Bava Metzia opens discussing disputes of ownership, with each party claiming they acquired the ownerless object first. The first Mishnah involve two parties arguing about the ownership of a garment, whereas in the second Mishnah, the parties are arguing about an animal. The Mishnah (1:2) teaches that if both are riding the horse, or one is riding the horse while the other is leading it and each claim that the horse is theirs, they must each swear that they own no less than half the horse, and then divide it equally.
The Bartenura initially explains that the Mishnah is teaching that riding a horse without driving it is a means of acquiring the horse, even if the horse remains stationary. However, when considering the second case, where one of the parties is leading the horse, the Bartenura explains that the rider only acquires the horse if he kicks the horse causing it to move. If the rider was only seated on the horse, then it would belong to one that lead it. The Tosfot Yom Tov however finds the two explanation of the Bartenura contradictory as they express two opinions raised in the Gemara: is straddling the horse is enough to acquire it or does one need to drive it by kicking it as well. The latter understanding is the opinion of Shmuel.
The Tosfot Yom Tov cites other opinions that are consistent with their explanation of the Mishnah. For example, the Rosh maintains that one only acquires the horse if he kicks it while riding it in both cases. The first case that involves two riders is necessary to teach that we do not say that the one in the front has a stronger claim or made a stronger act of acquisition. The second case is important to teach that despite the rider both sitting on and driving the horse, he does not have a stronger claim then the person guiding it while walking. The Rif on the other hand explains that in both cases the rider is simply seated on the horse. How do we explain that opinion of the Bartenura that explains both cases differently?
The Chidushei Mahariach suggest that the Bartenura maintains the position of Shmuel. The issue the Bartenura addresses in his explanation is the novelty of the first case. In the first case, iff they are both simply seated on the horse, then neither performed the kinyan and if both kicked the horse, then he feels the ruling is obvious. Consequently, the Chidushei Mahariach explains that according to Shmuel it is true that being seated on the horse alone does not affect the kinyan. If we saw a person go and sit on a stray horse and another then grab it and lead, then it would indeed belong to the second person. The Mishnah is teachings us that if we find a person already seated on a hefker horse, we can assume that the kinyan was already performed. In other words, the rider has a chazaka (presumed status) that he acquired this horse. Consequently, regarding the first case, when the Bartenura explains that two individuals that are seated on the horse have acquired it even without driving it, the Bartenura means that we assume that the two individuals have a chazaka of ownership and another person cannot try and seize it.
Receive our publication with an in depth article and revision questions.
Listen to the new Mishnah Shiurim by Yisrael Bankier