# dafyomi

lvr: 46
dfh: b
trd:
<p>
<br>     <b><font color='darkgreen'>(m)  Rejection:</font></b> The Beraisa is R. Elazar b'Rebbi Shimon, who
          says that witnesses obligate a fine even after an
          admission. We ask according to Chachamim.
<br>     <b><font color='darkgreen'>(n)  Question (Seifa of the Beraisa):</font></b> If Shimon confessed on
          his own, he is exempt.
<br>          <b><font color='darkgreen'>1.   (Presumably, this is even if witnesses testify
               later.) This is like Chachamim!
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> No, the entire Beraisa is R. Elazar;
             </font></b>  i.   It teaches that the only time he is exempt when
                    he admits is if witnesses never testify.
<br>
<b><font color='blue'>4) CLAIMING ON BEHALF OF ANOTHER</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> Witnesses are exempt for Shevu'as ha'Edus if
          asked to testify about any of the following: 'I am a
          Kohen, or a Levi, or (regarding a Kohen) that my mother
          was not divorced or a Chalutzah, or that Ploni is a
          Kohen, or a Levi, or that his mother was not divorced or
          a Chalutzah, or that Reuven raped or enticed his (Rashi -
          Ploni's; some explain - own) daughter, or that my son
          wounded me, or that Shimon wounded me or burned my stack
          on Shabbos.'
<br>     <b><font color='darkgreen'>(b)  (Gemara) Inference:</font></b> They are exempt only because they
          were asked to testify about Ploni's lineage. Had they
          been asked to testify that Shimon owes him money, they
          would be liable!
<br>     <b><font color='darkgreen'>(c)  Question:</font></b> The continuation of our Mishnah (35a) teaches
          that they are liable only if the claimant asked them!
<br>     <b><font color='darkgreen'>(d)  Answer (Shmuel):</font></b> They would be liable if someone with a
          Harsha'ah (power of attorney) asked them to testify.
<br>     <b><font color='darkgreen'>(e)  Question:</font></b> Chachamim of Neharde'a taught that we do not
          write a Harsha'ah on Metaltelim!
<br>     <b><font color='darkgreen'>(f)  Answer:</font></b> That is only if the defendant denied owing. If
          not, we may write it.
<br>
<b><font color='blue'>5) THERE MUST BE A MONETARY CLAIM</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Beraisa) Question:</font></b> What is the source that witnesses are
          liable for Shevu'as ha'Edus only if there was a monetary
          claim?
<br>     <b><font color='darkgreen'>(b)  Answer #1 (R. Eliezer):</font></b> The word 'Oh' is repeated in the
          Parshah of Shevu'as ha'Edus, and also in Shevu'as
          ha'Pikadon;
<br>          <b><font color='darkgreen'>1.   Just like the latter refers to a claim of money,
               also the former.
<br>          <b><font color='darkgreen'>2.   Question:</font></b> Why not learn from the Parshah of a
               murderer, in which the word 'Oh' is repeated, yet it
               does not refer to a claim of money?
<br>          <b><font color='darkgreen'>3.   Answer:</font></b> It is preferable to learn Shevu'as ha'Edus
               from another Parshah that involves an oath.
<br>          <b><font color='darkgreen'>4.   Question:</font></b> Why not learn from the Parshah of Sotah,
               in which the word 'Oh' is repeated and it involves
               an oath, yet it does not refer to a claim
               (primarily) of money?
<br>          <b><font color='darkgreen'>5.   Answer:</font></b> It is preferable to learn Shevu'as ha'Edus
               from another Parshah that involves an oath and does
               not involve a Kohen.
 </font></b>    (c)  Answer #2 (R. Akiva): 'Ki Yesham l'Achas <i>me</i>'Eleh' - for
          <i>some</i> of these oaths he is liable, but not for others;
<br>          <b><font color='darkgreen'>1.   He is liable for those with a claim of money, and
               exempt for others (later we will explain how he
               learns this).
 </font></b>    (d)  Answer #3 (R. Yosi ha'Galili): 'V'Hu Ed <i>Oh</i> Ro'oh <i>Oh</i>
          Yoda' discusses testimony possible through seeing
          (without understanding) <i>or</i> knowing (without seeing).
          (These apply only in monetary cases.)
<br>          <b><font color='darkgreen'>1.   An example of seeing without understanding is if
               they saw Reuven give Shimon money, but they do not
               know why;
<br>          <b><font color='darkgreen'>2.   An example of knowing without seeing is if they
               heard Shimon admit to Reuven.
<br><b><font color='darkgreen'><b><font color='darkgreen'>

<br><p>

sjt:
</p><p>
<font><b>2) THE DIFFERENCE BETWEEN A 'HARSHA'AH' AND A 'SHALI'ACH'</b></font>
<br>QUESTION: The Mishnah states that when witnesses deny knowing testimony about matters that involve one's personal status (such as whether he is a Kohen, Levi, Ben Gerushah, or Ben Chalutzah), they are not obligated to bring a Korban Shevu'as ha'Edus. The Gemara explains that they are exempt because testimony about a person's status is not a monetary matter, and the laws of Shevu'as ha'Edus apply only to testimony about monetary matters. This implies that denying testimony that even indirectly involves a monetary obligation <i>would</i> obligate the witnesses to bring a Korban Shevu'as ha'Edus. For example, when an uninvolved party makes witnesses swear that they do not know testimony about a loan that took place between two other people, those witnesses may be obligated to bring a Korban Shevu'as ha'Edus.
</p><p>
The Gemara asks that this contradicts the Mishnah later (35a). The Mishnah states that when witnesses are told by a Shali'ach of the plaintiff to come and testify on his behalf and they swear that they do not know testimony, they are <i>not</i> obligated to bring a Korban. In order to be obligated to bring a Korban, the witnesses must deny knowing testimony <i>to the plaintiff himself</i>. According to that Mishnah, denial of testimony to a third party, even about a monetary matter, does not obligate the witnesses to bring a Korban. However, according to the Mishnah here, the witnesses <i>should</i> be obligated, because the testimony that they are denying involves a monetary matter.
</p><p>
Shmuel resolves this contradiction by saying that when the witnesses deny knowing testimony to a third party who has a Harsha'ah (see Insights to 31:1), they are obligated to bring a Korban. The Mishnah later refers to a third party who has no Harsha'ah.
</p><p>
This answer is difficult to understand. What difference does having a Harsha'ah make? The Gemara in Bava Kama (70a) says that a Harsha'ah works because the recipient of the Harsha'ah becomes a Shali'ach of the plaintiff. If this is the power of a Harsha'ah, then what is the difference between having a Harsha'ah and being a Shali'ach?
</p><p>
ANSWERS:
<br>(a) The <b>RA'AVAD</b> answers that there are different forms of Harsha'ah. The form of Harsha'ah to which Shmuel is a Harsha'ah which makes the agent an actual partner of the plaintiff in the monies being sought. Consequently, the agent indeed is the plaintiff. The Gemara itself in Bava Kama mentions this power of Harsha'ah.
</p><p>
(b) Alternatively, the Ra'avad answers that when the Mishnah later says that a witness' denial of testimony to a Shali'ach cannot obligate him to bring a Korban, it refers to a Shali'ach who is appointed <i>only</i> to administer an oath to the witness. Such a Shali'ach is not considered the representative of the plaintiff; rather, he is the plaintiff's vehicle for administering the oath. Such a Shali'ach cannot obligate the witness to bring a Korban. If, however, a person represents the plaintiff in the case, then when the witness denies testimony to that person he is obligated to bring a Korban Shevu'as ha'Edus. A Harsha'ah, which works like a Shali'ach, is also capable of obligating the witness.
</p><p>
The <b>RITVA</b> rejects the Ra'avad's answers. If the Ra'avad's first explanation was Shmuel's intention, then Shmuel should have said that the Mishnah -- which implies that the witnesses <i>are</i> obligated -- refers to a case in which the plaintiff made the person his partner, and not to a case in which the person comes with a Harsha'ah. (Although one form of Harsha'ah makes him a partner, this is not the normal form of Harsha'ah and thus it is unlikely that Shmuel would have used the word in this way.)
</p><p>
The Ritva also rejects the Ra'avad's second explanation (that when the Mishnah later mentions a Shali'ach, it refers only to one appointed to administer a Shevu'ah, and not to a full representative of the plaintiff). Here, too, the word 'Shali'ach' is not being used in its usual way; the simple meaning of 'Shali'ach' is a full representative of the sender. If Shmuel meant what the Ra'avad says, then he should have differentiated between a Shali'ach appointed merely to administer a Shevu'ah and a full Shali'ach. Moreover, the Gemara asks a question from the statement of Neharda'i, who rule that a Harsha'ah is not written for monetary matters. According to the Ra'avad, Shmuel could have answered that the agent (in the case of the Mishnah here) is a full Shali'ach, without mentioning a 'Harsha'ah.'
</p><p>
(c) The <b>RITVA</b> answers that when the Gemara in Bava Kama (70a) says that a Harsha'ah works because the person becomes a Shali'ach of the plaintiff, it does not refer to all aspects of a Harsha'ah. The Gemara there discusses a specific case in which the person holding the Harsha'ah seized money or goods from the defendant. The plaintiff wrote in his Harsha'ah (according to the Ritva's text; see <b>RASHI</b> in Bava Kama there for other opinions) that 'anything that comes from this case should be given back to me.' This means that the agent does not keep any of the money he retrieves; he is not a partner but a Shali'ach. The Ritva explains in the name of the <b>RAMAH</b> that the Harsha'ah allows the Shali'ach only to use the money as a loan for thirty days, before he returns it to the owner. (See also <b>RAMBAN</b> in Milchamos, page 27b of the pages of the Rif.) The Gemara in Bava Kama discusses only the rights of the Shali'ach to the money that he retrieved. The Gemara does <i>not</i> mean that a person who comes with the power of a Harsha'ah is considered merely like a Shali'ach. Rather, he is considered like the plaintiff himself. Shmuel's answer emphasizes that difference.
</p><p>
(d) <b>TOSFOS</b> answers that in the context of the Mishnah here, a Harsha'ah refers to a Shali'ach who is given the power to extricate money from the defendant, as opposed to an ordinary Shali'ach who is merely a representative of the plaintiff.
</p><p>
According to Tosfos, the word 'Shali'ach' usually refers to an agent who does <i>not</i> have the power to extricate money, while an agent with the power of a Harsha'ah <i>does</i> have that power. (This explains why the Gemara questions Shmuel's answer from the law that a Harsha'ah is not written for monetary matters.) (Y. Montrose) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) THERE MUST BE A MONETARY CLAIM (cont.)</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Answer #4 (R. Shimon):</font></b> A Korban is brought for (a false)
          Shevu'as ha'Edus, just like for Shevu'as ha'Pikadon;
<br>          <b><font color='darkgreen'>1.   Just like Shevu'as ha'Pikadon is when there is a
               claim of money, also Shevu'as ha'Edus.
<br>          <b><font color='darkgreen'>2.   Suggestion:</font></b> A Kal va'Chomer should teach this!
               Shevu'as ha'Pikadon applies equally to men and
               women, to relatives and strangers, valid and invalid
               witnesses, he is liable for every false oath, in
               Beis Din or outside, yet it only applies when money
               was claimed;
             </font></b>  i.   Shevu'as ha'Edus only applies to men, (who are)
                    strangers and valid witnesses, and he is liable
                    only for one false oath if it was in Beis Din.
                    All the more so it applies only when money was
                    claimed!
<br>          <b><font color='darkgreen'>3.   Rejection:</font></b> We can refute the Kal va'Chomer, for
               Shevu'as ha'Pikadon has leniencies (based on what is
               explicit in the Parshah, like we will explain
               later). One is liable only if he swore himself, and
               he was Shogeg, whereas one is liable for Shevu'as
               ha'Edus even if the oath was imposed on him, and
               even if he was Mezid!
<br>          <b><font color='darkgreen'>4.   Rather, we learn from (Shevu'as ha'Pikadon from) a
               Gezerah Shavah 'Secheta-Secheta.'
 </font></b>    (b)  Question (against R. Eliezer - Rabah bar Ula): The word
          'Oh' is repeated also in the Parshah of Shevu'as Bituy,
          which involves an oath and does not involve a Kohen, and
          it applies even when there is no claim of money!
<br>     <b><font color='darkgreen'>(c)  Answer #1:</font></b> It is preferable to learn from Shevu'as
          ha'Pikadon, for also in that Parshah it says 'Secheta.'
<br>     <b><font color='darkgreen'>(d)  Objection:</font></b> It is preferable to learn from Shevu'as Bituy,
          for which a Chatas is brought (like Shevu'as ha'Edus, but
          an Asham is brought for Shevu'as ha'Pikadon)!
<br>     <b><font color='darkgreen'>(e)  Answer #2:</font></b> Rather, we learn from Shevu'as ha'Pikadon, for
          this resembles Shevu'as ha'Edus in the following ways: in
          both Parshiyos it says 'Secheta', one is liable even for
          Mezid, they come through claim and denial, and the oaths
          apply only to what already happened,
<br>     <b><font color='darkgreen'>(f)  Question:</font></b> We should learn from Shevu'as Bituy, which
          resembles Shevu'as ha'Edus in these respects: a Chatas is
          brought for them, the Korban is an Oleh v'Yored, and they
          do not obligate adding a Chomesh (a quarter of the
          principal; one who takes a false Shevu'as ha'Pikadon must
          add a Chomesh)!
<br>     <b><font color='darkgreen'>(g)  Answer:</font></b> There are more similarities to Shevu'as
          ha'Pikadon.
<br>     <b><font color='darkgreen'>(h)  (Beraisa - R. Akiva):</font></b> 'Ki Yesham l'Achas <i>me</i>'Eleh' - for
          <i>some</i> of these oaths he is liable, but not for others;
<br>          <b><font color='darkgreen'>1.   He is liable for those with a claim of money, and
               exempt for others.
 </font></b>    (i)  Question: Perhaps we should learn oppositely (to exempt
          only for monetary claims)!
<br>     <b><font color='darkgreen'>(j)  Answer:</font></b> R. Akiva also learns from the repetition of 'Oh'
          in the Parshiyos of Shevu'as ha'Edus and Shevu'as
          ha'Pikadon, like R. Eliezer.
<br>     <b><font color='darkgreen'>(k)  Question:</font></b> What is the difference (in Halachah) between R.
          Eliezer and R. Akiva?
<br>     <b><font color='darkgreen'>(l)  Answer #1:</font></b> They argue about witnesses about land. R.
          Eliezer obligates them (he holds that land can be stolen,
          and Shevu'as ha'Pikadon and Shevu'as ha'Edus apply to
          land), R. Akiva exempts (he learns from 'me'Eleh').
<br>     <b><font color='darkgreen'>(m)  Question:</font></b> According to R. Yochanan, who says that even R.
          Eliezer exempts witnesses about land, what do they argue
          about?
<br>     <b><font color='darkgreen'>(n)  Answer #2:</font></b> They argue about witnesses about a fine. R.
          Eliezer obligates them, and R. Akiva exempts (from
          '<i>me</i>'Eleh').

<b><font color='blue'>2) WITNESSES WHO DID NOT SEE OR KNOW</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Beraisa - R. Yosi ha'Galili):</font></b> 'V'Hu Ed <i>Oh</i> Ro'oh <i>Oh</i>
          Yoda' discusses (monetary) testimony, which is possible
          through seeing (without understanding) <i>or</i> knowing
          (without seeing).
<br>     <b><font color='darkgreen'>(b)  Suggestion (Rav Papa):</font></b> R. Yosi ha'Galili argues with R.
          Acha.
<br>          <b><font color='darkgreen'>1.   (Beraisa - R. Acha):</font></b> If a dead camel was found near
               a camel that was kicking (or mating), surely, the
               latter killed it.
<br>          <b><font color='darkgreen'>2.   If R. Yosi held like R. Acha, he would find
               testimony of knowing without seeing (the action)
               also in capital cases, like the case that R. Shimon
               ben Shetach saw!
             </font></b>  i.   (Beraisa - R. Shimon ben Shetach): I saw Reuven
                    chase Levi into a ruin. I ran after him, and
                    saw Levi dying and blood dripping from a knife
                    in Reuven's hand.
<br>               <b><font color='darkgreen'>ii.  R. Shimon ben Shetach:</font></b> Surely you killed him,
                    but I cannot convict you - 'Al Pi Shnayim
                    Edim... Yumas ha'Mes.' I must leave it for
                    Hash-m to punish you.
<br>               <b><font color='darkgreen'>iii. </font></b>Before they left, a snake bit and killed
                    Reuven.
<br>     <b><font color='darkgreen'>(c)  Rejection (Abaye):</font></b> R. Yosi ha'Galili can agree with R.
          Acha;
<br>          <b><font color='darkgreen'>1.   In capital cases, even though we find testimony of
               knowing without seeing, we do not find testimony of
               seeing without knowing;
<br>          <b><font color='darkgreen'>2.   It does not suffice to say 'we saw Reuven kill this
               man' unless they know that the victim was a Yisrael
               and was not a Treifah (he did not already have a
               mortal injury).
 </font></b></font></b>    (d)  Inference: R. Yosi ha'Galili must hold that Shevu'as
          ha'Edus does not apply to fines.
<br>          <b><font color='darkgreen'>1.   In fines, even if we find testimony of knowing
               without seeing, we do not find testimony of seeing
               without knowing;
<br>          <b><font color='darkgreen'>2.   It does not suffice to say 'we saw Reuven entice or
               rape this girl' unless they know that she was a Bas
               Yisrael and was a virgin.
 </font></b></font></b>    (e)  Question (Rav Yehudah): If Shimon told Levi 'I gave 100
          Zuz to you in front of Ploni and Almoni', and Ploni and
          Almoni saw this from outside, what is the law?
<br>
<br>

sjt:
<font><b>1) GIVING WARNING WITHOUT SEEING THE CRIME</b></font>
<br>QUESTION: A Beraisa relates that Rebbi Shimon ben Shetach saw a person chasing someone else into a ruined building. He ran after them, and when he reached them he saw the pursuer holding a sword dripping with blood, and he saw the victim convulsing. He declared, 'Rasha! Who killed him? Either I did or you did! But what can I do [to you], as your blood is not given over to my hand, because the Torah says, 'Al Pi Shenayim Edim O Sheloshah Edim Yumas ha'Mes' -- 'By the testimony of two witnesses or three witnesses shall he who deserves death be put to death; but by the testimony (lit. mouth) of one witness he shall not be put to death' (Devarim 17:6). Rather, Hash-m shall collect from you!' Immediately, a snake came and bit the murderer, and he died.
</p><p>
Why did Rebbi Shimon ben Shetach declare that the only impediment to bringing the murderer to justice was that there were not two witnesses? Even if Rebbi Shimon ben Shetach had witnessed the murder with another person, Beis Din would not have been able to punish the murderer, since the murder was given no Hasra'ah (warning)! Why did he not mention the lack of Hasra'ah?
</p><p>
ANSWERS:
<br>(a) The <b>RASHBA</b> and <b>RAMBAN</b> answer (in their second explanation) that the murderer was a learned person who already knew the Halachah. Rebbi Shimon ben Shetach follows the opinion of Rebbi Yosi (Makos 6b) who rules that a learned person does not need Hasra'ah in order to be punished for a wrongdoing. This is also the answer of <b>TOSFOS</b> here (DH Al Pi Shenayim Edim).
</p><p>
(b) The Rashba and Ramban answer (in their first explanation) that while he was running after him, Rebbi Shimon ben Shetach <i>did</i> warn the murderer not to kill. The Beraisa simply does not mention that detail of the incident.
</p><p>
<b>TOSFOS</b> in Sanhedrin (37b) challenges this answer. The Gemara here seeks to show that according to Rebbi Yosi ha'Glili, a person should be able to testify as a witness in court about an event that he <i>knows</i> happened, even though he did not actually <i>see</i> the event happen (as in the incident involving Rebbi Shimon ben Shetach). Such testimony should suffice to incriminate a murderer and have him put to death. However, according to this answer of the Rashba and Ramban, this is not true. The Halachah states that the Hasra'ah given to a sinner must be within 'Toch Kedei Dibur' of the sin. How could witnesses who do not actually see the event know whether or not a warning was given within that amount of time before the sin? Tosfos therefore concludes that the correct answer is the first one: the situation (of testifying based on knowledge of the event) must involve a learned person who does not need a warning to be liable.
</p><p>
The <b>AYELES HA'SHACHAR</b> explains that the Rishonim here disagree about a basic element of Hasra'ah. Tosfos maintains that when the Torah requires that Hasra'ah be given immediately before the Aveirah, it means that the Hasra'ah must be given immediately before the actual sin is committed. The Rashba and Ramban argue that as long as the person is running towards the Aveirah, warning immediately before the <i>running</i> is also considered immediately before the Aveirah and constitutes a proper Hasra'ah. This is why Tosfos' difficulty does not bother them; they maintain that the Hasra'ah is valid even when the witnesses warn the potential sinner when he starts to run towards his sin. (They are not concerned that the potential sinner will decide to desist and then change his mind again and commit the sin without Hasra'ah in such a short period of time.) (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) MUST ONE DEFEND HIS CLAIMS?</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   Question (Rav Yehudah):</font></b> If Shimon told Levi 'I gave
               100 Zuz to you in front of Ploni and Almoni', and
               they saw this from outside, what is the law?
<br>          <b><font color='darkgreen'>2.   Answer (Rav Hamnuna):</font></b> If Levi denied ever getting
               the money, when Ploni and Almoni testify, he is
               Huchzak Kafran (established to be a liar). If Levi
               says 'yes. You paid me 100 Zuz that you owed me', he
               is exempt.
<br>          <b><font color='darkgreen'>3.   (Reish Lakish):</font></b> If Reuven told Yehudah 'I gave 100
               Zuz to you next to this pillar', and Yehudah said 'I
               did not pass by this pillar,' and witnesses
               testified that he once urinated by the pillar, he is
               Huchzak Kafran.
<br>          <b><font color='darkgreen'>4.   Objection (Rav Nachman):</font></b> Yehudah did not say that he
               <i>never</i> passed by the pillar. Rather, he did not
               receive money by it! Rather, if Reuven said 'I gave
               100 Zuz to you next to this pillar', and Yehudah
               said 'I never passed by it,' and witnesses testified
               that once he urinated by it, he is Huchzak Kafran.
<br>          <b><font color='darkgreen'>5.   Objection (Rava):</font></b> Since Yehudah never thought that
               it was relevant if he was by the pillar, he never
               put it to his mind, so it is reasonable that he does
               not remember that he was once there.
<br>          <b><font color='darkgreen'>6.   41a:</font></b> Reuven claimed a Maneh from Shimon. Shimon said
               'I paid you in front of Ploni and Almoni.' Ploni and
               Almoni said 'we never saw this.'
<br>          <b><font color='darkgreen'>7.   (Rav Sheshes):</font></b> Shimon is Huchzak Kafran.
<br>          <b><font color='darkgreen'>8.   (Rava):</font></b> No. Anything that is not incumbent on a
               person, he is not mindful about it.
<br>          <b><font color='darkgreen'>9.   Bava Basra 169b (Beraisa - Rebbi):</font></b> If Levi says that
               he has a document and a Chazakah for his land, he
               must produce the document;
<br>          <b><font color='darkgreen'>10. </font></b> R. Shimon ben Gamliel says, he brings witnesses of
               Chazakah.
<br>          <b><font color='darkgreen'>11.  170a:</font></b> They argue about whether one must clarify all
               his claims. Rebbi holds that he must validate the
               document <i>and</i> bring witnesses of Chazakah. R.
               Shimon ben Gamliel holds that witnesses of Chazakah
               suffice.
<br>          <b><font color='darkgreen'>12. </font></b> A lender claimed from R. Aba, who answered 'I paid
               you in front of Ploni and Almoni.' R. Yitzchak
               Nafcha (the judge) said 'let them come to testify!'
<br>               <b><font color='darkgreen'>i.   R. Aba:</font></b> I do not need them! One who borrowed
                    money in front of witnesses (without a
                    document), need not pay in front of witnesses!
<br>               <b><font color='darkgreen'>ii.  R. Yitzchak Nafcha:</font></b> You yourself taught in
                    Rav's name that if one says 'I paid you in
                    front of Ploni and Almoni', they must testify
                    for him!
<br>               <b><font color='darkgreen'>iii. R. Aba:</font></b> Rav said that the Halachah follows R.
                    Shimon ben Gamliel. Even Rebbi said to validate
                    the document just to clarify his claim!
<br>               <b><font color='darkgreen'>iv.  R. Yitzchak Nafcha:</font></b> Also I said only that they
                    should testify in order to clarify your claim!
<br>          <b><font color='darkgreen'>13.  Sanhedrin 23a (Mishnah - R. Meir):</font></b> Either party can
               disqualify the other's witnesses;
<br>          <b><font color='darkgreen'>14. </font></b> Chachamim say, he must prove that they are relatives
               or Pesulim.
<br>          <b><font color='darkgreen'>15.  23b (Rav Dimi):</font></b> The case is, he said 'I have two
               pairs of witnesses.' R. Meir and Chachamim argue
               about whether he must defend his claim.
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.  </font></b> The Rif and Rosh (6:17) brings the Gemara on 41a.
<br>               <b><font color='darkgreen'>i.   Ran (DH Kol):</font></b> In Bava Basra, we say that when
                    witnesses testify unlike he claimed, he is
                    Huchzak Kafran, even if it was not incumbent on
                    him! R. Chananel (and Rashi) say that if
                    witnesses say that he never paid, he is not
                    believed and he must pay. The Rif omitted this.
                    He brought only our Gemara. He rejected that
                    Sugya due to ours. This is astounding! R.
                    Yitzchak Nafcha ruled even like Rebbi! The
                    Halachah follows Rebbi. The Rashba gave the
                    best answer to this. One must clarify only in
                    cases like a document and a Chazakah, for a
                    Chazakah depends on the document. It is Batel
                    if the document is Pasul. If one ate Peros due
                    to a document, and it was found to be Pasul,
                    the Chazakah is Batel. Since he says that he
                    had the document, he must bring it. A claim of
                    payment in front of witnesses is not due to the
                    witnesses. The witnesses are an extra matter,
                    so even if the witnesses deny it he is believed
                    according to Rava, whom the Halachah follows.
                    Even Rebbi agrees. In Sanhedrin, we suggested
                    that R. Meir and Chachamim argue about one who
                    has two pairs of witnesses, like Rebbi and R.
                    Shimon ben Gamliel. We rejected this, for even
                    Rebbi could agree that one need not clarify in
                    this case, for neither (pair) depends on the
                    other. This shows that whenever one matter does
                    not depend on the other, e.g. I paid in front
                    of Ploni and Almoni, Rebbi holds that one need
                    not clarify. R. Yitzchak Nafcha told R. Aba to
                    clarify his claim, for R. Yitzchak holds like
                    the opinion that Rebbi argues even in such a
                    case. Also Rav Sheshes holds like this. The
                    Halachah follows Rava. This is why the Rif
                    omitted the case in Sanhedrin.
<br>               <b><font color='darkgreen'>ii.  Rebuttal (Gra CM 70:9):</font></b> If Rebbi holds that one
                    need not clarify when neither (pair) depends on
                    the other (but elsewhere, if he did not
                    clarify, he is liable), in Sanhedrin we must
                    explain that Chachamim require clarifying in
                    every case (and the Halachah follows them
                    against R. Meir)!
<br>               <b><font color='darkgreen'>iii. Hagahos Ashri:</font></b> If he said 'I surely paid you in
                    front of them, and not in private' (and they
                    denied this), he is Huchzak Kafran. R. Baruch
                    disagrees. Perhaps the witnesses forgot, for
                    their testimony was not needed.
<br>          <b><font color='darkgreen'>2.   Rambam (Hilchos To'en 6:34):</font></b> If Reuven claimed from
               Shimon, and Shimon said 'I paid you in front of
               Ploni and Almoni', and they said that they never saw
               this, Shimon is not Huchzak Kafran. Witnesses
               remember only what they are witnesses about.
               Therefore, Shimon swears Heses and he is exempt.
<br>          <b><font color='darkgreen'>3.   Rambam (5):</font></b> If Reuven claimed from Shimon, and there
               are witnesses, and Shimon said 'I paid you in front
               of Ploni and Almoni', we tell Shimon to bring them
               and be exempt. If they did not come, or died or went
               abroad, Shimon swears Heses that he paid. We require
               him to bring them only to clarify is words and be
               exempt from swearing. If one lends with witnesses,
               the borrower need not pay in front of witnesses.
<br>               <b><font color='darkgreen'>i.   Magid Mishneh (5):</font></b> All the Meforshim ask about
                    Halachah 4 from Bava Basra, in which R. Aba
                    needed to bring witnesses just to clarify. The
                    Rambam explains that he must clarify to be
                    exempt from an oath. Here, there were witnesses
                    about the loan. In Halachah 4, there were not.
                    Or, perhaps the Rambam distinguishes between
                    saying 'I paid you in front of Ploni and
                    Almoni' and 'didn't I pay you in front of Ploni
                    and Almoni?!' Some Meforshim distinguish this
                    way. Many say that in this case, if the
                    witnesses contradict Shimon, he must pay. It
                    seems that the Rambam holds like this. We hold
                    like Rava, but not like R. Yitzchak Nafcha. One
                    must clarify only regarding a document and a
                    Chazakah on land, for the Chazakah is due to
                    the document. One is believed to say that he
                    paid a loan, therefore, one is always believed
                    (even if he cannot bring the witnesses). This
                    is why the Rif omitted the case in Bava Basra.
                    The Rashba and Ramah agree.
<br>               <b><font color='darkgreen'>ii.  Hagahos Ashri (Sanhedrin 3:4(7)):</font></b> If Shimon
                    said 'I paid you in front of Ploni and Almoni',
                    they need not come to testify. Further, even if 
                    they said that they never saw this, Shimon
                    swears Heses and he is exempt. Rashi holds that
                    even an oath does not exempt Shimon, until they
                    testify.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (CM 70:2):</font></b> If Shimon said 'I paid you
               in front of Ploni and Almoni', we tell him to bring
               them and exempt himself (Rema - for one must
               clarify). If he did not bring them, or even if they
               contradict him and say 'this never happened', he
               swears Heses and he is exempt. If he says that he
               summonsed them to be witnesses when he paid and they
               contradict him, he must pay.
<br>               <b><font color='darkgreen'>i.   Beis Yosef (DH veha'Ran):</font></b> Why did the Tur say
                    that the Ramah holds like the Rif? The Ramah
                    says that if one said incredulously 'didn't I
                    pay you in front of Ploni and Almoni', he is
                    not Huchzak Kafran even if they contradict him.
                    This connotes that if he said definitely and
                    they contradict him, he is Huchzak Kafran.
                    Perhaps the Ramah seeks to resolve the Sugya in
                    Bava Basra with the Sugya in Shevuos. In the
                    former he spoke definitely, and in the latter
                    the spoke incredulously. Rashi holds that he
                    never needs to clarify his words, for anything
                    that is not incumbent on a person, he is not
                    mindful about it. This is like the Ran, Rashba
                    and Magid Mishneh.
<br>               <b><font color='darkgreen'>ii.  Tur:</font></b> The Ba'al ha'Ma'or says that he is Huchzak
                    Kafran only if he summonsed them to be
                    witnesses.
<br>               <b><font color='darkgreen'>iii. Beis Yosef (DH v'Chen):</font></b> The Tur says that the
                    Rambam holds like the Rif. They are very
                    different! The Rif omitted the case in Bava
                    Basra, and brought only the case in Shevuos.
                    The Rambam brought both of them. Rather, the
                    Rambam distinguishes, like the Ba'al ha'Ma'or,
                    between whether or not he summonsed the
                    witnesses. This is why Halachah 4 says
                    'witnesses remember only a matter that they
                    were (summonsed to be) witnesses about.'
                    Perhaps the Rambam equates both cases. However,
                    Halachah 5 says 'if they did not come, or died
                    or went abroad.' It seems that he did not
                    discuss if they contradict Shimon, for then
                    Shimon would be liable.
<br>               <b><font color='darkgreen'>iv.  Bedek ha'Bayis:</font></b> Perhaps the Rambam merely gave
                    the usual reasons why witnesses would not come.
                    L'Halachah, all agree that when the witnesses
                    do not come, is swears and he is exempt. If
                    they contradict him, the Rif, Rashbam and
                    Rashba exempt, and perhaps also the Rambam, so
                    we do not make him pay. If he summonsed the
                    witnesses, presumably they would have
                    remembered, so if they do not he is liable.
<br>               <b><font color='darkgreen'>v.   SMA (8):</font></b> The Rambam says that he must clarify
                    to exempt himself from the oath. The opinion
                    that he must clarify Stam, holds that if the
                    witnesses contradict him, he is liable. The
                    Rema should not have explained that he must
                    bring witnesses to clarify, since the Mechaber
                    exempts even if the witnesses contradict him.
<br>               <b><font color='darkgreen'>vi.  Shach (7):</font></b> The Tur, Tosfos and others say Stam
                    that he must clarify, but they exempt even if
                    the witnesses contradict him.
<br>               <b><font color='darkgreen'>vii. SMA (10):</font></b> The Rif, Rashbam, Rashba, Ran, Rosh
                    and Tur hold that if it is hard to bring the
                    witnesses, he swears and he is exempt, even if
                    the witnesses contradict him later. The Tur
                    says that the Rambam agrees, just l'Chatchilah
                    he must bring them to avoid swearing.
<br>               <b><font color='darkgreen'>viii.Bach (3 DH u'Mah she'Chosav v'Chen Kosav):</font></b> The
                    Tur rules like the Rif and Rambam, that he is
                    exempt even if the witnesses contradict him.
                    This is unlike the Rosh in Bava Basra.
<br>               <b><font color='darkgreen'>ix.  Rebuttal (Shach 6):</font></b> Also the Darchei Moshe says
                    so. They err. The Tur himself brought the Rosh!
                    Rather, the Rosh said so only about a document
                    and a Chazakah. The Rambam holds like the Rif,
                    like the Tur says. Why does the Rema say that
                    some obligate <i>whenever</i> witnesses contradict
                    him? No one says so. This is unlike Shevuos
                    41b! The Rema should have distinguished when we
                    say so. It seems that the Rema cites the Rambam
                    according to the Magid Mishneh. This is a
                    minority opinion! The Rambam, Ba'al ha'Ma'or
                    and others explains that 'one is not mindful
                    about anything not incumbent on him' refers to
                    the witnesses. Rashi, the Ran and others
                    explain that it refers to the borrower. Both of
                    these are true. This is why he can retract and
                    say 'I erred. I did not paid in front of Ploni
                    and Almoni', even if he initially said that he
                    summonsed them. However, if he persists and
                    says that the witnesses err, he is not believed
                    if he summonsed them, for then they paid
                    attention. If he said that he paid in front of
                    Ploni and Almoni, and immediately retracted, he
                    need not bring them, for bringing them is only
                    to spare him from swearing.
<br>          <b><font color='darkgreen'>2.   Rema:</font></b> Some say that whether or not he summonsed
               them, if they contradict him he must pay. However,
               he need not bring witnesses.
<br>               <b><font color='darkgreen'>i.   Gra (12):</font></b> This is like the Ramah, who
                    distinguishes a definite statement (like the
                    Shulchan Aruch discusses) from one said
                    incredulously. Why didn't the Rema specify? The
                    Mechaber ruled differently in 140:4 (about a
                    document and a Chazakah).
<br>
<font color='blue'><i>See also:</i>
<br><b>MUST ONE WITH A CHAZAKAH SHOW THE DOCUMENT? </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>     <b><font color='darkgreen'>(f)  Answer (Rav Hamnuna):</font></b> In either case, this is simple!
<br>          <b><font color='darkgreen'>1.   If Levi denied ever getting the money, (when Ploni
               and Almoni testify) he is established to be a liar
               (and he is not believed to say that the money was a
               gift or payment of a loan. Shimon is believed to say
               that it was a loan);
<br>          <b><font color='darkgreen'>2.   If Levi says 'yes. You paid me 100 Zuz that you owed
               me', the testimony does not obligate him at all.
 </font></b></font></b>    (g)  Version #1 (Reish Lakish): If Reuven told Yehudah 'I gave
          100 Zuz to you next to this pillar', and Yehudah said 'I
          did not pass by this pillar,' and witnesses testified
          that Yehudah once urinated by the pillar, Yehudah is
          established to be a liar (he must pay Reuven).
<br>     <b><font color='darkgreen'>(h)  Objection (Rav Nachman):</font></b> Yehudah did not say that he
          <i>never</i> passed by the pillar. Rather, he did not receive
          money by it!
<br>     <b><font color='darkgreen'>(i)  (Rav Nachman):</font></b> If Reuven told Yehudah 'I gave 100 Zuz to
          you next to this pillar', and Yehudah said 'I never
          passed by this pillar,' and witnesses testified that
          Yehudah once urinated by the pillar, Yehudah is
          established to be a liar.
<br>     <b><font color='darkgreen'>(j)  Objection (Rava):</font></b> Since Yehudah never thought that it was
          relevant if he was by the pillar, he never put it to his
          mind, so it is reasonable that he does not remember that
          he was once there.
<br>
<b><font color='blue'>3) DERIVING LAWS OF SHEVU'AS HA'PIKADON FROM SHEVU'AS HA'EDUS</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Beraisa - R. Shimon):</font></b> A Korban is brought for (a false)
          Shevu'as ha'Edus, just like for Shevu'as ha'Pikadon...
<br>     <b><font color='darkgreen'>(b)</font></b>  In Eretz Yisrael Rabanan laughed at what R. Shimon said.
<br>     <b><font color='darkgreen'>(c)  Question:</font></b> What is funny about it?
<br>     <b><font color='darkgreen'>(d)  Answer #1:</font></b> He said that Shevu'as ha'Pikadon has
          leniencies, i.e. one is not liable if the oath was
          imposed on him, or if he was Mezid, but he is liable for
          Shevu'as ha'Edus whether he swore himself or if the oath
          was imposed on him, and whether he was Mezid or Shogeg;
<br>          <b><font color='darkgreen'>1.   We learned that Shevu'as ha'Edus applies when he
               swears himself only from Shevu'as ha'Pikadon (Rashi
               - from a Gezerah Shavah 'Secheta-Secheta'; Tosfos -
               from a 'Mah Matzinu (precedent)). Likewise, we
               should learn Shevu'as ha'Pikadon from Shevu'as
               ha'Edus, that it applies when the oath was imposed
               on him!
 </font></b>    (e)  Rejection: That is no reason to laugh. Perhaps R. Shimon
          does not learn Shevu'as ha'Edus (when he swears himself)
          from Shevu'as ha'Pikadon, rather from a Kal va'Chomer;
<br>          <b><font color='darkgreen'>1.   The Torah obligates Shevu'as ha'Edus when the oath
               was imposed on him, and all the more so when he
               swears himself!
 </font></b>    (f)  Answer #2: Rather, they laughed because he said that
          Shevu'as ha'Pikadon has the leniency that he is not
          liable if he was Mezid, but Shevu'as ha'Edus is even if
          he was Mezid;
<br>          <b><font color='darkgreen'>1.   Presumably, we learn liability for Shevu'as ha'Edus
               b'Mezid because it does not say 'v'Nelam'. Also in
               the Parshah of Shevu'as ha'Pikadon it does not say
               'v'Nelam'!
 </font></b>    (g)  Rejection (Rav Huna): That is no reason to laugh. Perhaps
          R. Shimon learns Shevu'as ha'Pikadon from Me'ilah, to
          exempt Mezid!
<br>     <b><font color='darkgreen'>(h)  Answer #3:</font></b> They laughed because he should learn from
          Shevu'as ha'Edus rather than from Me'ilah.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> That is no reason to laugh. It is better
               to learn from (Rashi - a Mah Matzinu; Rashba - a
               Gezerah Shavah) from Me'ilah, for 'Me'ilah' is
               written also regarding Shevu'as ha'Pikadon.
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> No, it is better to learn from Shevu'as
               ha'Edus, in which it says 'Secheta.'
<br>          <b><font color='darkgreen'>3.   Question:</font></b> We should learn from Me'ilah, which
               resembles Shevu'as ha'Pikadon in these respects: in
               both it says 'Me'ilah', they apply to everyone, one
               is liable for benefiting from his transgression, one
               brings a Korban Asham for them, it is the same for
               rich or poor people, and one adds a Chomesh to the
               amount he benefited.
<br>          <b><font color='darkgreen'>4.   Answer:</font></b> We rather learn from Shevu'as ha'Pikadon,
               which resembles Shevu'as ha'Edus in the following
               ways: in both it says 'Secheta', they are
               transgressions against a person (and not against
               Hekdesh), they are oaths, they come through claim
               and denial, and in both 'Oh' is repeated.
<br>          <b><font color='darkgreen'>5.   Rejection:</font></b> There are more reasons to learn from
               Me'ilah!
<br>          <b><font color='darkgreen'>6.   We still have not answered why they laughed!
 </font></b>    (i)  Answer #4 (Rav Papa and Rav Huna brei d'Rav Yehoshua):
          They laughed because (in the conclusion) R. Shimon learns
          a Gezerah Shavah 'Secheta-Secheta' to Shevu'as ha'Edus;
<br>          <b><font color='darkgreen'>1.   How can he say that Shevu'as ha'Pikadon is more
               lenient, since one is not liable for it if the oath
               was imposed on him, or if he was Mezid? He should
               learn from (the Gezerah Shavah in the other
               direction, from) Shevu'as ha'Edus that he is liable!
<br>          <b><font color='darkgreen'>2.   Question:</font></b> That is no reason to laugh. Perhaps he
               shows that <i>without</i> the Gezerah Shavah, Shevu'as
               ha'Pikadon has leniencies, therefore we (cannot
               learn from a Mah Matzinu and) need a Gezerah Shavah
               to teach to Shevu'as ha'Edus;
             </font></b>  i.   In the conclusion, after learning the Gezerah
                    Shavah, he indeed learns from Shevu'as ha'Edus
                    that he is liable!
<br>          <b><font color='darkgreen'>3.   Answer:</font></b> That is wrong, for Rava bar Isi taught that
               R. Shimon says that there is no atonement (Korban)
               for Mezid Shevu'as ha'Pikadon!
<br>          <b><font color='darkgreen'>4.   Question:</font></b> Still, we can say that R. Shimon shows
               that without the Gezerah Shavah, Shevu'as ha'Pikadon
               has the leniency that one is exempt if the oath was
               imposed on him, therefore we need a Gezerah Shavah;
<br>               <b><font color='darkgreen'>i. </font></b>  In the conclusion, after learning the Gezerah
                    Shavah, he indeed learns from Shevu'as ha'Edus
                    that he is liable when the oath was imposed on
                    him, but he is exempt for Mezid (which he
                    learns from Me'ilah, because there are more
                    similarities)! (So why did they laugh?)
<br>          <b><font color='darkgreen'>5.   Answer:</font></b> They laughed because the Gezerah Shavah
               should exempt also Shevu'as ha'Edus b'Mezid!
<br>          <b><font color='darkgreen'>6.   R. Shimon holds that the Torah wrote Shevu'as
               ha'Edus near the Parshiyos of oaths of Bituy and
               Tum'as Mikdash and Kodshim, by which it says
               'v'Nelam' (and it does not say this about Shevu'as
               ha'Edus) to teach that Shevu'as ha'Edus is liable
               b'Mezid.
<br><b><font color='darkgreen'>

