I think the father in law of Rav Shach [Issar Meltzar] said the Derara dememona is a doubt about where the money ought to go. I forget because I no longer have an Avi Ezri [of Rav Shach] to look up. But if that is what he said it makes sense anyway.
The reason I say this is that the Gemara in Bava Mezia 79 seems to take this as a simple matter.
The basic gemara over there says [in the third case] that if a ship with a cargo of wine sinks the if the ship owner said, "I am renting to you this ship," and the wine owner said "I am hiring you to carry this wine," then wherever the money is that is where it stays. If both said (in forth case) ("stam") "I am renting to you a ship," [not this ship] and "I am hiring you to bring wine," not this wine then they divide.
It looks like a exact copy of the mishna on page 100 and also the mishna on page 97. On page 100 the same issue came up in the Gemara and the Gemara concludes the mishna there is like Sumhos.
No one on page 79 says anything about Sumhos. Not the Tur, the Rosh, the Shulhan Aruch or the Maharsha. But interestingly enough right there the Tosphot says the reason for the case when they are both definite this ship and this wine is hezkas mamon [prior status of where the money is]. And the reason for the end when they divide is the doubt.
I recall I brought up these issues also on page 100 in my small booklet on Bava Mezia chapters 8 and 9.
[The regular way to understand Derara Demmona is a doubt to the court even without their words. Also the issue seems divided between Bava Metzia page 2b and the Gemara is Bava Batra as to what are the conditions under whcih Sumhos says they divide. Whether you need Derara Demmona or if he hold they divide with D.M. then all the more so without D.M.]
So to make it short, the major issues I see here are these. Why does Rav Papa on page 79 in the forth case not say he is going like Sumhos? And even if he would why is he not saying like Sumhos in the third case? So it looks here that you have to say this Gemara holds Drara Demmona is when there is a doubt. Furthermore why does the Gemara not go straight with the sages that say המוציא מחבירו עליו הראיה? One who take money out of a prior status needs proof.
The reason I say this is that the Gemara in Bava Mezia 79 seems to take this as a simple matter.
The basic gemara over there says [in the third case] that if a ship with a cargo of wine sinks the if the ship owner said, "I am renting to you this ship," and the wine owner said "I am hiring you to carry this wine," then wherever the money is that is where it stays. If both said (in forth case) ("stam") "I am renting to you a ship," [not this ship] and "I am hiring you to bring wine," not this wine then they divide.
It looks like a exact copy of the mishna on page 100 and also the mishna on page 97. On page 100 the same issue came up in the Gemara and the Gemara concludes the mishna there is like Sumhos.
No one on page 79 says anything about Sumhos. Not the Tur, the Rosh, the Shulhan Aruch or the Maharsha. But interestingly enough right there the Tosphot says the reason for the case when they are both definite this ship and this wine is hezkas mamon [prior status of where the money is]. And the reason for the end when they divide is the doubt.
I recall I brought up these issues also on page 100 in my small booklet on Bava Mezia chapters 8 and 9.
[The regular way to understand Derara Demmona is a doubt to the court even without their words. Also the issue seems divided between Bava Metzia page 2b and the Gemara is Bava Batra as to what are the conditions under whcih Sumhos says they divide. Whether you need Derara Demmona or if he hold they divide with D.M. then all the more so without D.M.]
So to make it short, the major issues I see here are these. Why does Rav Papa on page 79 in the forth case not say he is going like Sumhos? And even if he would why is he not saying like Sumhos in the third case? So it looks here that you have to say this Gemara holds Drara Demmona is when there is a doubt. Furthermore why does the Gemara not go straight with the sages that say המוציא מחבירו עליו הראיה? One who take money out of a prior status needs proof.
