Deposit Disputes

Bava Metzia (3:4) | Yisrael Bankier | 3 months ago

The Mishnah (3:4) discusses a case where two people entrusted different sums of money with a third party -- one hundred and two hundred zuz. When it came time for collection, each claimed that the larger amount was theirs. The first opinion is that each receive one hundred, with the remaining amount left until the matter can be resolved -- "until Eliyahu [ha'Navi] comes".¹ R' Yossi however disagrees and explains that it is clear that one of the people are lying. If one hundred is returned to each party then the liar does not lose out, because his original sum is returned to him. Consequently, he maintains that for there to be a deterrent, all of it should be left with the trustee.

The Gemara explains that the case of the Mishnah is where they both entrusted their money with this person at the same time. Since they demonstrated their trust for one another when depositing together, the trustee was not required to store the money separately and is not held responsible for not being able identify who the money belongs to.

The Tosfot Yom Tov notes that one might thing that the position of the trustee is one of modeh be'miktzat. In other words, if one claims that he entrusted money with another and the person partially admits to a smaller sum, then the trustee is obligated to swear that that is case in order to exempt full payment. The trustee in our case appears to be in the same position. However, since in this case he cannot swear because he cannot identify the true owners, he should be obligated to pay the full amount to both parties.

The Tosfot Yom Tov cites the Nimukei Yosef who explains that this case is different. The obligation of a shevua in the case of modeh be'miktzat is only where the trustee wanted to keep the disputed amount. The shevua was put in place to try and prevent that. As the Ramban puts it, the shevua was instituted to compel him to admit to the full amount. In our case however, the trustee admits that the full amount was put in his care, he simply does not know who to give it to. The Rashba explains that the proof is that were he certain who the money should be given to, then even if one of the parties objected, the trustee would be believed without a shevua, since everyone agreed to the total amount entrusted.

The Rashba finds this answer difficult since ultimately, the trustee would be retaining the difference. Consequently, perhaps that result is motivating him to say he does not know. Note that the Rashba's argument assumes that when the Mishnah states that the disputed amount remains until Eliyahu HaNavi comes, it means in the hands of the trustee.

The Mordechai (274) however cites the Ohr Zaruah who explains that disputed funds were left in the care of Beit Din. Otherwise, a trustee would always say he does not know in order to retain the deposit. This position would thereby allay the Rashba's concern.

The Ramban offers another answer that the dispute is not between the individuals and the trustee. If the law was that he would simply place the difference on the floor and leave, he would be willing to do so. Instead, the dispute is really between the two people that the brought money. Consequently, the trustee cannot be considered as being modeh be'miktzat.

The Rashba however offers a different explanation. The obligation to pay in a case where one is obligated to make a shevua but is unable to do so, is because we treat his lack of knowledge as negligence. As explained above, in this case the individuals entrusted their money together, so the trustee was not required to identify who the money belonged two. Consequently, his lack of knowledge is not defined as negligence and therefore he is not required to pay.

¹ The Yalkut Biurim cites the Kovetz Shiurim (Bava Batra 640) that explains that it is possible to understand the Mishnah does not mean that Eliyahu HaNavi will come and clarify the true ownership. That would require a formal witness testimony for which nevuah is insufficient. Rather, it is that the liar would be two embarrassed to cheat in the presence of Eliyahu HaNavi and would therefore admit to the truth.

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