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Text Excerpt
דאי תנא מציאה הוה אמינא: מציאה הוא דרמו רבנן שבועה עליה משום דמורי ואמר, חבראי לאו מידי חסר בה, איזל אתפיס ואתפליג בהדיה! אבל מקח וממכר, דליכא למימר הכי – אימא לא.
As had the tanna taught the case of a found item alone, I would say that it is only in the case of a found item that the rabbis imposed an oath upon him, as in that case one can rationalize his actions and say: The other party, the one who in fact found the item, is not losing anything by not keeping all of it, as it was not his to begin with. I will go seize it from him and divide it with him. But in the case of buying and selling, where that cannot be said, say that the rabbis did not impose an oath upon him.
ואי תנא מקח וממכר, הוא דרמו רבנן שבועה עליה משום דמורי ואמר: חבראי דמי קא יהיב ואנא דמי קא יהיבנא, השתא דצריכא לדידי אשקליה אנא, וחבראי ליזיל לטרח ליזבן, אבל מציאה, דליכא למימר הכי – אימא לא. צריכא.
And had the tanna taught the case of buying and selling alone, one might say that it is specifically in this case that the rabbis imposed an oath upon him, because he could rationalize his actions, saying to himself: The other party gave money to the seller and I gave money to the seller; now that I need it for myself, I will take it and let the other one go to the trouble to buy another item like the first item. But in the case of a found item, where that cannot be said, say that the rabbis did not suspect that he seized an item that did not belong to him, and therefore there is no need to impose an oath upon him. Therefore, both cases are necessary.
מקח וממכר, ולחזי זוזי ממאן נקט? לא צריכא דנקט מתרוייהו, מחד מדעתיה ומחד בעל כרחיה, ולא ידענא מי הוא מדעתיה, ומי הוא בעל כרחיה.
The Talmud asks: How can the Mishnah be referring to a case of buying and selling? But let us see from whom the seller took the money. Obviously, the one who gave him the money is the one who bought it. The Talmud answers: No, it is necessary in a case where he took money from both of them. He accepted the money willingly from the one to whom he wanted to sell the item, and he received the money against his will from the one to whom he did not want to sell the item, and I do not know who is the one from whom he took it willingly, and who is the one from whom he received it against his will. Consequently, the matter is clarified by means of an oath.