<br><p>

sjt:
</p><p>
<font><b>2) GIVING MONEY WITHOUT SPECIFYING WHY</b></font>
<br>QUESTION: Rav Yehudah asks (34a) what the Halachah is when a person gives money to someone else in front of witnesses, and the recipient of the money was unaware that witnesses were watching the transaction. Also, the witnesses themselves were unaware of the nature of the transaction; they saw only money pass from one person to the other.
</p><p>
Rav Hamnuna answers that the Halachah depends on the response of the recipient of the money to the claimant's claim. If he says, 'I never had such a transaction with you,' then he is disqualified from taking an oath and he must pay, because he certainly is lying. If he responds, 'I took from you money that rightfully belonged to me,' the witnesses do not help the claimant's case, and the recipient may keep the money.
</p><p>
Does this imply that when one person gives money to another person, it is assumed to be a given unless he specifies otherwise?
</p><p>
ANSWERS:
<br>(a) The <b>RAN</b> in Kidushin (page 3a of the pages of the Rif, DH Ten Manah l'Ploni #1) writes that giving money without specifying a reason constitutes a gift. The Gemara in Kidushin discusses a case in which a man gives money of Kidushin to a woman, and the woman says that she accepts Kidushin from him. The Gemara discusses whether or not this is a valid act of Kidushin. The Ran asserts that the woman's statement must be made before the money of Kidushin is given. If witnesses see the man give something to the woman before anything is said, they must assume that the money or item is merely a gift. Even if the woman proclaims afterwards that she intended to receive the money as Kidushin, the money cannot have the status of anything more than a gift, as the Gemara here teaches.
</p><p>
(b) The <b>RASHBA</b> argues that when such an unspecified transaction occurs it is considered a <i>loan</i> and not a gift.
</p><p>
The <b>KETZOS HA'CHOSHEN</b> (363:9) refutes the Ran's proof from the Gemara here that an unspecified transaction is considered a gift. The Gemara is discussing an argument about the purpose of the giving of the money. The witnesses have no testimony to give in response to the recipient's claim that he received the money as a gift. This does not prove that an act of giving is considered a gift even in a case in which the parties involved do not argue about the purpose of the giving. (Y. Montrose)
</p><p>


<font><b>3) THE WITNESSES OUTSIDE</b></font>
<br>QUESTION: Rav Yehudah asks (34a) what the Halachah is when a person gives money to someone else in front of witnesses, and the recipient of the money was unaware that witnesses were watching the transaction. Also, the witnesses themselves were unaware of the nature of the transaction; they saw only money pass from one person to the other.
</p><p>
<b>RASHI</b> and <b>TOSFOS</b> give different reasons for why Rav Yehudah specifically asks about a case in which the witnesses are standing outside. According to Rashi, Rav Yehudah wants to give a case in which the <i>recipient</i> did not realize that there were witnesses. According to Tosfos, Rav Yehudah wants to give a case in which the <i>witnesses</i> were unaware of the nature of the transaction.
</p><p>
Do Rashi and Tosfos disagree with each other, and if they do, what is the basis of their disagreement?
</p><p>
ANSWER: The <b>CHESHEK SHLOMO</b> understands that Rashi and Tosfos disagree, and that their respective opinions here are based on another argument. The <b>SEFER HA'TERUMAH</b> (Sha'ar 11) says that if the witnesses in this case heard the recipient say during the transaction that he is taking the money as a loan, the recipient still may claim that he received it as a gift. The recipient may claim that when he said he was taking the money as a loan, he merely wanted to appease the giver and persuade him to hand over money that rightfully belonged to him.
</p><p>
Why, though, is every borrower not entitled to make this claim? When witnesses are present, a person knows that what he says will be understood at face value, and he knows that he will not be believed later to claim that what he said was not true. Once a loan is discussed and money passes hands in front of witnesses, the transaction is considered a loan. In contrast, in a case in which the recipient was not aware that witnesses were watching, he is believed to say that he was merely trying to persuade the giver to give him money that he was owed.
</p><p>
Rashi rules like the Sefer ha'Terumah. Accordingly, in Rav Yehudah's case, in order for the recipient to be believed to say that the money belongs to him even when he stated at the time of the transaction that he was borrowing the money, the witnesses must be outside so that the <i>recipient</i> not be aware of them. Tosfos, on the other hand, does not agree with the Sefer ha'Terumah. Tosfos maintains that the recipient is <i>never</i> believed to say that he did not mean that he was borrowing the money even though he said so at the time of the transaction. Therefore, he gives a more basic reason for why the witnesses needed to be outside: so that they would not know whether the transaction was a loan or a gift. (Y. Montrose) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) EXEMPTIONS FROM SHEVU'AS HA'EDUS</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If one said 'I impose an oath on you if you
          will not testify that Ploni promised to give to me 200
          Zuz, and he did not give to me', they (the witnesses) are
          exempt (for even if this is true, Ploni need not give);
<br>          <b><font color='darkgreen'>1.   One is liable only for a claim of money that must be
               paid, similar to a deposit.
 </font></b>    (b)  If he said 'I impose an oath on you that you will testify
          for me after you will see testimony', they are exempt,
          for the oath preceded (seeing) the testimony.
<br>     <b><font color='darkgreen'>(c)</font></b>  If he said in the Beis ha'Keneses 'I impose an oath on
          (all of) you, that if you will know testimony for me you
          will testify', they are exempt, (for he did not specify
          the witnesses);
<br>     <b><font color='darkgreen'>(d)</font></b>  If he said 'I impose an oath on you, Ploni and Almoni,
          that if you know testimony for me you will testify', and
          they swore that they do not, and they had heard testimony
          from another witness, or one of them was a relative or an
          invalid witness, they are exempt;
<br>     <b><font color='darkgreen'>(e)</font></b>  If Reuven (the claimant) sent his slave to ask the
          witnesses to testify, or the defendant made them swear,
          they are exempt, because Reuven did not ask them to
          testify.
<br>     <b><font color='darkgreen'>(f)  (Gemara - Beraisa) Suggestion:</font></b> If he said 'I impose an
          oath on you if you will not testify that Ploni promised
          to give to me 200 Zuz, and did not give to me', perhaps
          they (the witnesses) are liable!
<br>     <b><font color='darkgreen'>(g)  Rejection:</font></b> 'Secheta-Secheta' teaches that they are liable
          only for a case similar to Shevu'as ha'Pikadon, i.e. when
          there is a claim of money (that must be paid).
<br>     <b><font color='darkgreen'>(h)  (Beraisa) Suggestion:</font></b> If he said 'I impose an oath on you
          that you will testify for me after you will see
          testimony', perhaps they are liable!
<br>     <b><font color='darkgreen'>(i)  Rejection:</font></b>  'V'Sham'ah Kol Alah v'Hu Ed' - he must
          already be a witness at the time of the oath.
<br>     <b><font color='darkgreen'>(j)  (Mishnah):</font></b> If he said in the synagogue 'I impose an oath
          on (all of) you... '
<br>     <b><font color='darkgreen'>(k)  (Shmuel):</font></b> Even if there are witnesses among them, they
          are exempt.
<br>     <b><font color='darkgreen'>(l)  Objection:</font></b> This is obvious!
<br>     <b><font color='darkgreen'>(m)  Answer:</font></b> The Chidush is, even if they are right by him
          they are exempt;
<br>          <b><font color='darkgreen'>1.   One might have thought that this is like specifying
               them. Shmuel teaches that this is not so.
 </font></b>    (n)  Support (Beraisa) Suggestion: If one saw a throng of
          people and witnesses were among them, and said 'I impose
          an oath on you that you will testify for me if you know
          testimony', perhaps they are liable!
<br>          <b><font color='darkgreen'>1.   Rejection:</font></b> 'V'Hu Ed' - he must specify the
               witnesses;
<br>          <b><font color='darkgreen'>2.   Suggestion:</font></b> Perhaps even if he said '(I impose an
               oath on) you that are standing here' they are
               exempt!
<br>          <b><font color='darkgreen'>3.   Rejection:</font></b> 'V'Hu Ed' - since he specified the
               witnesses, they are liable.
<br>     <b><font color='darkgreen'>(o)  (Mishnah):</font></b> 'I impose an oath on you, Ploni and Almoni...
<br>          '
<br>     <b><font color='darkgreen'>(p)  (Beraisa) Suggestion:</font></b> If he said 'I impose an oath on
          you, Ploni and Almoni, that if you know testimony for me
          you will testify', and they heard testimony from another
          witness, or one of them was a relative or an invalid
          witness, perhaps they are liable!
<br>     <b><font color='darkgreen'>(q)  Rejection:</font></b> 'Im Lo Yagid v'Nasa Avono' - the witnesses
          must be Kosher to testify.
<br>     <b><font color='darkgreen'>(r)  (Mishnah):</font></b> He sent his slave...
<br>     <b><font color='darkgreen'>(s)  (Beraisa) Suggestion:</font></b> If he sent his slave to ask the
          witnesses to testify, or the defendant made them swear,
          perhaps they are liable!
<br>     <b><font color='darkgreen'>(t)  Rejection:</font></b> 'Im Lo Yagid v'Nasa Avono' teaches that they
          are exempt.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> How does the verse teach this?
<br>          <b><font color='darkgreen'>2.   Answer (R. Elazar):</font></b> The word 'Lo' is written with an
               'Aleph' <i>and</i> 'Vav', suggesting that we read it both
               ways, 'Im Lo Lo Yagid (if he will not tell <i>to
               him</i>).'
<br>
<b><font color='blue'>2) THE WORDING OF THE OATH</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If he said 'I impose an oath on you', (or) 'I
          command you', 'I forbid you', they are liable;
<br>     <b><font color='darkgreen'>(b)</font></b>  If he made them swear by Heaven and earth, they are
          exempt;
<br>     <b><font color='darkgreen'>(c)  If he made them swear by any of the following, they are
          liable:</font></b> 'Aleph-Dalet' (and 'Nun-Yud', the way we
          pronounce Hashem's name'), 'Yud-Kei' (Rashi - Hashem's
          four-letter name itself; Tosfos ha'Rosh - the first two
          letters of it), Shakai, Tzevakos, Chanun, Rachum, Erech
          Apayim, Rav Chesed, or any Kinuy (name that refers to
          Hash-m).
<br>     <b><font color='darkgreen'>(d)</font></b>  R. Meir says, one who curses Hash-m or his parents with
          any of these names is liable (Misas Beis Din);
<br>     <b><font color='darkgreen'>(e)</font></b>  Chachamim exempt.
<br>     <b><font color='darkgreen'>(f)</font></b>  One who curses himself or another person with any of
          these names transgresses a Lav;
<br>     <b><font color='darkgreen'>(g)</font></b>  'Hashem should strike you (if you will not testify for
          me)' is the Alah (curse) that the Torah refers to;
<br>     <b><font color='darkgreen'>(h)</font></b>  R. Meir says, if he said 'Hashem should not strike you',
          'Hashem should bless you', or 'Hashem should do good to
          you (if you will testify for me)', they are liable;
<br>     <b><font color='darkgreen'>(i)</font></b>  Chachamim exempt.
<br>     <b><font color='darkgreen'>(j)  (Gemara) Question:</font></b> What is the meaning of 'I impose an
          oath on you...'?
<br>     <b><font color='darkgreen'>(k)  Answer #1 (Rav Yehudah):</font></b> 'I impose an oath on you' refers
          to the oath mentioned in the Torah. 'I command you'
          refers to the command mentioned in the Torah (in the
          Parshah of vows). 'I forbid you' - refers to the Isur
          mentioned in the Torah.
<br>     <b><font color='darkgreen'>(l)  Question (Abaye):</font></b> R. Chiya taught that if he said
          'Kovalchem (I put you in fetters)', they are liable;
<br>          <b><font color='darkgreen'>1.   We do not find this expression in the Torah!
 </font></b>    (m)  Answer #2 (Abaye): Rather, each of these expressions ('I
          impose an oath, I command, I forbid, I put you in
          fetters') is with an oath (and Hashem's name).
<br>
<b><font color='blue'>3) THE KODESH NAMES OF HASH-M</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> With 'Aleph-Dalet', 'Yud-Kei', Shakai,
          Tzevakos, Chanun, Rachum, Erech Apayim, Rav Chesed...
<br>     <b><font color='darkgreen'>(b)  Inference:</font></b> Chanun and Rachum are (Kodesh) names of
          Hash-m.
<br>     <b><font color='darkgreen'>(c)  Contradiction (Beraisa):</font></b> Some names of Hash-m may be
          erased. Other names that refer to Him may not;
<br>          <b><font color='darkgreen'>1.   The following may not be erased - Kel, Eloka,
               Elokim, Elokeichem, Echyeh Asher Echyeh, 'Aleph-
               Dalet', 'Yud-Kei', Shakai, and Tzevakos.
<br>          <b><font color='darkgreen'>2.   The following may be erased - ha'Gadol, ha'Gibor,
               ha'Nora, ha'Adir, ha'Chazak, ha'Amitz, ha'Izuz,
               Chanun, Rachum, Erech Apayim, and Rav Chesed.
 </font></b></font></b>    (d)  Answer (Abaye): In our Mishnah, he refers to the One Who
          is Chanun (gracious) or Rachum (merciful).
<br>
<br>

sjt:
<font><b>1) HALACHAH: CURSING SOMEONE WITHOUT USING A NAME OF HASH-M</b></font>
<br>OPINIONS: The Mishnah discusses the prohibition against using Hashem's Name to curse someone. This is a Lo Ta'aseh, a negative prohibition, punishable with Malkus. The Mishnah and Gemara do not discuss the law about cursing someone <i>without</i> using Hashem's Name. Is this also forbidden?
</p><p>
(a) <b>RASHI</b> in Temurah (4a) writes that the Isur of 'Lo Sekalel Cheresh' (Vayikra 19:14) includes a prohibition against cursing both with the Name of Hash-m and without it. This is also the opinion of the <b>SEFER HA'CHINUCH</b> (#231), the <b>TUR</b>, <b>BACH</b>, and <b>SHACH</b> (CM 27).
</p><p>
According to these Poskim, the only difference that between cursing with Hashem's Name and cursing without it is that the punishment of Malkus is given only for cursing with Hashem's Name.
</p><p>
The <b>SEFER CHAREDIM</b> (24:16) cites proof for this view from the death of Rachel Imenu. When Lavan pursued Yakov Avinu and accused him of stealing his idols, Yakov responded that whoever took his idols 'shall not live' -- 'Lo Yichyeh' (Bereishis 31:32). Although he did not use the Name of Hash-m, his curse was potent enough to take effect, and it eventually caused the death of Rachel (who, unbeknownst to Yakov, had taken the idols). If such a curse is not forbidden, then it should not have had the potency to take effect.
</p><p>
(b) <b>RABEINU YONAH</b> in <b>SHA'AREI TESHUVAH</b> (3:46-7) apparently argues that there is no specific Torah prohibition against cursing without using Hashem's Name. This is also the implication of his words in <b>SEFER HA'YIR'AH</b> (#218), where he writes that 'a person should not curse his fellow man using Hashem's Name, for such a person transgresses two negative prohibitions.' The <b>ME'IRI</b> comments that 'based on this, many Ge'onim have warned that one should not curse his fellow man even with a Kinuy (diminutive) of Hashem's Name or [His Name] in a different language.' This implies that the Ge'onim did not expressly warn against cursing someone without using Hashem's Name altogether. This is also the opinion of the <b>SHE'ILTOS</b> (Korach, #134).
</p><p>

HALACHAH: Most Acharonim, including the <b>KITZUR SHULCHAN ARUCH</b> (6:3) and the <b>CHAZON ISH</b> (Sanhedrin 20:7), side with the first opinion. Since this is a question that involves a Torah prohibition, one must conduct himself stringently. The <b>MINCHAS YITZCHAK</b> (to Sefer ha'Chinuch 69:5) points out that even the lenient opinions mentioned above agree that cursing a person in <i>any</i> manner is a violation of the positive commandment of 'v'Ahavta l'Re'acha Kamocha' (Vayikra 19:18). (Y. Montrose)
</p><p>


