Tosafot on Two Holding a Garment

שנים אוחזין בטלית - איידי דאיירי בהגוזל בתרא (ב"ק דף קיט.) מחלוקת נסורת נגר ובעל הבית דקתני במעצד הרי אלו שלו ובכשיל הרי אלו של בעל הבית תני הכא נמי דיני חלוקות ואע"ג דבתרי מסכתא אין סדר למשנה ואיכא מ"ד כולה נזיקין לאו חדא מסכתא הוא ה"מ לענין מחלוקת ואח"כ סתם לפי שרבי לא היה לומד כסדר אלא כמו שהיו חפצים התלמידים אבל כשחברם על הסדר חברם וצריך בכל מסכתא טעם למה נשנית אחר שלפניה כדדייק בריש מסכת שבועות (דף ב.) מכדי תנא ממכות קסליק כו' וכן בסוטה (דף ב.): ויחלוקו - תימה דמאי שנא מההיא דארבא דאמר כל דאלים גבר פרק חזקת הבתים (ב"ב דף לד: ושם) וי"ל דאוחזין שאני דחשיב כאילו כל אחד יש לו בה בודאי החצי דאנן סהדי דמאי דתפיס האי דידיה הוא וכן במנה שלישי דמדמי בגמרא לטלית חשיב ההוא שהנפקד תופס בחזקת שניהם כאילו הם עצמם מוחזקים בו לכך משני דהתם ודאי דחד מינייהו הוא ואין החלוקה יכולה להיות אמת ולכך יהא מונח אבל טלית דאיכא למימר דתרוייהו הוא יחלוקו וכן שנים אדוקים בשטר דמדמי לקמן (בבא מציעא דף ז.) למתני' משום דשניהם אדוקים בו דהחלוקה יכולה להיות אמת דאפשר שפרע לו החצי ובמנה אין דרך שיקנה לו החצי אחרי שהוא ביד חבירו אבל בארבא אע"ג דאפשר שהיא של שניהם כיון דאין מוחזקין בו הוי דינא כל דאלים גבר ולסומכוס אע"ג דאין מוחזקין בו ואין החלוקה יכולה להיות אמת היכא דאיכא דררא דממונא פירוש שבלא טענותיהם יש ספק לבית דין יחלוקו: וזה נוטל רביע - וא"ת יהא נאמן דחציו שלו מיגו דאי בעי אמר כולה שלי כדאמרי' בגמ' (לקמן בבא מציעא דף ח.) האי מיגו גופיה לפטרו משבועה אי לא משום דאיערומי קמערים ומפרש ריב"ם דמיגו להוציא לא אמרי' דבחציו השני מוחזק זה כמו זה וההיא דחזקת הבתים (ב"ב דף לב: ושם) דגחין ולחיש ליה לרבה אין שטרא זייפא הוא ומיהו שטרא מעליא הוה לי בידי ואבד והימניה רבה להוציא במיגו דאי בעי אמר שטרא מעליא הוא התם היינו טעמא משום דאפי' הוה שתיק רק שלא היה מודה שהוא מזוייף היה נאמן כי החתימה היתה נכרת לעומדים שם ורב יוסף אית ליה דאפילו מיגו לא הוה כיון שטענה ראשונה שהוא טוען בהאי שטרא הוא שקר ואין לומר מיגו אלא היכא שטענתו ראשונה היא אמת מיגו שהיה טוען אחרת ולכך אינו מיגו אפילו להחזיק כגון בעובדא קמייתא וא"ת ונימא דאין ספק מוציא מידי ודאי דהאומר כולה שלי יש לו בודאי חציה והאומר חציה שלי ספק אם יש לו בה כלום כדאמרינן בפרק החולץ (יבמות דף לח.) ספק ויבם שבאו לחלוק בנכסי סבא ספק אמר אנא בר מתנא אנא ואית לי פלגא ויבם אמר את ברא דידי ולית לך ולא מידי הוה ליה יבם ודאי וספק ספק ואין ספק מוציא מידי ודאי וי"ל דהתם יבם שהוא בנו של סבא הוי ודאי יורשו ולא יוציא הספק מספק ממונו אבל הכא אין סברא מה שהוא ודאי בחציו שיועיל לו לחציו השני:

Two [people are] holding a garment. The subject of our Mishna is how we resolve disputes about ownership. We need to understand why the Mishna’s author R’ Yehudah Hanasi, chose to discuss this subject at this point in the Mishna. As Tosfos points out, there is a precise order to the rulings of the Mishna. The previous Maseches, Bava Kama, concludes with a Mishna (119a) that discusses whether the shavings of a carpenter belong to the carpenter or to the householder who is employing him. Since at the end of the latter Hagozel (119a) the Mishna is speaking about the division of the shavings of a carpenter with the householder who is employing the carpenter and presumably pays for the wood, where the Mishna teaches: A) the shavings of an adze, which are thin and not very valuable, they belong to [the carpenter] and B) those shavings made by a hatchet, which are much thicker and more readily usable, they belong to the householder. The Mishna there is discussing the ownership of disputed property, so [the Mishna] here also teaches the laws of division of property whose ownership is in dispute. Tosfos now discusses the assumption that there must be a reason for the order in which the Mishna was arranged and that there must be a reason why the first Mishna of Bava Metzia follows the last Mishna of Bava Kama. We must first familiarize ourselves with two principles about the order of Mishnayos: The Gemara relates in Bava Kama 102a that Rav Huna ruled in accordance with R’ Yehudah. Rav Yosef was upset with Rav Huna for stating his halachic decision in this matter. It seems that Rav Yosef held there was no need for Rav Huna to state that ruling, because it is elementary that we must rule in accordance with R’ Yehudah. We will now review that Gemara and gain a better understanding of the concept of the order of the Mishna. But why did Rav Huna need to say that the halacha follows R’ Yehudah? This is a situation where we first have a dispute and then an anonymous Mishna, and when we have a dispute followed by an anonymous Mishna that rules in favor of one of the disputants the halacha follows the anonymous Mishna. The Gemara explains: The dispute is in Bav Kama (100b): one who gave wool to a dyer to dye it red and he dyed it black, or to dye it black and he dyed it red. R’ Meir says: [The dyer] gives the [wool owner] the value of his wool. The dyer now owns the dyed wool at the price of raw wool plus his expenses. It is as if he