Talmud - Bava Metzia 8a בבא מציעא ח׳ א׳

This is because each party receives an item that has monetary value, as it is fit to be made into a garment for small children.

The Gemara asks: But as for that which Rava said, that if the garment was fashioned with gold thread they divide it, does that also mean that they divide the garment itself? By doing so they would ruin it. The Gemara answers: That is not difficult, as after the garment is divided it is fit to be made into a garment for the children of kings or wealthy people. Therefore, it is not ruined.

The Gemara asks: But with regard to that which we learned in the mishna (2a): If two people were sitting on an animal and each of them claims to own the entire animal, they each take an oath and divide the animal, does that also mean that they divide the animal itself? By doing so they would ruin it. Granted, if it is a kosher animal it is fit to be slaughtered and divided between them for the meat. But if it is a non-kosher animal, slaughtering it and dividing the carcass would ruin it and render it worthless. Rather, clearly they divide its monetary value. Here too, in the other cases where the ruling is to divide the item, it means that the litigants divide its monetary value and not the item itself.

§ Based on an inference from the mishna on 2a, Rami bar Ḥama says: That is to say: In a case of one who performs an act of acquisition by lifting a found item on behalf of another, the other person, i.e., the latter, acquires ownership of the item.

Rami bar Ḥama explains his inference: As, if it enters your mind that if one lifts a found item for another the other does not acquire the item, this garment has not been acquired by either of the two litigants, as each prevents the other’s acquisition. If that were the case, this part of the garment, held by one of them, would be considered as though it is still lying on the ground, and that part of the garment, held by the other one, would be considered as though it is still lying on the ground, and neither this one nor that one acquires it; if a third party takes it, it is his. Rather, isn’t it correct to conclude from it that in a case of one who performs an act of acquisition by lifting a found item on behalf of another, the other person acquires the item?

Rava said: This is not a proof, as actually I could say to you that in a case of one who performs an act of acquisition by lifting a found item solely on behalf of another, the other person does not acquire the item. And here in the mishna, this is the reason the two litigants acquire the garment: Since each of the litigants acquires part of the garment for himself, he also acquires the other part for the other one.

Rava adds: Know that one who acquires an item for himself can acquire part of it for another, as, if someone says to his agent: Go out and steal an item for me, and the agent stole that item, the one who sent him is exempt from liability, due to the principle that there is no agency for sin; but partners who stole an item together are both liable even if only one of them actually lifted the item. What is the reason that they are both liable? Is it not because we say that since the one who lifted the item acquires part of it for himself, he also acquires the other part for the other one, his partner? The Gemara concludes: Learn from it that this principle is correct.

Rava said in continuation of his statement: Now that you said that we say: Since [miggo] one acquires part of an item for himself he can also acquire the other part for another, another halakha can be derived: In a case of a deaf-mute and a mentally competent person who lifted a found item simultaneously, since the deaf-mute acquires his part of the item, the mentally competent person also acquires his portion.

The Gemara asks: Granted, the deaf-mute acquires his portion of the found item, as a mentally competent person lifted it for him; since the mentally competent person acquired his own part, he also acquired the other part for the deaf-mute. But how does the mentally competent person acquire his part? He needs the deaf-mute to acquire it for him, and a deaf-mute cannot acquire an item for another.

Rather, say Rava’s statement differently: The deaf-mute acquires his part, but the mentally competent person does not acquire his part. And what is the principle of miggo from which Rava derives this halakha? It is not the principle that one who acquires a found item for himself can acquire part of it for another as well, but rather: Since [miggo] in general two deaf-mutes who pick up an item simultaneously acquire it, in this case too, the deaf-mute acquires it, even though the mentally competent person does not acquire it.

The Gemara asks: What is this derivation? Even if you say that in a case of one who performs an act of acquisition by lifting a found item on behalf of another, the other person acquires it, as Rami bar Ḥama says, this statement applies only where he lifts it with the intention of having the other person acquire the item. But in this case, the mentally competent person lifted the item with the intention of acquiring it for himself; he had no intention of acquiring it for the deaf-mute. If he does not acquire the item for himself, does he acquire it for others?

Rather, say that since the mentally competent person does not acquire any part of the found item, the deaf-mute does not acquire it either.