<font><b>2) GIVING PERMISSION TO CURSE</b></font>
<br>OPINIONS: The Mishnah states that a person is punished with Malkus for cursing others and for cursing himself. May one person give permission to another person to curse him, and thereby exempt the other person from Malkus)?
</p><p>
(a) The <b>MINCHAS CHINUCH</b> (48:2) writes that a person may give permission to another person to curse him. With regard to Malkus, the <b>RAMBAM</b> (Hilchos Sanhedrin 26:6) rules that when the recipient of a curse forgives the person who cursed him <i>after</i> the curse was pronounced, the perpetrator still receives Malkus, since he already transgressed the prohibition against cursing. The wording of the Rambam implies that if the recipient gives permission <i>before</i> the curse is pronounced, then the perpetrator does <i>not</i> receive Malkus. The Minchas Chinuch adds that parents and friends are similarly entitled to forgive hitting if permission is given prior to the action. This is also the opinion of the <b>RALBACH</b> (Kuntres ha'Semichah #101) and the <b>NESIVOS SHALOM</b>.
</p><p>
<b>RAV YOSEF PERLOW</b> points out the difficulty with such an opinion. The Mishnah clearly states that a person is given Malkus for cursing himself, even though he obviously gave himself permission to do so! If permission does not work to exempt himself from punishment, then why should it work to exempt someone else?
</p><p>
<b>RAV MOSHE FEINSTEIN</b> zt'l (<b>IGROS MOSHE</b> OC 3:78) proposes a novel idea to explain why a person is entitled to let others curse him. He explains that the prohibition of cursing oneself and the prohibition of cursing others are two separate prohibitions. Cursing oneself is forbidden because one is not allowed to hurt himself. Cursing someone else is forbidden because it <i>embarrasses</i> the other person, and not because the curse will hurt him. The curse cannot hurt the other person, as the verse states, 'Kilelas Chinam Lo Savo' -- 'A curse in vain will not take effect' (Mishlei 26:2). Therefore, a person is entitled to forgive the embarrassment caused by the curse and let someone curse him, such that the one cursing him does not transgress the prohibition.
</p><p>
Rav Moshe Feinstein cites an additional proof to this concept from the words of the Rambam earlier (Hilchos Sanhedrin 26:1). The Rambam states that even one who curses a child receives Malkus for his sin. The <b>KESEF MISHNEH</b> explains that this is because the Gemara (86a) says that a person must pay for embarrassment caused to a child. It is evident from there that the basis of the prohibition of cursing someone is the embarrassment caused to him.
</p><p>
The <b>SEFER L'RE'ACHA KAMOCHA</b> has difficulty with Rav Moshe Feinstein's explanation. Why does he say that cursing another person is only a matter of embarrassment since the curse will not come true? The Gemara teaches that if the recipient of the curse did even a small improper thing to the other person, the other person's curse may take effect (see Insights to Makos 11a). Moreover, the Kesef Mishneh's explanation is based on the Rambam's text, but none of the other Rishonim rule like the Rambam with regard to one who curses a child.
</p><p>
(b) The <b>SHE'ILTOS</b> (Mishpatim, #60) argues that parents cannot override the Halachah that forbids their children from hitting and cursing them, even by giving advance permission. The <b>RIVASH</b> (#120) quotes this opinion in the name of the <b>RA'AVAD</b>. The Rivash later (#484) explicitly rules this way with regard to the cursing of an ordinary person as well. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) WHAT KINDS OF TANAYIM REQUIRE MISHPETEI TANAYIM?</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   (Mishnah - R. Meir):</font></b> If he said ('if you will
               testify for me, Hash-m should not strike you',
               'Hashem should bless you', or 'Hashem should do good
               to you (and the witnesses answered Amen, and did not
               testify)', they are liable;
<br>          <b><font color='darkgreen'>2.  </font></b> Chachamim exempt.
<br>          <b><font color='darkgreen'>3.   36a - Question:</font></b> R. Meir does not infer the positive
               from the negative (i.e. He should strike you if you
               do not testify), (or vice-versa)!
<br>          <b><font color='darkgreen'>4.   Answer #1:</font></b> The opinions of R. Meir and Chachamim
               must be switched.
<br>          <b><font color='darkgreen'>5.   Answer #2:</font></b> R. Meir does not infer the positive from
               the negative in monetary matters, but for Isurim, he
               does.
<br>          <b><font color='darkgreen'>6.   Question:</font></b> Sotah is an Isur, and R. Tanchum said that
               R. Meir infers the negative from the positive,
               because it says '(if you are innocent) Hinaki (you
               will be safe)', and we can read this '(if you are
               guilty, Chanki (you will choke))''. Otherwise, R.
               Meir would not infer the negative from the positive!
<br>          <b><font color='darkgreen'>7.   Answer #1:</font></b> Indeed, the opinions must be switched. R.
               Meir does not infer the negative from the positive
               even for Isurim.
<br>          <b><font color='darkgreen'>8.   Question (Ravina):</font></b> If so, he should exempt one who
               serves in the Mikdash after drinking wine. A Mishnah
               teaches that he is liable (and no one disagrees!)
<br>          <b><font color='darkgreen'>9.   Answer #2:</font></b> The opinions need (some texts - not) be
               switched. R. Meir does not infer the negative from
               the positive for anything involving money. He does
               infer for Isurim. Sotah is an Isur that involves
               money (the Kesuvah).
<br>          <b><font color='darkgreen'>10.  Gitin 75a:</font></b> Shmuel enacted that a Shechiv Mera (a
               sick person, who divorces due to concern lest he
               die) say 'if I do not die (from this illness), the
               Get is invalid. If I die, it is valid.'
<br>          <b><font color='darkgreen'>11.  Objection (Rava):</font></b> Every Tanai must be like that of
               Benei Gad, in which the positive (if they will
               fight) preceded the negative. Rather, he should say
               'if I do not die, the Get is invalid. If I die, the
               Get is valid. If I do not die, it is invalid.'
<br>          <b><font color='darkgreen'>12.  Bava Basra 137b (Rava):</font></b> If one said 'take this Esrog
               Al Menas that you return it to me', and the
               recipient took it, he was Yotzei only if he returned
               it afterwards.
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rambam (Hilchos Ishus 6:14):</font></b> Some late Ge'onim
               require Kefel only for divorce and Kidushin, but not
               for monetary matters. One should not rely on this.
               Kefel and the other four Mishpetei Tanayim are
               learned from the Tanai with Benei Gad, and this did
               not involve divorce or Kidushin. The great early
               Ge'onim ruled like this (that also monetary matters
               require Mishpetei Tanayim). It is proper to do so.
<br>          <b><font color='darkgreen'>2.   Rambam (Hilchos Zechiyah 3:8):</font></b> A Tanai 'Al Menas' is
               like 'from now.' It does not need Kefel. Some
               Ge'onim said so; I agree. My Rebbeyim required Kefel
               and putting the positive before the negative only
               for divorce and Kidushin. There is no proof for
               this.
<br>               <b><font color='darkgreen'>i.   Ra'avad:</font></b> There is no proof, but there is a
                    great reason. If someone gives land or sells
                    'only if you will do so and so', how can we
                    make him give if his Tanai was not fulfilled?!
                    However, for Gitin and Kidushin, we assess his
                    intent. Since he decided to divorce or be
                    Mekadesh, the Tanai is a mere taunt or jest. A
                    Tanai does not help unless he strengthened it
                    with Kefel and the other Mishpetei Tanayim,
                    which are all to strengthen the Tanai. The
                    inheritance of Benei Gad was not Muchzak to
                    them like what a person inherited or bought.
<br>               <b><font color='darkgreen'>ii.  Hasagos ha'Ra'avad (on Rif Gitin 37b):</font></b> Some
                    require Kefel only for divorce and Kidushin,
                    but not for monetary matters. This is
                    astounding! Tanai Benei Gad was monetary. If we
                    learn from it, all the more so we need
                    Mishpetei Tanayim for monetary matters!
<br>               <b><font color='darkgreen'>iii. Suggestion:</font></b> Perhaps this is because d'Iy (what
                    one will acquire, i.e. a Tanai for the future)
                    does not acquire, and Tanayim of 'from now' do
                    not require Kefel, for the Tanai of Benei Gad
                    was not 'from now.'
<br>               <b><font color='darkgreen'>iv.  Rejection (Ra'avad):</font></b> The Tanai of Benei Gad was
                    'from now!' It says 'Moshe gave to them!' One
                    may not rely on this opinion.
<br>               <b><font color='darkgreen'>v.  </font></b> Magid Mishneh (Hilchos Ishus 6:14) Teshuvas
                    ha'Rif (31) says that surely these Ge'onim hold
                    that R. Meir requires Kefel for monetary
                    Tanayim, but the Halachah does not follow him.
                    Letter of the law, we do not require Kefel for
                    divorce, Kidushin or monetary matters. However,
                    Shmuel enacted Kefel in the Get of a Shechiv
                    Mera, lest a Beis Din hold like R. Meir and
                    permit her even if the Tanai was not fulfilled.
                    Therefore, if the Tanai was not Kaful and it
                    was not fulfilled, we are stringent to consider
                    her Safek divorced or Safek Mekudeshes. It
                    seems that the Ramban and Rashba say so.
<br>               <b><font color='darkgreen'>vi.  Ran (Kidushin 25b DH Rebbi):</font></b> Surely, the Rif
                    did not mean that we do not require any
                    Mishpetei Tanayim. The Tanai must precede the
                    Ma'aseh (like the Magid Mishneh proved), and a
                    Shali'ach must be able to do the Ma'aseh.
<br>               <b><font color='darkgreen'>vii. Sefer ha'Zechus:</font></b> We rely on the Ge'onim, who
                    require Kefel only for divorce and Kidushin,
                    but not for monetary Tanayim.
<br>               <b><font color='darkgreen'>viii.Ran (ibid.):</font></b> The Torah taught about Kefel
                    regarding monetary matters. Also, we find that
                    R. Meir requires Kefel only for monetary
                    matters, but regarding Isurim he infers the
                    negative from the positive! Rather, surely it
                    is a mere stringency to require Kefel for
                    divorce and Kidushin.
<br>          <b><font color='darkgreen'>3.   Rosh (Bava Basra 8:48):</font></b> Rava says that the Tanai
               about an Esrog is valid. Rava disagrees with Rav
               Ada, who says that the Tanai and Ma'aseh must
               involve different matters. The Rashbam explains that
               Kefel is needed only for divorce and Kidushin. Giluy
               Da'as (revealing his intent) suffices for monetary
               matters, in which we follow assessment of intent. R.
               Shimshon supports this from the Yerushalmi, which
               says that everywhere (else) R. Meir infers the
               negative from the positive, but here (divorce and
               Kidushin) he does not. He is stringent about Arayos.
               This is difficult, for R. Meir requires Tanai Kaful
               for other matters as well, in Bava Metzi'a (94a),
               Shevuos and Nedarim! R. Tam says that the Yerushalmi
               meant that he is more stringent about Arayos than
               other Isurim, such as Avodah while drunk. This is
               difficult, for it is a leniency to require a Tanai
               Kaful for divorce. Even if the Tanai was not
               fulfilled, she is divorced! Rather, the text of the
               Yerushalmi said 'everywhere (else) R. Meir <i>does
               not</i> infer the negative from the positive, and here
               he does not.' This is clearly a textual error.
               People 'fixed' this to say 'everywhere he infers,
               and here he does not.' Really, it should say
               'everywhere he does not infer, and here he does.' It
               is a stringency of Arayos to be stringent about
               divorce and Kidushin when he did not double the
               Tanai (and it was not fulfilled). She does
               Chalitzah. Therefore, one must double every monetary
               Tanai. If he did not, the Tanai is Batel and the
               Ma'aseh takes effect. The Mishnayos that discuss
               Tanayim did not bother to write the Kefel, for
               obviously it is required. There are three levels in
               monetary matters. Sometimes, the intent is clear
               without even a Giluy Da'as, e.g. a document to
               divert property (a woman gives a gift to her son
               before marrying, so her husband will not get it) and
               Matanas Shechiv Mera (a sick person who fears lest
               he die. He intends to retract if he recovers.) Some
               things require Giluy Da'as, e.g. one who sells with
               intent to move to Eretz Yisrael. If there was no
               Giluy Da'as, we ignore his intent. He does not need
               a proper Tanai. Everything else needs a proper
               Tanai.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (EH 38:4):</font></b> Some say that we require
               the four Mishpetei Tanayim only when this is a
               stringency, but not if it is a leniency.
<br>               <b><font color='darkgreen'>i.   Beis Shmuel (6):</font></b> This opinion holds that the
                    Halachah follows Chachamim. We are stringent
                    only about Gitin and Kidushin.
<br>
<font color='blue'><i>See also:</i>
<br><b>WHICH KINDS OF TANAYIM MUST BE DOUBLED? </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>     <b><font color='darkgreen'>(e)  Question (Rava):</font></b> If so, an oath 'by Heaven and earth'
          should be valid. He refers to 'the Owner of Heaven and
          earth'!
<br>     <b><font color='darkgreen'>(f)  Answer (Abaye):</font></b> No. Nothing else is called Chanun (or
          Rachum), so surely he means 'the One Who is Chanun (or
          Rachum)';
<br>          <b><font color='darkgreen'>1.   Regarding Heaven and earth, he made them swear by
               Heaven and earth themselves!
 </font></b>    (g)  (Beraisa): If one wanted to write 'Elokim', once he
          writes 'Aleph-Lamed', these letters (are themselves a
          name of Hash-m. They are Kodesh, and they) may not be
          erased. The same applies to 'Yud-Kei' of Hashem's name;
<br>          <b><font color='darkgreen'>1.   If he wrote 'Shin-Dalet' from Shakai, ('Aleph-Dalet'
               from Adon-i - R. Chananel's text puts this in the
               previous clause, it may not be erased), or 'Tzadi-
               Beis' from Tzevakos, these letters may be erased;
<br>          <b><font color='darkgreen'>2.   R. Yosi says, the entire word 'Tzevakos' may be
               erased, for it is not a name of Hash-m. It refers to
               Yisrael - 'Tziv'osai Es Ami Vnei Yisrael.'
 </font></b></font></b>    (h)  (Shmuel): The Halachah does not follow R. Yosi.
<br>     <b><font color='darkgreen'>(i)  (Beraisa):</font></b> Any letters appended to Hashem's name, whether
          before or after it, may be erased;
<br>          <b><font color='darkgreen'>1.   If 'Lamed', 'Beis', 'Vav', 'Mem', 'Shin', 'Hei', or
               'Kaf' is prefixed to Hashem's name, it may be
               erased.
<br>          <b><font color='darkgreen'>2.   The letters 'Nun-Vav', 'Hei-Mem', or 'Chaf-Mem'
               suffixed to 'Elokei' may be erased.
<br>          <b><font color='darkgreen'>3.   Others say, letters suffixed may not be erased,
               because Hashem's name that precedes them makes them
               Kodesh.
<br>          <b><font color='darkgreen'>4.   (Rav Huna):</font></b> The Halachah follows Others.
 </font></b></font></b></font></b>    (j)  All the occurrences of Hashem's name ('Aleph-Dalet')
          written regarding Avraham are Kodesh, except for 'Adonai
          Im Na Matzasi Chen b'Einecha' (he was addressing the man
          (really, angel) in the middle).
<br>     <b><font color='darkgreen'>(k)</font></b>  Chanina ben Achi R. Yehoshua and R. Elazar ben Azaryah
          say, even this is Kodesh.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> Rav Yehudah taught that hosting guests is
               greater than receiving the Divine Presence. Like
               whom is this?
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> It is like Chanina and R. Elazar. (Avraham
               interrupted speaking to Hash-m in order to host
               guests.)
<br>     <b><font color='darkgreen'>(l)</font></b>  The occurrences of 'Adonai' written regarding Lot are
          Chol. Only 'Al Na (Hash-m)... Lehachayos Es Nafshi' is
          Kodesh;
<br>          <b><font color='darkgreen'>1.   He addressed Hash-m, Who can kill or keep alive.
 </font></b>    (m)  All the occurrences of Hashem's name regarding Navos are
          Kodesh. Those regarding Michah are Chol;
<br>          <b><font color='darkgreen'>1.   R. Eliezer says, the names 'Yud-Kei' regarding
               Michah are Kodesh. The names 'Aleph-Lamed' are not,
               except for 'Beis ha'Elokim b'Shilo.'
 </font></b>    (n)  R. Eliezer says, all the occurrences of Hashem's name
          written in the war against Binyamin are not Kodesh;
<br>     <b><font color='darkgreen'>(o)</font></b>  R. Yehoshua says, they are Kodesh.
<br>          <b><font color='darkgreen'>1.   R. Eliezer:</font></b> They cannot be Kodesh. Had Hash-m
               promised Bnei Yisrael victory, he would have
               fulfilled it (the first time)!
<br>          <b><font color='darkgreen'>2.   R. Yehoshua:</font></b> Hash-m did not promise victory, for
               they did not ask about this, until the last time.
               (Then, He promised and fulfilled.)
<br>     <b><font color='darkgreen'>(p)</font></b>  Every 'Shlomo' in Shir ha'Shirim refers to Hash-m (the
          Owner (or Maker) of Shalom), except for 'ha'Elef Lecha
          Shlomo' - Shlomo had 1000 servants;
<br>          <b><font color='darkgreen'>1.   'U'Masayim l'Noterim Es Piryo' refers to Chachamim.
<br>          <b><font color='darkgreen'>2.   Some say, also 'Hinei Mitaso Shel Shlomo' is Chol.
<br>          <b><font color='darkgreen'>3.   Question:</font></b> Shmuel taught that a king who conscripts a
               sixth of the population for his work (Rashi; Tosfos
               - who kills a sixth of the world in optional wars;
               Rashba - who executes a sixth of his subjects) is
               not punished - 'ha'Elef Lecha Shlomo' (1000 for
               Hash-m) and 'u'Masayim l'Noterim Es Piryo' (200 for
               the king);
             </font></b></font></b>  i.   This is not like either Tana (both agree that
                    'ha'Elef Lecha Shlomo' is Chol)!
<br>          <b><font color='darkgreen'>4.   Correction:</font></b> Rather, some say that 'ha'Elef Lecha
               Shlomo' is Kodesh, and 'Hinei Mitaso Shel Shlomo' is
               Chol. Shmuel holds like this latter Tana.
<br>     <b><font color='darkgreen'>(q)</font></b>  Every 'Malkiya' in Daniel is Chol, except for ('Melech'
          in) 'Ant Malka <i>Melech</i> Malkaya...'
<br>     <b><font color='darkgreen'>(r)</font></b>  Some say, also the following is Kodesh - 'Mari Chelma
          l'Sanach u'Fishrei l'Arach';
<br>          <b><font color='darkgreen'>1.   Daniel would not say this to Nebuchadnetzar, who
               hated Yisrael, for if so, Daniel would curse
               Yisrael!
<br>          <b><font color='darkgreen'>2.   The first Tana holds that surely Nebuchadnetzar
               hated also some Nochrim (and Daniel cursed them).
<br><b><font color='darkgreen'><b><font color='darkgreen'></font></b></font></b>
<br><b><font color='blue'>4) MUST THE OATH INCLUDE HASHEM'S NAME?</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If he made them swear by any Kinuy of Hash-m,
          they are liable.
<br>     <b><font color='darkgreen'>(b)  Contradiction (Beraisa):</font></b> It says (in Parshas Sotah)
          'l'Alah veli'Shevu'ah', but it already says 'bi'Shvu'as
          ha'Alah'!
<br>          <b><font color='darkgreen'>1.   It is extra to make a Gezerah Shavah to teach about
               'Alah' written about Shevu'as ha'Edus. Just like the
               Alah of Sotah is a Shevu'ah with Hashem's name, also
               that of Shevu'as ha'Edus.
 </font></b>    (c)  Resolution (Abaye): That Beraisa is R. Chanina bar Idi
          (and our Mishnah is Chachamim);
<br>          <b><font color='darkgreen'>1.   (Beraisa - R. Chanina bar Idi):</font></b> The Torah commands
               to swear (Rashi - Shevu'as ha'Shomerim; R. Chananel
               - the oath of Sotah) and not to swear (falsely). It
               commands to curse (a Sotah), and not to curse
               (Hash-m or people);
<br>               <b><font color='darkgreen'>i. </font></b>  Just like we are commanded to swear and curse
                    with Hashem's name, we are commanded not to
                    swear and curse with Hashem's name.
<br>     <b><font color='darkgreen'>(d)  Question:</font></b> How do Chachamim learn?
<br>          <b><font color='darkgreen'>1.   If also they learn the Gezerah Shavah, also they
               should require Hashem's name!
<br>          <b><font color='darkgreen'>2.   If they do not learn the Gezerah Shavah, what is
               their source that Alah is an oath?
 </font></b></font></b>    (e)  Answer: (They do not learn the Gezerah Shavah.) They
          learn that Alah is an oath as follows;
<br>          <b><font color='darkgreen'>1.   (Beraisa):</font></b> 'Alah' means oath, as it says about a
               Sotah 'v'Hishbi'a... bi'Shvu'as ha'Alah.'
<br>          <b><font color='darkgreen'>2.   Question:</font></b> We cannot learn from there, there it says
               '<i>Shvu'as</i> ha'Alah'!
<br>          <b><font color='darkgreen'>3.   Answer:</font></b> Rather, 'v'Hishbi'a... bi'Shvu'as ha'Alah'
               teaches that Alah is with an oath;
<br>               <b><font color='darkgreen'>i. </font></b>  'V'Sham'ah Kol Alah' teaches that ('Alah'
                    written without Shevu'ah is like Alah with
                    Shevu'ah, and - Rashi deletes this from the
                    text) Shevu'ah without Alah is like Shevu'ah
<br><br>                    with Alah. <p>

sjt:
</p><p>
<font><b>3) ERASING THE NAME OF SHLOMO IN 'SHIR HA'SHIRIM'</b></font>
<br>QUESTION: The Gemara says that whenever the name 'Shlomo' is mentioned in Shir ha'Shirim it is holy, because it refers to Hash-m with the acronym -- 'Mi sheha'Shalom Shelo' (the One to Whom peace belongs).
</p><p>
What is the Gemara's point in teaching this? Does the Gemara mean that one is prohibited to erase the name of Shlomo when it appears in Shir ha'Shirim, just as the Gemara earlier mentions that it is prohibited to erase other names of Hash-m which are holy?
</p><p>
ANSWERS:
<br>(a) The <b>RAN</b> and <b>RITVA</b> explain that one is allowed to erase the name Shlomo in Shir ha'Shirim. This name is no different than other descriptive words used to refer to Hash-m (such as 'Rachum' and 'Chanun') which <i>may</i> be erased. The Gemara is saying that the word 'Shlomo' is holy with regard to its use in a Shevu'ah. For example, if a person makes witnesses swear a Kinuy of Hash-m, such as 'Shlomo,' that they do not know testimony, and the witnesses swear falsely, they are obligated to bring a Korban Shevu'as ha'Edus.
</p><p>
The <b>ROSH</b> agrees that one is allowed to erase 'Shlomo' in Shir ha'Shirim, but he gives a different explanation for the Gemara. He states that the Gemara's intention in teaching the explanation of the word 'Shlomo' is so that one will learn Shir ha'Shirim correctly and know the right interpretation and meaning of the verses.
</p><p>
Although other Rishonim also mention this explanation of the Gemara, the Rosh does not mention their explanation (that the usage of the word 'Shlomo' in a Shevu'ah makes the Shevu'ah valid). The <b>CHESHEK SHLOMO</b> explains that the Rosh does not give that explanation because it is not a common occurrence that someone makes a Shevu'ah with the name 'Shlomo.' (The Rosh agrees, however, that in practice such a Shevu'ah would be valid.)
</p><p>
(b) The Rosh quotes <b>RABEINU MATZLI'ACH</b> who understands that the Gemara's intention is to teach that one is prohibited to erase the name 'Shlomo.'
</p><p>
Some understand that this is also the opinion of the <b>RAMBAM</b>. The Rambam (Hilchos Yesodei ha'Torah 6:9) records all of the statements of the Gemara here together, and mentions that 'every appearance of the word 'Shlomo' is holy and is like other Kinuyim.' The Cheshek Shlomo explains that the Rambam refers to Kinuyim which are prohibited to erase. He understands that this is also how the <b>RADVAZ</b> (Leshonos ha'Rambam 67) understands the Rambam.
</p><p>
The <b>RITVA</b> and <b>KESEF MISHNEH</b>, however, understand the Rambam's words differently and maintain that the Rambam permits erasing the word 'Shlomo.' (Y. Montrose) </p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) OTHER WORDINGS OF A SHEVU'AH</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (R. Avahu):</font></b> It says 'va'Yavei Oso b'Alah (Nebuchadnetzar
          imposed an Alah on Chizkiyahu)', and 'Asher Hishbi'o
          bei'Lokim.' These teach that Alah is a Shevu'ah.
<br>     <b><font color='darkgreen'>(b)  (Beraisa):</font></b> The expression 'Arur' includes
          excommunication, curse, and oath.
<br>          <b><font color='darkgreen'>1.   Excommunication - 'Oru Meroz... Arur Yoshveha
               (cursed is Meroz... and those who sit near him)';
             </font></b>  i.   (Ula): Barak excommunicated Meroz with 400
                    shofars.
<br>          <b><font color='darkgreen'>2.   Curse - 'These will stand Al ha'Kelalah... Arur
               ha'Ish.'
<br>          <b><font color='darkgreen'>3.   Oath - 'Va'Yashba Yehoshua... Arur ha'Ish (who will
               rebuild Yericho).'
<br>          <b><font color='darkgreen'>4.   Objection:</font></b> Perhaps he swore <i>and</i> cursed! (So this
               does not prove that Arur includes an oath!)
<br>          <b><font color='darkgreen'>5.   Rather, we learn from 'va'Yo'el... Sha'ul... Arur
               ha'Ish who will eat... Yonasan did not hear
               b'Hashbi'a.'
<br>          <b><font color='darkgreen'>6.   Objection:</font></b> Perhaps here also, Sha'ul swore and
               cursed!
<br>          <b><font color='darkgreen'>7.   Answer:</font></b> If so, it would have said 'v'Arur.'
             </font></b></font></b></font></b>  i.   The same can be said regarding Yehoshua, that
                    is also a proof that Arur is an oath.
<br>     <b><font color='darkgreen'>(c)  (R. Yosi b'Rebbi Chanina):</font></b> 'Amen' is an expression of
          (accepting) an oath, accepting terms, and affirmation.
<br>          <b><font color='darkgreen'>1.   An oath - 'v'Amrah ha'Ishah (the Sotah) Amen Amen';
<br>          <b><font color='darkgreen'>2.   Accepting terms - 'cursed is the one who will not
               fulfill... v'Amar Kol ha'Am Amen.'
<br>          <b><font color='darkgreen'>3.   Affirmation - 'Amen Ken Ya'aseh Hash-m (to return
               the vessels of the Mikdash and Bnei Yisrael from
               exile).'
 </font></b></font></b></font></b>    (d)  (R. Elazar): Saying 'no' or 'yes' is an oath.
<br>     <b><font color='darkgreen'>(e)  Question:</font></b> Granted, we learn about 'no' from 'v'Lo Yihyeh
          Od ha'Mayim l'Mabul', and 'Asher Nishbati me'Avor Mei
          Noach';
<br>          <b><font color='darkgreen'>1.   However, what is the source that 'yes' is an oath?
 </font></b>    (f)  Answer: It is logical that if 'no' is an oath, also 'yes'
          is.
<br>     <b><font color='darkgreen'>(g)  (Rava):</font></b> It is an oath only if he says 'yes' or 'no'
          twice;
<br>          <b><font color='darkgreen'>1.   Hash-m said 'v'Lo Yikares Kol Basar' <i>and</i> 'v'Lo
               Yihyeh Od ha'Mayim l'Mabul.'
<br>          <b><font color='darkgreen'>2.   Similarly, 'yes' is an oath only if he says it
               twice.
<br><b><font color='darkgreen'><b><font color='darkgreen'></font></b></font></b>
<br><b><font color='blue'>2) CURSING WITH THE NAME OF HASH-M</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah - R. Meir):</font></b> One who curses Hash-m with any of
          these names is liable (to death administered by Beis
          Din). Chachamim exempt.
<br>     <b><font color='darkgreen'>(b)  (Beraisa - R. Meir) Question:</font></b> Since it says 'v'Nokev Shem
          Hash-m Mos Yumas', why must it say also (death regarding)
          'Ish Ish Ki Yekalel Elokav'?
<br>     <b><font color='darkgreen'>(c)  Answer:</font></b> One might have thought that one is liable only
          for (cursing) the intrinsic name 'Hashem'. The extra
          verse obligates also for other names;
<br>     <b><font color='darkgreen'>(d)</font></b>  Chachamim say, one is Chayav Misah for cursing 'Hashem'.
          One transgresses a Lav for other names.
<br>     <b><font color='darkgreen'>(e)  (Mishnah):</font></b> One who curses his parents...
<br>     <b><font color='darkgreen'>(f)  Question:</font></b> Who are Chachamim, who exempt (from death) for
          cursing parents with other names of Hash-m?
<br>     <b><font color='darkgreen'>(g)  Answer:</font></b> They are R. Menachem bar Yosi;
<br>          <b><font color='darkgreen'>1.   (Beraisa - R. Menachem bar Yosi):</font></b> We do not need
               'b'Nakvo Shem Yumas' to teach about cursing Hash-m,
               so we apply it to cursing parents. One is liable
               only for cursing with the name 'Hashem.'
<br>     <b><font color='darkgreen'>(h)  (Mishnah):</font></b> One who curses himself or another person with
          any of these names transgresses a Lav.
<br>     <b><font color='darkgreen'>(i)  (R. Yanai):</font></b> All agree to this;
<br>          <b><font color='darkgreen'>1.   One who curses himself transgresses 'Hishamer Lecha
               u'Shmor Nafshecha Me'od';
             </font></b>  i.   (R. Avin): 'Hishamer', 'Pen', or 'Al' always
                    denotes a Lav.
<br>          <b><font color='darkgreen'>2.   One who curses another person transgresses (a Lav
               learned from a Tzad ha'Shavah of cursing a parent
               and) 'Lo Sekalel Cheresh.'
 </font></b>    (j)  (Mishnah): 'Hashem should strike you (if you will not
          testify for me)' is the Alah (curse) the Torah refers to.
<br>     <b><font color='darkgreen'>(k)</font></b>  Rav Kahana was reciting this Mishnah in front of Rav
          Yehudah. Rav Yehudah told him to recite it in the third
          person (lest it sound like he curses Rav Yehudah).
<br>     <b><font color='darkgreen'>(l)</font></b>  A Chacham was reciting and expounding 'Gam Kel
          Yitatzecha...' Rav Kahana told him to recite it in the
          third person.
<br>     <b><font color='darkgreen'>(m)  Question:</font></b> Why must this case also be mentioned?
<br>     <b><font color='darkgreen'>(n)  Answer:</font></b> One might have thought that we recite only
          Mishnayos in an altered form, but not verses. The second
          episode teaches that we do so even with verses.
<br>
<b><font color='blue'>3) AN INFERRED CURSE</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah - R. Meir):</font></b> If he said 'Hashem should not strike
          you', 'Hashem should bless you', or 'Hashem should do
          good to you (if you will testify for me)', they are
          liable;
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> R. Meir holds that we do not infer the positive
          from the negative (i.e. He should strike you if you do
          not testify, and not the negative from the positive)!
<br>     <b><font color='darkgreen'>(c)  Answer #1:</font></b> The opinions of R. Meir and Chachamim must be
          switched.
<br>     <b><font color='darkgreen'>(d)</font></b>  R. Yitzchak learned the Mishnah like our (original) text.
<br>          <b><font color='darkgreen'>1.   Rav Yosef:</font></b> We cannot switch the opinions if this
               opposes our text and R. Yitzchak's!
<br>          <b><font color='darkgreen'>2.   Question:</font></b> How do we resolve the contradiction in R.
               Meir?
<br>     <b><font color='darkgreen'>(e)  Answer #2:</font></b> R. Meir does not infer the positive from the
          negative in monetary matters, but for Isurim, he does.
<br>     <b><font color='darkgreen'>(f)  Question:</font></b> Sotah is an Isur, and R. Tanchum said that R.
          Meir infers the negative (if you are not innocent, you
          will die) from the positive (if you are innocent, you
          will be safe), because it says 'Hinaki' without a 'Yud'
          (we can interchange 'Hei' and 'Ches', and read this
          'Chanki', you will choke)';
<br>          <b><font color='darkgreen'>1.   If not, R. Meir would not infer the negative from
               the positive!
<br><b><font color='darkgreen'>
&lt;</font></b>br&gt;

sjt:
<font><b>1) RESPONDING 'NO' TWICE IS LIKE A SHEVU'AH</b></font>
<br>QUESTIONS: Rebbi Elazar says that merely saying 'no' may be considered a Shevu'ah, like saying 'yes.' The Gemara proves this from what Hash-m said after the Flood: 'And the waters will never again become a flood' (Bereishis 9:15), which the verse in Yeshayah (54:9) calls a Shevu'ah: 'For this is like the waters of Noach to Me; for just as I have sworn that the waters of Noach should no more go over the earth....' The Gemara concludes that if saying 'no' constitutes an oath, then, logically, saying 'yes' should also constitute an oath.
</p><p>
Rava explains (see <b>RASHI</b>) that Rebbi Elazar's statement applies only when the person says 'no' or 'yes' <i>twice</i>. This is derived from the fact that Hash-m said 'no' twice in His oath not to bring another flood. In addition to the verse mentioned above (9:15), Hash-m said, 'And all flesh will never again be cut off by the waters of the flood' (9:11). Hashem's statement became an oath because He said 'no' twice.
</p><p>
However, there are three other verses in Parshas Noach in which Hash-m uses the word 'no' with regard to destroying the world with a flood. The verse says, 'And there will be no more flood to destroy the world' (the second half of Bereishis 9:11). In addition, the verse says, 'I will not continue to curse the earth because of man' (Bereishis 8:21), and, 'I will not continue to smite all living things as I have done' (ibid.). According to Rava's reasoning, one should have to say 'no' <i>five</i> times in order for his statement to constitute a Shevu'ah! Why does the Gemara not take into account these verses?
</p><p>
ANSWERS:
<br>(a) The <b>ROSH</b> says that the Girsa of our text of the Gemara (which quotes the first half of verse 9:11, and verse 9:15) is not the correct Girsa. The Rosh argues that according to this Girsa, one should have to say 'no' <i>three</i> times in order for his statement to constitute a Shevu'ah, since <i>three</i> statements of Hash-m in the verses quoted by the Gemara contain the word 'no' -- two in Bereishis 9:11 and one in 9:15. The Rosh also argues that the Girsa of the <b>RIF</b> is incorrect. The Rif quotes the verses of Bereishis 8:21 and 9:15 (according to the Girsa of our text of the Rif, the Rif quotes the second half of verse 9:11, and verse 9:15).
</p><p>
Rather, the Rosh asserts that the proper Girsa is the two statements of 'no' in Bereishis 8:21. The verse in its entirety reads, 'Hash-m smelled the pleasing aroma [of Noach's Korban], and Hash-m said in His heart, 'I will not continue to curse the earth because of man, because the inclination of man's heart is evil from his youth, and I will not continue to smite all living things as I have done.' Hashem's words in this verse were said immediately after Noach offered Korbanos to Hash-m, which found favor in His eyes. Hash-m said these words as an oath to assure Noach that the world would never be destroyed again with a flood. The verses later (Bereishis 9:11 and 9:15), in contrast, are merely narrative, in which Hash-m relates what the rainbow represents (there will be no more flood); they are not a statement of an oath. The Rosh explains that when Hash-m commanded Noach to leave the Teivah and to repopulate the world (Bereishis 8:16-18), Noach refrained from having more children out of fear that another flood might destroy them. Hash-m therefore promised Noach (8:21) that there would be no more flood. It is this statement, which contains the word 'no' two times, from which Rava derives the law that saying 'no' twice constitutes a Shevu'ah, since this statement indeed was Hashem's oath to Noach assuring him that there would never be another flood.
</p><p>
(The Rosh points out that this explains the discrepancy between Hashem's command to Noach to leave the Teivah and Noach's actual fulfillment of the command. Hash-m commanded Noach, 'Go out of the Teivah, you and your wife, your sons and the wives of your sons with you' (8:16). Noach, however, carried out the command in a different order: 'Noach went out, and his sons, his wife and the wives of his sons' (8:18). In Hashem's command, Noach and his wife were to go out together, and his sons and their wives were to go out together, which indicates that each couple was to reunite and have children. However, when they actually left the Teivah, the men stayed separate from the women; they did not attempt to have children out of fear of another flood. Only after Hash-m made His oath not to bring another flood did they agree to reunite, which explains why Hash-m commanded them again, after His oath, to have children (9:1).)
</p><p>
Based on this explanation, the Rosh understands that Rava's law is that in order to constitute a Shevu'ah, a person's two statements of 'no' must be said consecutively, just as Hash-m said His two statements consecutively. In contrast, according to Rava, if a person is asked to do something and he says 'no,' and then he is asked again and he says 'no' again, his statement does not constitute a Shevu'ah.
</p><p>
(b) The <b>MAHARSHA</b> disagrees with the Rosh and defends the Girsa of our text of the Gemara. He argues that the verse that the Rosh quotes (8:21) cannot be the source that saying 'no' two times constitutes a Shevu'ah, because in that verse Hash-m did not say His statement aloud to Noach, but rather He said it 'in <i>His heart</i>.' (The <b><b><b>OR</b></b> HA'CHAIM</b> also rejects the Girsa of the Rosh for this reason, and for the reason that the two statements in 8:21 of 'Lo Osif l'Kalel' and 'Lo Osif Od l'Hakos' address two different details and thus cannot constitute a single Shevu'ah.) Only later does the Torah say that Hash-m spoke to Noach (9:8): 'Behold, I establish My covenant with you' (9:9), and, 'I will uphold My covenant with you, and all flesh will never again be cut off by the waters of the flood, and there will be no more flood to destroy the world' (9:11). It is in this verse that Hash-m makes a 'covenant' and uses the word 'no' twice. The later verse (9:15) is merely narrative, describing Hashem's remembrance of His Shevu'ah.
</p><p>
(The Maharsha's explanation, however, is still not consistent with the Girsa of our text. According to our text, the two statements that Rava quotes are the first half of Bereishis 9:11 -- 'all flesh will never again be cut off by the waters of the flood,' and verse 15 -- 'and the water will not again become a flood.' The Maharsha, however, says that both statements are from verse 11. Therefore, it seems that the Girsa of the <b>DIKDUKEI SOFRIM</b>, based on old manuscripts, is correct. The Dikdukei Sofrim changes the words, 'v'Lo Yiheyeh Od ha'Mayim la'Mabul' (which appear in Bereishis 9:15) to read instead, 'v'Lo Yiheyeh Od Mabul l'Shaches ha'Aretz' (which are in the end of Bereishis 9:11). This clearly was the Girsa of the Maharsha.)
</p><p>
(c) How is the Girsa of the Rif to be reconciled? According to our text of the Girsa of the Rif (and not the Girsa of the Rif according to the Rosh), the two statements in which Hash-m says 'no' are the second half of 9:11 and 9:15. It seems that the Rif maintains that these two statements constitute the Shevu'ah because they are most similar in syntax. The first verse (9:11) reads, 'v'Lo Yiheyeh Od Mabul l'Shaches ha'Aretz' ('And there will be no more flood to destroy the world'), and the second verse (9:15) reads, 'v'Lo Yiheyeh Od ha'Mayim la'Mabul l'Shaches Kol Basar' ('And the water will not again become a flood to destroy all flesh'). Both verses emphasize that there will be no more flood that will be destructive (either to mankind or to the land). In contrast, the first part of verse 11 does not say that 'there will be no more flood,' but rather that 'all flesh will never again be cut off by the waters of the flood,' using a different phraseology. (See <b>MALBIM</b> to Bereishis 9:11, and <b>TORAH TEMIMAH</b> to Bereishis 9:15.)
</p><p>
It seems that the <b>BACH</b> agrees with the Girsa of the Rif. The <b>BACH</b> amends the Girsa to read <i>both</i> the second half of verse 11 <i>and</i> verse 15. He apparently understands that the two statements in verse 11 do not prove that two statements of 'no' constitute a Shevu'ah. Rather, the second half of verse 11 and verse 15 are the two statements of 'no' that constitute the Shevu'ah (as the Rif writes), and the Gemara quotes the first half of verse 11 merely because it is the beginning of the verse.
</p><p>
The <b><b><b>OR</b></b> HA'CHAIM</b> (Bereishis 9:11) adds that according to the Rif, the reason why the first half of verse 11 -- 'v'Lo Yikares Kol Basar Od mi'Mei ha'Mabul' -- is not included is as follows. Instead of interpreting the verse to mean, 'And all flesh will never again be cut off by the waters of the flood,' the Rif understands that it means, 'And all flesh will never again be cut off [in any manner, whether by fire or by plague] <i>from the time</i> of the waters of the flood.' According to this understanding, the verse is not saying that mankind will never again be destroyed by a flood in particular, and thus this statement is not part of the Shevu'ah regarding the flood.
</p><p>
This is also the approach of the <b>MEROMEI SADEH</b> here, who writes that the two statements of 'no' that constitute a Shevu'ah are the two statements that explicitly state that there will not be another flood. The Meromei Sadeh explains that this is why the Gemara does not bring proof from the two statements that the Rosh mentions (Bereishis 8:21, 'Lo Osif l'Kalel' and 'Lo Osif Od l'Hakos'); those verses make no mention of a <i>flood</i>, but rather they say that mankind, and the land, will not be destroyed. The Shevu'ah, however, specifically refers to a flood, as is clear from the words of Yeshayah, who said that Hashem's Shevu'ah was that He would not bring another flood. (See also <b><b><b>OR</b></b> HA'CHAIM</b> to Bereishis 9:11 and <b>CHASAM SOFER</b> for additional explanations of the Gemara according to our Girsa.)
</p><p>
<br>

