It is a beautiful character trait to be trusting of others. It is also, all too often, foolhardy. The underlying theme of much of Bava Metzia, and for that matter all of Seder Nezikin, is that people, lie, cheat, commit adultery, and even kill. If people would be honest there would be little need for many of the Talmudic discussions that fill these pages. The Gemara is forced to spend much energy in trying to understand the mindset of those who would cheat and lie. And to one extent or another that includes all of us: “the majority [are involved] in theft, a minority in illicit relationships and all in [avak] lashon hara” (Bava Batra 165a). Yet despite our knowledge that one may cheat we all too often fail to take necessary precautions, either out of convenience or misplaced faith in those who stand before us[1].
“Two people deposit money with another, this one $100 and this one $200. This one says the $200 is mine and this one says the $200 is mine” (Bava Metzia 37a).
As the Gemara explains the shomer, guardian, did not note who gave which amount. Generally such would be considered negligence – and he would be required to pay each claimant $200. However, in this particular case the two depositors handed him a bag with $300, each trusting the other as to the correct way to divide the money. The shomer can say “you yourselves were not particular with each other, should I be particular?” Hence he is under no obligation to ask to whom the money belongs.
The first Mishna of Bava Metzia has a similar case, with two people each claiming a garment is theirs. The Mishna rules that the object should be divided in half or, if that is not possible, sold with the proceeds being split. Yet our Mishna does not even consider such a possibility. That is because it is possible that the garment actually does belong to both of them; say, for example, they unknowingly pick it up at the same time. But in our case giving each $150 would with 100% certainty create two injustices; the honest person would lose $50 and the cheat would gain that $50.
What we should do is the subject of debate: “One gives 100 to this one and 100 to that one, and the rest is put aside until Eliyahu will arrive[2]. Rav Yossi says: if so what has the cheater lost? Rather it should all be put aside until Eliyahu will arrive.”
With no debate that each is entitled to $100, the Sages argue that each should receive $100 with the court holding the third hundred. Rav Yossi disagrees, arguing that if the thief were to get his full $100 back, there would little incentive for him to admit the truth. He will receive $100 in any event. Sadly, honesty is not incentive enough. Therefore we must put the entire sum in trust. With the cheat now unable to recover his $100, there is good reason to believe he will admit the truth.
The Sages disagree, presumably arguing that it would not be fair to deprive the honest person of all his money. What if the cheat does not admit that he only deposited $100? Sadly, too many people are willing to lose $100 in order that their neighbour should lose $200. More important than punishing the cheater we must protect the victim as best we can. Worse still, there is a not unreasonable possibility that the honest one will “admit” that he only gave the $100 to ensure that he at least receives something – with the result being not only a loss of money but of reputation.
Apparently, Rav Yossi has greater faith in man. It is inconceivable – or perhaps only highly unlikely - to him that one would continue to lie when it costs both himself and others money. Not surprisingly, the law follows the view of the Sages.
The Sages and Rav Yossi debate not Jewish law but psychology. What is the most effective technique to ensure justice be served? Should we hold back all monies in the hope that the truth will emerge even at the risk that a liar might unfairly benefit? Or should we pay out that which we know with certainty, thereby minimizing the injustice even at the greater risk of never finding out the truth?
Of course there is no definitive answer to this unfortunate dilemma. With an ounce of prevention being worth a pound of cure, it’s best to never completely trust anybody in a commercial transaction. Get it in writing and witnessed by others. Avoiding foolish behaviour is more important than engaging in beautiful but misguided character development.
[1] I refer this to this as the Yitzchak syndrome: Yitzchak could not fathom what Eisav was truly like. This trait was passed down to Yaakov who sent Yosef to Shechem to see his brothers - brothers who Yaakov knew did not like Yosef. But he could not imagine that they would throw him into a pit. It is a beautiful but dangerous trait to have.
[2] This is not to be understood literally. Rather it was a way to cement the belief in the coming of the messianic era by making it part of day-to-day conversation. In a similar vein teiku, it will stand, used by the Gemara to indicate an unresolved question or debate has become an acronym for Tishbi yetaretz kushiot v’abayot, Eliyahu will resolve the unresolved questions.