stole the wool and acquired ownership by altering it from raw wool to dyed wool. R’ Yehudah says: If the improvement of the dyed wool is greater than the expenses paid to dye the wool, [the wool owner] gives the [dyer] the expenses. If the expenses are greater than the improvement, [the wool owner] pays [the dyer] the amount of the improvement. As opposed to R’ Meir who holds that the dyer acquired ownership by dying the wool the wrong color, R’ Yehudah holds that the dyer is treated as one who improved his associate’s property without being asked to do so. He is always on the losing end as was explained. He is paid whatever is less, the expenses of dying the wool or the added value of the dyed wool. Whereas, according to R’ Meir who rules that the dyer acquires the wool, this may be to his advantage if the price of wool rose in the interim or if the color that he dyed it is now worth more than the other color. The anonymous Mishna is in Bava Metzia which follows Bava Kama. As we learned in a Mishna: Whoever alters the instructions given to him has the lower hand in resolving the ensuing dispute. For example: the dyer who did not follow instructions and dyed the wool the wrong color loses. He will treated as a worker who did not follow instruction as R’ Yehudah holds. Whoever retracts has the lower hand. Since we do have a situation of an anonymous Mishna following a dispute and we do rule that in such cases we follow the anonymous Mishna, why did Rav Huna need to rule like R’ Yehudah in this matter? It is very plain that the halacha must follow R’ Yehudah. The Gemara defends Rav Huna: What does Rav Huna hold? It is necessary to rule like R’ Yehudah. I might think that this situation does not qualify as a dispute followed by an anonymous Mishna because there is no order for the Mishna, and this might be an anonymous Mishna followed by a dispute where we rule in accordance with the opinion that argues with the anonymous Mishna. What does Rav Yosef say to this argument: If so, in any case of a dispute followed by an anonymous Mishna we should say - there is no order to the Mishna and it may be an anonymous Mishna followed by a dispute? Since we do have the rule that we follow an anonymous Mishna that is preceded by a dispute, we must assume that there is an order to the Mishna and that the Mishnayos were all written in order. What does Rav Huna say to Rav Yosef’s argument? When do we not apply the concept that - there is no order to the Mishna and we do follow the rule that the halacha is in accordance with an anonymous Mishna that follows a dispute, that is within one Maseches. All the Mishnayos within one Maseches definitely are in order and we must rule in accordance with an anonymous Mishna that follows a dispute, but in two Masechtos, we do say - there is no order to the Mishna. If for example: An anonymous Mishna in Eiruvin follows a dispute in Shabbos, we do not follow the anonymous Mishna in Eiruvin. So too, in the case of a dispute in Bava Kama and anonymous Mishna in Bava Metzia, we would not automatically rule in favor of R’ Yehudah. It was therefore necessary for Rav Huna to state his opinion that the halacha follows R’ Yehudah. If so why did Rav Yosef feel that it was unnecessary to rule in favor of R’ Yehudah? Because he holds that all of Nezikin (the three Bavas, Bava Kama, Bava Metzia and Bava Basra) are one Maseches. Thus within the thirty Perakim of these three Masechtos, there is an order and a dispute in Bava Kama that is followed by an anonymous Mishna in Bava Metzia or Bava Basra is considered to be in order and we must follow the anonymous Mishna. In summation: A) Within one Maseches all agree that there is an order to the Mishnayos and we must follow an anonymous Mishna that is preceded by a dispute. B) Between two Masechtos there is no order and when there is an anonymous Mishna in Eiruvin preceded by a dispute in Shabbos, we need not follow the anonymous Mishna. C) Within the three Mascehtos of Bava Kama, Bava Metzia and Bava Basra, there is a dispute. Rav Yosef holds they are considered one Maseches and we must follow an anonymous Mishna in Bava Metzia or Bava Basra that is preceded by a dispute in Bava Kama. Rav Huna holds that they are each separate Masechtos and they are like Shabbos and Eiruvin. Even though when considering two Masechtos, there is no order to the Mishna, and furthermore, there is one who holds that all of Nezikin is not one Maseches and it would seem that there is no need to explain why the beginning of Bava Metzia follows the end of Bava Kama, [that there is no order to Mishnayos between two Masechtos] has been said only insofar as a dispute followed by an anonymous Mishna. We cannot infer that the halacha follows the anonymous Mishna when it appears in a latter Maseches i.e. when