loi:
<b><font color='blue'>1)    HARMING ONESELF</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'><p></p></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   (R. Yanai):</font></b> One who curses himself transgresses
               'Hishamer Lecha u'Shmor Nafshecha M'od';
<br>               <b><font color='darkgreen'>i.   (R. Avin):</font></b> 'Hishamer', 'Pen', or 'Al' always
                    denotes a Lav.
<br>          <b><font color='darkgreen'>2.   Bava Kama 91a (Mishnah - R. Akiva):</font></b> A person may not
               injure himself.
<br>          <b><font color='darkgreen'>3.   Contradiction (Beraisa - R. Akiva):</font></b> A person may
               injure himself.
<br>          <b><font color='darkgreen'>4.   Answer #1 (Rava):</font></b> A person may not bodily injure
               himself, but he may embarrass himself.
<br>          <b><font color='darkgreen'>5.   Question (Beraisa):</font></b> '(If one swore) to harm or to
               benefit...' - just like the benefit discussed is
               optional (not a Mitzvah), also the harm. This
               includes one who swore to harm himself (he is liable
               if he does not do so).
<br>          <b><font color='darkgreen'>6.   Answer #1 (Shmuel):</font></b> The Beraisa discusses an oath to
               fast.
<br>          <b><font color='darkgreen'>7.   Objection (Beraisa):</font></b> What is the case of (swearing
               to) harm others? 'I will hit Ploni, I will bruise
               his brain'.
<br>          <b><font color='darkgreen'>8.   Answer #2 (to both questions):</font></b> Tana'im argue about
               this (each Tana says that R. Akiva agrees with him).
<br>          <b><font color='darkgreen'>9.   Question:</font></b> Which Tana forbids a person to damage
               himself?
<br>          <b><font color='darkgreen'>10.   Answer #1:</font></b> It is R. Elazar, who says that one who
               tears too much clothing out of grief over a death
               transgresses 'Bal Tashchis'. All the more so, he
               holds that one who damages his body transgresses!
<br>          <b><font color='darkgreen'>11.   Rejection:</font></b> Perhaps damaging one's body is less
               severe, for the damage can heal, unlike tearing
               clothing.
<br>          <b><font color='darkgreen'>12.   Answer #2:</font></b> It is R. Elazar Hakapar b'Ribi:
<br>               <b><font color='darkgreen'>i.   (Beraisa - R. Elazar Hakapar):</font></b> 'Me'Asher Chota
                    Al ha'Nefesh' - he sinned against his own soul,
                    by denying himself wine. If one is called a
                    sinner for denying himself wine, all the more
                    so one who (fasts and) denies himself all food
                    is called a sinner!
<br>          <b><font color='darkgreen'>13.   Ta'anis 11a (Shmuel):</font></b> One who fasts is called a
               sinner.
<br>          <b><font color='darkgreen'>14. </font></b>  He holds like R. Elazar Hakapar.
<br>          <b><font color='darkgreen'>15.   (R. Elazar):</font></b> A Nazir pained himself only from one
               thing, and he is called Kadosh - 'Kadosh Yihyeh
               Gadel Pera Se'ar Rosho'. All the more so, one who
               fasts and pains himself from everything is called
               Kadosh!
<br>          <b><font color='darkgreen'>16. </font></b>  Elsewhere, R. Elazar expounded that one should
               consider that his innards are Kodesh (and he may not
               weaken them)! Rather, if one can bear the fast, he
               is praiseworthy. If not, he sins.
<br>          <b><font color='darkgreen'>17.   (Reish Lakish):</font></b> He is called Kadosh - 'Gomel Nafsho
               Ish Chased v'Ocher She'ero Achzari'.
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rashi (Ta'anis 11b DH Nikra):</font></b> Reish Lakish says that
               one who fasts and can bear it is called Ish Chased'.
               If he weakens himself he is called Achzari.
<br>          <b><font color='darkgreen'>2.   Tosfos (Ta'anis 11b DH Gomel):</font></b> Reish Lakish says
               that one who does not fast is called Ish Chased'.
<br>          <b><font color='darkgreen'>3.   Rambam (Hilchos De'os 3:1):</font></b> Since Ta'avah is so bad,
               one might think that he should go to the other
               extreme and not eat meat and wine, get married, have
               a nice house and clothing... One who does so is
               called a sinner. A Nazir who denies himself wine
               needs atonement. All the more so, one who denies
               himself everything needs atonement! Therefore,
               Chachamim commanded to refrain only from what the
               Torah forbids, and not to add Isurim through vows
               and oaths.
<br>          <b><font color='darkgreen'>4.   Question (Tosfos Shevuos 36a DH u'Shmor):</font></b> 'U'Shmor
               Nafshecha Me'od' forbids cursing oneself. We should
               also learn that it is Asur to harm oneself from
               here, or from 'v'Hishamru Me'od l'Nafshoseichem'!
               Why is there disagreement about whether or not one
               may harm himself? We should learn from 'u'Shmor
               Nafshecha Me'od' or 'v'Hishamru Me'od
               l'Nafshoseichem'!
<br>          <b><font color='darkgreen'>5.   Answer (Tumim 27:1):</font></b> Indeed, the one who permits to
               harm oneself also permits cursing oneself. The
               Gemara did not learn the Isur to curse parents from
               the Isur to curse oneself, for this would not answer
               according to the opinion that one may harm himself.
<br>          <b><font color='darkgreen'>6.   Question (Tosfos Ta'anis 11a DH Omar):</font></b> Here, Shmuel
               says that one who fasts sins. In Bava Kama, Shmuel
               said that the Heter to harm oneself refers to
               fasting!
<br>          <b><font color='darkgreen'>7.   Answer #1 (Tosfos):</font></b> There is a small sin to fast,
               but the reward outweighs it. This is why we say that
               one who sees a Sotah in her disgrace should become a
               Nazir, even though he sins by abstaining from wine.
               It is good to fast to annul a bad dream on Shabbos,
               but he must fast again during the week this is only
               atone for fasting on Shabbos.
<br>          <b><font color='darkgreen'>8.   Rebuttal and Answer #2 (Gvuras Ari Ta'anis 11a DH 
               Omar and DH Ela):</font></b> If the reward outweighs the
               punishment it is totally permitted, just like an
               Aseh override a Lav because an Aseh is stronger!
               Shmuel merely explained the Beraisa, but perhaps he
               himself disagrees.
<br>          <b><font color='darkgreen'>9.   Answer #3 (Lechem Mishneh):</font></b> The Rambam explains that
               mid'Oraisa the verse applies only to a Tamei Nazir.
               Even though the Gemara says that the verse applies
               even to a Tahor Nazir and it was written regarding a
               Tamei Nazir since he sins twice, this is an
               Asmachta. Really, it applies to a Tahor Nazir only
               mid'Rabanan. Similarly, the Isurim to fast or harm
               oneself, which are learned from a Nazir Tahor, are
               mid'Rabanan. Even though an oath takes effect on an
               Isur mid'Rabanan, the Beraisa connotes that the Tana
               permits harming oneself even mid'Rabanan. Shmuel
               established the Beraisa to discuss fasting. This is
               not like R. Elazar Hakapar, rather, like R. Elazar
               who argues with him. However, all agree to the law
               of the Beraisa, that the oath takes effect.
<br>          <b><font color='darkgreen'>10.   Chasam Sofer (8a DH ul'Rebbi and 21a DH Chutz):</font></b> R.
               Elazar Hakapar says that a Nazir Tamei sinned during
               the days that do not count, for he pained himself
               for naught. We learn from R. Elazar Hakapar that
               paining oneself, even passively, is considered an
               action for which one brings a Korban.
<br>          <b><font color='darkgreen'>11.   Aruch l'Ner (Rosh Hashanah 9a DH Kol):</font></b> If one
               benefits from this world more than the Torah allows,
               he sins against his Neshamah. Likewise, if he does
               not give to his body the food and drink it requires,
               he sins against his body - 'me'Asher Chota Al
               ha'Nefesh'. The command to eat on Erev Yom Kipur and
               fast on Yom Kipur are to atone for 'Nafshoseichem'
               (plural, as opposed to Nafshechem), these two parts
               of the soul.
<br>          <b><font color='darkgreen'>12.   Igros Moshe (CM 1:103):</font></b> Perhaps donating blood
               (when there is no patient who needs it right now) is
               forbidden, even if one is paid for this, because it
               harms oneself. Tosfos (Bava Kama 91b DH Ela) forbids
               harming oneself even for profit. However, we learned
               from a Nazir, who is called a sinner for paining
               himself. If he does so willingly for profit, he is
               not pained! Perhaps we can distinguish. The pain of
               refraining from wine is only if he desires it. If
               one desires the profit more, he feels no pain.
               Bodily harm is always painful. However, the Gemara
               says that bloodletting is a Refu'ah. Nature changed
               after the time of the Gemara; the Rambam (Hilchos
               De'os 4:18) counsels to let blood less often than
               the Gemara says. Even though we do not let blood
               nowadays for Refu'ah, presumably nature has not
               changed totally and even nowadays it helps a bit.
               Therefore, we do not protest if one donates blood.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (CM 337:19):</font></b> A worker may not starve
               or afflict himself, for this decreases the work he
               will do for his employer.
<br>               <b><font color='darkgreen'>i.   Taz:</font></b> If he will be working in a vineyard he may
                    starve himself beforehand, for he may eat while
                    working and he will work properly.
<br>          <b><font color='darkgreen'>2.   Shulchan Aruch (CM 420:31):</font></b> Even though one may not
               wound himself, if he did, he is exempt.
<br>               <b><font color='darkgreen'>i.   Tur (CM 420:31):</font></b> One may not wound himself. The
                    Ramah says that the Halachah is that one may
<br>               <b><font color='darkgreen'>ii.  Beis Yosef (DH u'Mah she'Chosav b'Shem):</font></b> It
                    seems that the Tur holds that the Halachah
                    never follows R. Elazar Hakapar.
<br>               <b><font color='darkgreen'>iii. Bach (21):</font></b> It seems that the Tur holds that the
                    Sugya in Shevuos is like Chachamim who argue
                    with R. Elazar Hakapar, and the Halachah
                    follows them.
<br>               <b><font color='darkgreen'>iv.  Prishah (21 DH Kosav):</font></b> Even though one may not
                    tear too many garments due to a Mes, all agree
                    that there is more Heter to wound the body, for
                    it heals, unlike garments.
<br><br><font color='blue'><i>See also:</i>
<br><b>IS IT PRAISEWORTHY TO FAST? </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>     <b><font color='darkgreen'>(g)  Answer #1:</font></b> Indeed, the opinions must be switched. R. Meir
          does not infer the negative from the positive even for
          Isurim.
<br>     <b><font color='darkgreen'>(h)  Question (Ravina):</font></b> If so, he should exempt one who serves
          in the Mikdash after drinking wine, or with more than 30
          days growth of hair, from Misah b'Yedei Shamayim! (The
          Torah only says that Kohanim will not drink wine before
          serving, and they will not die.)
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> One who serves in the Mikdash after
               drinking wine or with more than 30 days growth of
               hair is punishable by Misah b'Yedei Shamayim. (We do
               not find that anyone disagrees!)
<br>     <b><font color='darkgreen'>(i)  Version #1 (Rashi) Answer #2:</font></b> The opinions must be
          switched. R. Meir does not infer the negative from the
          positive for anything involving money. He does infer for
          Isurim;
<br>          <b><font color='darkgreen'>1.   Sotah is an Isur that involves money (the Kesuvah).
 </font></b>    (j)  Version #2 (Ritva) Answer #2: Do not switch the opinions.
          R. Meir does not infer the negative from the positive for
          anything involving money. He does infer for Isurim;
<br>          <b><font color='darkgreen'>1.   Sotah is an Isur involving money. (Shevu'as ha'Edus
               is considered an Isur not involving money, for the
               witnesses do not stand to lose or profit.)
<br><b><font color='darkgreen'>
<br><center><font color='ff0000' size='+1'><b>*****PEREK SHEVU'AS HA'PIKADON*****</b></font></center><p>
<br>
</font></b>
<br><b><font color='blue'>4) SHEVU'AS HA'PIKADON</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah - R. Meir):</font></b> Shevu'as ha'Pikadon applies to men
          and women, to strangers and relatives, to Kosher and
          invalid witnesses;
<br>          <b><font color='darkgreen'>1.   When he swears himself, it applies in or outside of
               Beis Din. If the oath is imposed on him, he is
               liable only if he denies in Beis Din.
 </font></b>    (b)  Chachamim say, whether he swears himself or the oath is
          imposed on him, he is liable if he denies (even outside
          of Beis Din).
<br>     <b><font color='darkgreen'>(c)</font></b>  He is liable whether or not he knew the punishment for
          the oath, if he knew that he swears falsely;
<br>          <b><font color='darkgreen'>1.   He is exempt if he believed that he was swearing
               truthfully.
 </font></b>    (d)  When liable, he brings an Asham that costs at least two
          Shekalim.
<br>     <b><font color='darkgreen'>(e)</font></b>  Shevu'as ha'Pikadon is when Shimon told Levi 'give to me
          the deposit you are holding for me', and Levi swore 'you
          do not have a deposit by me', or Shimon imposed this oath
          on him and he answered Amen. (If Levi was lying,) he is
          liable.
<br>     <b><font color='darkgreen'>(f)</font></b>  If he imposed the oath on him five times, in or outside
          of Beis Din, and Levi denied the deposit, he is liable
          for each oath;
<br>          <b><font color='darkgreen'>1.   R. Shimon says, this is because each time he could
               have admitted.
 </font></b>    (g)  If five partners claimed a deposit from Levi, and he
          swore 'you do not have a deposit by me', he is liable
          only once;
<br>          <b><font color='darkgreen'>1.   If he said 'I swear that you do not have a deposit
               by me, nor you... ', he is liable for each one.
<br>          <b><font color='darkgreen'>2.   R. Eliezer says, he is liable for each only if he
               said 'Shevu'ah' (Ramban - also) at the end;
<br>          <b><font color='darkgreen'>3.   R. Shimon says, he is liable for each only if he
               said 'Shevu'ah' to each.
 </font></b></font></b></font></b>    (h)  If Shimon claimed from Levi 'you have a deposit from me,
          a loan, theft (an object you stole from me), and an
          Aveidah (an object I lost)'; and Levi swore 'I have
          nothing of yours', he is liable only once;
<br>          <b><font color='darkgreen'>1.   If he swore 'I do not have of yours a deposit, loan,
               theft or Aveidah', he is liable for each one.
 </font></b>    (i)  If Shimon said 'give to me my wheat, barley and spelt',
          and Levi swore 'I have nothing of yours', he is liable
          only once;
<br>          <b><font color='darkgreen'>1.   If Levi said 'I swear that I do not have of yours
               wheat, barley or spelt', he is liable for each one.
<br>          <b><font color='darkgreen'>2.   R. Meir says, even if he said 'wheat, barley and
               spelt' in the singular forms of these words, he is
               liable for each one (this will be explained later).
 </font></b></font></b>    (j)  Shimon claimed 'you raped or enticed my daughter', and
          Levi denied it, and Shimon imposed this oath on him, and
          Levi answered Amen, Levi is liable;
<br>     <b><font color='darkgreen'>(k)</font></b>  R. Shimon exempts, for even if he admitted, he would not
          pay the fine.
<br>          <b><font color='darkgreen'>1.   Chachamim:</font></b> True, but he would pay for embarrassment
               and Pegam due to his own admission!
<br>     <b><font color='darkgreen'>(l)</font></b>  If Shimon said 'you stole my ox', and Levi denied it, and
          Shimon imposed this oath on him and Levi answered Amen,
          he is liable;
<br>          <b><font color='darkgreen'>1.   If Levi admitted 'I stole your ox, but I did not
               slaughter or sell it', and  Shimon imposed an oath
               on him and Levi answered Amen, Levi is exempt.
 </font></b>    (m)  If Shimon said 'your ox killed my ox', and Levi denied
          it, and Shimon imposed this oath on him and Levi answered
          Amen, he is liable;
<br>          <b><font color='darkgreen'>1.   If Shimon said 'your ox killed my (Kena'ani) slave',
               and Levi denied it, and Shimon imposed this oath on
               him and Levi answered Amen, Levi is exempt. (He
               would not pay the fine even if he admitted).
 </font></b>    (n)  If Shimon said 'you wounded me', and Levi denied it, and
          Shimon imposed this oath on him and Levi answered Amen,
          is liable;
<br>     <b><font color='darkgreen'>(o)</font></b>  If Tavi (Levi's Kena'ani slave) said 'you knocked out my
          tooth or blinded my eye', and Levi denied it, and Tavi
          imposed this oath on him and Levi answered Amen, Levi is
          exempt;
<br>          <b><font color='darkgreen'>1.   The general rule is, if the defendant would have had
               to pay due to his own admission he is liable. If
               not, he is exempt.
<br><b><font color='darkgreen'>

<br><p>

sjt:
</p><p>
<font><b>2) MAKING A 'SHEVU'AH' TO FIVE PEOPLE IN ONE STATEMENT</b></font>
<br>QUESTION: The Mishnah discusses a case in which five people claim from a trustee an item that they deposited with him. If he swears falsely that he does not have their item, saying, 'I swear that I do not have your item,' he is required to bring only one Korban for Shevu'as ha'Pikadon. If he swears falsely by addressing each claimant personally, saying, 'I swear that I do not have your item, nor your item, nor your item...,' he must bring five separate Korbanos. Rebbi Eliezer maintains that he is obligated to bring multiple Korbanos only when he ends his statement with the phrasing of 'b'Shevu'ah,' thereby making each part of his statement a separate Shevu'ah. Rebbi Shimon maintains that he must say 'Shevu'ah' in each statement that he says, to each individual claimant, in order to be obligated to bring multiple Korbanos.
</p><p>
The Toras Kohanim teaches the same Halachah, but in a different case. The Toras Kohanim discusses a case of a person who makes multiple Shevu'os ha'Edus that he does not know testimony. There, too, the Tana Kama, Rebbi Eliezer, and Rebbi Shimon disagree about when the person is obligated to bring multiple Korbanos, just as they disagree in the Mishnah here. When the <b>RAMBAM</b> (Hilchos Shevu'os 9:17) records the Halachah, he states the Halachah with regard to Shevu'as ha'Edus and says that the same applies to a case of Shevu'as ha'Pikadon.
</p><p>
Why does the Mishnah not discuss this Halachah earlier, when it discusses the laws of Shevu'as ha'Edus? Why was this case left until the discussion of Shevu'as ha'Pikadon, if it applies equally for Shevu'as ha'Edus?
</p><p>
ANSWERS:
<br>(a) The <b>TIFERES YISRAEL</b> answers that the case of the Mishnah here differs from the case of Shevu'as ha'Edus. In the case of the Mishnah, a single item that was owned jointly by five people was deposited with the trustee. All five owners submit a claim against the trustee, but their claims are brought by a single representative from among them. The Mishnah teaches that even though only one person is actually making the claim, the trustee can be obligated to bring a Korban for each denial that he makes. In contrast, in the case of one who denies knowing testimony, the Halachah (see 35a) is that the denial must be said in front of the plaintiff himself. When only one of the owners (of the object which requires testimony) confronts the potential witness and the witness swears that he does not know testimony, he is obligated to bring only one Korban, since the other owners did not make him swear (see 35a). If, on the other hand, the representative owner has a Harsha'ah from all of the other owners to represent them, then the Harsha'ah gives him the status of the exclusive owner with regard to making a witness swear (see 33b), and thus the witness would not be obligated to bring multiple Korbanos. The Halachah was taught in this Mishnah in order to teach that when one of the owners represents the others in the case of a deposited item, the trustee's Shevu'ah to each of the claimants is valid and can obligate him to bring multiple Korbanos, which is not the law in the case of Shevu'as ha'Edus.
</p><p>
(b) Alternatively, the Tiferes Yisrael explains that the Mishnah chose to teach this Halachah here, with regard to Shevu'as ha'Pikadon, because it is a more likely occurrence that five people claim their deposited item from one trustee. A Shevu'ah concerning a deposited item can be made even outside of Beis Din, and thus it is more likely that the five owners might approach the trustee outside of Beis Din. In contrast, the denial of knowledge of testimony must be done in Beis Din, and it is unusual for five people to come to Beis Din to make a witness testify.
</p><p>
(c) The <b>MEROMEI SADEH</b> answers that this Halachah is taught with regard to the denial of a deposit, because the source for the Halachah of bringing multiple Korbanos for a Shevu'ah is the verses of Shevu'as ha'Pikadon, and not Shevu'as ha'Edus. The Gemara earlier (32a) quotes the verse, 'l'Achas' (Vayikra 5:4), which teaches that one is obligated to bring a separate Korban for each and every false Shevu'ah ('Al Kol Achas v'Achas'). The Meromei Sadeh explains that this means that a person can be obligated to bring multiple Korbanos by swearing falsely to multiple parties. This is learned from the Shevu'ah that one makes in order to deny having a deposited item. The verse there says, 'v'Chichesh ba'Amiso' -- '[If a person sins...] and lies to his neighbor about an object that was delivered to him to guard...' (Vayikra 5:21). This verse teaches that the words of the Gemara (32a), 'for each and every one,' refer to each person to whom the trustee denies having his object. With regard to Shevu'as ha'Edus, however, no verse alludes to what 'each and every one' might mean. Therefore, this Halachah is learned from the verse regarding a deposited item and applied to the case of denial of testimony. Since the source for the Halachah of bringing multiple Korbanos is the verse that discusses Shevu'as ha'Pikadon, the Mishnah expresses this Halachah with regard to Shevu'as ha'Pikadon. 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) ONE WHO WAS WARNED NOT TO SWEAR</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Question (Rav Kahana):</font></b> If Levi was warned not to swear
          falsely Shevu'as ha'Pikadon (but did so b'Mezid), what is
          the law?
<br>          <b><font color='darkgreen'>1.   Shevu'as ha'Pikadon is a Chidush (exception). One
               brings a Korban for Mezid, unlike the general rule.
               Therefore, the law is the same even if he was
               warned;
<br>          <b><font color='darkgreen'>2.   Or, perhaps that is only if he was not warned, but
               if he was warned, he is lashed and he does not bring
               a Korban;
<br>          <b><font color='darkgreen'>3.   Or, perhaps he is lashed and brings a Korban'
 </font></b></font></b></font></b>    (b)  Answer #1 (Rav Acha, Rav Shmuel and R. Yitzchak -
          Beraisa): Shevu'as ha'Pikadon is more stringent (than
          Shevu'as ha'Edus). He is lashed if he was Mezid, and he
          brings an Asham if he was Shogeg.
<br>          <b><font color='darkgreen'>1.   Since he is lashed, surely he was warned. It says
               only that he is lashed (for Mezid), implying that he
               does not bring a Korban;
<br>          <b><font color='darkgreen'>2.   This is more stringent than Shevu'as ha'Edus (for
               which one brings a Chatas if Mezid) since one
               prefers to bring a Korban than to be lashed.
 </font></b></font></b>    (c)  Rejection #1 (Rava bar Isi): This Beraisa is like R.
          Shimon, who says that there is no atonement (Korban) for
          Mezid Shevu'as ha'Pikadon. Chachamim would say that he
          also brings a Korban.
<br>     <b><font color='darkgreen'>(d)  Rejection #2 (Rav Kahana):</font></b> I myself recited that Beraisa.
          The correct text says 'whether he was Mezid or Shogeg, he
          brings an Asham that costs at least two Shekalim';
<br>          <b><font color='darkgreen'>1.   This is more stringent than Shevu'as ha'Edus, for
               which one may bring a Chatas costing as little as a
               Ma'ah (a sixth of a Dinar).
<br>          <b><font color='darkgreen'>2.   Question:</font></b> Rav Kahana should have settled his
               question from the Beraisa!
<br>          <b><font color='darkgreen'>3.   Answer:</font></b> Perhaps the Beraisa discusses when he was
               not warned.
 </font></b>    (e)  Answer #2 (Mishnah): He is exempt if he believed that he
          was swearing truthfully. When liable, he brings an Asham
          that costs at least two Shekalim.
<br>          <b><font color='darkgreen'>1.   Suggestion:</font></b> The case is, he was warned.
<br>     <b><font color='darkgreen'>(f)  Rejection:</font></b> No, he was not warned.
<br>     <b><font color='darkgreen'>(g)  Answer #3 (Beraisa):</font></b> We cannot learn from a Tamei Nazir,
          for he is lashed, to Shevu'as ha'Pikadon, for which one
          is not lashed! (It is not clear which law the Beraisa
          thought to learn from a Tamei Nazir);
<br>          <b><font color='darkgreen'>1.   Since the Tamei Nazir is lashed, we must say that he
               was warned, and it says that (in a similar case) he
               is not lashed for Shevu'as ha'Pikadon!
 </font></b>    (h)  Rejection: The Beraisa means, regarding Shevu'as
          ha'Pikadon, one does not get full atonement through
          lashes (he needs also a Korban).
<br>          <b><font color='darkgreen'>1.   Question:</font></b> This implies that a Nazir Tamei gets full
               atonement through lashes. The Torah explicitly says
               that he brings a Korban!
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> That Korban is not for atonement, rather in
               order to enable him to begin Nezirus in Taharah.
<br>
<b><font color='blue'>2) IF WITNESSES KNOW THAT HE OWES</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)</font></b>  Rabah heard Rav Kahana's question.
<br>     <b><font color='darkgreen'>(b)  Rabah:</font></b> If he was warned, this implies that witnesses know
          that he is liable. If so, his denial is useless (since
          the witnesses will force him to pay)!
<br>     <b><font color='darkgreen'>(c)  Inference:</font></b> Rabah holds that one who denies money that
          witnesses know about is exempt.
<br>     <b><font color='darkgreen'>(d)  Support (R. Chinena - Beraisa):</font></b> 'V'Chichesh Bah' excludes
          one who admits to one of the brothers or partners who
          claimed from him.
<br>          <b><font color='darkgreen'>1.   'V'Nishba Al Shaker' excludes one who borrowed with
               a document or witnesses (he is exempt because he
               will have to pay).
 </font></b>    (e)  Rejection (Rabah): No. The case is, he admits that he
          borrowed, but he denies that there was a document or
          witnesses who saw the loan.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> Why should we assume that that is the
               case?
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> Presumably, it is similar to the Reisha,
               admitting to one of the partners.
<br>          <b><font color='darkgreen'>3.   Question:</font></b> What is that case?
<br>               <b><font color='darkgreen'>i.   Suggestion:</font></b> He admitted that he owed half to
                    one partner.
<br>               <b><font color='darkgreen'>ii.  Rejection:</font></b> If so, he should be liable for
                    denying the other half!
<br>          <b><font color='darkgreen'>4.   Answer:</font></b> Rather, they say that they lent to him
               together, and he admits to borrowing the entire
               amount from one partner.
<br>               <b><font color='darkgreen'>i. </font></b>  Just like he does not save himself money
                    through this denial, also in the Seifa.
<br>     <b><font color='darkgreen'>(f)  Question (Mishnah):</font></b> He is exempt if he believed that he
          was swearing truthfully.
<br>          <b><font color='darkgreen'>1.   When Mezid, he brings an Asham that costs at least
               two Shekalim.
<br>          <b><font color='darkgreen'>2.   Suggestion:</font></b> This means, we know through witnesses
               that he was Mezid (i.e. they warned him).
 </font></b>    (g)  Answer: No, it means only that he swore falsely b'Mezid.
<br>     <b><font color='darkgreen'>(h)  Question (Mishnah):</font></b> If there were two pairs of witnesses,
          and one pair denied after the other (both pairs are
          liable).
<br>          <b><font color='darkgreen'>1.   We understand why the second pair is liable. The
               first pair already denied, so the denial of the
               second pair stops the claimant from collecting;
<br>          <b><font color='darkgreen'>2.   However, when the first pair denied, this did not
               stop the claimant from collecting. The second pair
               could have testified!
<br>          <b><font color='darkgreen'>3.   Conclusion:</font></b> One is liable for denying, even though
               there are (other) witnesses who (if they testify)
               will enable the claimant to get what he deserves!
<br><b><font color='darkgreen'><b><font color='darkgreen'>
&lt;</font></b>font&gt;</font></b>

sjt:
<font><b>1) THE OBLIGATION TO BRING A 'KORBAN' FOR 'SHEVU'AS HA'PIKADON' WHEN THERE IS 'HASRA'AH'</b></font>
<br>QUESTIONS: Although a person normally is not obligated to bring a Korban when he sins intentionally (b'Mezid), the sin of a Shevu'as ha'Pikadon is an exception. Even if he knows that the Torah prohibits one from swearing falsely and denying possession of another person's money, he is obligated to bring a Korban if he does so. The Gemara asks whether this is true even when the person received Hasra'ah, a warning, before he swore falsely. Perhaps the verse obligates him to bring a Korban only when he sinned without Hasra'ah and is not Chayav Malkus. When, however, he sinned with Hasra'ah, perhaps he is punished with Malkus and he does not receive a second punishment of having to bring a Korban.
</p><p>
<b>RASHI</b> asks why the Gemara does not ask the same question with regard to Shevu'as ha'Edus, for which the verse also obligates a Korban when one sins b'Mezid. The Gemara should ask what the Halachah is when a person is warned not to swear falsely and deny knowledge of testimony that will benefit another person. Perhaps he will receive Malkus and be exempt from a Korban.
</p><p>
Rashi answers that the question is not applicable in the case of Shevu'as ha'Edus since it is impossible, for practical reasons, to give Hasra'as Vadai to a person not to swear falsely that he does not know testimony. Those who administer the Hasra'ah cannot possibly know that the witnesses know testimony. Therefore, the Hasra'ah is a Hasra'as Safek at best; when they warn the potential witnesses not to swear falsely, they can say only that '<i>perhaps</i> you are transgressing a sin.'
</p><p>
Rashi's explanation is difficult to understand for several reasons.
</p><p>
1. Rashi's explanation suffices only according to the opinion that Hasra'as Safek is not a valid Hasra'ah. The Gemara, however, could have asked its question regarding Shevu'as ha'Edus according to the opinion that maintains that Hasra'as Safek <i>is</i> a valid Hasra'ah (see Shevuos 3b)!
</p><p>
2. If the witnesses who administer the Hasra'ah do not know whether or not the potential witnesses know testimony because there is no way to prove what they know, then the reason why the potential witnesses will not be punished is <i>not</i> because of a lack in the Hasra'ah. They will not be punished because Beis Din can never know whether or not they sinned, since it is possible that they indeed did not know testimony!
</p><p>
Perhaps Rashi means that even if Beis Din finds proof that the potential witnesses indeed <i>did</i> know testimony when they denied it, they will not be punished with Malkus, because those who administer the Hasra'ah were not aware of that fact at the time of the Hasra'ah. (See third question below.) However, such Hasra'ah is not considered lacking at all, as <b>TOSFOS</b> proves from the Gemara in Kesuvos (33a) which asserts that it is possible to give Hasra'ah to Edim Zomemim and punish them only when Mazimim come later and prove that those Edim were Edim Zomemim. (<b>TOSFOS</b> DH Hezid)
</p><p>
3. As the <b>MAHARI BEN LEV</b> points out, it certainly <i>is</i> possible for the witnesses who administer the Hasra'ah to know that the potential witnesses know testimony, such as in a case when those who gave the Hasra'ah were present when the event occurred and they saw the other witnesses watching the event. Why do the people who saw the witnesses at the event not testify themselves?
</p><p>
According to the opinion of Rebbi Yochanan (37b), even if those people <i>were</i> able to testify, the second set of witnesses can be liable for Shevu'as ha'Edus. According to the opinion of Rabah, who exempts witnesses from Shevu'as ha'Edus when other witnesses were present, there are a number of cases in which those who administer the Hasra'ah could be sure that the other witnesses know testimony, and yet they are not able to testify themselves. For example, they might be related to one of the parties in the dispute, or they might be related to each other at that time, and before they gave the Hasra'ah their common relative died. (<b>MAHARSHAL</b>)
</p><p>
(Another possible situation in which those who give the Hasra'ah could know for certain that the potential witnesses know testimony is a case in which the potential witnesses admitted in front of other witnesses that they knew testimony, and then they later swore that they did not know testimony.)
</p><p>
Moreover, if no case can be construed in which those who give the Hasra'ah know that the potential witnesses know testimony, because in such a case there would be another set of witnesses to the event and there would be no liability for Shevu'as ha'Edus, then the same argument should make it impossible to construe a case in which Hasra'ah can be given in a case of Shevu'as ha'Pikadon, and yet the Gemara says that Hasra'ah may be given in such a case! (<b>MAHARSHA</b>)
</p><p>
Why, then, does Rashi assert that it is impossible for those who administer the Hasra'ah to know for certain that the potential witnesses know testimony?
</p><p>
ANSWER: The <b>MITZPEH EISAN</b> and <b>PORAS YOSEF</b> suggest that Rashi indeed intends to present the same argument as Tosfos presents in his conclusion. That is, the reason why the Gemara does not ask its question in a case of Shevu'as ha'Edus is that even if those who give the Hasra'ah saw with their own eyes that the potential witnesses saw the event in question, perhaps the potential witnesses forgot what they saw and that is why they swear that they cannot testify. (This does not apply to a Shevu'as ha'Pikadon because in that case the Hasra'ah involves telling the Shomer the <i>present</i> situation, and not something that happened in the past. The Masrim say to him, 'Do not deny having the other person's object, because we know that it is in your house.' Therefore, the Shomer cannot say later that he forgot that he had the object, because the Hasra'ah itself reminded him that he had it!)
</p><p>
However, as the <b>PARDES YITZCHAK</b> asks, this explanation does not seem to be consistent with Rashi's words. Although it answers the first question (since this is not a matter of Hasra'as Safek) and the third question (since it is indeed impossible to know whether the potential witnesses can testify), it does not answer the second question. Why does Rashi state that there is no Hasra'as Vadai in such a case? He should say simply that Beis Din cannot administer Malkus because Beis Din does not know that the potential witnesses sinned. (Even if they admit later that they <i>did</i> know testimony, the rule of 'Ein Adam Mesim Atzmo Rasha' teaches that Beis Din cannot punish a person with Malkus based on his own admission.)
</p><p>
The answer to this question seems to be that Rashi is following his opinion as expressed elsewhere. Rashi in Chulin (80a, DH Lo b'Tayish, see Insights there) writes that if an animal which is a Safek goat is slaughtered on the same day as its child, the person who slaughters it is not punished with Malkus, because the Hasra'ah that he receives is a Hasra'as Safek, and Malkus cannot be given without a valid Hasra'ah. Rashi clearly applies the rule of Hasra'as Safek to exempt a person from Malkus in a case in which there is a doubt about whether an Aveirah was done in the first place. In fact, Rashi writes in numerous places that if a person commits a Safek Aveirah, he is exempt from Malkus because he lacks Hasra'ah, since his Hasra'ah was a Hasra'as Safek (Yevamos 99b, DH Ein Sofgin; see also Rashi to Yevamos 101a, DH Chayav; Chulin 23b, DH Ela d'Rebbi Yehudah, and see <b>LEV ARYEH</b> there; Chulin 86a, DH she'Eino Sofeg; Sanhedrin 89b, DH Dilma, and see <b>ARUCH LA'NER</b> and Insights there). When Rashi uses the term 'Hasra'as Safek' in these places, he does not refer to the Machlokes Amora'im in Makos (15b) about whether or not Hasra'as Safek is a valid Hasra'ah. The Gemara in Makos refers to a situation in which it will become clear later whether the Aveirah was transgressed. In contrast, in the case of a Safek Aveirah, there is no expectation that it will become clear later whether the Aveirah was transgressed. In such a case everyone agrees that the Hasra'ah is lacking, since the transgressor was not warned that what he was doing was definitely an Aveirah. The same would apply with regard to the words of Rashi here.
</p><p>
This is also evident from the words of Rashi in Kesuvos (15a) and Bava Kama (44b). The Gemara there discusses a case in which a person throws a stone into a group of ten people, half of whom are Jews and half Nochrim. Even if the stone kills one of them, the one who threw it is exempt from Misah because of 'Safek Nefashos l'Hakel.' Rashi explains that the law is lenient in a case of a Chiyuv Misah because of the verse, 'v'Hitzilu ha'Edah' (Bamidbar 35:25). (See Insights to Kesuvos 15:2 and Bava Basra 50:1.)
</p><p>
Why is the verse necessary to exempt the perpetrator from Misah in such a case? Even without the verse he should be exempt, because it is not known that he did an Aveirah! Apparently, Rashi understands that since the person was aware that his act constituted a Safek Aveirah (because he was warned) which the Torah prohibits, he may be punished for transgressing the Safek Aveirah (even if the doubt is never clarified). This is comparable to a case in which there is a doubt about whether or not a certain act is prohibited, and a Chazakah (or a Rov) dictates that the act is prohibited. Beis Din may administer punishments of Malkus and Misah in such cases even though the person would be exempt from any punishment if it is discovered later that the act did not constitute a transgression. (See <b>TOSFOS</b> to Gitin 33a, DH v'Afka'inhu.)
</p><p>
However, if it is true that a person would be Chayav Misah out of doubt, and the only reason why he is exempt is the verse of 'v'Hitzilu ha'Edah,' then why should a person who performs a doubtful act of an Aveirah, for which one normally would be Chayav <i>Malkus</i>, be exempt? The reason why he is exempt is not the verse of 'v'Hitzilu ha'Edah,' because that verse applies only to Dinei Nefashos, capital cases which are judged with 23 Dayanim (as derived from that verse itself). A case of a Chiyuv Malkus, on the other hand, may be judged with three Dayanim, according to the Chachamim in Sanhedrin (2a), and yet no one argues that a person who performs an act of a Safek Chiyuv Malkus is exempt from Malkus. Such a person certainly is exempt even though the verse of 'v'Hitzilu ha'Edah' does not apply.
</p><p>
It is evident, therefore, that there is another factor that exempts a person from Malkus in a case of a Safek. That factor is the rule that Hasra'as Safek is not a valid Hasra'ah, as Rashi writes. (As mentioned above, this type of Hasra'as Safek is not the subject of the Machlokes between Rebbi Yochanan and Reish Lakish, since this Safek will never be clarified. When a person hears such a Hasra'ah for an Aveirah which he knows cannot be proven, he does not take it as seriously as a normal Hasra'ah, and therefore it cannot make him liable to receive Malkus.)
</p><p>
Rashi's source might be the Gemara in Sanhedrin (89b) which says that a person who is eating dates and is told not to eat them because they might be forbidden (see <b>ME'IRI</b>, and Insights to Makos 21b) cannot be punished with Malkus because 'nobody can give him a [proper] Hasra'ah.' The Gemara should say instead that he cannot be punished because nobody knows that he sinned! The fact that the Gemara instead explains that he is not punished because nobody can give him Hasra'ah implies that one who performs a Safek Aveirah does not receive Malkus because his act lacks Hasra'ah.
</p><p>
In summary, Rashi here expresses what he explains elsewhere, that a person is exempt from Malkus when he transgresses a Safek Aveirah because the Hasra'ah is lacking. (M. Kornfeld)
</p><p>
(See also Insights to Chulin 23:4, 80:1, and Bava Basra 50:1.)
</p><p>
<br>

