משנה: שְׁנַיִם אוֹחֲזִין בַּטַּלִּית זֶה אוֹמֵר אֲנִי מְצָאתִיהָ וְזֶה אוֹמֵר אֲנִי מְצָאתִיהָ זֶה אוֹמֵר כּוּלָּהּ שֶׁלִּי וְזֶה אוֹמֵר כּוּלָּהּ שֶׁלִּי. זֶה יִשָּׁבַע שֶׁאֵין לוֹ בָהּ פָחוּת מֵחֶצְייָהּ וְזֶה יִשָּׁבַע שֶׁאֵין לוֹ בָהּ פָחוּת מֵחֶצְייָהּ וְיַחֲלוֹקוּ. זֶה אוֹמֵר כּוּלָּהּ שֶׁלִּי וְזֶה אוֹמֵר חֶצְייָהּ שֶׁלִּי. הָאוֹמֵר כּוּלָּהּ שֶׁלִּי יִשָּׁבַע שֶׁאֵין לוֹ בָהּ פָחוּת מִשְּׁלֹשָׁה חֲלָקִים וְהָאוֹמֵר חֶצְייָהּ שֶׁלִּי יִשָּׁבַע שֶׁאֵין לוֹ בָהּ פָחוּת מֵרְבִיעַ. זֶה נוֹטֵל שְׁלֹשָׁה חֲלָקִים וְזֶה נוֹטֵל רְבִיעַ. MISHNAH: 1The main application of the Mishnah is to bankruptcy problems where the amount available for distribution is not sufficient to cover all claims. The principle underlying the distribution has been explained at length in Ketubot 10:4:1" href="/Jerusalem_Talmud_Ketubot.10.4.1">Ketubot 10:4, Note 62. If two persons hold on to one toga and each of them says “I found it” [or] “it wholly belongs to me”2Each of them has to grab a similar length of cloth, to establish equality of claims., each of them has to swear that he owns no less than half of it and they shall divide it evenly3There are no witnesses nor other kinds of proof; the case has to be settled by judicial oath. It is obvious that if the two claimants do not agree to possess the object in common it has to be split evenly. If both of them are ready to swear that the object entirely belongs to him, at least one of them is swearing falsely. Since the formulation of the oath is in the hand of the judges, they must be careful not to teach the parties to swear to a falsehood; they cannot let them swear about full ownership, for the court is warned (Exodus.23.1">Ex.23:1) “not to lend a hand to a wicked person to be an extortionary witness”, i. e., it is forbidden to administer an oath to a known felon (Mishnah Šebuot 7:4). But if each party only swear to the amount it actually will receive, it is possible that both swear to the truth. The formulation “no less than” implies that the oath is true even if one of them is the full owner; the language of the oaths does not contradict the claims brought before the court.. If one says “it wholly belongs to me” and one says “half of it belongs to me”, the one who says “it wholly belongs to me” shall swear that he owns no less than three parts43/4. The language of “parts” follows the Egyptian (and Roman) pattern; n parts always means n/n+1. and the one who says “half of it belongs to me” shall swear that he owns no less than a quarter5As explained in Ketubot, the underlying principle is: “Amounts in doubt are split evenly”. If neither party has proof by document or witnesses and A claims 100% of an amount available but B only claims 50%, 50% are assigned to A as undisputed amount. The remaining 50% are in dispute and have to be split evenly; each of the the parties receives 25%.. The first one takes three parts, the second takes a fourth.