And if you would say: In what way is this case different from the general case of an item that was found by two deaf-mutes, in which they both acquire it? The answer is that there, in that case, the Sages instituted an ordinance for them that they both acquire the item so that they will not come to quarrel with others who want to take the item from them due to the fact that a deaf-mute lacks the halakhic ability to acquire the item. Here, in the case of the deaf-mute and the mentally competent person, the deaf-mute says to himself: If even the mentally competent person does not acquire the item, can I acquire it? Therefore, in that case, he will not quarrel if others take the item from him.

Rav Aḥa, son of Rav Adda, said to Rav Ashi: From where in the mishna is Rami bar Ḥama’s inference drawn? If we say that he infers it from the first clause of the mishna, i.e., the case of two people holding a garment, isn’t the case there one in which this one says: All of it is mine, and I lifted the entire garment; and that one says: All of it is mine, and I lifted the entire garment? How can the halakha where one acquires an item for another be inferred from that case?

Rather, he infers it from that which is taught later in the mishna: This one says all of it is mine and that one says all of it is mine. Why do I need this case as well? The first case, where each one says: I found it, is sufficient. Rather, learn from the superfluous case in the mishna that even if they lifted it simultaneously, they divide it and a third party has no right to take it, as in a case of one who performs an act of acquisition by lifting a found item on behalf of another, the other person acquires the item.

The Gemara asks: But that clause in the mishna is not superfluous; didn’t we already establish (2a) that the first clause is referring to a dispute over a found item, and the latter clause is referring to a case of buying and selling, where each party claims that he is the one who bought the item from its seller?

Rather, Rami bar Ḥama infers his ruling from the latter clause of the mishna, i.e., the case where this one says all of it is mine and that one says half of it is mine. Why do I need this case as well? What does it add to the previous cases? Rather, learn from this superfluous case in the mishna that in a case of one who performs an act of acquisition by lifting a found item on behalf of another, the other person acquires the item.

The Gemara asks: And from where is it inferred that this clause is referring to the case of a found item? Perhaps it is referring to a case of buying and selling.

And if you would say: If it were referring to a case of buying and selling, what would be the purpose of stating it, as it adds no novel ruling? One could answer that it was necessary to teach this additional case, as otherwise it might enter your mind to say that the one who says: Half of it is mine, should be considered the equivalent of one returning a lost item; he could have claimed that the garment was entirely his, and instead he conceded half of it to the other party and consequently he should be exempt from taking an oath. To counter this, the mishna teaches us that he is not exempt, as perhaps this person is employing artifice. Perhaps he is thinking: If I say that all of it is mine I will need to take an oath. I will state this claim, that half of it is mine, as I will thereby be considered the equivalent of one returning a lost item, and I will be exempt from taking an oath. Therefore, this clause is not superfluous; it teaches that this litigant is not considered the equivalent of one returning a lost item.

Rather, Rami bar Ḥama infers his ruling from this clause: If two people were sitting on an animal, and each of them claims that it is his, each of them takes an oath and they divide the value of the animal. Why do I need this case as well? It teaches no novel halakha. Rather, learn from this superfluous clause in the mishna that in a case of one who performs an act of acquisition by lifting a found item on behalf of another, the other person acquires the item.

The Gemara asks: But perhaps this mishna teaches us that one who sits on an animal also acquires it, even though he has not caused the animal to move.

Rather, Rami bar Ḥama inferred his ruling from the last clause in the mishna: When they each admit to the validity of the other’s claim or when they have witnesses attesting to their claims, they divide it without taking an oath. To what case is the mishna referring? If it is referring to a case of buying and selling, does it need to be said? Rather, is it not referring to a found item? Accordingly, the reason they divide the item is that they knowingly lifted it together, and they intended to acquire it for both of them. And learn from it that in a case of one who performs an act of acquisition by lifting a found item on behalf of another, the other person acquires the item.

The Gemara comments: And Rava said to you that this clause is based on a different principle: When one acquires an item, since he acquires it for himself he can also acquire part of it for another person.

§ The mishna teaches: If two people were sitting on an animal, or one was sitting on the animal and the other one was leading it, and each claims ownership of the animal, they must each take an oath and they divide it. Rav Yosef said: Rav Yehuda said to me:

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaMetzia 8a explores dividing disputed items like garments or animals by value rather than substance, and examines acquiring a found object on another's behalf.