loi:
<b><font color='blue'>1)   THE LAW OF A STOLEN SUKAH</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   (Beraisa - R. Eliezer):</font></b> (If Reuven stole Shimon's
               field and) the river flooded it, he must give to him
               another field;
<br>          <b><font color='darkgreen'>2.  </font></b> Chachamim say, he can say 'your field is in front of
               you.'
<br>          <b><font color='darkgreen'>3.  </font></b> R. Elazar expounds 'he will deny his neighbor about
               a deposit... anything he will swear about' through
               the method of Ribuy and Mi'ut. He includes
               everything (one must swear about anything, and
               return it if he stole it), and excludes only
               documents. Chachamim expound through Klal u'Frat
               (general and specific terms), and include everything
               similar to the Prat, i.e. Metaltelim (things that
               can be moved) with intrinsic value.
<br>          <b><font color='darkgreen'>4.   Bava Kama 117a (Rav Papa):</font></b> R. Elazar holds that land
               can be stolen. Chachamim disagree.
<br>          <b><font color='darkgreen'>5.   Sukah 27b (Beraisa - R. Eliezer):</font></b> One is not Yotzei
               with another's Sukah - 'Chag ha'Sukos Ta'aseh
               Lecha'.
<br>          <b><font color='darkgreen'>6.  </font></b> Chachamim say that one is Yotzei with another's
               Sukah. 'Lecha' disqualifies a stolen Sukah.
<br>          <b><font color='darkgreen'>7.   31a (Beraisa - R. Eliezer):</font></b> A Sukah that was stolen
               or made in Reshus ha'Rabim is Pasul;
<br>          <b><font color='darkgreen'>8.  </font></b> Chachamim say, it is Kosher.
<br>          <b><font color='darkgreen'>9.   Rav Nachman:</font></b> They argue about one who physically
               expelled Levi from Levi's Sukah. R. Eliezer holds
               that one is not Yotzei with another's Sukah. If land
               can be stolen, it is a stolen Sukah. If land cannot
               be stolen, it is a borrowed Sukah.
<br>          <b><font color='darkgreen'>10. </font></b>  Chachamim hold that land cannot be stolen, so it is
               considered borrowed, and one is Yotzei in it.
<br>          <b><font color='darkgreen'>11. </font></b>  We learn from the Beraisa which discusses a Sukah
               in Reshus ha'Rabim together with Gezulah. One does
               not own the ground in Reshus ha'Rabim; the same
               applies to the stolen Sukah.
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rambam (Hilchos Sukah 5:25):</font></b> A borrowed or stolen
               Sukah is Kosher. If Shimon expelled Levi from Levi's
               Sukah and sat in it he is Yotzei, for land cannot be
               stolen.
<br>               <b><font color='darkgreen'>i. </font></b>  Kesef Mishneh, R. Mano'ach and Ran (Sukah 12b):
                    There is a stolen Sukah that is Pasul, i.e. on
                    a boat or wagon. Since it is moveable, it can
                    be stolen.
<br>               <b><font color='darkgreen'>ii.  Hagahos Maimoniyos (8, citing Avi ha'Ezri):</font></b> One
                    who enters another's Sukah without permission
                    is not Yotzei. This is how the Yerushalmi
                    explains Sukah Gezulah.
<br>          <b><font color='darkgreen'>2.   Rambam (ibid.):</font></b> If one made a Sukah in Reshus
               ha'Rabim it is Kosher.
<br>          <b><font color='darkgreen'>3.   Rosh (Sukah 2:16):</font></b> Chachamim use 'Lachem' to
               disqualify a stolen Sukah.
<br>               <b><font color='darkgreen'>i.   Ran (Sukah 12b):</font></b> We disqualify a stolen Sukah.
                    This is not when Shimon physically expelled
                    Reuven from Reuven's Sukah and sat in it. Since
                    land cannot be stolen, this is a borrowed
                    Sukah. Shimon does not acquire at all,
                    therefore it is not Mitzvah ha'Ba'ah b'Aveirah.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (OC 637:3):</font></b> A stolen Sukah is Kosher,
               e.g. if Shimon expelled Levi from Levi's Sukah and
               sat in it. This is because land cannot be stolen.
<br>          <b><font color='darkgreen'>2.   Rema:</font></b> L'Chatchilah one may not sit in Levi's Sukah
               without permission, all the more so if he intends to
               steal it.
<br>               <b><font color='darkgreen'>i.   Taz (4):</font></b> This is because Levi does not want 
                    others to see his affairs and his food. When
                    Levi is not there one may enter, for a person
                    wants others to do Mitzvos with his property.
                    One may borrow another's Lulav without his
                    knowledge (649:5). All the more so one may
                    borrow his Sukah!
<br>               <b><font color='darkgreen'>ii.  Mishnah Berurah (9):</font></b> If Levi may come while the
                    visitor is there, he may not sit there, lest
                    Levi come and be ashamed to eat or do other
                    matters in front of him. If Levi's wife gave
                    permission, presumably Levi would not mind.
<br>               <b><font color='darkgreen'>iii. Kaf ha'Chayim (15):</font></b> If the Sukah is spread with
                    nice pillows and blankets, surely the owner is
                    particular that others not eat there, lest they
                    get dirty. Therefore, one must get permission
                    to eat or sleep there.
<br>          <b><font color='darkgreen'>3.   Rema:</font></b> One may not make a Sukah on another's property
               or public property. B'Di'eved it is Kosher.
<br>               <b><font color='darkgreen'>i.   Magen Avraham (3):</font></b> Some people make a Sukah in
                    Reshus ha'Rabim. This is Sukah Gezulah! Pardon
                    of the city residents does not suffice, for
                    Reshus ha'Rabim belongs to the entire world!
                    Even if all Yisraelim pardon this, Nochrim do
                    not. B'Di'eved it is Kosher. It is not Mitzvah
                    ha'Ba'ah b'Aveirah, for he does not acquire at
                    all. It seems that one should not bless on it.
<br>               <b><font color='darkgreen'>ii.  Eshel Avraham (3):</font></b> Perhaps it helps to rent the
                    area from the mayor, like it helps for Eruvin.
                    Even though Sukah is mid'Oraisa, Dina
                    d'Malchusa Dina (the law of the land is
                    binding). Perhaps here the concern is only
                    mid'Rabanan, for land cannot be stolen. It is
                    unlike Siman 649 (stolen Arba Minim). There,
                    one may not bless due to Mitzvah ha'Ba'ah
                    b'Aveirah. One who is stringent about this will
                    be blessed.
<br>               <b><font color='darkgreen'>iii. Mishnah Berurah (10):</font></b> Eliyahu Rabah and Ma'amar
                    Mordechai say that one may bless. One may rely
                    on them if another Sukah is not available.
<br>               <b><font color='darkgreen'>iv.  Bi'ur Halachah (DH v'Chen):</font></b> The Beis Meir says
                    that here, one does not intend to steal the
                    area. He only wants to borrow it and return it
                    intact after Sukos. It is not even borrowing
                    without permission, for Nochrim see and do not
                    protest. The Yerushalmi connotes that it is
                    Kosher b'Di'eved. Bikurei Yakov is totally
                    lenient, for the government sees and does not
                    protest; it pardons this. One need not request
                    permission. Many opinions are lenient, so we do
                    not protest against one who makes a Sukah in
                    Reshus ha'Rabim.
<br>               <b><font color='darkgreen'>v.   Kaf ha'Chayim (16):</font></b> Shulchan Aruch ha'Rav and
                    Derech ha'Chayim also rule like the Magen
                    Avraham. It is a Safek Berachah, so one should
                    not bless. If one blesses, we do not protest,
                    for he has whom to rely on.
<br>               <b><font color='darkgreen'>vi.  Mekor Chayim:</font></b> The Tosefta (Bava Kama 6:13)
                    permits making a Sukah outside one's store in
                    Reshus ha'Rabim. The Magen Avraham explained
                    that Beis Din stipulates that this is
                    permitted! Perhaps this is only right outside
                    one's property, for there is little
                    inconvenience to the Rabim.
<br>               <b><font color='darkgreen'>vii. Kaf ha'Chayim (17):</font></b> One owns the four Amos in
                    front of his house, so surely he may make a
                    Sukah there, especially since people have
                    permission from the mayor to make Eruvin and
                    Sukos.
<br>          <b><font color='darkgreen'>4.   Rema:</font></b> Similarly, if Levi built a Sukah in Shimon's
               property and Shimon expelled Levi and sat in it, he
               was not Yotzei. Since Shimon did not toil or spend
               money to make it, there is no enactment.
<br>               <b><font color='darkgreen'>i.   Source:</font></b> Hagahos Ashri 2:16.
<br>               <b><font color='darkgreen'>ii.  Magen Avraham (7):</font></b> It is not borrowed, for it
                    is not in Levi's Reshus. It is unlike land,
                    which is in its owner's Reshus, therefore it
                    cannot be stolen. Our text of Tosfos says that
                    Levi had permission to build it. The Bach and
                    Maharsha correct the text to say *no
                    permission*, like it says in Hagahos Ashri.
                    The Darchei Moshe had this text. If he gave
                    permission for the week of Sukos, the Sukah is
                    in Levi's Reshus, and Shimon is like a
                    borrower. The Rema did not stipulate that he
                    had no permission. He holds that the same
                    applies even if he had permission, for the land
                    is not in Levi's Reshus.
<br>               <b><font color='darkgreen'>iii. Bi'ur Halachah (DH Lo Yatza):</font></b> Machatzis
                    ha'Shekel says that the Magen Avraham equates
                    our Halachah to stolen Arba'ah Minim, to teach
                    that even others who sit in it are not Yotzei.
                    This is not clear. One must own the Minim; one
                    who received from one who does not own them
                    does not acquire them. Here, one is Yotzei
                    through a borrowed Sukah, for he has no intent
                    to steal it. He just wants to be Yotzei in it.
                    Perhaps the owner wants that he be Yotzei!
                    Perhaps the Magen Avraham only meant to say
                    that just like in Siman 649, the thief is not
                    Yotzei before or after despair.
<br>               <b><font color='darkgreen'>iv.  Question (Magen Avraham):</font></b> According to Hagahos
                    Ashri, why is Shimon Yotzei when he expelled
                    Levi from Levi's Sukah? The wood is stolen!
                    There is no enactment, for he did not toil! We
                    can answer according to the opinion (in CM
                    95:1) that what is attached to the ground is
                    like land.
<br>
<font color='blue'><i>See also:</i>
<br><b>THE ENACTMENT FOR A STOLEN BEAM </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>     <b><font color='darkgreen'>(i)  Answer (Ravina):</font></b> The case is, when the first pair denied,
          the second pair were invalid witnesses, because they were
          related (Rashi - to each other; R. Chananel - to a party
          of the case) through their wives, who were Gosesos (close
          to death);
<br>          <b><font color='darkgreen'>1.   One might have thought that since most Gosesim die,
               the second pair is destined to become valid and the
               first pair is exempt. The Mishnah teaches that this
               is not so, since now they are alive.
 </font></b>    (j)  Question (Beraisa): If a Shomer (watchman) claimed that
          the deposit was stolen; swore falsely, admitted that he
          lied, and witnesses testified that the Shomer himself
          took it:
<br>          <b><font color='darkgreen'>1.   If he admitted before witnesses came, he pays
               principal, a Chomesh, and brings an Asham.
<br>          <b><font color='darkgreen'>2.   If he admitted after witnesses came, he pays double
               and brings an Asham.
 </font></b></font></b>    (k)  Answer: Here also, we can answer like Ravina answered
          (when he denied, the witnesses were invalid because they
          were related through their wives).
<br>     <b><font color='darkgreen'>(l)  Question (Ravina - Beraisa):</font></b> Shevu'as ha'Pikadon is more
          stringent (than Shevu'as ha'Edus). He is lashed if he was
          Mezid, and he brings an Asham if he was Shogeg.
<br>          <b><font color='darkgreen'>1.   Since he is lashed, surely there were witnesses, and
               if he was Shogeg; he brings a Korban!
 </font></b>    (m)  Answer (Rav Mordechai): Rav Kahana recited the correct
          text of that Beraisa: 'whether he was Mezid or Shogeg, he
          brings an Asham that costs at least two Shekalim.';
<br>     <b><font color='darkgreen'>(n)  Question (Beraisa):</font></b> We cannot learn from a Tamei Nazir,
          for he is lashed, to Shevu'as ha'Pikadon, for which one
          is not lashed!
<br>          <b><font color='darkgreen'>1.   Since the Tamei Nazir is lashed, surely there were
               witnesses.
<br>          <b><font color='darkgreen'>2.   Inference:</font></b> In the corresponding case of Shevu'as
               ha'Pikadon, he is not lashed, but he brings a
               Korban!
<br>          <b><font color='darkgreen'>3.   This refutes Rabah.
<br><b><font color='darkgreen'><b><font color='darkgreen'></font></b></font></b>
<br><b><font color='blue'>3) SPECIAL LAWS OF LAND</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (R. Yochanan):</font></b> If one denies money that witnesses know
          about, he is liable. If there is a document, he is
          exempt.
<br>     <b><font color='darkgreen'>(b)  Question (Rav Papa):</font></b> What is R. Yochanan's reason?
<br>     <b><font color='darkgreen'>(c)  Answer #1 (Rav Papa):</font></b> He obligates regarding witnesses,
          for they might die (and he will avoid paying through his
          denial);
<br>          <b><font color='darkgreen'>1.   He exempts regarding a document, for the claimant
               will surely collect (the defendant gains nothing by
               denying).
 </font></b>    (d)  Objection (Rav Huna brei d'Rav Yehoshua): A document can
          be lost (the claimant is not guaranteed to collect)!
<br>     <b><font color='darkgreen'>(e)  Answer #2 (Rav Huna brei d'Rav Yehoshua):</font></b> A document
          creates a lien on land. We do not swear about (land, or)
          money that can be collected from (even sold) land.
<br>     <b><font color='darkgreen'>(f)  (R. Yochanan or R. Elazar):</font></b> If witnesses about land
          falsely swore (Shevu'as ha'Edus), they are liable;
<br>     <b><font color='darkgreen'>(g)  (The other of R. Yochanan and R. Elazar):</font></b> They are
          exempt.
<br>     <b><font color='darkgreen'>(h)  Inference:</font></b> R. Yochanan must hold that they are exempt,
          for he taught that one who denies money that witnesses
          know about is liable, but if there is a document, he is
          exempt, like Rav Huna brei d'Rav Yehoshua explained.
<br>     <b><font color='darkgreen'>(i)  Suggestion (R. Yirmeyah):</font></b> R. Yochanan and R. Elazar argue
          like R. Eliezer and Chachamim argue.
<br>          <b><font color='darkgreen'>1.   (Gemara - Beraisa - R. Eliezer):</font></b> (If Reuven stole
               Shimon's field and) the river flooded it, he must
               give to him another field;
<br>          <b><font color='darkgreen'>2.   Chachamim say, he can say </font></b>'your field is in front of
               you.'
<br>          <b><font color='darkgreen'>3.   Question:</font></b> What do they argue about?
<br>          <b><font color='darkgreen'>4.   Answer:</font></b> R. Elazar expounds through the method of
               Ribuy and Mi'ut (inclusions and exclusions);
<br>               <b><font color='darkgreen'>i. </font></b>  'He will deny his neighbor' is a Ribuy; 'about
                    a deposit' is a Mi'ut; 'anything he will swear
                    about' is another Ribuy;
<br>               <b><font color='darkgreen'>ii. </font></b> From the Ribuy, Mi'ut, Ribuy we include
                    everything (that one must swear about them, and
                    return them if stolen). We exclude only
                    documents (for they have no intrinsic value).
<br>          <b><font color='darkgreen'>5.   Chachamim expound the the method of Klal u'Frat
               (general and specific terms);
             </font></b>  i.   'He will deny his neighbor' is a Klal; 'about a
                    deposit' is a Prat; 'anything he will swear
                    about' is another Klal;
<br>               <b><font color='darkgreen'>ii. </font></b> From the Klal u'Frat u'Chlal we include
                    everything similar to the Prat, i.e. Metaltelim
                    (things that can be moved) and have intrinsic
                    value;
<br>               <b><font color='darkgreen'>iii. </font></b>We exclude land, for it cannot be moved, and
                    also slaves, for these are equated to land;
<br>               <b><font color='darkgreen'>iv. </font></b> We exclude documents, which have no intrinsic
                    value.
<br>          <b><font color='darkgreen'>6.   R. Elazar obligates the witnesses. This is like R.
               Eliezer. R. Yochanan exempts, like Chachamim.
 </font></b>    (j)  Rejection (R. Avahu): Indeed, Chachamim must hold like R.
          Yochanan, but R. Eliezer could also agree to R. Yochanan;
<br>          <b><font color='darkgreen'>1.   It says '<i>mi</i>'Kol (that he will swear about)', not
               everything, to exclude land from oaths (even though
               it can be stolen).
 </font></b>    (k)  (Rav Papa): Our Mishnah is like the opinion that one is
          exempt for land.
<br>          <b><font color='darkgreen'>1.   It teaches that one who denied stealing an ox is
               liable, but one who denied stealing a slave would be
               exempt!
<br>          <b><font color='darkgreen'>2.   Suggestion:</font></b> This is because slaves are equated to
               land, and our Tana holds that we do not swear about
               land!
 </font></b>    (l)  Rejection (Rav Papi - Seifa): The general rule is, if the
          defendant would have had to pay by his own admission he
          is liable. If not, he is exempt.
<br>          <b><font color='darkgreen'>1.   Suggestion:</font></b> 'The general rule' comes to include
               stealing slaves!
<br>     <b><font color='darkgreen'>(m)  Conclusion:</font></b> The inferences contradict each other. We do
          not know which is correct. 
<br>

sjt:
</p><p>
<font><b>2) AN OATH IN THE CASE OF A DISPUTE OVER LAND</b></font>
<br>QUESTIONS: Rebbi Yochanan rules that if a person swears falsely with a Shevu'as ha'Pikadon, and it is later discovered that he not only owes the claimant the money that he denied but the claimant even has a Shtar written to that effect, the defendant is exempt from liability for Shevu'as ha'Pikadon. The Torah never obligates a person to swear in disputes involving ownership of land (Karka), and what is written in a Shtar is comparable to land since the Shtar creates a Shibud (lien) on the person's land.
</p><p>
(a) In Bava Basra (175b), Rebbi Yochanan rules that mid'Oraisa a Shibud is created not only for a Milveh b'Shtar but even for a Milveh Al Peh. According to his view, how can the Torah obligate a person to make a Shevu'as ha'Pikadon when someone claims that he owes money? (<b>TOSFOS</b> DH v'Ein)
</p><p>
(b) Even according to the law nowadays, after the Chachamim instituted that there is no Shibud when a person lends money without a Shtar, Rebbi Yochanan's ruling that one is liable to bring Korban when he denies owing money which was loaned without a Shtar, but with witnesses, does not seem to apply. Mid'Oraisa, a Shibud exists on the borrower's property and, therefore, the claim should be considered a claim of <i>land</i>! Even if the Chachamim do not allow the lender to collect -- based on this Shibud -- from the Lekuchos who purchased the land from the borrower, nevertheless the Shibud certainly exists, and until the borrower sells his property his land is Meshubad to the repayment of the loan! (<b>RITVA</b>)
</p><p>
ANSWERS:
<br>(a) There seem to be two different approaches in the Rishonim regarding this question.
</p><p>
1. <b>TOSFOS</b> explains that according to Rebbi Yochanan, the only case in which a person will be liable for a Shevu'as ha'Pikadon is a case in which the lender decided to forgo his rights to a Shibud at the time that he lent the money. Tosfos in Bava Metzia (4b, v'Ein) adds that another case in which there would be no Shibud is one in which the borrower owns no land. (Although it is impossible to know that the borrower did not buy land clandestinely, Tosfos might be referring to a case in which the borrower (who denies, with a Shevu'ah, owing money) admits that he owns no land, obligating himself to bring a Korban for Shevu'as ha'Pikadon.)
</p><p>
2. <b>TOSFOS</b> in Bava Basra (175a, DH Milveh) answers that the case in which there is no Shibud on the land is one in which there were no witnesses present when the money was borrowed. Since the lender cannot prove that the loan took place, he cannot collect the loan from Lekuchos. Therefore, there is no relevance to the Shibud Karka.
</p><p>
This approach is followed by the <b>RAMBAN</b> and <b>RASHBA</b>. They point out that the same law applies when witnesses <i>were</i> present at the time of the loan but they died, or when a Shtar was written at the time of the loan but was lost. They add that even if a Shtar was written and is still present, as long as there are no witnesses to prove that the loan was not yet paid back the lender cannot collect from the Lekuchos and, therefore, there is no relevance to the Shibud Karka.
</p><p>
However, this answer requires further elucidation. It is true that the Shibud cannot be collected from the purchasers when the debt cannot be proven with witnesses or with a Shtar. Nevertheless, the Shibud still exists; it just cannot be utilized to collect the loan, since the loan cannot be proven. Why, then, is the loan not considered a dispute regarding a Shibud Karka?
</p><p>
Apparently, these Rishonim understand that what makes a debt into a land dispute is the fact that the lender can collect the land even if the borrower has sold the land. This fact makes land the most secure way to collect a loan, since every other possession that a person owns can be hidden or sold, preventing the lender from claiming it. Land, on the other hand, remains accessible and collectable forever. Since the focus of the lender's claim is the borrower's land, the dispute is considered a dispute over land. (See Shevuos 38b with regard to the intention of the claimant).
</p><p>
Tosfos here and in Bava Metzia does not accept the simple answer of the other Rishonim. He asserts instead that it would be a case of Shibud Karka unless the borrower has no land or the lender forgoes the Shibud. Apparently, Tosfos understands the logic of Rebbi Yochanan differently. The reason why the loan is considered a dispute over land is that when the borrower owns land, aside from the obligation incumbent upon the borrower to repay, the land that he owns becomes like a 'Mashkon,' collateral, towards the repayment of the loan. (See Pesachim 30a where the Gemara mentions one opinion that maintains that when the loan is collected from the land, it becomes retroactively a sale instead of a loan.) The land is like an 'Arev Kablan' for the repayment of the loan. That is why the dispute is considered one over land. According to this logic, even if land cannot be collected from those who purchased land from the borrower, land that is still in the borrower's possession remains Meshubad to the repayment of the loan, and that is the Shibud Karka to which Rebbi Yochanan refers.
</p><p>
(b) The answer to the second question depends on the two opinions cited above in the answer to the first question.
</p><p>
1. According to Tosfos in Bava Basra and the Rishonim here (cited above in the second answer to the first question), the second question does not begin. When the Chachamim revoked the privilege of one who lends money with witnesses to collect from Lekuchos, they effectively annulled the Shibud of Karka, since the only outcome of the Shibud is to allow the collection of property that the borrower sold. (This is in contrast to the assumption in the question, that the Shibud refers also to some type of lien that makes the land more collectable than Metaltelin even when it is not sold.) This indeed is the explicit view of the <b>RITVA</b> and other Rishonim here, who write that the Chachamim revoked the Shibud from the property through their power of 'Hefker Beis Din Hefker.'
</p><p>
How, though, can the Ritva say that the Chachamim revoked the Shibud with their power of 'Hefker Beis Din'? If that is true, then why does the law state that a Milveh Al Peh <i>may</i> be collected from heirs of the debtor? How is the debt collected from heirs if there is no Shibud on the Karka? (<b>NACHALAS DAVID</b> in Bava Metzia)
</p><p>
Apparently, the answer is that the Chachamim did not annul that part of the Shibud (with regard to collecting from the heirs). Nevertheless, the loan is not considered a land dispute, since the lender no longer relies on collecting from land because he knows that the land can be withheld from him (by being sold) just as Metaltelin can be withheld from him. (M. Kornfeld)
</p><p>
2. Tosfos in Bava Metzia, however, apparently follows his opinion there that the definition of Shibud Karka is that land is a form of a Mashkon or Arev for the repayment of the loan. Therefore, even if the land cannot be collected from the Lekuchos, the dispute still should be considered a land dispute. (See <b>TOSFOS REBBI AKIVA EIGER</b> to Shevuos 5:1 and 6:38.)
</p><p>
Tosfos writes, therefore, that the only case in which a Korban will be brought for Shevu'as ha'Pikadon when a person denies owing a Milveh Al Peh (even after the Chachamim took away the rights of Shibud) is a case in which the borrower has no land still in his possession (Bnei Chorin) at the time of his Shevu'ah. (Obviously, if the lender decided to forgo the Shibud, the borrower also will be liable for Shevu'as ha'Pikadon.) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) COLLECTIVE AND INDIVIDUAL OATHS</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> Shevu'as ha'Pikadon is when Shimon told Levi
          'give to me the deposit you are holding for me...'
<br>     <b><font color='darkgreen'>(b)  (Beraisa - R. Meir):</font></b> One who takes a collective (all-
          inclusive) oath is liable once. If he takes individual
          oaths, he is liable for each one.
<br>     <b><font color='darkgreen'>(c)</font></b>  R. Yehudah says, if he said 'I swear that you do not have
          a deposit by me, and not you, and not you... ' he is
          liable for each one.
<br>     <b><font color='darkgreen'>(d)</font></b>  R. Eliezer says, if he said (Ramban - swore) 'not you,
          and not you, and not you - Shevu'ah' he is liable for
          each one.
<br>     <b><font color='darkgreen'>(e)</font></b>  R. Shimon says, he is liable for each only if he said
          'Shevu'ah' to each.
<br>     <b><font color='darkgreen'>(f)  (Shmuel):</font></b> When he says '<i>and</i> not you' to each one (after
          the first), R. Meir calls this a collective oath, and R.
          Yehudah calls it individual oaths. When he says 'not you'
          to each one, R. Meir calls this individual oaths, R.
          Yehudah calls it a collective oath.
<br>     <b><font color='darkgreen'>(g)  (R. Yochanan):</font></b> All agree that when he says '<i>and</i> not
          you', these are individual oaths;
<br>          <b><font color='darkgreen'>1.   They argue in a case that he says 'not you' to each.
               R. Meir calls this individual oaths, and R. Yehudah
               calls it a collective oath.
<br>          <b><font color='darkgreen'>2.   Question:</font></b> According to R. Meir, what is a collective
               oath?
<br>          <b><font color='darkgreen'>3.   Answer:</font></b> He says 'I swear that you (plural) do not
               have a deposit by me.'
 </font></b>    (h)  Question: Why do Shmuel and R. Yochanan argue?
<br>     <b><font color='darkgreen'>(i)  Answer:</font></b> Shmuel learns from the Beraisa, and R. Yochanan
          learns from the Mishnah.
<br>          <b><font color='darkgreen'>1.   Shmuel learns from the Beraisa. Since R. Yehudah
               says that 'and not you, and not you...' are
               individual oaths, he must know that R. Meir
               considers this a collective oath.
<br>          <b><font color='darkgreen'>2.   R. Yochanan explains that R. Meir considers them
               individual oaths with or without '<i>and</i>', and R.
               Yehudah says 'I agree with you only when he says
               'and'.
<br>          <b><font color='darkgreen'>3.   Shmuel holds that if so, R. Yehudah would rather
               teach the case in which he argues with R. Meir!
 </font></b></font></b></font></b>    (j)  R. Yochanan learns from the Mishnah. (Since the first
          Tana is anonymous, we assume that it is R. Meir.) Since
          it says that 'I swear that you (plural) do not have a
          deposit by me' is a collective oath, we infer that 'and
          not you' would be individual oaths;
<br>          <b><font color='darkgreen'>1.   If it were a collective oath, the Tana should have
               taught this, and all the more so we would know that
               'you (plural) do not have by me'! (We prefer to
               infer from the Reisha, even though the Seifa teaches
               this explicitly, for opinions differ about the text
               of the Seifa, like we bring below.)
<br>          <b><font color='darkgreen'>2.   Shmuel disagrees. R. Meir considers 'and not you,
               and not you' to be just like 'you (plural) do not
               have by me' (both are collective oaths). It is not a
               bigger Chidush.
 </font></b></font></b>    (k)  Question (against Shmuel - Mishnah): If he swore 'you do
          not (have a deposit by me), <i>and</i> not you, <i>and</i> not
          you... ', the Shomer is liable for each one. (Tosfos - in
          these questions, all 'and's, except for the last, should
          be deleted from the text.)
<br>     <b><font color='darkgreen'>(l)  Answer #1:</font></b> The text should read '... not you.'
<br>     <b><font color='darkgreen'>(m)  Question (against Shmuel - Mishnah):</font></b> If he claimed a
          deposit and loan... (and the Shomer swore 'I do not have of
          yours a deposit, <i>and</i> (not) a loan, <i>and</i> (not) theft
          <i>and</i> (not) an Aveidah', he is liable for each one).
<br>     <b><font color='darkgreen'>(n)  Answer #1:</font></b> The text should read '... (not) a loan, (not)
          theft, (not) an Aveidah.'
<br>     <b><font color='darkgreen'>(o)  Question (against Shmuel - Mishnah):</font></b> If he claimed wheat
          and barley... (and the Shomer swore 'I do not have of yours
          wheat, <i>and</i> (not) barley, <i>and</i> (not) spelt', he is
          liable for each one).
<br>     <b><font color='darkgreen'>(p)  Answer #1:</font></b> The text should read '... (not) barley, (not)
          spelt.'
<br>     <b><font color='darkgreen'>(q)  Objection:</font></b> We cannot say that there are so many mistakes
          in the text!
<br>     <b><font color='darkgreen'>(r)  Answer #2 (to all three questions):</font></b> The Tana is Rebbi.
<br>          <b><font color='darkgreen'>1.   (Rebbi):</font></b> (While a Kohen was offering a Korban, he
               expressed intent to eat part when it is Nosar (i.e.
               after the allotted time), and part outside the
               permitted place. If the intent for Nosar <i>preceded</i>
               the intent to eat outside, the Korban is Pigul (an
               abomination; one who eats it, even in the permitted
               time and place, gets Kares). If not, the Korban is
               Pasul (there is no Kares for eating it. This is like
               R. Yehudah's opinion about Pigul.) Whether he said
               '(I will eat) a k'Zayis (Nosar), a k'Zayis
               (outside)' or 'a k'Zayis (Nosar) <i>and</i> a k'Zayis
               (outside)', these are individual intents, and the
               Korban is Pigul. (If they were considered one
               collective intent, since the intents come at the
               same time, it would be only Pasul.)
<br>     <b><font color='darkgreen'>(s)  Question (against Shmuel - Mishnah - R. Meir):</font></b> Even if he
          said 'wheat <i>and</i> barley <i>and</i> spelt' in the singular
          forms of these words, he is liable for each one.
<br>     <b><font color='darkgreen'>(t)  Answer:</font></b> The text should read (the standard plural forms
          of the words) 'wheat, barley, spelt.'
<br>          <b><font color='darkgreen'>1.   Question:</font></b> What is the special Chidush (to warrant
               saying <i>even</i>? Presumably, the only difference in R.
               Meir's text of the vow is the singular forms of
               wheat, barley and spelt, but not regarding 'and.')
<br>          <b><font color='darkgreen'>2.   Version #1 (Rashi) Answer (Rav Acha brei d'Rav Ika):
               Even though the claimant used the singular forms, we
               do not say that he claimed only a single kernel of
               each (which is not worth a Perutah). The singular
               forms also refer to larger amounts.
<br>          <b><font color='darkgreen'>3.   Version #2 (Ri mi'Gash, brought in Ramban) Answer
               (Rav Acha brei d'Rav Ika):</font></b> One might have thought
               that the <i>defendant</i> used the singular forms to make
               clear that he does not owe even a single kernel of
               any of these (but he did not intend to take
               individual oaths). R. Meir teaches that this is not
               so.
<br><b><font color='darkgreen'></font></b>
<br><b><font color='blue'>2) DOES HE ALSO TAKE A COLLECTIVE OATH?</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If he claimed a deposit, loan...
<br>     <b><font color='darkgreen'>(b)  (R. Yochanan):</font></b> If Shimon claimed from Levi 'give to me
<br>          <b><font color='darkgreen'>(my)</font></b> wheat and barley', all of them combine to a Perutah
          (to be liable for a false Shevu'as ha'Pikadon).
<br>     <b><font color='darkgreen'>(c)  (Rav Acha or Ravina):</font></b> The clause of the Mishnah that
          teaches individual oaths ('you do not have wheat <i>and</i>
          barley <i>and</i> spelt') does not include a collective oath.
          (R. Yochanan teaches about a collective oath.)
<br>     <b><font color='darkgreen'>(d)  (The other of Rav Acha or Ravina):</font></b> The clause of
          individual oaths also includes a collective oath (one is
          liable for each Min, and also for all combined. R.
          Yochanan's teaching applies also to the clause of
          individual oaths.)
<br>     <b><font color='darkgreen'>(e)  Question (Beraisa #1 - R. Chiya):</font></b> (If one swore to deny
          'wheat, barley and spelt, not to you and not you and not
          you and not you and not you',) he is liable 15 Korbanos
          Chatas (for three individual oaths to each of five
          people). According to the latter opinion, he should (be
          liable also for a collective oath (for all the Minim) to
          each person, and) bring 20 Chata'os! (Rashi - R. Chiya
          was not so precise. He brings Korbanos <i>Asham</i>. Tosfos -
          he discusses liability of witnesses for Shevu'as ha'Edus.
          They bring Chata'os.) (<i>Perhaps</i> this explains why we
          discuss 20, i.e. we do not include collective oaths for
          all the people together - <b><b><b>PF</b></b></b>.)
<br>     <b><font color='darkgreen'>(f)  Answer:</font></b> R. Chiya teaches liability only for the
          individual oaths.
<br>     <b><font color='darkgreen'>(g)  Support (and question against the first opinion - Beraisa
          #2 - R. Chiya):</font></b> He is liable 20 Chatas offerings. (We
          must say that Beraisa #1 teaches liability only for the
          individual oaths, and Beraisa #2 teaches liability also
          for the collective oaths!)
<br>     <b><font color='darkgreen'>(h)  Rejection (and answer):</font></b> In Beraisa #2, he took four
          individual oaths to each person (denying a deposit, loan,
          theft and Aveidah).
<br>     <b><font color='darkgreen'>(i)  Question (Rava):</font></b> If five people claimed from Levi a
          deposit, loan, stolen object and lost object, and he said
          to one 'I swear that I do not have of yours a deposit,
          loan, theft and Aveidah', and to the others 'and not to
          you, and not to you...', what is the law?
<br>          <b><font color='darkgreen'>1.   Is he is liable only once for each of the last four
               people (because 'and not to you' does not refer to
               the individual oaths, only to a collective oath)?
<br><b><font color='darkgreen'>
&lt;</font></b>br&gt;