הלכה: שְׁנַיִם אוֹחֲזִין בַּטַּלִּית כול׳. תַּנֵּי. אָדָם שֶׁאָמַר לַחֲבֵירוֹ. תֵּן לִי מְנָה שֶׁאַתָּה חַייָב לִי. אָמַר לוֹ. לֹא הָיוּ דְבָרִים מֵעוֹלָם. הָלַךְ וְהֵבִיא עֵדִים שֶׁחַייָב לוֹ נ̇ זוּז. רִבִּי חִייָה רֹבָה אָמַר. הוֹדָייַת עֵדִים כְּהוֹדָייַת פִּיו וְיִשָּׁבַע עַל הַשְׁאָר. רִבִּי יוֹחָנָן אָמַר. אֵין הוֹדָייַת עֵדִים כְּהוֹדָייַת פִּיו שֶׁיִּשָּׁבַע עַל הַשְׁאָר. אָמַר רִבִּי לָא. מִשְּׁנַיִם אוֹחֲזִין בַּטַּלִּית דְּרִבִּי חִייָה רוֹבָה. מִכֵּיוָן שֶׁתָּפוּשׂ בְּחֶצְייָהּ. (א)לֹא כְּמִי שֶׁהֵבִיא עֵדִים שֶׁחֶצְייָהּ שֶׁלּוֹ. וְתֵימַר. נִשְׁבַּע וְנוֹטֵל. אוּף הָדָא דַמְייָא לָהּ. HALAKHAH: “If two people hold on to one stole,” etc. 7A parallel but different text is in Ketubot 2:1:4" href="/Jerusalem_Talmud_Ketubot.2.1.4">Ketubot 2:1, Notes 12–15. It was stated: One person said to another, give me the mina8The Greek mina of 100 drachmas (denars). Zuz, “half sheqel” is the talmudic name of the denar. which you owe me. He answered, it never happened. He went and brought witnesses that the other owed him 50 zuz. The elder Rebbi Ḥiyya said, the confession of the witnesses is the same as his own confession; he has to swear about the remainder9A similar text, formulated as R. Ḥiyya’s statement, is quoted in the Babli, 3a. The oath required here is the biblical “oath imposed by the judges”, Mishnah Ševu‘ot 6:1 based on Exodus.22.8">Ex. 22:8. The rabbinic interpretation of the biblical expression אֲשֶׁר יֹאמַר כִּי הוּא זֶה is “if he [the defendant] agrees that there be a case.” If the defendant in a civil suit, in which there are no witnesses or documents, denies the entire claim, he does not have to swear a biblical oath (he may have to swear a rabbinical oath). But if he agrees to part of the claim, he has to swear a biblical oath to free himself from the remainder. Only if the claim is advanced as tentative, then any admission by the defendant is a gift to the claimant and by rabbinic rule no oath of any kind is due. (Cf. Gittin 5:10:1" href="/Jerusalem_Talmud_Gittin.5.10.1">Giṭṭin 5:3, Note 84).. Rebbi Joḥanan said, the confession of the witnesses is not the same as his own confession that he should have to swear10Since Exodus.22.8">Ex. 22:8 insists on the defendant’s agreeing to part of the claim, witnesses can never force a judicial oath. This opinion is not mentioned in the Babli. In Ketubot(loc. cit. Note 7), R. Joḥanan denies that the oath is biblical; its rules cannot be determined by biblical arguments.. Rebbi La said, Rebbi Ḥiyya the elder’s statement is implied by “if two people hold on to one stole”. Since he holds on to half of it, is it not as if he brought witnesses that one half belongs to him? Could one not say that he swears and collects11The argument is refuted. Since each party claims the entire stole, each one is disputing half of a claim. There is no claimant nor defendant; even R. Ḥiyya must agree that the oath imposed by the Mishnah is not biblical.? Is this a similar case12For R. Ḥiyya, the case of the baraita is biblical; R. La’s argument is impossible. (In Ketubot, R. La quotes R. Joḥanan’s statement in the next paragraph.)?
רַבָּה בַּר מָמָל וְרַב עַמְרָם סְלִיקוּ הֵן דְּרַב בֵּינַיי אָמַר לֵיהּ. אֵין מוֹסְרִין שְׁבוּעָה לְחָשׁוּד. אָמַר לֵיהּ. אֲפִילוּ לְשׁוֹן שְׁבוּעָה אֵין מוֹסְרִין לוֹ. כֵּיצַד נִשְׁבַּע. רַב הוּנָא אָמַר. שְׁבוּעָה שֶׁיֵּשׁ לִי בָהּ וְאֵין לִי בָהּ פָּחוֹת (מִשָּׁוֶה פְרוּטָה) [מֵחֶצְיָהּ]. אָמַר רִבִּי יוֹחָנָן. אִם מִזּוֹ שְׁבוּעַת תַּקָּנָה הִיא. This topic13The oath prescribed in the Mishnah. came up between Rebbi Abba bar Mamal and Rav Amram. One said, one does not entrust an oath to a suspect person14How is this oath possible? Cf. Bava Metzia 1:1:1" href="/Jerusalem_Talmud_Bava_Metzia.1.1.1">Note 3.. The other said, one does not even formulate an oath for such a one15The formulation of the oath in the Mishnah still leaves the court open to a charge of administering an oath which helps a person to be dishonest since one could read the text as: “An oath that I have no claim to it, less than half.” Therefore, a positive statement of claim has to be inserted into the formula. The same formula is attributed to Rav Huna in the Babli, 5b.. Rav Huna said: “An oath that I have property rights to it to the amount of no less than (the value of a peruṭah)16Reading of the Leiden ms., a scribal error. [half of its value]17Text of E, confirmed by the Babli.. Rebbi Joḥanan said, if it is about this, it is an institutional oath18He disagrees with R. Ḥiyya and holds that the oath is purely an ad hoc instituted rabbinical ordinance. In the words of the Babli (3a), “lest it be easy to assert unfounded claims on another person’s property.”.