the dispute is in Shabos and the anonymous Mishna in Eiruvin, because Rebbe did not learn the Masechtos according to the common order of the Shas. Rather he learned with his students according to the order that the students wished to learn. For example: When Rebbe finished teaching Shabbos, he may have started Bava Metzia because the students felt that they would be more successful learning Bava Metzia. However, when he put [the Masechtos] together, he put them together in a logical order. It is necessary Maseches to have a reason why each Maseches was taught after the Maseches that precedes it, as [the Gemara] deduces at the beginning of Maseches Shavuos (2a): Let us see, the Tanna just concluded Makkos etc. [why did he teach Shavuos after Makkos?]. So too, in Sotah (2a) the Gemara explains why it follows Nazir. We see that even if we do not follow an anonymous Mishna that was preceded by a dispute when the anonymous Mishna and the dispute are not in the same Maseches, there is still rhyme and reason for the order of the Masechtos. In our Mishna as well, we must know why Trebbe chose to teach this Mishna after concluding the last Mishna in Bava Kama. They divide [the garment]. Our Mishna rules that when we have a dispute over a garment and the two litigants are each holding the garment, it is to be divided between them after each of the litigants swears that his claim is true. There are other places in the Talmud where the Gemara offers different solutions to a dispute about ownership. Tosfos here will explain why in this case we rule that the garment is to be divided after the litigants swear and why elsewhere other solutions are used. The Gemara that Tosfos quotes in Bava Basra 34b is not an exact quote. The Gemara discusses a dispute between two litigants about the ownership of a boat. According to the conclusion of the Gemara the ruling is: כל דאלים גבר - Whoever is more powerful will win. In other words the courts allow the litigants to fight it out and the stronger party will overpower the weaker party. The Gemara there does not say that they should divide the ship as it says here that they must divide the garment. Why? This is bewildering! Why is this case different than the boat about which [the Gemara] says in Perek Chezkas Habatim (34b): Whoever is stronger will overpower his fellow litigant? We can answer: That our Mishna where the litigants are each in possession of the garment is different, because it is considered as if each one definitely owns half of the garment, because we, the court, are witnesses, by virtue of seeing that each litigant is holding half the garment, that what he is holding is his. When Ruvain and Shimon are both holding the garment, we cannot rule - whoever is stronger will win, because that in effect is taking the rights to half the garment away from the ultimate loser, who is presently in possession of half the garment. We have no right to take away half the garment from him when we have no evidence or any other reason to rule that it does not belong to him. In Bava Basra 34b, neither of the litigants are in possession. The ruling - that the stronger party will win - is not taking away from the ultimate loser that which is definitely his, because neither of the litigants is in possession of the contested boat. The court may choose not to rule in favor of either of the litigants, since there is no evidence for either side. Tosfos raises a difficulty with this explanation that the reason we divide the garment is because each of the litigants has some degree of possession. The Gemara on 3a quotes a Mishna on 37a, where it appears that the litigants definitely are not in possession of the disputed property and compares it to our Mishna. The Mishna later on 37a: Two people, Ruvain and Shimon, deposited money with one custodian, Levi. This one deposited one hundred zuz and that one deposited two hundred zuz. When it comes time to collect their money, this one says two hundred zuz are mine and that one says two hundred zuz are mine. The custodian gives this one a hundred zuz and that one a hundred zuz and the remaining one hundred zuz will be held in abeyance till Eliyahu comes and tells us who the rightful owner is. The Gemara on 3a compares the third hundred-zuz to the garment in our Mishna. At first glance it seems that the comparison is unfair. In our Mishna the litigants are in possession of the disputed garment. In the Mishna on 37a the disputed money is held by Levi, a third party. According to Tosfos criteria, when the disputed money is not in the litigants’ possession we should rule – כל דאלים גבר whoever is stronger will, win as we do in Bava Basra 34b. Tosfos must explain why the Gemara feels that it is a fair comparison. So too, the case of the third hundred-zuz, which [the Gemara] 3a