sjt:
<font><b>1) MULTIPLE 'SHEVU'OS' IN ONE STATEMENT</b></font>
<br>QUESTION: Rebbi Meir and Rebbi Yehudah disagree about what statement is considered to contain a single, general Shevu'ah ('Klal'), and what statement is considered to contain multiple, separate Shevu'os ('Prat'). According to Rebbi Yehudah, the statement, '[Shevu'ah she'Ein Lecha b'Yadi,] v'Lo Lecha, v'Lo Lecha,' is considered to be multiple, separate Shevu'os. The statement, '[Shevu'ah she'Ein Lecha b'Yadi,] Lo Lecha, Lo Lecha,' is considered a single Shevu'ah.
</p><p>
Rebbi Meir argues and says that the statement, 'Lo Lecha, Lo Lecha,' is considered to contain multiple Shevu'os.
</p><p>
Rebbi Yochanan and Shmuel disagree about what Rebbi Meir maintains in the case of the statement, 'v'Lo Lecha, v'Lo Lecha.' Rebbi Yochanan says that Rebbi Meir maintains that this statement also contains multiple Shevu'os. Shmuel says that Rebbi Meir maintains that this statement is considered a single Shevu'ah (the opposite of Rebbi Yehudah's opinion).
</p><p>
Rebbi Yochanan supports his understanding of Rebbi Meir's opinion from the Mishnah (36b), which is expressing the view of Rebbi Meir and which lists as an example of a single Shevu'ah the statement, 'Shevu'ah she'Ein Lachem b'Yadi.' This implies that had the defendant mentioned each claimant separately -- whether with the words, 'v'Lo Lecha, v'Lo Lecha,' or with the words, 'Lo Lecha, Lo Lecha' -- his statement would have been considered to contain multiple, individual Shevu'os.
</p><p>
Shmuel refutes this proof. He argues that when a person says, 'v'Lo Lecha, v'Lo Lecha,' it is <i>as if</i> he said, 'Shevu'ah <i>she'Ein Lachem</i> b'Yadi.' Therefore, when the Mishnah says that the statement, 'I make a Shevu'ah that I do not owe any of you (she'Ein Lachem b'Yadi),' is considered a single Shevu'ah, the same applies when a person says, 'I make a Shevu'ah that I do not owe you, and I do not owe you, and I do not owe you (v'Lo Lecha, v'Lo Lecha).'
</p><p>
Shmuel's rejoinder is problematic. How can Shmuel say that 'v'Lo Lecha, v'Lo Lecha' is identical to 'she'Ein Lachem b'Yadi,' and that is why the Mishnah does not mention 'v'Lo Lecha, v'Lo Lecha'? Logically, it is not identical, because Rebbi Yehudah differentiates between the two and says that 'v'Lo Lecha, v'Lo Lecha' is considered separate Shevu'os! The Mishnah should have taught that 'v'Lo Lecha, v'Lo Lecha' is considered a single Shevu'ah according to Rebbi Meir, because that Halachah is not evident from the Halachah that the statement, 'she'Ein Lachem b'Yadi,' is considered a single Shevu'ah. (<b>RASHBA</b>)
</p><p>
<b>RABEINU CHANANEL</b> explains that Shmuel does not mean that 'v'Lo Lecha, v'Lo Lecha' has the same law as 'she'Ein Lachem b'Yadi.' Rather, Shmuel means that <i>according to Rebbi Meir</i> the statement of 'v'Lo Lecha, v'Lo Lecha' is equivalent to saying 'she'Ein Lachem b'Yadi.' That is why Rebbi Meir maintains that it is not necessary for the Mishnah to mention that 'v'Lo Lecha, v'Lo Lecha' is also considered a single Shevu'ah.
</p><p>
The <b>RASHBA</b> considers this approach but rejects it, because the Gemara implies that Shmuel knows for certain that Rebbi Meir considers 'v'Lo Lecha, v'Lo Lecha' the same as 'she'Ein Lachem b'Yadi,' and that is why Shmuel maintains that the Mishnah poses no difficulty to his opinion. (If Shmuel means simply that it is <i>possible</i> to refute the proof against him from the Mishnah in such a manner, then he should have said '<i>perhaps</i> (Dilma) Rebbi Meir maintains that one who says 'v'Lo Lecha...' is the same as one who says 'she'Ein Lachem b'Yadi.'' Since Shmuel uses no qualifying term 'perhaps,' he clearly understands that Rebbi Meir equates the two statements.)
</p><p>
Where does Shmuel see (other than in the Mishnah itself) that Rebbi Meir considers it so obvious that 'v'Lo Lecha, v'Lo Lecha' is the same as 'she'Ein Lachem b'Yadi' that he does not have to mention it in the Mishnah?
</p><p>
ANSWER: Perhaps the answer to the Rashba's question is that Shmuel learns this from the way Rebbi Meir expresses his view in the Beraisa. In the Beraisa, Rebbi Meir states simply that 'if a person includes all the denials in a single Shevu'ah (Kalal), then he is liable for only one Shevu'ah, but if he specifies each claimant (Parat), then he is liable for each one separately.' Rebbi Meir does not find it necessary to explain what is considered 'Kalal,' a Shevu'ah in which multiple claimants are 'grouped together,' and what is not considered 'Kalal.' Why does he not mention that when a person says, 'v'Lo Lecha, v'Lo Lecha,' he is considered to be grouping the claimants together (just as Rebbi Yehudah in the Beraisa specifies that 'v'Lo Lecha, v'Lo Lecha' is considered individual Shevu'os)? From this Shmuel infers that according to Rebbi Meir, the status of 'v'Lo Lecha, v'Lo Lecha' is so obvious that it does not need to be mentioned (in the Beraisa) explicitly. For the same reason, Rebbi Meir does not write the Halachah of 'v'Lo Lecha' in the Mishnah. (M. Kornfeld)
</p><p>
<br>

loi:
<b><font color='blue'>1)   WE DO NOT MAKE A MINOR SWEAR</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> We do not make a minor swear.
<br>          <b><font color='darkgreen'>2.   Nidah 45b (Mishnah):</font></b> If a girl above 11 (full) years
               vows (or is Makdish an item), we check her (to see
               if she understands that Nedarim and Hekdesh are to
               Hash-m). If a girl above 12 vows, it is valid (we do
               not check her). During her 12th year we check her.
<br>          <b><font color='darkgreen'>3.  </font></b> If a boy above 12 years vows, we check him. If a boy
               above 13 vows, it is valid. During his 13th year we
               check him. If he vows before (12 full years), even
               if he knows (that vows and Hekdesh are to Hash-m),
               it does not take effect.
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rif (22b):</font></b> We do not make a minor swear.
<br>          <b><font color='darkgreen'>2.   Rambam (Hilchos Sechirus 11:6):</font></b> Even if the Socher
               is a minor, the worker is believed to swear that he
               was not paid, and he collects.
<br>               <b><font color='darkgreen'>i.   Rebuttal (Ra'avad):</font></b> It is unreasonable that we
                    would let a minor swear. Rather, the employer
                    swears, even though a minor's claim is void.
<br>               <b><font color='darkgreen'>ii.  Magid Mishneh:</font></b> The Gemara said that the worker
                    should collect without an oath. The oath is
                    merely to appease the employer. Therefore, a
                    minor should not lose what he is entitled to
                    letter of the law, even though he is not liable
                    for a false oath. Still, we make him swear, to
                    intimidate him.
<br>               <b><font color='darkgreen'>iii. </font></b>Kesef Mishneh and Beis Yosef (CM 89 DH v'Od):
                    The Ra'avad's and Magid Mishneh's text of the
                    Rambam said 'even if the <i>Sachir</i> (worker) is a
                    minor, he swears and collects. Our text
                    (Socher, employer) is correct. It is like the
                    Rambam wrote in Hilchos To'en (5:10), that we
                    never tell a minor to swear, and (5:11), that
                    one who works for a minor swears to the minor
                    and collects. (This helps the minor, for people
                    will be eager to work for him.)
<br>               <b><font color='darkgreen'>iv.  Question (Mishneh l'Melech):</font></b> It is astounding
                    that we would tell a minor to swear. Even the
                    opinion that does not require stopping him from
                    eating Neveilos agrees that we may not give to
                    him Neveilos to eat! Since a minor does not
                    know the severity of oaths, it is as if we tell
                    him to swear falsely. If the text says
                    'Socher', why does it say 'even'? If the worker
                    is believed (to swear and collect) against the
                    substantial claim of an adult', all the more so
                    he is believed against a minor! If the Chidush
                    is that a minor must pay when he hires someone,
                    why did he teach about a case of an oath?
<br>               <b><font color='darkgreen'>v.   Answer (Tumim CM 89:3):</font></b> Initially, the employer
                    needed to swear to be exempt. Chachamim placed
                    his oath on the worker. One might have thought
                    that since there was no oath upon a minor,
                    there is no oath on his worker. Alternatively,
                    Chachamim believe a worker only before the
                    deadline for Bal Talin (for we assume that the
                    employer would not transgress delaying paying
                    wages). This does not apply to a minor! In any
                    case, his law is like an adult's.
<br>          <b><font color='darkgreen'>3.   Rambam (Hilchos To'en 5:10):</font></b> One who must swear to a
               minor cannot reverse the oath (say 'swear, and I
               will pay you'), for we never make a minor swear. He
               need not even accept a Cherem, for he does not know
               the punishment for a (false) oath.
<br>          <b><font color='darkgreen'>4.   Rambam (11):</font></b> If an adult claimed from a minor about
               something from which the minor benefits, e.g.
               business, if the minor admits, we pay from his
               property. If he has no property, we wait until he
               has property. If the minor denies it, we wait until
               he matures, and he swears Heses. If the claim was
               about something the minor does not benefit from,
               e.g. damage or wounding, even if he admits and he
               has property, he is exempt even after he matures. If
               the claim was from one who swears and collects, e.g.
               a worker, and it benefits the minor that people work
               for him, he swears and collects from the minor.
<br>          <b><font color='darkgreen'>5.   Rambam (Hilchos Shevuos 12:7):</font></b> If a minor swore and
               knew what a Shevu'ah is, even though he is not
               liable, we force him to fulfill it to train him in
               Mitzvos and intimidate him not to be frivolous about
               Shevuos. If it is something that a minor cannot
               fulfill without harm, e.g. he swore to fast or not
               to eat meat for a long time, his father or Rebbi
               hits him, chastises him and shows him that his oath
               is permitted, so he will not regularly be frivolous
               about oaths.
<br>               <b><font color='darkgreen'>i.   Magid Mishneh:</font></b> The Mishnah in Nidah teaches
                    that vows of a minor (more than a year before
                    adulthood) are totally invalid. The Ge'onim say
                    that we force him to fulfill it lest he be
                    frivolous about Shevuos. We permit it even if
                    it is not dangerous, for even an adult's vow 
                    would be permitted then! Rather, the minor will
                    be in great pain. Alternatively, we are
                    concerned lest he get sick.
<br>          <b><font color='darkgreen'>6.   Rosh (Shevuos 6:22):</font></b> One who needed to swear to a
               minor cannot reverse the oath because we never make
               a minor swear. If an adult claimed from a minor
               about something from which the minor benefits, e.g.
               business and similar matters, if the minor admits,
               we make him pay. If he does not admit, we wait until
               he matures, and then the adult claims from him and
               makes him swear. If the claim was about something
               the minor does not benefit from, e.g. damage or
               wounding, in any case he is exempt even after he
               matures, for we say that encounters with a minor are
               bad.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (CM 89:2):</font></b> If a minor worked for Levi
               and says that he was not paid, Levi swears and is
               exempt.
<br>               <b><font color='darkgreen'>i.   SMA (5):</font></b> A minor is not punished, therefore
                    Chachamim did not trust him (to swear and
                    collect).
<br>               <b><font color='darkgreen'>ii.  Gra (5):</font></b> Since we do not let a minor swear, his
                    law is like one suspected to swear falsely.
<br>          <b><font color='darkgreen'>2.   Shulchan Aruch (96:2):</font></b> One who needed to swear to a
               minor cannot reverse the oath because we never make
               a minor swear. He need not even accept a Cherem, for
               he does not know the punishment for a (false) oath.
<br>          <b><font color='darkgreen'>3.   Shulchan Aruch (3):</font></b> If an adult claimed from a minor
               about something from which the minor benefits, e.g.
               business, and the minor reached the age of Pa'utos,
               if minor admits, we pay from his property. If he has
               no property, we wait until he has property. If the
               minor denies it, we wait until he matures, and he
               swears Heses.
<br>               <b><font color='darkgreen'>i.   Gra (15):</font></b> Shevuos 38b says that we do not make
                    a minor swear. This implies that if he admits,
                    he pays, and if he denies it, he swears after
                    he matures.
<br>               <b><font color='darkgreen'>ii.  Gra (16):</font></b> He is liable from the age of Pa'utos,
                    for then his sale and purchase are valid.
<br>          <b><font color='darkgreen'>4.   Shulchan Aruch (ibid.):</font></b> If the claim was about
               something the minor does not benefit from, e.g.
               damage or wounding, even if he admits and he has
               property, he is exempt even after he matures. If the
               claim was from one who swears and collects, e.g. a
               worker, and it benefits the minor that people work
               for him, he swears and collects from the minor.
<br><br><font color='blue'><i>See also:</i>
<br><b>MUST A MINOR PAY AFTER MATURING? </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>          <b><font color='darkgreen'>2.   Or, is he liable for all the individual oaths to
               everyone?
 </font></b>    (j)  Answer (Beraisa #2 - R. Chiya): He is liable 20 Chatas
          offerings.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> What is the case?
<br>               <b><font color='darkgreen'>i.   Suggestion:</font></b> He explicitly said the individual
                    oaths to each person.
<br>               <b><font color='darkgreen'>ii.  Rejection:</font></b> R. Chiya need not teach us mere
                    multiplication!
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> Rather, he specified the individual oaths
               only to the first person (and he is liable for them
               for everyone).
<br>
<b><font color='blue'>3) ONE WHO DENIES A FINE</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If he said 'you raped or enticed my
          daughter...' (and he denied... R. Shimon exempts, for
          even if he admitted, he would not pay the fine.)
<br>     <b><font color='darkgreen'>(b)  Question (R. Chiya bar Aba):</font></b> What is R. Shimon's reason?
<br>     <b><font color='darkgreen'>(c)  Answer #1 (R. Chiya bar Aba):</font></b> He holds that the primary
          claim is the fine (not the embarrassment and Pegam).
<br>     <b><font color='darkgreen'>(d)  (Rava):</font></b> A parable explains R. Shimon's reasoning. Reuven
          claimed from Levi wheat, barley and spelt. Levi swore 'I
          do not have wheat of yours.' This was true, but he did
          have Reuven's barley and spelt. He is exempt, for he
          swore truthfully about the wheat.
<br>     <b><font color='darkgreen'>(e)  Rejection (Abaye):</font></b> In your parable, Levi denied only
          wheat. In the Mishnah, he denied liability for anything!
<br>     <b><font color='darkgreen'>(f)  (Abaye):</font></b> Rather, the Mishnah is like when Reuven claimed
          from Levi wheat, barley and spelt, and Levi swore 'you do
          not have anything by me.' Levi did not have Reuven's
          wheat, but he did have his barley and spelt. He is
          liable! (R. Shimon's opinion is difficult.)
<br>     <b><font color='darkgreen'>(g)  Answer #2 (Ravin):</font></b> R. Shimon exempts because he holds
          that the claimant claims <i>only</i> the fine;
<br>          <b><font color='darkgreen'>1.   Chachamim says, he claims also the embarrassment and
               Pegam.
 </font></b>    (h)  Question: What do the Tana'im argue about?
<br>     <b><font color='darkgreen'>(i)  Answer (Rav Papa):</font></b> R. Shimon holds that one claims
          something that is a fixed amount (a fine), and not
          something variable;
<br>          <b><font color='darkgreen'>1.   Chachamim hold that one would not omit claiming
               something that the defendant is liable for through
               his own admission, and claim only something for
               which the defendant can exempt himself through
               admitting.
<br><b><font color='darkgreen'>
<br><center><font color='ff0000' size='+1'><b>*****PEREK SHEVU'AS HA'DAYANIM*****</b></font></center><p>
<br>
</font></b>
<br><b><font color='blue'>4) THE ADMISSION MUST BE LIKE THE CLAIM</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> In Shevu'as ha'Dayanim (the oath for partial
          admission), the claim must be at least two (Ma'os) of
          Kesef (a third of a Dinar), and the admission must be at
          least a Perutah;
<br>          <b><font color='darkgreen'>1.   If the admission is not the same Min that was
               claimed, the defendant is exempt (from paying and
               from swearing).
 </font></b>    (b)  If Reuven claimed two Ma'os of Kesef (a Ma'ah is 32
          Perutos, a sixth of a Dinar), and Shimon admitted that he
          owes a Perutah, Shimon is exempt;
<br>     <b><font color='darkgreen'>(c)</font></b>  If Reuven claimed two Ma'os of Kesef and a Perutah, and
          Shimon admitted that he owes a Perutah, he must (pay the
          Perutah and) swear.
<br>     <b><font color='darkgreen'>(d)</font></b>  If Reuven claimed a Maneh (100 Dinarim), and Shimon
          denied owing anything, he is exempt;
<br>     <b><font color='darkgreen'>(e)</font></b>  If Reuven claimed 'you owed my father a Maneh (and I
          inherited it)', and Shimon admitted that he owed 50
          Dinarim, he (pays 50 and) need not swear, for he is like
          one who returns an Aveidah.
<br>     <b><font color='darkgreen'>(f)</font></b>  If Reuven claimed a Maneh from Shimon in front of
          witnesses, and Shimon admitted that he owes it; and the
          next day, Reuven claimed it again;
<br>          <b><font color='darkgreen'>1.   If Shimon answers 'I paid you', he is exempt;
<br>          <b><font color='darkgreen'>2.   If he answers 'I do not have (i.e. never had) your
               money', he must pay.
 </font></b></font></b>    (g)  Reuven claimed a Maneh from Shimon in front of witnesses.
          Shimon admitted that he owes it. Reuven told him 'you
          must repay it in front of witnesses.' The next day,
          Reuven claimed it again.
<br>          <b><font color='darkgreen'>1.   Shimon is not believed to say 'I paid you', for he
               was told to pay in front of witnesses.
 </font></b>    (h)  If Reuven claimed a liter of gold, and Shimon admitted
          that he owes a liter of silver, Shimon is exempt;
<br>     <b><font color='darkgreen'>(i)</font></b>  If Reuven claimed a gold Dinar, and Shimon admitted that
          he owes a silver Dinar, Shimon must (pay it and) swear,
          for all coins are considered to be one Min.
<br>     <b><font color='darkgreen'>(j)</font></b>  If Reuven claimed 30 Sa'im of grain, and Shimon admitted
          that he owes 15 Sa'im of legumes, Shimon is exempt;
<br>     <b><font color='darkgreen'>(k)</font></b>  If Reuven claimed 30 Sa'im of Peros, and Shimon admitted
          that he owes 15 Sa'im of legumes, Shimon must (pay it
          and) swear, for legumes are a type of Peros.
<br>     <b><font color='darkgreen'>(l)</font></b>  If Reuven claimed wheat, and Shimon admitted that he owes
          barley, Shimon is exempt;
<br>     <b><font color='darkgreen'>(m)</font></b>  Raban Gamliel obligates (to pay the barley and swear,
          even though they are different Minim).
<br>     <b><font color='darkgreen'>(n)</font></b>  Admon says, If Reuven claimed barrels of oil, and Shimon
          admitted that he owes (empty) barrels, Shimon must (pay
          them and) swear, for he admitted to part of what was
          claimed;
<br>     <b><font color='darkgreen'>(o)</font></b>  Chachamim say, his admission is unlike the claim (so he
          is exempt).
<br>          <b><font color='darkgreen'>1.   Raban Gamliel:</font></b> I agree with Admon.
<br>     <b><font color='darkgreen'>(p)</font></b>  If Reuven claimed Kelim and land, and Shimon admitted to
          (all) the land but denied the Kelim, or admitted to (all)
          the Kelim but denied the land, he is exempt (an admission
          to land cannot obligate an oath, and we do not make a
          primary oath about land);
<br>          <b><font color='darkgreen'>1.   If Shimon admitted to part of the land but denied
               (all) the Kelim, he is exempt (we do not make a
               (primary) oath about land);
<br>          <b><font color='darkgreen'>2.   If he admitted to part of the Kelim but denied (all)
               the land, he must swear (about the remaining Kelim,
               and also about the land);
             </font></b></font></b>  i.   When one must swear about Metaltelim, the
                    claimant can also force him to swear about land
                    (through Gilgul).
<br>     <b><font color='darkgreen'>(q)</font></b>  One need not swear to deny the claim of a child, lunatic
          or deaf-mute;
<br>          <b><font color='darkgreen'>1.   We do not make a child swear;
<br>          <b><font color='darkgreen'>2.   We do swear to a child and to Hekdesh (this will be
               explained).
<br><b><font color='darkgreen'><b><font color='darkgreen'></font></b></font></b>
<br><b><font color='blue'>5) ADMINISTERING THE OATH</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Gemara) Question:</font></b> How do we make him swear?
<br>     <b><font color='darkgreen'>(b)  Answer (Rav Yehudah):</font></b> We make him swear like we find in
          the Torah. Avraham imposed an oath on Eliezer 'ba'Shem
          Elokei ha'Shamayim.'
<br>     <b><font color='darkgreen'>(c)  Question (Ravina):</font></b> Is this like R. Chanina bar Idi, who
          says that he must swear with the name 'Hashem'?
<br>     <b><font color='darkgreen'>(d)  Answer (Rav Ashi):</font></b> No, it is even like Chachamim, who
          allow swearing with other names of Hash-m;
<br>          <b><font color='darkgreen'>1.   He must hold an article of a great Mitzvah, like we
               find in the Torah (Eliezer put his hand near
               Avraham's circumcision).
<br>          <b><font color='darkgreen'>2.   (Rava):</font></b> If a judge administered a (Torah) oath
               'ba'Shem Elokei ha'Shamayim' (without making the
               defendant hold a Kodesh article), this is a clear-
               cut mistake. The oath was invalid. It must be
               repeated (holding an article).
<br>          <b><font color='darkgreen'>3.   (Rav Papa):</font></b> If a judge administered a (mid'Oraisa)
               oath when the defendant held only Tefilin (not a
               Sefer Torah), this is a clear-cut mistake, and the
               oath must be repeated.
 </font></b>    (e)  The Halachah follows Rava. Since he did not hold
          anything, the oath is invalid;
<br>          <b><font color='darkgreen'>1.   The Halachah does not follow Rav Papa. Since he held
               an article, the oath is valid.
 </font></b>    (f)  The defendant must stand when he swears. A Chacham may
          sit;
<br>     <b><font color='darkgreen'>(g)</font></b>  The defendant must hold a Sefer Torah. L'Chatchilah, a
          Chacham may hold Tefilin. 
<br>

