Bava Metzia, Chapter 3, Mishnah 4. We have another case before us, similar to the previous one: Two people deposited money with one watchman - "zeh maneh ve'zeh masayim" - this one a maneh and this one two hundred. One deposited a hundred and the other two hundred, and both approached the watchman at the exact same time, as if they were friends who trust one another, and together handed him three hundred for safekeeping before leaving on their vacation.
In such a situation, the watchman is permitted to accept the deposit without paying attention to which of them gave a hundred and which gave two hundred, since they appear to be friends, trust each other, and are handing over their money at the same time, so they will naturally work it out between themselves. However, when they returned from their vacation, this one says the two hundred is mine and this one says the two hundred is mine, and each one claims that the two hundred belongs to him.
The Ruling of the Tanna Kamma:
The Mishnah states: "nosen la'zeh maneh u'la'zeh maneh" - he gives a maneh to this one and a maneh to that one. Each one receives a hundred, since he definitely deposited at least a hundred. As for the third hundred - "ve'hashaar yehei munach ad she'yavo Eliyahu" - and the rest shall remain placed until Eliyahu comes: it is deposited with beis din until the liar admits to his lie, or until Eliyahu the Prophet comes and instructs who it belongs to. That is to say, we do not know how to proceed: one of the two claimants is a liar, and we are stuck. Beis din will also not force them to divide the amount between them, as it will not become a partner to giving money to a thief, and therefore does nothing.
What is the Difference Between Our Mishnah and the Previous Mishnah?
In the previous Mishnah, it was ruled that the watchman pays each of them the full amount, even though part of it comes out of his own pocket, because there was a penalty involved: the watchman was negligent and careless, as he should have kept track and known which of the two men gave him the money. In our Mishnah, however, we exempt him. Granted, if one had deposited a hundred yesterday and the other two hundred the next day, and there was no connection between them, he would have had to keep track of the matter, and if he got confused, he is at fault and will have to pay them both the full amount when each claims two hundred. But in our case, since they appear to trust one another, he is not considered negligent for not keeping track of whose hundred and whose two hundred it was. Therefore, he can say: The third hundred is not my problem but your problem, one of you is a thief, and beis din will clarify the matter - here is all the money I owe, and I wash my hands of it.
The Question of the Oath:
We spoke earlier about the watchman's oath - a Torah obligation through which the watchman can exempt himself from payment in certain cases, provided he swears that he does not owe the money. There is another oath from the Torah, and that is the oath of someone who partially admits to a claim (modeh b'miktzas):
Modeh b'miktzas: If I claim that my friend owes me two hundred, and he replies that he only owes one hundred - he pays only one hundred, since I have no proof regarding the two hundred, but he is forced to swear that there was a hundred and not two hundred.
Kofer hakol: If I claim that my friend owes me a hundred or even two hundred, and he replies that he does not know what I am talking about and owes nothing - there is no obligation to swear here. No money can be extracted from him, and the claimant, since 'the burden of proof is on the one seeking to extract from his fellow,' will have to bring proof.
In light of this, the question arises: Since each of the two depositors is claiming two hundred, and the watchman admits a hundred to this one and a hundred to that one - this is a partial admission. Why do we not obligate him with the oath of modeh b'miktzas? One answer is that the obligation of modeh b'miktzas is only stated when there is reason to suspect that the defendant is keeping something for himself. But in our case, the watchman says: Here is everything I have right here. He is returning everything, and the only question is who should be given the remaining hundred, and therefore we do not obligate him with this oath.
The View of Rabbi Yosi:
Rabbi Yosi disagrees with all of the above. "Im ken" - if so, he says, if we give each of them a hundred and leave the disputed hundred placed until Eliyahu comes - "mah hifsid ha'ramai?" - what has the swindler lost? There is no loss for the liar and schemer: he deposited a hundred, tried to scheme and extract two hundred, and in the end he receives a hundred anyway. He has lost nothing, so why would he ever confess? There is no punishment here and no loss.
Therefore, Rabbi Yosi says: "ela hakol yehei munach ad sheyavo Eliyahu" - all three hundred are left in the safe of the beis din, waiting until the swindler admits his deed. And when he confesses, he receives one hundred and not two hundred, and the two hundred will immediately be transferred to the one to whom they rightfully belong. The idea is to pressure and punish him: you will receive nothing until you confess.
An immediate question arises: This is all well and good when it comes to forcing the swindler to confess, but the other side of the coin is the innocent person, who deposited two hundred and did no wrong, yet receives nothing back. He is suffering a real loss here - how is this fair? The answer is that from a narrow perspective, it is indeed unfair, as he ends up losing. But who is the wicked one here? Who is causing the injustice? Not Rabbi Yosi and not the beis din, but rather the swindler, and he is to blame for this. It is not the fault of the beis din that it has to deal with a criminal. And in the broader view, if a rule is established that a swindler has something to lose, people will not do this in the future. This is for the public good, says Rabbi Yosi, and even though an injustice is done here in the short term - it is not the injustice of Rabbi Yosi or of the beis din, but the injustice of the swindler.
Halachah:
The halachah does not follow Rabbi Yosi, but rather the tanna kamma. Therefore, in a case where a dispute arises over who receives the third hundred, the ruling is that each person receives the hundred that certainly belongs to him, and the final third is set aside until Eliyahu the Prophet comes, or until the swindler confesses to his deed.