compares to the garment of our Mishna, where the Gemara is asking that they should divide the third hundred-zuz even though each of the litigants is not in possession of that hundred zuz? This seems to contradict Tosfos’ explanation that a division is called for only when the litigants are in possession. The third hundred-zuz is not in the possession of the litigants. The custodian is holding it. [The Gemara] considers the fact that the guard who was empowered by both litigants is holding the third hundred-zuz for both of them, as if they themselves are in possession of it. This case is not similar to the ship, which is not in anybody’s possession. The third hundred zuz is actually in possession of both litigants because the guard is holding it for both litigants. Insofar as possession is concerned the third hundred-zuz is comparable to the garment of our Mishna, therefore the Gemara differentiates between the two cases as follows: there in the case of the third hundred-zuz, it definitely belongs to only one of [the litigants], and a division cannot be true justice, therefore it should remain in abeyance till Eliyahu comes and tells us who the true owner is,but in regard to a garment where it can be said that it truly belongs to both of them and we are not definitely violating the rights of one of the litigants, we rule they are to divide it. We now have two criteria for division: A) The litigants are in possession B) The division can be true justice, because it is possible that they share ownership. Tosfos explains another case that the Gemara compares to “two people who are holding a garment”. So too, the case of two, the borrower and the lender, who are holding a document, which [the Gemara] later (7a) compares to our Mishna of two people who are holding a garment, that case is comparable because they are both holding [the document]. The division might be true justice because it is possible that [the borrower] paid [the lender] half and the borrower may only owe the other half. Since we have met both criteria: A) That both litigants are showing possession and B) it is possible that our ruling is true justice, we must rule that the value of the document is divided. But why isn’t the same true of the third hundred-zuz that is held by the guard? There too A) it is being held by the guard for both litigants and B) it is possible that one bought into a partnership in the ‘third hundred zuz’, i.e. Ruvain bought something from Shimon and Shimon is using fifty zuz of the third hundred as payment for his purchase. However, in the case of the third hundred-zuz it is not the norm for one to acquire ownership of half of the third hundred-zuz while it is in the possession of his associate, the custodian. Tosfos concedes: The case of the contested boat is also one where the division might be true justice? But in the case of the contested boat, even though it is possible that [the boat] belongs to both, which satisfies criteria B) since they are not in possession of [the boat], criteria A) has not been met and the ruling is that whoever is stronger will win. But according to Sumchus, even when [the litigants] are not in possession of the disputed [property] and the division cannot be true justice, when there is a obvious doubt about who the owner of this money is, which means that even if [the litigants] were not making any claims, the courts would have a doubt as to whom the property in question belongs, we rule that they must divide the property. This [one, who claimed only half is mine,] receives a quarter [of the garment]. In Maseches Kesubos 13b and 14a, we discussed the concept of migo. We will once again review this concept. The word migo literally means - since or because. In the context of this Tosfos, we are saying that when a litigant claims A), even though his claim per se is not necessarily a winning claim, we must believe him since he could have claimed B) which is a winning claim. The word migo is now used virtually in all Talmudic lterature as a noun, which means the better claim that one might have claimed, if he is not telling the truth. What emerges from this discussion is that when considering the claims of a litigant in a court proceeding, the court must look not only at what a litigant is actually claiming, but also at what other claims were available to him. For a better understanding of migo, let us take a look at Bava Basra 45b. Rava cited a Baraisa to support Rabah’s ruling: One who gave his garment to a craftsman and there is now a disagreement about the fee. The craftsman says: You stipulated two zuz as payment. The other says: I stipulated only one zuz. The burden of proof is on the householder that he stipulated only one zuz. Otherwise, he must pay two zuz as the craftsman claims. A bit later the Gemara speculates