sjt:
</p><p>
<font><b>2) THE EXEMPTION FROM A SHEVU'AH IN A CASE OF 'MESHIV AVEIDAH'</b></font>
<br>QUESTION: The Mishnah teaches that if a person approaches another person and says, 'I think you owe my father money and did not yet pay him back,' and the defendant admits that he owes half of the amount claimed, the defendant is exempt from a Shevu'as Modeh b'Miktzas, because he simply is 'returning a lost object' (Meshiv Aveidah). Since he was not challenged with a claim based on definite knowledge of the facts, it is considered as though he is volunteering the information that he owes a certain amount of money. He is doing a favor to the claimant by returning the money, and he is not viewed as though he is denying the part that he does not return.
</p><p>
<b>RASHI</b> explains that the source that a person who is 'Meshiv Aveidah' is exempt from an oath is the Mishnah in Gitin (48b), which teaches that when one finds an object and returns it to the original owner who then claims that there was another object that he lost together with the first one, the finder is exempt from a Shevu'as Modeh b'Miktzas because of 'Tikun ha'Olam.' If he would be required to swear, then no one would return lost objects out of fear of being forced to swear. Similarly, if the defendant is required to swear in the case of the Mishnah here, he would not admit that he owes half (because he wants to avoid having to make a Shevu'ah).
</p><p>
The exemption from a Shevu'ah in a case of Meshiv Aveidah is mid'Rabanan, as the words of the Mishnah in Gitin imply ('Mipnei Tikun ha'Olam'), and as Rashi writes in Kesuvos (18a, DH b'Rebbi Eliezer).
</p><p>
Why does Rashi say that the defendant is exempt from a Shevu'ah only mid'Rabanan? He should be exempt mid'Oraisa because of a Migu that he could have denied everything! Normally, one who is Modeh b'Miktzas does not have such a Migu, because he is embarrassed to lie openly to his opponent and deny everything (as the Gemara says in Bava Metzia 3a, and here in Shevuos 42b). However, when his opponent does not know for certain that anything is owed, the defendant will not be embarrassed to deny the entire loan, and thus he should be exempt from a Shevu'ah because of the Migu.
</p><p>
The same question may be asked on Rashi in Bava Metzia (3a, DH Mipnei Mah). There, Rashi writes that when the Gemara says that the defendant is embarrassed to lie openly to his opponent, it says that in order to explain why Modeh b'Miktzas is not exempt from a Shevu'ah due to the principle of Meshiv Aveidah. There, too, Rashi should write that the Gemara is explaining why Modeh b'Miktzas is not exempt from a Shevu'ah because of a Migu. After all, the Gemara there is explaining 'why the Torah obligates one who is Modeh b'Miktzas to make a Shevu'ah.' The logic with which one would think to exempt the person from a Shevu'ah must be an exemption that is mid'Oraisa, and not just Meshiv Aveidah, which is mid'Rabanan. (<b>TOSFOS</b> to Shevuos 42a, DH v'Rebbi Eliezer; Bava Metzia 3a, DH Mipnei; Kesuvos 18a, DH v'Rebbi Eliezer.)
</p><p>
The same question may be asked on the Mishnah in Gitin itself, which teaches that one who is Meshiv Aveidah is exempt from a Shevu'as Modeh b'Miktzas because of a Takanah d'Rabanan.
</p><p>
However, the other Rishonim (see, for example, <b>RASHBA</b> and <b>TOSFOS HA'ROSH</b> to Gitin 51a) explain that the Mishnah is exempting one who is Meshiv Aveidah even when the owner presents a claim of certainty ('Ta'anas Bari') and when the finder does not have a Migu (for example, the owner claims to have seen the finder find the object in question). In contrast, Rashi explains that the Mishnah there is discussing a claim of uncertainty ('Ta'anas Shema'), in which case the finder will not be embarrassed to deny the entire claim. According to Rashi, why does the Mishnah in Gitin exempt one from a Shevu'ah in such a case because of the Migu?
</p><p>
ANSWER: The <b>PNEI YEHOSHUA</b> (in Bava Metzia 3a) and others explain that Rashi apparently accepts the opinion of the <b><b><b>RI</b></b> MI'GASH</b>, cited by the <b>ROSH</b> here (7:3). The Ri mi'Gash explains that although a Migu is able to exempt a person from payment, it does not suffice to exempt a person from an obligation to make a Shevu'ah. (The case in which the Migu does not exempt him from a Shevu'ah is as follows: A person claims that he made a partnership with his friend and stipulated at the time that either partner may force the other to swear even in response to a 'Ta'anas Shema.' If he then tells his friend whom, he claims, was his partner, that he wants him to swear that he did not take more than his share, and the friend admits that he was a partner in the venture, the friend must swear. He is not exempt from a Shevu'ah because of a Migu that he could have denied the entire partnership (as there are no witnesses to support the claim of partnership), because a Migu does not exempt him from a Shevu'ah.)
</p><p>
The Ri mi'Gash proves this point from the fact that one who is Modeh b'Miktzas must make a Shevu'ah even though he has a Migu (that he could have denied everything). The Rosh refutes this proof by pointing out that the Gemara itself says that one who is Modeh b'Miktzas has no Migu because he is embarrassed to deny the entire claim! Apparently, the proof of the Ri mi'Gash is from the Mishnah in Gitin, which says that one who is Meshiv Aveidah is exempt from a Shevu'ah only because of a Takanah d'Rabanan, even though in that case there <i>is</i> a Migu (since the defendant, in that case, is not embarrassed to deny the entire claim).
</p><p>
Accordingly, this might be the opinion of Rashi as well, and this is why Rashi exempts the defendant from a Shevu'ah in the case of the Mishnah here only because of Meshiv Aveidah. (It is not clear why the Ri mi'Gash does not explain, in the case that he mentions, that the partner is exempt from swearing because of the principle of Meshiv Aveidah.)
</p><p>
The Rosh asks further why a Migu should not suffice to exempt a person from a Shevu'ah. The whole purpose of a Shevu'ah is to prove whether or not the defendant owes money, and by refusing to swear he will have to pay. If a Migu provides enough evidence to support the claim of the defendant with regard to the money, then no Shevu'ah should be required!
</p><p>
Perhaps the Ri mi'Gash and Rashi understand that a Migu can exempt a person from paying money only when he is not required to swear, since the defendant has no other way to prove his claim. However, when the defendant is obligated to swear, the Migu does not exempt him from a Shevu'ah since it is possible to prove his claim through the Shevu'ah. The situation is viewed as a case in which the doubt can be resolved through other means ('Davar she'Efshar l'Varer'), in which case Beis Din does not rely on the Migu.
</p><p>
This does not explain the words of Rashi in Bava Metzia, where he writes that the Gemara is suggesting that one who is Modeh b'Miktzas should not be obligated to make a Shevu'ah mid'Oraisa because of the principle of Meshiv Aveidah (if not for the fact that the defendant is embarrassed to deny everything). How can Meshiv Aveidah exempt a person from a Shevu'ah d'Oraisa?
</p><p>
The answer might be that since the Torah has reason to require a Shevu'as Modeh b'Miktzas in an ordinary case (when there is no Migu or Meshiv Aveidah), then it is understandable that the Torah applies a blanket rule obligating a person to make a Shevu'ah even when he is Meshiv Aveidah. The Torah does not take into account that the person might not admit even to half when he is Meshiv Aveidah and exempt himself from a Shevu'ah, because the Torah teaches a general rule that applies to all cases, and in most of the cases in which the rule applies there is no concern that the defendant will lie about the first half. However, if every case of Modeh b'Miktzas would be considered a case of Meshiv Aveidah, then the Torah certainly would not have created such a Shevu'ah, because of the concern that the person would lie about the first half in all cases of Modeh b'Miktzas.
</p><p>
In other words, although Meshiv Aveidah is not sufficient cause for the Torah to <i>exempt</i> a person from a Shevu'ah when he is obligated to swear, it <i>does</i> provide sufficient reason for the Torah <i>not to obligate</i> a person to make a Shevu'ah in the first place. (M. Kornfeld) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) THE PUNISHMENT FOR FALSE OATHS</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Beraisa):</font></b> Even Shevu'as ha'Dayanim may be said in any
          language that the defendant understands;
<br>     <b><font color='darkgreen'>(b)</font></b>  We tell him that the world shook when Hash-m said on
          Sinai 'Lo Sisa Es Shem Hash-m la'Shav.'
<br>     <b><font color='darkgreen'>(c)</font></b>  Regarding all other transgressions, it says 'v'Nakeh'.
          Regarding swearing falsely, it says 'Lo Yenake';
<br>     <b><font color='darkgreen'>(d)</font></b>  Regarding all other transgressions, Hash-m punishes
          (only) the sinner. Regarding swearing falsely, He
          punishes his family as well - 'Al Titen Es Picha Lachati
          Es Besarecha';
<br>          <b><font color='darkgreen'>1.   'Besarecha' refers to his family.
 </font></b>    (e)  Regarding all other transgressions, Hash-m punishes the
          sinner. Regarding swearing falsely, He punishes the
          entire world - 'Alo v'Chachesh... (Al Ken Te'eval
          ha'Aretz v'Umlal Kol Yoshev Bah.' The Gra deletes the
          following suggestion and rejection from the text.)
<br>          <b><font color='darkgreen'>1.   Suggestion:</font></b> Perhaps that is only for doing all the 
               transgressions in that verse!
<br>          <b><font color='darkgreen'>2.   Rejection:</font></b> 'Mipnei Alah Avlah ha'Aretz.'
<br>     <b><font color='darkgreen'>(f)</font></b>  Regarding all other transgressions, if he has merits, his
          punishment is suspended for two or three generations. For
          swearing falsely, he is punished immediately -
          'Hotzeisi'ah... u'Ba'ah El Beis ha'Ganav v'El Beis
          ha'Nishba bi'Shmi la'Shaker v'Laneh b'Soch Beiso
          v'Chilato v'Es Etzav v'Es Avanav';
<br>          <b><font color='darkgreen'>1.   'Hotzeisi'ah (I took out a scroll of punishments
               awaiting the following people)' - immediately.
               'U'Ba'ah El Beis ha'Ganav' is one who is Gonev Da'as
               (deceives). He falsely claims money in order to
               force people to swear;
<br>          <b><font color='darkgreen'>2.   'V'El Beis ha'Nishba bi'Shmi la'Shaker' is one who
               swears falsely. '... V'Chilato v'Es Etzav v'Es
               Avanav' - water and fire do not wear away the wood
               and rocks (of his house), but false oaths do.
 </font></b></font></b>    (g)  If the defendant says 'I will (pay and) not swear', we
          immediately make him leave Beis Din, so he cannot retract
          (Rashi; R. Tam - so he will be ashamed to retract later)
<br>     <b><font color='darkgreen'>(h)</font></b>  If he says 'I will swear', all present say 'Suru Na me'Al
          Ohalei ha'Anashim ha'Rsha'im ha'Eleh';
<br>          <b><font color='darkgreen'>1.   When we administer the oath, we tell him 'you do not
               swear according to your own Da'as (intent), rather,
               according to Da'as Hash-m and of Beis Din.'
<br>          <b><font color='darkgreen'>2.   We find that Moshe forced Bnei Yisrael to swear this
               way. He said 'I do not make you swear according to
               your Da'as, rather according to Hashem's Da'as and
               my Da'as - 'v'Lo Itechem Levadechem';
             </font></b></font></b>  i.   'Asher Yeshno Po ha'Yom' refers to those who
                    stood on Har Sinai. 'Asher Einenu Po Imanu
                    ha'Yom' refers to future generations and those
                    who will convert later;
<br>               <b><font color='darkgreen'>ii. </font></b> This applies to Mitzvos received on Har Sinai
                    (i.e. mid'Oraisa). We learn Mitzvos
                    (mid'Rabanan) that will be given later, such as
                    reading Megilas Esther, from 'Kiymu v'Kibelu' -
                    they fulfilled what they already accepted (i.e.
                    whatever Mitzvos Chachamim will enact). (end of
                    Beraisa)
<br>     <b><font color='darkgreen'>(i)  Question:</font></b> The Beraisa said '<i>even</i> Shevu'as ha'Dayanim
          may be said in any language.' What does this mean?
<br>     <b><font color='darkgreen'>(j)  Answer:</font></b> It is like the other things listed in the
          following Mishnah;
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> The following may be said in any
               language: the Parshah of Sotah (giving her to
               drink), the declaration of (having properly given)
               Ma'aseros, Kri'as Shema, prayer, Birkas ha'Mazon,
               Shevu'as ha'Edus, and Shevu'as ha'Pikadon.
<br>          <b><font color='darkgreen'>2.   The Beraisa teaches that also Shevu'as ha'Dayanim
               may be said in any language.
 </font></b>    (k)  (Beraisa): We tell him that the world shook when Hash-m
          said on Sinai 'Lo Sisa Es Shem Hash-m la'Shav.'
<br>     <b><font color='darkgreen'>(l)  Question:</font></b> Why is this?
<br>          <b><font color='darkgreen'>1.   Suggestion:</font></b> It is because it was said on Sinai.
<br>          <b><font color='darkgreen'>2.   Rejection:</font></b> All ten utterances were said on Sinai!
<br>     <b><font color='darkgreen'>(m)  Answer #1:</font></b> Rather, it is because it is stringent.
<br>     <b><font color='darkgreen'>(n)  Objection (Beraisa):</font></b> Light transgressions are a Mitzvas
          Aseh or Lav, except for 'Lo Sisa.' Severe transgressions
          are those punishable by Kares or Misah (through Beis
          Din), and 'Lo Sisa.' (This shows that it is no more
          stringent than transgressions of Kares or Misah!)
<br>     <b><font color='darkgreen'>(o)  Answer #2 (continuation of the Beraisa):</font></b> Regarding all
          other transgressions, it says 'v'Nakeh.' Regarding
          swearing falsely, it says 'Lo Yenake.'
<br>          <b><font color='darkgreen'>1.   Question:</font></b> 'Lo Yenake' is written regarding all
               transgressions (after the 13 Midos of Hash-m)!
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> That is (if he did not repent), like R.
               Elazar taught;
<br>               <b><font color='darkgreen'>i.   (Beraisa - R. Elazar) Question:</font></b> How can it say
                    both 'Lo Yenake' and 'Yenakeh'?
<br>               <b><font color='darkgreen'>ii.  Answer:</font></b> Hash-m cleanses one who repents, but
                    not one who does not repent.
<br>          <b><font color='darkgreen'>3.   Regarding false oaths, Hash-m does not cleanse
               (without punishments) even if he repents.
<br><b><font color='darkgreen'></font></b>
<br><b><font color='blue'>2) WHO IS PUNISHED?</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Beraisa):</font></b> Regarding all other transgressions, Hash-m
          punishes the sinner. Regarding swearing falsely, He
          punishes also his family.
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> There are other transgressions for which Hash-m
          also punishes his family (such as giving children over to
          Molech) - 'v'Samti Ani Es Panai ba'Ish ha'Hu
          uv'Mishpachto'!'
<br>          <b><font color='darkgreen'>1.   (Beraisa - R. Shimon) Question:</font></b> Why is his family
               punished for his sin?
<br>          <b><font color='darkgreen'>2.   Answer (R. Shimon):</font></b> If there is a tax collector (who
               takes more than is proper) or robber in a family,
               they are all guilty of theft, for they cover up for
               him.
<br>     <b><font color='darkgreen'>(c)  Answer:</font></b> Regarding other transgressions, the family is not
          punished as harshly as the sinner (even if they could
          have protested). Regarding false oaths, the family gets
          the same punishment.
<br>          <b><font color='darkgreen'>1.   (Beraisa - Rebbi) Suggestion:</font></b> Since it says 'v'Samti
               Ani Es Panai... (uv'Mishpachto)', perhaps the entire
               family gets Kares!
<br>          <b><font color='darkgreen'>2.   Rejection:</font></b> 'V'Hichrati <i>Oso</i>' - only the one who
               handed over his children to Molech gets Kares.
<br>     <b><font color='darkgreen'>(d)  (Beraisa):</font></b> Regarding all other transgressions, Hash-m
          punishes the sinner. Regarding swearing falsely, He
          punishes the entire world.
<br>     <b><font color='darkgreen'>(e)  Question:</font></b> Also for other transgressions, Hash-m punishes
          the entire world!
<br>          <b><font color='darkgreen'>1.   'V'Chashlu Ish b'Achiv' - a man will stumble (be
               punished for) the sin of his brother. This teaches
               that every Yisrael is responsible for every Yisrael!
<br><b><font color='darkgreen'>
&lt;</font></b>br&gt;

sjt:
<font><b>1) THE SEVERITY OF A FALSE 'SHEVU'AS BITUY'</b></font>
<br>QUESTION: The Beraisa (end of 38b) teaches that before Beis Din administers a Shevu'as Modeh b'Miktzas, Beis Din warns the defendant about the severity of making a false Shevu'ah. Beis Din describes to him how the entire earth trembled at the moment that Hash-m commanded at Sinai, 'Lo Sisa Es Shem Hash-m... la'Shav' -- 'You shall not bear the name of Hash-m your G-d in vain' (Shemos 20:7) (Shemos 20:7).
</p><p>
The Shevu'ah which Beis Din administers is equivalent to a Shevu'ah about a past event (Shevu'as Bituy). The Gemara earlier (20b) cites Rav Dimi who states that when one makes a false Shevu'ah about a past event, he transgresses the Isur of 'Lo Sisa.' However, Ravin there (21a) argues and says that one transgresses 'Lo Sisa' only when he makes a Shevu'as Shav, but not when he makes a false Shevu'ah about a past event. Rather, when one makes a false Shevu'as Bituy, he transgresses the Isur of 'v'Lo Sishav'u vi'Shemi la'Shaker' (Vayikra 19:12). Why, according to Ravin, does the Beraisa say that Beis Din warns the defendant about the severity of the Isur of 'Lo Sisa,' if the Isur which he stands to transgress is the Isur of 'v'Lo Sishav'u'? (<b>RAMBAN</b>)
</p><p>
ANSWERS:
<br>(a) The <b>RAMBAN</b> explains that Beis Din mentions the verse of Shevu'as Shav because the severity of a Shevu'as Shav is more commonly known. However, the Chachamim understood that the same severity applies to a false Shevu'ah about a past event.
</p><p>
(b) The <b>RASHASH</b> adds that the source for comparing a Shevu'as Bituy to a Shevu'as Shav is the verse that the Gemara cites earlier (21a) which compares a Shevu'as Bituy (Shevu'as Sheker) to a Shevu'as Shav. That source is the second word, 'la'Shav,' at the end of the verse of 'Lo Sisa.' The Beraisa is merely citing the beginning of the verse, but its intention is that Beis Din is to mention the verse in its entirety.
</p><p>


<font><b>2) AGADAH: THE SEVERITY OF TAKING A FALSE OATH</b></font>
<br>QUESTION: The Beraisa (end of 38b) teaches that before Beis Din administers a Shevu'as Modeh b'Miktzas, Beis Din warns the defendant about the severity of making a false Shevu'ah. Beis Din says, 'Know that the entire world trembled when Hash-m said at Sinai, 'You shall not bear the name of Hash-m your G-d in vain' (Shemos 20:7). For all transgressions in the Torah it is said, 'v'Nakeh' -- 'Hashem will cleanse' (Shemos 34:7), but here [for a false oath] it is said, 'Lo Yenakeh' -- 'Hashem will not cleanse' (Shemos 20:7).... For all transgression in the Torah, if one has merit his punishment is suspended for two or three generations, but here [for a false oath] he is punished immediately, as it is said, 'I take it out (the punishment), says Hash-m, and it will come to the house of the thief, and to the house of the one who swears falsely in My name... and it will destroy him, his wood, and his stones' (Zecharyah 5:4)....'
</p><p>
The Gemara infers from the fact that the punishment for a false oath devours wood and stones that a false oath is so severe that it destroys even things which fire and water cannot destroy.
</p><p>
Why is swearing falsely such a serious sin?
</p><p>
ANSWER: The <b>MAHARSHA</b> explains that the reason why swearing falsely is so severe is that the name of Hash-m is the foundation of the world and the very cause for the world's existence, as the verse states, 'For in the name of Hash-m is the rock (foundation) of the worlds' (Yeshayah 26:4). Therefore, one who uses the name of Hash-m falsely in an oath weakens the foundation of the world, so to speak. (See also <b>RASHI</b> to Bereishis 2:4.)
</p><p>
Moreover, the Gemara later says that Hash-m will not cleanse the sin of making a false oath even when one does Teshuvah. Accordingly, one who sins in such a way causes the world to be unsure of the continuity of the existence of its very foundation. This explains why 'the entire world trembled' when Hash-m gave the commandment not to make a false oath.
</p><p>
The Maharsha's explanation that the world was created through Hashem's name may be understood further based on a statement of the <b>NEFESH HA'CHAYIM</b> (4:19). The Nefesh ha'Chayim writes that the Torah is comprised entirely of the names of Hash-m. Since the world was created through the Torah, as the Zohar (Terumah 161a) states, 'Hash-m looked in the Torah and created the world,' the world was created with Hashem's name. Accordingly, a false Shevu'ah with Hashem's name poses a threat to the world's very existence.
</p><p>
(See also <b>TOSFOS</b> to Bava Metzia 5b, DH d'Chashid, who writes that a Halachic consequence of the fact that the world trembled when Hash-m gave the commandment against making a false oath is that people are more afraid of making false oaths than they are of stealing. Therefore, even though a person might be suspected of stealing, he is not suspected of making a false Shevu'ah. His Shevu'ah may be accepted by Beis Din, because although he is prepared to steal, he is not prepared to swear falsely.) (D. Bloom)
</p><p>


<font><b>3) 'EVEN MAKING A TRUTHFUL OATH IS A SIN'</b></font>
<br>QUESTIONS: The Gemara explains that the words, 'the house of the thief' (Zecharyah 5:4), refer to one who falsely claims money from people and forces them to make a Shevu'ah that they do not owe him money. The verse teaches that as punishment for his deeds, the wood and stones of his house will be destroyed, because a false Shevu'ah can devour even things that fire and water cannot destroy.
</p><p>
Why does the person who demands a Shevu'ah from his fellow man receive such a severe punishment? The other person can swear truthfully that he owes nothing, and will not be obligated to pay at all. Although the thief caused the defendant the trouble of making a Shevu'ah, behavior which certainly is reprehensible, why should he receive such a severe punishment? After all, no false Shevu'ah was actually made, and no money was actually stolen.
</p><p>
The Gemara continues that if the person who was required to swear accepts to make the Shevu'ah, the people standing in Beis Din say, 'Turn away from the tents of theses wicked people' (Bamidbar 16:26). This implies that both the claimant who demands the Shevu'ah and the defendant who makes the Shevu'ah are considered evildoers.
</p><p>
The Gemara (39b) asks that although it is clear why a person who makes a false Shevu'ah is considered an evil person from whom one must turn away, why is the person who demands the oath from him considered an evil person as well? He merely is trying to recover money that rightfully belongs to him!
</p><p>
The Gemara quotes Rebbi Shimon ben Tarfon who explains that the verse, 'An oath of Hash-m shall be between the two of them' (Shemos 22:10), means that the Shevu'ah applies to both the claimant and the defendant. <b>RASHI</b> (DH Chalah) explains that both are punished for the false Shevu'ah, even the one who demanded the Shevu'ah, because he was not careful to entrust his money to a trustworthy person, and he thereby caused a Chilul Hash-m.
</p><p>
However, the <b>S'MA</b> (CM 87:21) explains the Gemara differently from Rashi. The <b>SHULCHAN ARUCH</b> (CM 87:20) writes, 'If he says, 'I will swear,' and the other person demands the Shevu'ah, the people standing there say to each other, 'Turn away from the tents of these wicked people.'' The S'ma points out that the Shulchan Aruch specifically writes that the claimant demands the Shevu'ah, because otherwise both parties would not be considered evil. The S'ma writes that since the claimant who demands the Shevu'ah sees that his opponent is prepared to make a Shevu'ah, he should have come to an agreement with his opponent and not require that a Shevu'ah be made as a result of his claim. His refusal to come to such an agreement earns him the title 'Rasha.' (If he knows that his opponent will swear falsely, he should accept the same settlement that he would get after a Shevu'ah, without having his opponent make a false Shevu'ah.)
</p><p>
Why does the Gemara call the two parties involved 'Resha'im'? It is possible that the one who makes the Shevu'ah in fact is making a valid, honest oath. It is understandable that the claimant is called a 'Rasha,' as he demands from the defendant a Shevu'ah for no valid reason. However, the person who makes the Shevu'ah is not to blame at all. Why is he called a 'Rasha'?
</p><p>
ANSWER: The <b>CHASAM SOFER</b> (<b>TESHUVOS</b> CM #90) answers by citing a common saying: 'Even making a true Shevu'ah is a sin' (see Nedarim 22a). The Chasam Sofer explains that people are careful not to make a Shevu'ah even when they know they are right, and they do everything possible to come to a compromise. Therefore, although the claimant who deceitfully makes his opponent swear does not cause a false oath to be made, 'even a true Shevu'ah is a sin,' and thus everyone should avoid making a Shevu'ah, even a true one.
</p><p>
The Chasam Sofer similarly says that one should avoid making a Shevu'ah even if it means losing his own money; he should compromise with the claimant who falsely accuses him of owing money so that he should not have to make a Shevu'ah. For example, if a lender falsely claims that he lent the borrower twice as much money as he actually lent him, and the borrower tells the court the truth, that he borrowed only half of what the claimant says, the borrower is obligated to make a Shevu'ah d'Oraisa of Modeh b'Miktzas. The Chasam Sofer says that instead of making the oath, the borrower should try to come to some compromise with the lender in order to avoid a Shevu'ah.
</p><p>
The Chasam Sofer cites proof from the Gemara earlier that 'even making a true Shevu'ah is a sin.' The Gemara (32b) discusses the case of a witness who refrains from testifying and thereby causes the lender to be unable to collect from the borrower, whom the lender suspected would make a false Shevu'ah. The Gemara suggests that the lender may claim his loss from the witness who refused to testify. He may say that had the witness testified for him, he would have been able to make an oath (since the borrower could not swear, since he was suspected of lying) and collect the money. However, the Gemara rejects this suggestion by saying that even if the witness would testify, perhaps the lender would not actual make a Shevu'ah. This implies that it is normal for a person to forgo his legal right to collect money in order to avoid making a Shevu'ah, even a true one.
</p><p>
The Chasam Sofer cites another proof from the words of the <b>RAN</b> later (45a). The Mishnah (44b) lists the cases in which a person may <i>extract</i> money from another person by making a Shevu'ah. One of those cases is that of a worker who receives wages. The Gemara there explains that since the employer has many employees, he is prone to forget whether or not he paid a particular employee. The Gemara asks that according to this reasoning, the employer should have to give the worker his wages even without the worker's Shevu'ah. The Gemara answers that the reason the worker must make a Shevu'ah is to appease the employer.
</p><p>
The Ran (25b of the pages of the <b>RIF</b>) explains that according to the letter of the law, the worker should not be able to collect his wages even if he makes a Shevu'ah, because he has no concrete proof that he was not paid, and his employer insists that he was paid. The Chachamim instituted that the worker may collect his wage by swearing that he was not paid. However, it would have been more logical for the Chachamim to institute that the worker may collect his wage <i>without</i> having to make a Shevu'ah; since there are people who refrain from making even a true Shevu'ah, the worker might refrain from making a Shevu'ah and not collect his wages, and as a result he will not have enough money to survive. This is the meaning of the Gemara's question that the worker should be given his wages even without a Shevu'ah.
</p><p>
It is evident from the Ran's explanation that there are people who refrain from making even a true Shevu'ah because 'even making a true Shevu'ah is a sin.' (See also <b>TESHUVOS SHEVET HA'LEVI</b> 6:141, and <b>YOSEF DA'AS</b> here.) (D. Bloom)
</p><p>


<font><b>4) ACCEPTANCE OF FUTURE MITZVOS</b></font>
<br>QUESTIONS: The Beraisa discusses the way in which Beis Din administers to witnesses a Shevu'as ha'Edus, and, tangentially, it explains the verse that describes the covenant that was made with the people to reinforce their acceptance of the Torah at Sinai (Devarim 29:13-14; see <b>TORAS CHAIM</b>). The Beraisa says that the covenant was made not only to reinforce their acceptance of the Mitzvos that they received at Sinai, but also to reinforce their acceptance of the Mitzvos that would be given at a later time. This is derived from the verse, 'Kiyemu v'Kiblu' (Esther 9:27), which teaches that at the time of the Purim miracle the Jewish people 'fulfilled that which they had already accepted' at Sinai.
</p><p>
It seems that the Gemara interprets the letter 'Vav' in the word 'v'Kiblu' as if it were a 'Shin' ('she'Kiblu'), and the verse means that they fulfilled <i>that which</i> they had accepted (see Beitzah 7b). A similar Gemara in Megilah (19b) teaches that in the Luchos, Hash-m alluded to all of the Mitzvos of the Torah, even the Mitzvos that the Nevi'im would later institute, such as the reading of the Megilah.
</p><p>
There are a number of questions on this Gemara.
</p><p>
(a) What does the Gemara mean when it says that the Jewish people in the Midbar accepted to keep the Mitzvah of reading the Megilah? If this Mitzvah was given to them by Hash-m in the Midbar, then it should be considered a Mitzvah d'Oraisa!
</p><p>
(b) The Gemara in Shabbos (88a) seems to give an entirely different interpretation for the verse 'Kiyemu v'Kiblu.' The Gemara there says that at Sinai the Jewish people were forced to accept the Torah; they accepted it willingly only at the time of Purim. 'Kiyemu v'Kiblu' means, 'They fulfilled willingly that which they were forced to accept earlier.'
</p><p>
The Gemara in Shabbos implies that the verse is discussing not only the Mitzvos that were given in later generations, but <i>all</i> of the Mitzvos, even those that the Jewish people accepted at Sinai. All of the Mitzvos needed to be re-accepted willingly.
</p><p>
How are these two Gemaras to be reconciled? (<b>TOSFOS</b> (DH Kiyemu) cites the Gemara in Shabbos but does not seem to be bothered by the inconsistency.)
</p><p>
ANSWERS:
<br>(a) The <b>MAHARATZ CHAYOS</b> suggests that since the Chachamim derived -- by using the Torah's Thirteen Midos sheha'Torah Nidreshes ba'Hen -- the thirteen exegetical principles of expounding Torah law -- that committing the Megilah to writing is permitted (as described in Megilah 7a), it is considered as though this Mitzvah was accepted at Sinai along with all of the other Mitzvos of the Torah.
</p><p>
However, the Gemara here implies that even <i>reading</i> the Megilah (and not just writing it) is alluded to in the Torah.
</p><p>
The <b>RAMBAM</b> and <b>RAMBAN</b> (Sefer ha'Mitzvos, Shoresh Rishon) quote these Gemaras to show that when the Jewish people accepted the Torah, they also accepted to follow all of the institutions of the Chachamim of every generation. This is what the Gemara means when it says that the Jewish people accepted at Har Sinai even to fulfill the Mitzvos that would be given to them later by the Chachamim.
</p><p>
(According to the Rambam in Sefer ha'Mitzvos (Shoresh Rishon; Lo Sa'aseh #312; Mitzvas Aseh #174), the prohibition of 'Lo Sasur' -- 'Do not turn away from what they (the Chachamim) instruct you' (Devarim 17:11) -- obligates a person to keep the Mitzvos d'Rabanan. Nevertheless, the Jewish people also accepted upon themselves the yoke of Mitzvos d'Rabanan, just as they accepted upon themselves the Mitzvos of the Torah. According to the Ramban there, there is no Mitzvah d'Oraisa to follow the Mitzvos d'Rabanan. Rather, what obligates the Jewish people to follow the Mitzvos d'Rabanan is the Kabalah, the acceptance, which is the subject of the Gemara here.)
</p><p>
(b) <b>HA'GA'ON RAV YOSEF SHALOM ELYASHIV</b> shlit'a (in <b>HE'OROS</b> </p><center><font color='ff0000'><b><b>B'MASECHES SHEVUOS</b>) suggests that the Chachamim can derive multiple Derashos from a single verse (as the Gemara implies in Sanhedrin 34a). He seems to understand that the two Gemaras indeed differ about what is learned from the verse, 'Kiyemu v'Kiblu.'</b></font></center><p>
</p><p>
Perhaps the two Gemaras may be reconciled based on the words of the <b>TORAS CHAIM</b> here. The Toras Chaim explains that the source for the Gemara's Derashah from the verse is the order of the words in the verse. It is the normal manner to first accept a Mitzvah and then to fulfill it. Accordingly, the verse should say, 'Kiblu v'Kiyemu' (and not 'Kiyemu v'Kiblu'), in order to show that the Jewish people accepted the Mitzvah of Megilah and then observed it. Instead, however, the verse first writes 'Kiyemu,' which implies that the Mitzvah was given earlier, and it was necessary only to accept it later. According to this understanding, both the Derashah of the Gemara here and the Derashah of the Gemara in Shabbos may be learned from the same verse.
</p><p>
The Gemara here infers from the fact that 'Kiblu' is written after 'Kiyemu' that it was not necessary to accept the Mitzvah of reading the Megilah in the times of Purim, because it was already accepted at the time of Kabalas ha'Torah. The Gemara in Shabbos derives from the fact that the verse adds the word 'v'Kiblu' after it says that they fulfilled the Mitzvah of Megilah that the Jewish people made a second acceptance once they began to observe the Mitzvah of Mikra Megilah. That second acceptance was a willing acceptance of the entire Torah which they had received originally under duress.
</p><p>
<br>