תַּנֵּי. שְׁנַיִם שֶׁהָיוּ תוֹפְסִין בִּשְׁטָר. זֶה אוֹמֵר. שֶׁלִּי וְאָבַד מִמֶּנִּי. וְזֶה אוֹמֵר. שֶׁלִּי הוּא שֶׁפְּרַעְתִּיו לָךְ. יִתְקַייֵם הַשְׁטָר בְּחוֹתְמָיו. דִּבְרֵי רִבִּי. רַבָּן [שִׁמְעוֹן בֶּן] גַּמְלִיאֵל אוֹמֵר. יַחֲלוֹקוּ. אָמַר רִבִּי לָֽעְזָר. הַכֹּל הוֹלֵךְ אַחַר הַתָּפוּס בָּעֵדִים. אָמַר רַב חִסְדָּא. אִין שְׁמַעְתּוּנֵיהּ אֲתִייַת כְּרַבָּן שִׁמְעוֹן. It was stated19Tosephta 1:15; Gittin 1:1:9" href="/Jerusalem_Talmud_Gittin.1.1.9">Giṭṭin 1:1, Notes 68–71; Babli Bava meṣi‘a 7a, Bava batra170a.: “If two persons were holding a document20An IOU; the persons involved are the creditor and the debtor. and one said, it is mine but I had lost it; the other said, it is mine since I paid you. The document should be validated by its signatories, the words of Rebbi21He holds that a paid IOU either should be torn up or the receipt should be written on the document or be attached to it.. Rabban Simeon ben Gamliel said, they should split21He holds that a paid IOU either should be torn up or the receipt should be written on the document or be attached to it..” Rabbi Eleazar said, it all depends on who is holding the signatures22Since only the signatures validate the document. He follows the reformulation of the Mishnah in the Tosephta (1:1): “If two people hold on to one toga, each one takes what he holds in his hand.” Presumably they split the remainder.. Rav Ḥisda said, if this23The opinion reported in the name of R. Eleazar the Amora. is true information, it follows Rabban Simeon24Since for Rebbi an IOU without a receipt is valid, irrespective of who holds it..
זֶה אוֹמֵר חֶצְיָיהּ שֶׁלִּי. וְזֶה אוֹמֵר. שְׁלִישָׁהּ שֶׁלִּי. הָאוֹמֵר חֶצְיָיהּ שֶׁלִּי יִשָּׁבַע שֶׁאֵין לוֹ בָהּ פָחוֹת מֵרְבִיעַ. וְהָאוֹמֵר שְׁלִישָׁהּ שֶׁלִּי יִשָּׁבַע שֶׁאֵין לוֹ בָהּ פָחוֹת מִשְּׁתוּת. כְּלָלוֹ שֶׁלְּדָבָר. אֵינוֹ נִשְׁבַּע אֶלָּא עַל חֲצִי שֶׁהוֹדָה. One says, half is mine; the other says, a third is mine. The one who says that half is his shall swear that no less than a quarter be his; the one who says that a third is his shall swear that no less than a sixth be his. The principle involved: One only swears on half of what he agreed to25On the face of it, the paragraph is unintelligible. R. E. Fulda comments: “I do not feel empowered to emend.” The corresponding Tosephta (1:2) is clear:
“One says, all is mine; the other says, a third is mine. The one who says that all is his shall swear that no less than five parts (5/6) are his; the one who says that a third is his shall swear that no less than a sixth is his. The principle involved: One only swears on half of what he agreed to.”
In the case of the Tosephta, the second claimant surrenders 2/3 to the first. Only 1/3 is in dispute; it is split evenly. The first one receives 2/3 + 1/6 = 5/6; the second receives 1/6. Rabbinic practice decrees that one only swears on half of the amount which is in dispute; in this case each would swear that he owns no less that one sixth in addition to what he has by consensus [Maimonides, Ṭo‘en weniṭ‘an9:8 (Maggid Mišneh ad 9:9), Šulḥan ‘Arukh Ḥošen Mišpaṭ 138:2 (Note)].
In the Yerushalmi the total of the claims only adds up to 5/6; they can be satisfied in full. There is no reason why anybody should swear. One has to explain the baraita as dealing with a case of bankruptcy in which the claims themselves are not sufficiently documented and can each be considered only by an affirmatory oath..