Shlomie was sitting with two of his friends in the school cafeteria. After finishing their meal, they decided to go get desert. Shlomie left on the table a clear envelope with a $50 bill in it.
As Shlomie and his friends were choosing desert, they saw from the distance two students walk by the table. One of them reached out and grabbed the money; the two hurried to the elevator and were gone.
Shlomie and his friends ran up the stairs. They caught the two students outside the building and confronted them. The two were the same height and dressed similarly, so Shlomie could not discern who had taken the money.
“One of you took $50 that was on our table!” he said. “Please give it back.”
“I didn’t take any money,” said the first.
“Nor did I,” said the second.
Shlomie’s eyes darkened. “That can’t be!” he exclaimed. “I saw one of you take the money. So did my two friends over here. One of you stole it!”
“Well, it wasn’t me,” said the first.
“Nor was it me,” said the second.
“Are you willing to show me your wallets?” asked Shlomie.
“Sure, but I have my own money in it,” said the first. He opened his wallet. It contained a number of $50 bills.
“Same with me,” said the second. His wallet also contained a few $50 bills.
“Well, I have witnesses who saw one of you take the $50 that was on the table,” said Shlomie. “One of you stole it and is lying.” He got their names and said he would be in contact with them.
Shlomie went to Rabbi Dayan. “I have witnesses that I left money on the table in the cafeteria and that one of two students stole it,” he said. “How can I collect payment? Does each one have to pay half?”
“Although one of the two students stole, we cannot obligate either one,” replied Rabbi Dayan. “Each one denies the claim. The halachic principle of hamotzi meichaveiro alav hare’aya – the plaintiff has the burden of the proof – applies here. Neither student can be implicated, since there is no proof he stole; the other one may be the thief. The Mishnah (B.K. 35a-b) addresses a case in which damage was done, but we are not sure who is responsible, so that all are exempt.”
“Can I impose, at least, an oath upon them?” asked Shlomie. “Let each one swear that he didn’t steal; this might make the thief admit!”
“In order to impose an oath, the plaintiff must make a definitive, or firmly based, claim,” replied Rabbi Dayan. “In our case, though, each person can be accused only with doubt. Thus, even a heses [rabbinic] oath cannot be imposed.” (C.M. 75:17)
“In a similar case,” continued Rabbi Dayan, “the Gemara [B.M. 26b] teaches that if a person who is traveling with two other people loses money, someone else who finds the money can keep it, since the loser abandons hope of reclaiming it. He assumes that one of his two colleagues found it, yet he has no way of accusing either one. However, if he traveled with only one other person, we do not presume that he abandons hope. He assumes the other person who was accompanying him took it, and can accuse him. He can impose an oath upon him or shame him into admitting.” (C.M. 262:4; Sma 262:10)
“Is there anything that beis din can do in a situation that the perpetrator is unclear?” asked Shlomie.
“In such cases of questionable claim,” replied Rabbi Dayan, “the geonim instituted that beis din can impose a general ban [cherem stam], without mentioning a name, on whoever knows the truth but does not admit it.” (C.M. 75:17; Gra E.H. 68:15)