Bava Metzia

For if the Tanna had dealt solely with the case of finding I might have said that only in such a case would the Rabbis impose an oath, because each disputant might permit himself [to claim the garment] by saying to himself, 'My neighbour loses nothing through my action [as it cost him nothing to acquire the garment]; I shall go and take hold of it and share it with him.'  But in the case of a bought article, where this argument does not apply,  it might be assumed that no oath was to be imposed. On the other hand, had the Tanna dealt solely with a case of buying and selling, it might be assumed that only in such a case would the Rabbis impose an oath, because each disputant might permit himself [to claim the garment] by saying to himself, 'My neighbour has paid the price and I am prepared to pay the price; seeing that I need it I shall take it, and let my neighbour take the trouble to go and buy another garment.' But in the case of a found article, where this argument does not apply, it might be assumed that no oath was to be imposed; therefore both cases are necessary. But how could such a situation arise in the case of a bought article? One could surely ascertain from the seller as to which of the two paid him the money? — The case is one in which the seller took money from the two purchasers, willingly from one, and unwillingly, from the other, and we do not know from whom he took it willingly and from whom unwillingly. Shall it be said that our Mishnah is not in agreement with the view of Ben Nannus? For does not Ben Nannus  express surprise at the decision of the Sages to impose oaths on disputants one of whom is bound to swear falsely? — The Mishnah may well be in agreement with Ben Nannus. For in the case [where Ben Nannus objects to the oath] it is certain that if both parties take the oath one of them will commit perjury. But in our Mishnah it may well be assumed that no perjury will be committed [even if both parties swear], for it is possible that both of them picked up the garment simultaneously. Again, shall it be said that our Mishnah is not in agreement with the view of Symmachus? For does not Symmachus, [in another case,]  maintain that disputed money of doubtful ownership should be divided among the disputants without an oath? But would not the same difficulty arise [if we compared the decision of our Mishnah] with that of the Rabbis  [who are opposed to Symmachus]? For have these Rabbis not declared that 'the claimant must bring evidence to substantiate his claim' [while in our Mishnah the disputed article is divided on oath]? — What a comparison! In the case in which the Rabbis apply the principle that 'the claimant must bring evidence' the contending parties had not taken hold of the disputed object, but here [in our Mishnah] since both disputants hold the garment  it is rightly divided, after both have taken the oath. But in regard to Symmachus the argument is the other way. For if he decided in the case referred to [where no party is in possession of the disputed property] that the amount should be divided among the litigants without an oath, how much more readily would he give this decision in a case like ours, where both disputants are equally in possession of the article in question; [and thus the query remains, 'Shall it be said that our Mishnah is not in agreement with Symmachus?'] It can still be maintained that the Mishnah is in agreement with Symmachus. For Symmachus expressed his view [that the property in dispute should be divided without an oath] only in a case where both litigants are uncertain as to the true facts [and it would therefore be wrong to make either of them swear] but where both parties assert their claims with certainty [as in our Mishnah] he would take a different view. But does not Rabbah the son of R. Huna maintain that Symmachus's decision applies also to a case where both parties are certain and definite in their claims?  — It can still be maintained that our Mishnah is in agreement with Symmachus. For Symmachus expressed the view [as quoted] only in a case where a verdict in favour of one would involve a loss to the other, but where no actual monetary loss is involved [as in our Mishnah] he would take a different view. But then again, can we not infer by means of a Kal wa-homer  [that Symmachus would disagree with our Mishnah]? For if even in the case where the party entitled to the verdict loses money by being awarded only half of the disputed amount,