DAF DISCUSSIONS - BAVA METZIA 5

Robert Chesler asked:

Dear Rav Kornfeld and Rav Weiner:

Previously we discussed the following items, which I would like to ask regarding this other area.

If a person admits to stealing money from one of a number of people who each noticed that they had money taken from from, he must pay that amount to each of them, and the reason for this had something to do with although each of their claims refuted their other claims, he has no valid way of denying any of the claim, and must pay each.

Even if a litigant would have testimony as a second witness to coroborate what a single witness testifies, the litigant's testimony is only that of a claim, and not as a second witness.

In the case near daf 4 of the shepard who denies being given sheep that day, is it safe to assume that the story includes these salient details:

1) multiple townspeople are involved, each of whom have a separate cause of action against the shepard

2) the townspeople had come at different times, each bringing their sheep

3) other than the first townsperson, each person brough sheep seeing that there already were other townspeople's sheep entrusted to this shepard that day

4) as separate cases, the shepard (if he were considered trustworthy enough to take any oath) would be required to take an oath of denialagainst each and every townsperson who made a claim that they had deposited sheep with him that day?

5) if the burden of oath shifts from the untrusted defendant to the trusted claimant, then each claimant must take an oath?

6) as separate claims, a litigant in a parallel claim should not be barred from being able to give witness testimony for another litigant's claim?

Under US secular law, it seems there can be motions granted to consolodate parallel cases into a single case, and also there can be motions to try a cases of multiple claims as separate cases.

Ignoring for a moment that there was witness testimony that the shepard was seen eating two sheep on a day when he denies having any sheep entrusted to him, and presumably he has no sheep of his own, and all sheep are presumed indistinguishable (the ones eaten vs the others who's wherabouts are unknown) would these litigant-witness-testimonies count for any witness testimony?

Thank you.

Robert Chesler

The Kollel replies:

Dear Robert,

One cannot explain the shepherd case beyond what the Gemara says. There was one deposit and one denial. The witnesses create a situation of Modeh b'Miktzas.

However let's discuss your case. If the shepherd is trustworthy, he can, after all the claims are made against him, take one oath in a way which counters all their claims. If he only swore against one sheep owner, he will have to swear against any new claim which comes afterwords.

However if a claimant swears, each one must swear to validate his own claim. Another oath will not help him, unless they are partners in all the sheep.

A litigant in a parallel claim can certainly testify for another litigant.

In the case when several times different people deposited sheep and witnesses testify that 2 were eaten, but it's not known from whose sheep, it goes as follows:

1) It's true that when 5 claim that one stole from them and he owes one of them, we require him to pay to all five but only after each claimant swears (see Shach Choshen Mishpat 365:6). It seems to be true even if he says he owes one claimant and even if witnesses said he owes one .

2)Does this cause an oath (which will eventually cause payment when it can't be carried out) on the remaining sheep? It depends on why the robber must pay 5 times.

If the payment is not a fine but "Me'ikar haDin" then this will cause an oath which will cause payment on all the sheep if the claimant already swore (see Netivos haMishpat 75:14). But if it's a fine which the Rabanan obligated where is no "Modeh b'Miktzas", then there is no oath and no further payment beyond the 2 sheep.

All the best,

Reuven Weiner.