about the reason for this ruling: Rather, it must be speaking of when there are no witnesses to verify either claim and even so the Baraisa teaches: the craftsman is believed, since if he wanted to cheat, he would have claimed that he purchased the garment and he would have won with that claim because he has possession, therefore we believe him when he says that the garment is not mine, but the householder owes him two zuz for his labor. We see that when the craftsman claims, A) my fee is two zuz and the householder claims it is only one zuz, there is no special reason to believe the craftsman anymore than the householder. However, since he could have claimed B) the article is mine because I purchased it and then we would believe him because he has possession, we must therefore believe claim A) because he could have claimed claim B). This is the concept of migo. When a litigant could have used a winning claim, we must believe his present claim, because if he was a liar, he would have simply claimed the winning claim. The fact that he is using a non-winning claim is proof of his honesty. If you ask: The litigant who claims half is mine, should be believed that half the garment is his, since if he wanted to cheat he could have said - it is all mine, and he would have received half. Tosfos proves that this is an acceptable migo: The Gemara on 8a discusses using this migo to exempt him from taking an oath: I might think: That by saying only half is mine, he should be thought of as one who is returning a lost object, since he could have just as easily claimed - it is all mine and he should be exempt from swearing. The Mishna speaks of this case to inform us - that he is attempting to deceive us. He thinks: If I claim it is all mine, I will have to swear. I will say that only half is mine, so that I will be like one who is returning a lost object and I will be exempt from swearing. The court insists that he must swear in order to discourage this deception. As [the Gemara] (8a) says this very same migo to exempt him from swearing. The Gemara would consent to this migo, if not for the concern that he is attempting to deceive us. Tosfos must now explain why the concept of migo is inoperable in our Mishna. ריב"ם explains: That we do not say the concept of migo to extract money from a litigant. It is only used for defending a litigant from having to pay. Migo works only for the defendant. It does not work for the plaintiff. But why is this thought of as ‘extracting’, the litigant who claims half is mine - is in possession of the half that he wants? For even insofar as the second half of the garment about which they are arguing, this litigant who is claiming - the entire garment is mine, is equally in possession of the portion of the garment closest to his opponent who is claiming - half is mine, as is [the litigant] who is claiming only half. The Gemara in Bava Basra 32b seems to say that migo is effective even for the plaintiff: That man who said to his friend: Give me one hundred zuz that you owe me, and this is the document. [The defendant] said: It is a forged document. [The plaintiff] bent over and said to Rabah: It is so, the document is a forgery. However, I had a true document and it was lost. I thought: I will hold this forged document in my hand as some bit of evidence. Rabah said: Why should he lie? If he wanted to lie, he would just say that it is a true document. That [Gemara] in Perek Chezkas Habatim 32b where the plaintiff presented his document showing that the defendant owed him money. The defendant claimed that the document was a forgery, whereupon the plaintiff bent over and whispered to Rabah: It is so, the document is a forgery. However, I did have a true document, but it was lost. Rabah believed [the plaintiff] to extract money from the defendant with a migo, since he could have claimed that this was a true document. It is evident from Rabah’s ruling that a migo is effective even for extracting money, not only for defending money. Tosfos is compelled to say that there are two types of migo. One type which is effective only for the defendant and another type that is effective even for the plaintiff. There in Bava Basra 32b, this is the reason that the migo is effective even for extracting funds from the defendant, for even if he would have remained silent, as long as he would not have admitted that [the document] was a forgery, he would have been believed, because the signatures were so well forged that to those who were standing there in the courtroom, they were recognized as the signatures of the witnesses. Since there was no need to respond to the charge of forgery, because it was so well done, a migo that he could have remained silent is effective even to extract funds. However, when one must respond to the