • The crooked shepherd and his ability to take an oath
  • Is one suspected of theft eligible to take an oath
  • When one of the claimants to ownership of a found object seizes or sanctifies it with only a belated protest
  • The kohen who seized an animal with a doubtful status of first-born
  • Two holding on to a talit or to a loan document
  • If one picks up a found object for another does this grant him ownership of it
  • Two riders of a found animal disputing ownership

The Tenth Commandment

  • Bava Metzia 5b

"You shall not covet... anything that belongs to your fellow." (Shemot 20:14)

What if someone so covets something belonging to another that he takes it from him without his consent but pays him for it – is he in violation of this tenth commandment?

There is a difference of opinion amongst the Talmudic commentaries on this issue, which revolves around an understanding of a point in our gemara.

A guardian claims innocence of responsibility for something stolen from his safekeeping but chooses to pay the owner rather than take an oath that he was not negligent. He is nevertheless required to take an oath that the object is no longer in his possession. This is because we suspect him of having coveted that item which the owner refused to sell and is exploiting this opportunity to acquire it.

But how can we believe his oath? If we suspect him of dishonesty should we not also suspect him of taking a false oath?

The answer is that the guardian can rationalize his dishonesty because he is paying the owner but will not dare to take a false oath. But isn't he in violation of "You shall not covet" even if he pays and therefore should be suspected of taking a false oath? To this challenge the response is: "People assume that 'You shall not covet' applies only when payment is not made."

One approach to understanding this statement is that what people assume in regard to coveting is the truth (Tosefot in Mesechta Sanhedrin 25b).

Others (including Rambam, Laws of Theft and Loss 1:9) disagree with this approach and contend that even if one pays money to the party who refused to sell he is in violation of "You shall not covet".

According to this approach our gemara must thus be understood: since people assume that by giving money they are not in violation of any prohibition, we have no reason to suspect that they will take a false oath.

What the Sages Say

"It can be definitely assumed that a borrower does not have the audacity to totally deny the claim of his lender."

  • The Sage Rabbah - Bava Metzia 3a

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