charges of his opponent, migo is only effective for maintaining money, but not for extracting it. Here, in Bava Metzia 2a, when one litigant claims that the entire garment is mine, the other litigant cannot remain silent. He must respond with his claim. Since a response is required, the migo is only effective for defending money, but not for the extraction of funds. The Gemara in Bava Basra 32b continues: Rav Yosef said to [Rabah]: What evidence are you relying on to rule in this matter? This document! This document is merely a shard. But if the migo in Bava Basra 32b is so strong that it is effective even for extracting money, why does Rav Yosef disagree with Rabah? Rav Yosef holds that not only is there no special migo capable of extracting funds, but there is not even a migo at all. Since the first claim that he is claiming with this document is admittedly false. We are only to invoke migo when we will ultimately show that [the litigant’s] first claim is true, which we prove by saying that since he could have claimed a different winning claim B) it is proof that what he is presently saying, claim A), is true. But in Bava Basra 32b his initial claim that the defendant owes him money as his document attests, is admittedly untrue. He has admitted that the document is a forgery. For this reason Rav Yosef holds that this is not an acceptable migo, even for maintaining money as is evident in the first story mentioned in that Gemara, and certainly not for extracting funds from a defendant. Tosfos now wonders why in the case, where one litigant claims - it is all mine, and the other claims - half is mine, we do not rule in favor of the litigant who claims - it is all mine? Tosfos’ question is based on a Gemara in Yevamos 38a. The Gemara is discussing a case of when Ruvain married Leah and passed away childless. His brother Shimon, then took Leah in Yibum, but he did not wait the required three months needed to ascertain that Leah was not pregnant. Leah gives birth to Chanoch, but his paternity is in doubt. Is he the son of Ruvain the deceased brother or of Shimon the yavam? Yaakov, father of Ruvain and Shimon passes away. If Chanoch is the son of Ruvain, he inherits his father’s share of Yaakov’s estate. If he is the son of Shimon, he inherits nothing, because his father Shimon is still alive and Shimon will inherit all of Yaakov’s estate. Chanoch, whose paternity is dubious and Shimon, the yavam are now coming to divide the estate of Yaakov, the grandfather. [Chanoch] the dubious heir says: This man, referring to himself, is the son of the deceased Ruvain, and half of Yaakov’s estate is mine, since I inherit my father Ruvain’s share. Shimon the yavam says to Chanoch: You are my son and you have nothing at all from Raakov’s estate. The ruling: Shimon the yavam is definitely an heir of Yaakov. Chanoch, whose paternity is in doubt, is a dubious heir of Yaakov. The doubtful heir, Chanoch, cannot extract funds from the definite heir, Shimon. If you ask: Let us apply the ruling that a dubious owner of this garment cannot extract from a definite owner?For the litigant who says: The entire garment is mine, definitely has half the garment. Whereas, in regard to the litigant who says: half the garment is mine, there is a doubt whether he owns any portion at all. The situation is one of a definite owner versus a doubtful owner. We should rule in favor of the definite owner, as [the Gemara] says in Perek Hacholetz (Yevamos 38a): a dubious heir, Chanoch, and the yavam, Shimon, who come to divide the estate of Chanoch’s grandfather, Yaakov. Chanoch, the dubious heir says: I am the son of Ruvain, the deceased son of Yaakov. I am entitled to my father Ruvain’s share in Yaakov’s estate. Half of Yaakov’s estate is mine. Shimon the yavam says: You Chanoch are my son and you own nothing of Yaakov’s estate. The ruling is: Shimon is a definite heir of Yaakov, while Chanoch is a dubious heir of Yaakov, and a dubious heir cannot extract any of the estate from a definite heir. In our Mishna as well, the litigant who claims it is all mine is definitely an owner of at least half of the garment by common agreement, the litigant who claims half is mine is only a dubious owner of some of the garment, we should rule the dubious owner cannot extract from the definite owner and he should receive nothing. We can answer: That there in Yevamos 38a, the yavam Shimon, who is the son of the grandfather Yaakov, is definitely [Yaakov]’s heir. The dubious heir, Chanoch, cannot extract any of [Shimon]’s assets with his dubious claim. However, here in our case where one litigant is claiming all of the garment and his opponent claiming only half, it is not logical that because [Shimon] is definitely the owner of half the garment, that this should help him win the second half.