loi:
<b><font color='blue'>1)   DO SHEVUOS REQUIRE HASHEM'S NAME OR LASHON HA'KODESH?</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   35a (Mishnah):</font></b> If one made witnesses swear (that
               they do not know testimony) by 'Aleph-Dalet', 'Yud-
               Kei', Shakai, Tzevakos, Chanun, Rachum..., or any
               Kinuy (name that refers to Hash-m), they are liable
               (if they knew).
<br>          <b><font color='darkgreen'>2.   35b - Contradiction (Beraisa):</font></b> We learn from a
               Gezerah Shavah 'Alah-Alah' Shevu'as ha'Edus requires 
               Hashem's name, just like Shevu'as Sotah.
<br>          <b><font color='darkgreen'>3.   Resolution (Abaye):</font></b> That Beraisa is R. Chanina bar
               Idi. Our Mishnah is Chachamim. They do not learn the
               Gezerah Shavah.
<br>          <b><font color='darkgreen'>4.   36a (R. Elazar):</font></b> Saying 'no' or 'yes' is an oath.
<br>          <b><font color='darkgreen'>5.   (Rava):</font></b> This is only if he says 'yes' or 'no' twice.
<br>          <b><font color='darkgreen'>6.   38b (Beraisa):</font></b> <i>Even</i> Shevu'as ha'Dayanim is said in
               its language.
<br>          <b><font color='darkgreen'>7.   39a:</font></b> This teaches that also Shevu'as ha'Dayanim is
               in its language;
<br>          <b><font color='darkgreen'>8.  </font></b> This means that it is like the other things in this
               Mishnah;
<br>               <b><font color='darkgreen'>i.   (Mishnah):</font></b> The following may be said in any
                    language: Parshas Sotah, the declaration of
                    Ma'aseros, Kri'as Shema, prayer, Birkas
                    ha'Mazon, Shevu'as ha'Edus, and Shevu'as
                    ha'Pikadon.
<br>          <b><font color='darkgreen'>9.   Nedarim 10a (Mishnah):</font></b> Shevusah, Shekukah, or vowing
               'b'Mohi' are Kinuyim for Shevuah.
<br>          <b><font color='darkgreen'>10.   (R. Yochanan):</font></b> Kinuyim are (translations of
               Shevu'ah) from Nochri languages.
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rif (18a):</font></b> Even Shevu'as ha'Dayanim is in its
               language, i.e. in any language.
<br>               <b><font color='darkgreen'>i.   Ran (DH Tanu):</font></b> The Gemara explains that 'even'
                    refers to the matters in the Mishnah that are
                    said in any language. The Beraisa teaches that
                    Shevu'as ha'Dayanim is the same. The Rif says
                    so. The Ri mi'Gash explains that even it is
                    said in its language, i.e. Lashon ha'Kodesh. It
                    refers to the part of the Mishnah that
                    discusses things that must be said in Lashon
                    ha'Kodesh. This is wrong. A Tosefta (Sotah 7:1)
                    says that Shevu'as ha'Edus and Shevu'as
                    ha'Dayanim are in any language.
<br>               <b><font color='darkgreen'>ii.  Ran (15b DH b'Yud):</font></b> Rashi explains that all
                    Shevuos require a Shem (name of Hash-m) or
                    Kinuy. This is not only for Shevu'as ha'Edus,
                    for Chachamim do not learn the Gezerah Shavah.
                    Therefore, they do not distinguish Shevu'as
                    ha'Edus from other Shevuos. Even so, we need a
                    Shem or Kinuy for lashes or Korban. However,
                    even without a Shem there is an Isur, like we
                    say about 'Lav Lav.'
<br>          <b><font color='darkgreen'>2.   Rambam (Hilchos Shevuos 2:2):</font></b> If one swore or
               imposed an oath with Hashem's special name or a
               Kinuy, e.g. the One whose name is Chanun or Rachum
               or Erech Apayim, in any language, it is a full
               Shevu'ah.
<br>               <b><font color='darkgreen'>i.   Rebuttal (Ra'avad):</font></b> I did not find a Shem or
                    Kinuy in oaths of Bituy, only in Shevuos
                    ha'Edus and Pikadon, for we learn 'Alah- Alah'
                    from Sotah. For Bituy, even 'Mivta' or 'Isar'
                    said for a Shevu'ah is a Shevu'ah, or 'Lav Lav'
                    or 'Hen Hen' if he intends for Lav or Hen of
                    Hash-m. This is for Korban or 'Lo Yachel' (the
                    Isur to transgress it). One is lashed only if
                    he said a Shem - 'Lo Sishav'u vi'Shmi
                    la'Shaker', 'Lo Sisa Es Shem Elokecha...'
<br>               <b><font color='darkgreen'>ii.  Gra (YD 237:1):</font></b> The Rambam's opinion is
                    primary.
<br>          <b><font color='darkgreen'>3.   Rambam (7:7):</font></b> One is liable for Shevu'as ha'Pikadon
               only in a language that he understands.
<br>          <b><font color='darkgreen'>4.   Rambam (9:13):</font></b> Shevu'as ha'Edus must be with
               Hashem's name or a Kinuy, in a language that the
               witness understands
<br>          <b><font color='darkgreen'>5.   Rambam (11:8):</font></b> Shevu'as ha'Dayanim is with Hashem's
               name or a Kinuy or an Alah. My Rebbeyim said that we
               impose it only in Lashon ha'Kodesh.
<br>          <b><font color='darkgreen'>6.   Rambam (14):</font></b> If judges imposed an oath (of Heses) in
               any language that he understands, this is proper,
               and so ruled the Ge'onim. My Rebbeyim said that we
               impose it only in Lashon ha'Kodesh. One should not
               rely on this. Even though all Batei Din normally
               impose it only in Lashon ha'Kodesh, they must infom
               the Nishba until he understands the text of the
               Shevu'ah.
<br>          <b><font color='darkgreen'>7.   Rosh (4:24):</font></b> Also 35b teaches that Shevu'ah requires
               a Kinuy. The Isur to swear (falsely) is only with a
               Shem - 'Lo Sishav'u vi'Shmi la'Shaker.' The Ramban
               says that Shevu'as Bituy does not require a Shem,
               for we say that Lav is a Shevu'ah. Perhaps it is a
               Yad (partial expression), which suffices for a
               Shevu'ah. The Ra'avad says that a Shem is needed
               only for lashes.
<br>          <b><font color='darkgreen'>8.   Rosh (6:2):</font></b> Shevu'as ha'Dayanim is in any language
               that he understands.
<br>          <b><font color='darkgreen'>9.   Maharam mi'Rotenberg (4:6; much of this is in Rashba
               842):</font></b> A case occurred in which one took out five
               Chumashim and swore 'so De-on (Hash-m in another
               language) and this Torah will help me to fulfill
               these Tana'im.' Riva said that this is a Shevu'ah
               with Hashem's name, even though he mentioned only a
               Kinuy, and in another language. In any case it is no
               worse than a Yad. Even Shvusa, Shvuka, and 'master
               of everything' work. Shevu'as Sotah is in any
               language, except that we need Hashem's special name,
               which must be in Lashon ha'Kodesh and may be said
               only in Lashon ha'Kodesh. All the more so other
               Shevuos may be in any language. Even if he did not
               say 'Shevu'ah', Hashem's name in another language
               makes it a Shevu'ah.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Rema (YD 207:1):</font></b> A Neder in any language that he
               forbids to himself is a Neder.
<br>          <b><font color='darkgreen'>2.   Shulchan Aruch (237:1):</font></b> If one says 'I swear to do
               matter Ploni' or 'I will not do it', this is a
               Shevu'ah, even if he did not mention a Shem or
               Kinuy.
<br>               <b><font color='darkgreen'>i.   Beis Yosef (DH v'Yesh):</font></b> The Tur brings an
                    opinion that Shevu'as Bituy requires Hashem's
                    name or a Kinuy. This is like the Ra'avad,
                    Rashi and Rambam.
<br>               <b><font color='darkgreen'>ii.  Shach (1):</font></b> Some say that it is only an Isur.
                    Some say that there are even lashes, for it is
                    not worse than a Yad.
<br>          <b><font color='darkgreen'>3.   Rema:</font></b> There is no distinction if it was in Lashon
               ha'Kodesh or another language.
<br>               <b><font color='darkgreen'>i.   Etzei Levonah:</font></b> R. Yonah (Igeres ha'Teshuvah,
                    for Monday 16) says not to say '... may Hash-m
                    save me', for this is Shevu'as ha'Alah, even
                    though he did not say 'Shevu'ah'. Simlas
                    Binyamin (1) proves from the Rambam that
                    Hashem's name alone is a mere Isur, just like
                    'Shevu'ah' without a Shem. Nedarim 2a teaches
                    that a Kinuy for a Shevu'ah is like saying
                    Shevu'ah. Even though he said a Shem, one is
                    not lashed unless he said 'Shevu'ah' (or a
                    Kinuy).
<br>               <b><font color='darkgreen'>ii.  Shach (YD 179:11):</font></b> Hashem's name in another
                    language is not a (Kodesh) name. One may erase
                    it, e.g. G-d in the Ashkenaz language.
<br>          <b><font color='darkgreen'>4.   Shulchan Aruch (CM 27:1):</font></b> If one cursed a Yisrael
               with a Kinuy or a name that Nochrim use for Hash-m,
               he is lashed.
<br>               <b><font color='darkgreen'>i.   Urim (2):</font></b> The <b>SMA</b> says that a name that Nochrim
                    use for Hash-m is like a Kinuy. In our many
                    sins, people transgress (cursing with the name
                    G-d). They also err and think that what is
                    written or said in other languages is only an
                    adjective for Hash-m. People write on
                    everything Hei Ches Chaf Ad'ia (a French word
                    for Hash-m), and it ends up in the trash.
                    Chazal forbade writing Hashem's name on
                    documents, lest it be thrown out!
<br>               <b><font color='darkgreen'>ii.  Question:</font></b> According to the Shach, one may say a
                    Safek Berachah in another language! One may
                    erase a Shem in another language, so it is not
                    a Berachah Levatalah or Hashem's name
                    Levatalah.
<br>               <b><font color='darkgreen'>iii. Answer (Teshuvas R. Akiva Eiger 1:25):</font></b> The
                    Rambam says that a Shevu'ah with Hashem's name
                    or a Kinuy in any language is a proper oath.
                    This is even for Shevu'as Bituy and Shevu'as
                    Heses, for which the warnings are 'do not swore
                    falsely in My name' and 'do not take (Hashem's
                    name) in vain.' This shows that saying Hashem's
                    name Levatalah applies in all languages. The
                    Rashba connotes that only Hashem's special name
                    requires Lashon ha'Kodesh. However, this does
                    not refute the Shach. Perhaps Hashem's name in
                    other languages is like Kinuyim, which, except
                    for seven of them, may be erased. Tashbatz
                    (1:2) permits erasing the Targum of Shemos, for
                    they are no better than Kinuyim. Even though
                    the Gemara equates erasing Hashem's name with
                    oaths, we must say that this is not the
                    conclusion.
<br>
<font color='blue'><i>See also:</i>
<br><b>MAY TEFILAH AND KRI'AS SHMA BE SAID IN OTHER LANGUAGES? </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>     <b><font color='darkgreen'>(f)  Answer:</font></b> That is only if they could have protested, but
          did not.
<br>     <b><font color='darkgreen'>(g)  Question:</font></b> What is the difference between Resha'im (those
          who could have protested, but did not) of his family and
          evil strangers, and between Tzadikim (those who could not
          have protested) of his family and righteous strangers?
<br>     <b><font color='darkgreen'>(h)  Answer:</font></b> Regarding all other transgressions, the sinner
          gets his punishment, Resha'im of his family get a
          (lighter but) severe punishment, evil strangers get a
          light punishment, and Tzadikim are not punished at all;
<br>          <b><font color='darkgreen'>1.   Regarding false oaths, the sinner and Resha'im of
               his family get the same punishment, evil strangers
               get a severe punishment, and Tzadikim are punished
               lightly.
 </font></b>    (i)  (Beraisa): If the defendant says 'I will (pay and) not
          swear', we immediately make him leave Beis Din;
<br>          <b><font color='darkgreen'>1.   If he says 'I will swear', all present say 'Suru Na
               me'Al Ohalei ha'Anashim ha'Rsha'im ha'Eleh.'
 </font></b>    (j)  Question: This implies that both are evil. Only one will
          (possibly) swear falsely!
<br>     <b><font color='darkgreen'>(k)  Answer (Beraisa - R. Shimon ben Tarfon):</font></b> 'Shevu'as Hash-m
          Tihyeh Bein Shneihem' - they are both punished for the
          oath (one who deposits with a swindler helps cause
          desecration of Hashem's name).
<br>     <b><font color='darkgreen'>(l)  (Beraisa):</font></b> When we administer the oath, we tell him 'you
          do not swear according to your own Da'as, rather
          according to that of Hash-m and Beis Din.'
<br>     <b><font color='darkgreen'>(m)  Question:</font></b> Why must we say this?
<br>     <b><font color='darkgreen'>(n)  Answer:</font></b> We are concerned for cases like the oath in front
          of Rava. (A man hid money in a stick, asked his creditor
          to hold the stick, and swore 'I gave you your money.'
          This was literally true, but not according to Beis Din's
          understanding.)
<br>
<b><font color='blue'>3) THE ADMISSION AND DENIAL</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> The claim must be at least two (Ma'os of)
          Kesef (and the admission is a Perutah).
<br>     <b><font color='darkgreen'>(b)  (Rav):</font></b> This means that the defendant must <i>deny</i> a claim
          of two Ma'os.
<br>     <b><font color='darkgreen'>(c)  (Shmuel):</font></b> The entire claim must be at least two Ma'os. It
          suffices that he denies at least a Perutah and admits to
          at least a Perutah.
<br>     <b><font color='darkgreen'>(d)  (Rava):</font></b> Our Mishnah supports Rav, but the verses support
          Shmuel.
<br>     <b><font color='darkgreen'>(e)</font></b>  According to Rav, the Mishnah is fine. It teaches the
          amount of denial (two Ma'os) and admission (a Perutah);
<br>          <b><font color='darkgreen'>1.   According to Shmuel, it omits teaching the amount of
               denial (a Perutah)!
 </font></b>    (f)  The verses support Shmuel as follows:
<br>          <b><font color='darkgreen'>1.   'Ki Yiten... Kesef Oh Kelim' - just like Kelim
               (plural) implies two, also Kesef;
<br>          <b><font color='darkgreen'>2.   Just like Kesef is important, also (a claim of) any
               (two) important things (our text, Rashi; Tosfos - of
               important Kelim, i.e. each is worth at least a
               Perutah) can obligate an oath.
<br>          <b><font color='darkgreen'>3.   '(He will say) Ki Hu Zeh' - (the defendant says) 'of
               your entire claim (of two Ma'os) this is all I owe!'
 </font></b></font></b></font></b>    (g)  Defense of Rav: This teaches that he must partially admit
          to the claim.
<br>          <b><font color='darkgreen'>1.   Shmuel holds that since 'Ki' and 'Zeh' are both
               extra, we learn both (the oath comes for such a
               claim, and that he must partially admit to the
               claim).
<br>          <b><font color='darkgreen'>2.   Rav learns that (1) he must partially admit to the
               claim, and (2) the admission must be like the claim.
 </font></b></font></b>    (h)  Question (against Rav): If he partially admits to a claim
          of two Ma'os, he must deny less than two Ma'os!
<br>     <b><font color='darkgreen'>(i)  Answer:</font></b> The verse teaches that the denial must be at
          least two Ma'os.
<br>          <b><font color='darkgreen'>1.   Support:</font></b> If not, it should have said only 'Kelim'.
               We would have known that also Kesef must be two;
<br>          <b><font color='darkgreen'>2.   'Kesef' is extra to teach that the denial itself
               must be two Ma'os.
 </font></b>    (j)  Rejection (Shmuel): Had it said only 'Kelim', we would
          have thought that a claim of any two things suffices,
          even if they are not important;
<br>          <b><font color='darkgreen'>1.   'Kesef' is needed to teach that they must be
               important.
 </font></b>    (k)  Question (against Shmuel - Mishnah): If Reuven claimed
          two Ma'os of Kesef, and Shimon admitted that he owes a
          Perutah, Shimon is exempt.
<br>          <b><font color='darkgreen'>1.   Suggestion:</font></b> He is exempt because the denial is less
               than two Ma'os!
<br>     <b><font color='darkgreen'>(l)  Answer:</font></b> No. The claim was not the <i>value</i> of two Ma'os,
          rather, two Ma'os specifically of silver (e.g. a deposit
          or theft);
<br>          <b><font color='darkgreen'>1.   He is exempt because the admission was (a Perutah, a
               copper coin, which is) not like what was claimed
               (silver coins).
 </font></b>    (m)  Question (Mishnah): If Reuven claimed two Ma'os of Kesef
          and a Perutah, and Shimon admitted that he owes a
          Perutah, he must (pay the Perutah and) swear;
<br>          <b><font color='darkgreen'>1.   We understand if the claim was the <i>value</i> of two
               Ma'os and a Perutah, for then the admission and
               denial are similar (both are value);
<br>          <b><font color='darkgreen'>2.   However, if the claim was specifically two silver
               Ma'os and a Perutah, the admission (a Perutah) is
               unlike the denial (silver Ma'os)!
 </font></b></font></b>    (n)  Answer: This is not difficult for Shmuel. Rav Nachman
          cited Shmuel to say that if two different things are
          claimed and he admits to one of them, he must swear!
<br>     <b><font color='darkgreen'>(o)  Support (for Shmuel - Seifa):</font></b> If Reuven claimed a liter
          of gold, and Shimon admitted that he owes a liter of
          silver, Shimon is exempt;
<br>          <b><font color='darkgreen'>1.   We understand why he is exempt if the claim was
               specifically a liter of gold. If so, the admission
               was unlike the claim.
<br>          <b><font color='darkgreen'>2.   However, if the claim was the value of a liter of
               gold, he admitted to part of the claim (and also
               denied more than two Ma'os)!
<br>          <b><font color='darkgreen'>3.   Just like the Seifa must refer to the metal itself
               (not the value), also the beginning!
 </font></b></font></b></font></b>    (p)  Suggestion: This refutes Rav! (The Mishnah implies that
          if the denial was like the claim, he would be liable to
          swear, even though the denial is less than two Ma'os.)
<br>     <b><font color='darkgreen'>(q)  Rejection:</font></b> Rav explains that almost the entire Mishnah
          refers to claims of value;
<br>          <b><font color='darkgreen'>1.   The only exception is a liter of gold. (Because it
               is not a currency, people do not normally use it for
               a unit of value.)
<br><b><font color='darkgreen'>

<br><p>

sjt:
</p><p>
<font><b>5) THE SOURCE FOR THE MINIMUM REQUIREMENTS FOR A 'SHEVU'AS MODEH B'MIKTZAS'</b></font>
<br>QUESTIONS: Rav and Shmuel disagree about the minimum requirements for the obligation to make a Shevu'ah of Modeh b'Miktzas. According to Shmuel, the Shevu'ah is applied whenever the claimant demands at least two Ma'os, and the defendant admits that he owes a Perutah or more and denies a Perutah or more. According to Rav, the Shevu'ah is applied only when the defendant admits to a Perutah or more of the total sum that is claimed, and denies at least two Ma'os of the claim.
</p><p>
In other words, Shmuel maintains that the two Ma'os are the minimum amount that the claimant must claim, while Rav maintains that the two Ma'os are the minimum amount that the defendant must deny.
</p><p>
Shmuel proves his view from the verse (Shemos 22:8) that states that if the claimant gave the defendant two Ma'os of money to watch, and the defendant admitted to owing part of it, then he must make a Shevu'as Modeh b'Miktzas. Rav replies that the verse does not mean that the claim was only two Ma'os. Rather, the verse means that the claim was enough such that the defendant was able to deny two Ma'os (besides what he admitted to owing).
</p><p>
At this point in the Gemara, one would expect Shmuel to retort that the implication of the verse is that the claim was only a total of two Ma'os. This indeed is the way Shmuel proves his view in the conclusion of the discussion. However, Shmuel does not immediately mention this point. Instead, he says that the verse says two words, 'Hu' and 'Zeh,' which imply that only when the defendant denies part and admits to part is he obligated to swear. It seems that Shmuel is asserting that the extra word 'Zeh' in the verse is intended to teach that the claim does not have to be more than two Ma'os. Rav replies that the extra word teaches a different Halachah; it teaches that the defendant's partial admission must be of the same type of object that was claimed in order for him to be obligated to swear.
</p><p>
Finally, Shmuel responds that in any case the verse clearly implies that the total claim was only two Ma'os, thereby refuting Rav's view.
</p><p>
(a) Why does Shmuel not use this argument immediately after the first time that Rav responds to his proof? (<b>KOS HA'YESHU'OS</b>)
</p><p>
(b) When Shmuel answers Rav's first response by saying that there is an extra verse, why does he present this in such an unusual way? He should say simply that there is an extra verse to teach an extra Halachah. Instead, he says that the verse says the word 'Hu' and it says the word 'Zeh' to teach that he is obligated to make a Shevu'ah for denying half of the claim. From the words of Shmuel, one would not have understood that he is trying to learn a Halachah based on an extra verse! (<b>PARDES YITZCHAK</b>)
</p><p>
ANSWERS:
<br>(a) The <b>CHASAM SOFER</b> explains that Shmuel is not able to infer from the verse that the defendant must swear even when he denies less than two Ma'os (in contrast to the view of Rav) until <i>after</i> he proves that the admission must be from the same type of object that the claimant demanded from the defendant. If the defendant is obligated to make a Shevu'ah even when he admits to owing a type of object other than the type that was claimed from him, then the case in the Torah might be one in which the claimant demanded money or an object that was worth two Ma'os, and the defendant admitted to owing a different object (worth at least a Perutah) which was not mentioned in the claim. In such a case, the claim was only two Ma'os, and yet the defendant admitted to owing a Perutah's worth and denied two Ma'os. That is why Shmuel first needs to prove from the verse that the admission must involve the same type of object as the claim.
</p><p>
(b) Shmuel's response with the words 'Hu' and 'Zeh' may be understood based on the words of the <b>VILNA GA'ON</b> (in <b>KOL ELIYAHU</b>). The Vilna Ga'on explains that the words '[Ki] Hu Zeh' in the verse imply Modeh b'Miktzas because the word 'Hu' refers to an object that is <i>not</i> in our presence, while the word 'Zeh' refers to something that <i>is</i> in our presence. When the Torah says 'Hu Zeh,' it means that the defendant is saying that part of the money is <i>not</i> present (this is the denial) and that part of the money <i>is</i> present (this is the admission). Since the verse juxtaposes the money that is admitted with the money that is denied, it implies that these monies are comparable in that both were included in the original claim. This necessarily implies that the denial may be less than the original claim of two Ma'os. (This might be the intention of the <b>KOS HA'YESHU'OS</b>.)
</p><p>
Rav responds that the admission is compared to the denial only insofar as they must involve the same type of object. However, the amounts of the claim and of the admission are not both included in the claim. For example, the claimant demands two chairs, and the defendant admits to owing a third chair which was not included in the claim.
</p><p>
Shmuel replies that this cannot be the case that the verse is discussing. Since Rav agrees that the admission must be to the same type of object as the claim, it is obvious that the Torah requires a Shevu'ah only when the Hoda'ah was an admission to something that was claimed in the claim. Accordingly, it will not suffice for the admission to be to something that was the same type of object of the claim; the admission must be to one of the objects that was actually claimed. An admission to owing an object of the same type but which was not claimed is equivalent to an admission to an object of a different type. Therefore, Shmuel asserts, it can be proven from the verse that the denial may be less than two Ma'os. 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) THE ADMISSION AND DENIAL</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Support (Mishnah):</font></b> If Reuven claimed a gold Dinar, and
          Shimon admitted that he owes a silver Dinar, Trisis,
          Pundyon or Perutah, Shimon must (pay it and) swear, for
          all coins are considered to be the same Min.
<br>          <b><font color='darkgreen'>1.   We understand why he must swear if the claim was the
               value of a gold Dinar, for the admission was like
               the claim;
<br>          <b><font color='darkgreen'>2.   However, if the claim was a gold Dinar, the
               admission was unlike the claim. He should be exempt!
 </font></b></font></b>    (b)  Rejection (R. Elazar): The case is, he claimed a minted
          gold Dinar (Rashi; Tosfos - Reuven claimed that he gave
          to Shimon a gold Dinar to change into smaller coins, and
          did not receive them). He is liable because all coins are
          considered the same Min.
<br>          <b><font color='darkgreen'>1.   Support (Mishnah):</font></b> All coins are considered to be
               the same Min.
<br>          <b><font color='darkgreen'>2.   Rav explains, this means that all the coins listed
               (i.e. even a Perutah) have the same law (each is
               sufficient admission to obligate an oath).
 </font></b>    (c)  Suggestion: Since R. Elazar learns the Seifa like Shmuel
          (specific coinage, and not just the value), he also
          learns the Reisha (two Ma'os) like Shmuel!
<br>     <b><font color='darkgreen'>(d)  Rejection:</font></b> No. He learns the Seifa like Shmuel, but he
          could learn the Reisha like Rav (the value) or like
          Shmuel.
<br>     <b><font color='darkgreen'>(e)  Question (against Shmuel - Beraisa):</font></b> If Reuven claimed a
          gold Dinar <i>of gold</i>, and Shimon admitted that he owes a
          silver Dinar, he is liable (our text, Rashi; Tosfos - he
          is exempt).
<br>          <b><font color='darkgreen'>1.   Inference:</font></b> We say that he claimed a coin due to the
               redundancy. Had he said only 'gold Dinar', we would
               say that he claims its value!
<br>     <b><font color='darkgreen'>(f)  Answer:</font></b> No, the Beraisa teaches that claiming a gold
          Dinar is like claiming a gold Dinar of gold, i.e. he
          claims a coin.
<br>     <b><font color='darkgreen'>(g)  Support (for Rav - R. Chiya - Beraisa):</font></b> If Reuven claimed
          a Dinar from Shimon, and he admitted to a Dinar less two
          Ma'os, he must swear (because he denies two Ma'os);
<br>          <b><font color='darkgreen'>1.   If he admitted to a Dinar less one Ma'ah, he is
               exempt (because he denies less than two Ma'os).
 </font></b>    (h)  (Rav Nachman bar Yitzchak citing Shmuel): The minimal
          claim of two Ma'os only applies to the oath of partial
          admission. If Reuven claims even a Perutah and one
          witness supports him, Shimon must swear.
<br>     <b><font color='darkgreen'>(i)  Question:</font></b> What is the reason?
<br>     <b><font color='darkgreen'>(j)  Answer:</font></b> 'Lo Yakum Ed Echad b'Ish l'Chol Avon ul'Chol
          Chatas' - one witness does not obligate payment, but he
          obligates swearing;
<br>          <b><font color='darkgreen'>1.   (Beraisa):</font></b> Whenever two witnesses obligate payment,
               one witness obligates swearing.
<br>
<b><font color='blue'>2) ADMISSION TO A DIFFERENT MIN THAN WAS DENIED</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Rav Nachman citing Shmuel):</font></b> If Reuven claimed wheat and
          barley, and Shimon admitted that he owes barley, Shimon
          must swear.
<br>     <b><font color='darkgreen'>(b)  R. Yitzchak:</font></b> Correct! Also R. Yochanan taught like this.
<br>          <b><font color='darkgreen'>1.   Inference:</font></b> This implies that Reish Lakish (who often
               argues with R. Yochanan) disagrees!
<br>          <b><font color='darkgreen'>2.   Rejection:</font></b> This cannot be inferred, for R. Yitzchak
               left before Reish Lakish had a chance to argue.
<br>               <b><font color='darkgreen'>i.   Version #1:</font></b> Reish Lakish never disagrees with
                    R. Yochanan until R. Yochanan finishes
                    speaking.
<br>               <b><font color='darkgreen'>ii.  Version #2:</font></b> Reish Lakish was drinking when R.
                    Yochanan said this law.
<br>     <b><font color='darkgreen'>(c)  Support (Mishnah):</font></b> If Reuven claimed wheat, and Shimon
          admitted that he owes barley, Shimon is exempt. Raban
          Gamliel obligates.
<br>          <b><font color='darkgreen'>1.   Inference:</font></b> Chachamim exempt because the admission
               was unlike (any part of) the claim, but if Reuven
               claimed wheat and barley, and Shimon admitted that
               he owes barley, Shimon must swear.
<br>     <b><font color='darkgreen'>(d)  Rejection:</font></b> No, Chachamim exempt even in that case;
<br>          <b><font color='darkgreen'>1.   The Mishnah discusses one who claimed only wheat, to
               teach that Raban Gamliel obligates even in this
               case.
 </font></b>    (e)  Support (Mishnah): If Reuven claimed Kelim and land, and
          Shimon admitted to (all) the land but denied the Kelim,
          or admitted to (all) the Kelim but denied the land, he is
          exempt; (because an admission to land cannot obligate an
          oath, and we do not make a primary oath about land);
<br>
<br>

sjt:
<font><b>1) ON WHAT AMOUNT MUST ONE WITNESS TESTIFY IN ORDER TO OBLIGATE THE DEFENDANT TO MAKE A SHEVU'AH?</b></font>
<br>QUESTION: The Mishnah (38b) teaches that the minimum amount of money that the claimant must claim in order for Beis Din to require the defendant to make a Shevu'ah is two Me'ah. The Gemara here quotes Rav Nachman bar Yitzchak who says in the name of Shmuel that the Mishnah refers only to cases in which the borrower admits that he owes part of the money. If, however, one witness supports the claim of the claimant, the defendant must make a Shevu'ah ('Shevu'as Ed Echad') even if the claim consists of only one Perutah.
</p><p>
Shmuel derives this law from the verse, 'One witness shall not rise up against a man for any iniquity or for any sin, in any sin that he may commit' (Devarim 19:15). The verse implies that a single witness cannot cause someone to be punished for a transgression, but he <i>can</i> obligate someone to make a Shevu'ah.
</p><p>
<b>TOSFOS</b> (DH Aval) asks that Shmuel's law appears to contradict Rava's statement in Kesuvos (87b) that one is never required to make a Shevu'ah for denying a claim concerning land, even if one witness supports the claim. Rava implies that the laws of a Shevu'as Ed Echad are comparable to the laws of a Shevu'as Modeh b'Miktzas. Just as one is exempt from a Shevu'ah for partial admission (Modeh b'Miktzas) to a claim of land, one is exempt from a Shevu'ah when one witness supports the claimant's claim to the land.
</p><p>
As Tosfos in Kesuvos (87b, DH v'Od) points out, this is problematic because the source of this law is the verse which discusses oaths of Modeh b'Miktzas (as the Gemara teaches in Bava Metzia 57b). On what basis is this law applied when the defendant denies that he owes land and one witness supports the claimant's claim? Apparently, the basis for this comparison is that the two Shevu'os -- Shevu'as Modeh b'Miktzas and Shevu'as Ed Achad -- share similar laws. However, Shmuel's ruling is that one witness can obligate the defendant to make a Shevu'ah even if he only claims a Perutah. This means that a Shevu'as Modeh b'Miktzas and a Shevu'as Ed Echad are <i>different</i>, since Modeh b'Miktzas requires a claim of at least two Kesef. What, then, is the source for the rule that just as one does not swear when he denies owing land, he does not swear when one witness says that he owes land? Why should one assume that their laws are the same when Shmuel clearly maintains that their laws, in some respects, are different (for example, Shevu'as Modeh b'Miktzas requires a claim of two Kesef, while one witness obligates the defendant to make a Shevu'as Ed Echad even for one Perutah)?
</p><p>
ANSWERS:
<br>(a) <b>TOSFOS</b> in Kesuvos answers in the name of 'Rabeinu' that Shmuel understands that a Perutah is relevant to a case of Modeh b'Miktzas as well. Earlier in Shevuos (39b), Shmuel states that if the lender claims two Kesef, the borrower must make a Shevu'ah even if he denies only a Perutah, or he admits that he owes only a Perutah. This is similar to a case of one witness, where the defendant denies only a Perutah.
</p><p>
Tosfos explains why partial admission requires a minimum claim of two Kesef, as opposed to a case of one witness. It cannot be that a claim of two Kesef is required when one witness testifies, because if that would be the law, then the novelty of a single witness obligating a defendant to take an oath would exist only when the defendant does not admit that he owes any of the two Kesef. If he admits that he owes part of the money, he would make a Shevu'ah because of Modeh b'Miktzas, and the law of Shevu'as Ed Echad would not be necessary. It must be that the novelty of one witness is that he obligates the defendant to make a Shevu'ah even when his testimony is only on a Perutah. Only with regard to partial admission must one have a claim of two Kesef in order for an admission of even a Perutah to require a Shevu'ah. However, as mentioned above, these cases still share a common law, according to Shmuel; in both cases, the denial or admission may be a Perutah. Tosfos points out that, indeed, the Halachah does not follow the view of Shmuel in his novel ruling that the denial or admission may be a Perutah.
</p><p>
(b) Tosfos in Kesuvos answers further in the name of 'Rabeinu' that everyone agrees with Shmuel's ruling that the defendant must make a Shevu'ah even when he admits that he owes only one Perutah, or he denies only one Perutah. The fact that the law that one does not make a Shevu'ah when he denies that he owes land also applies to the case of testimony of one witness is not problematic, since one <i>never</i> makes a Shevu'ah on land. Accordingly, it is understandable that this law is the same in both cases, despite the fact the laws of Shevu'as Modeh b'Miktzas and Shevu'as Ed Echad differ in other respects. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1)   ADMISSION UNLIKE THE CLAIM</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   38b (Mishnah):</font></b> If Reuven claimed wheat, and Shimon
               admitted that he owes barley, Shimon is exempt;
<br>          <b><font color='darkgreen'>2.  </font></b> Raban Gamliel obligates
<br>          <b><font color='darkgreen'>3.   40a (Rav Anan citing Shmuel):</font></b> If Reuven claimed
               wheat, and Shimon admitted that he owes barley, if
               he rushed to admit for he sensed that Reuven was
               about to claim barley as well, Shimon must swear. If
               not, he is exempt.
<br>          <b><font color='darkgreen'>4.   Bava Kama 35b (Mishnah):</font></b> If one of Reuven's two oxen
               damaged Levi's ox, and Levi says 'the Mu'ad
               damaged', and Reuven says 'no, the Tam damaged',
               ha'Motzi me'Chaveiro Alav ha'Re'ayah (the one who
               wants to collect must bring a proof).
<br>          <b><font color='darkgreen'>5.   Question:</font></b> If Levi cannot bring proof, he collects
               like Reuven says. This refutes Rabah bar Nasan!
<br>               <b><font color='darkgreen'>i.   (Rabah bar Nasan):</font></b> If Reuven claimed that
                    Shimon owes him wheat, and Shimon admitted that
                    he owes barley, Shimon is exempt.
<br>          <b><font color='darkgreen'>6.   Answer (Rav Papa):</font></b> In the Mishnah one party is
               definite, and the other is unsure.
<br>          <b><font color='darkgreen'>7.   Question:</font></b> If the damager is unsure and the victim is
               definite, this still refutes Rabah bar Nasan!
<br>          <b><font color='darkgreen'>8.   Answer:</font></b> Rather, the damager is definite, and the
               victim is unsure.
<br>          <b><font color='darkgreen'>9.   Question:</font></b> The Mishnah of wheat and barley teaches
               Rabah's law!
<br>          <b><font color='darkgreen'>10.   Answer:</font></b> One might have thought that he is exempt
               from paying wheat, but he pays barley. Rabah bar
               Nasan teaches that he is totally exempt.
<br>          <b><font color='darkgreen'>11.   Question (Mishnah):</font></b> If Reuven's two oxen damaged...
               Levi says that the Mu'ad (or big) ox damaged the big
               ox and the Tam (or small) ox damaged the small ox,
               and Reuven says oppositely, ha'Motzi me'Chaveiro
               Alav ha'Re'ayah.
<br>               <b><font color='darkgreen'>i.   (Inference):</font></b> Without a proof, he collects like
                    Reuven says.
<br>          <b><font color='darkgreen'>12.   Answer:</font></b> Rather, if Levi cannot bring proof, he
               <i>should</i> collect like Reuven says, but he does not
               collect at all.
<br>          <b><font color='darkgreen'>13.   Question (Beraisa):</font></b> Levi collects for the small ox
               from the Mu'ad, and for the big ox from the Tam.
<br>          <b><font color='darkgreen'>14.   Answer:</font></b> That is when Levi seized the damager.
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rif and Rosh (Shevuos 6:7):</font></b> If Reuven claimed wheat,
               and Shimon admitted that he owes barley, if he
               schemed, i.e. rushed to admit because he sensed that
               Reuven was about to claim barley as well, Shimon
               must swear mid'Oraisa. If he did so innocently, he
               is exempt.
<br>          <b><font color='darkgreen'>2.   Rosh:</font></b> If he schemed, it is as if Reuven already
               claimed also the barley, and Shimon admitted to it.
               If he said so innocently, even if Reuven claimed
               barley Toch Kedei Dibur of the admission, he is
               exempt. Modeh b'Miktzas is only when he admitted
               after the claim.
<br>          <b><font color='darkgreen'>3.   Rambam (Hilchos To'en 3:11):</font></b> If Reuven began and
               claimed wheat, and before he finished speaking
               Shimon said 'I owe you only barley', if it looks to
               the judges that he schemed, he must swear. If he did
               so innocently, he is exempt.
<br>          <b><font color='darkgreen'>4.   Rambam (Hilchos Nizkei Mamon 9:10):</font></b> If there was no
               clear proof which animal damaged, but witnesses
               testify that one of them damaged, the damager pays
               based on what he says happened. If the victim says
               'you know Vadai that the bigger one damaged, the
               damager swears mid'Oraisa, for he partially
               admitted.
<br>          <b><font color='darkgreen'>5.   Rambam (11):</font></b>  If Reuven's two oxen damaged, and Levi
               says that the Mu'ad (or big) ox damaged the big ox
               and the Tam (or small) ox damaged the small ox, and
               Reuven says oppositely, ha'Motzi me'Chaveiro Alav
               ha'Re'ayah. If there was no clear proof, he is
               exempt. This is like one who claimed wheat, and the
               other admitted to barley. He swears Heses, and he is
               exempt. If Levi seized, he is paid for the big ox
               from the big and for the small for the small.
<br>               <b><font color='darkgreen'>i.   Magid Mishneh:</font></b> We must say that there are no
                    witnesses, for when there are witnesses, he
                    pays (Halachah 10)! He is exempt for the Tam,
                    for it is a Kenas (fine), which only witnesses
                    obligate. He is exempt for the Mu'ad, for the
                    admission was unlike the claim. The Rambam
                    holds like the Ra'avad, that if a victim seized
                    half-damage, he keeps it, unlike other fines.
<br>               <b><font color='darkgreen'>ii.  Rebuttal (Gra CM 88:23):</font></b> The Magid Mishneh's
                    answers are poor. 'If there was no clear proof'
                    connotes that there was some proof. The Rashba
                    asked that witnesses who are unsure do not
                    obligate. Rather, the Sugya is like the opinion
                    that half-damage is not a Kenas.
<br>          <b><font color='darkgreen'>6.   Rosh (Bava Kama 3:15):</font></b> Rashi and Tosfos say that
               Rabah exempts even from paying for barley, for
               Reuven says that he did not give barley; he pardoned
               it. This is astounding. Often, one has several
               claims against someone, but he does not want to
               claim all of them at once! The fact that he claimed
               one does not show that he pardoned the others! Also,
               what was the challenge against Rabah from the
               Mishnah of oxen? The Mishnah is not due to pardon!
               Rather, Rabah discusses a case like the Mishnah.
               Reuven claims 'I lent to you wheat on this day at
               this time', and Shimon says 'it was barley.' If
               Reuven lent both of them, he would have claimed
               both, since they were together. Rather, he admitted
               that he did not lend barley.
<br>          <b><font color='darkgreen'>7.   Rosh:</font></b> The Ramah says that he is exempt from barley
               not due to admission, rather, because Shimon's
               admission does not obligate. Admission, even in
               front of two, obligates only if he said 'you are
               witnesses against me.' Admission in front of Beis
               Din helps without saying this, but only if there was
               a claim against him. Therefore, if Reuven says 'give
               to me the barley that you admitted to', Shimon can
               say 'I was joking.' If he does not say 'I was
               joking', he must pay. I disagree. We asked from the
               Mishnah, which does not discuss joking!
<br>               <b><font color='darkgreen'>i. </font></b>  Nimukei Yosef (Bava Kama 17a DH v'Kaima):
                    Shimon is exempt when Reuven made a Vadai claim
                    of wheat. If Reuven knew that he deposited
                    grain with Shimon, and he is unsure which
                    grain, even if he claimed wheat, an admission
                    to barley is an admission like the claim.
<br>               <b><font color='darkgreen'>ii.  Shach (CM 88:13):</font></b> Bava Kama 35b proves this.
<br>          <b><font color='darkgreen'>8.   Question (Mordechai Bava Kama 40):</font></b> Even if Shimon
               said that he does not know about wheat, he is
               exempt. Rashi says that since Reuven did not claim
               the barley, he pardoned it. However, the Yerushalmi
               says that Shimon did not make a real admission. He
               merely jested. R. Yakir challenged Rashi. In Bava
               Metzi'a, when two deposited with Ploni and each
               claims the larger amount, we (pay each the smaller
               amount, and) leave the rest until Eliyahu comes.
               Ploni says that he does not know. He should be
               exempt (i.e. keep the smaller Keli), like in the
               case of wheat and barley! R. Yosi says that even the
               smaller Kli is left until Eliyahu. We should say
               that the depositors pardoned it!
<br>          <b><font color='darkgreen'>9.   Answer (Mordechai):</font></b> The Riva says that the
               depositors have no claim against Ploni, rather,
               against each other. We must say so to resolve this
               with the case of a borrower who knows that he owes
               50, but is unsure about the rest of the claim. Since
               he cannot swear, he pays.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (CM 88:12):</font></b> If Reuven claimed wheat,
               and Shimon admitted to barley, he is exempt even
               from paying for barley. Some consider it as if he
               admitted that Shimon does not owe barley. Therefore,
               he is exempt even if there are witnesses about the
               barley. A litigant's admission is like 100
               witnesses.
<br>               <b><font color='darkgreen'>i.   SMA (22):</font></b> In any case he must swear Heses. This
                    is no less than denial, for which one must
                    swear Heses.
<br>               <b><font color='darkgreen'>ii.  SMA (23):</font></b> 'Some say' teaches unlike the Ramah,
                    who exempts because Shimon can say that he was
                    joking. If he did not say so, and all the more
                    so if witnesses testify about the barley, he is
                    liable. Even though the Rosh rejected Rashi and
                    Tosfos, he agrees that Shimon is exempt due to
                    pardon, just the Rosh holds that it is only
                    when Shimon admits to barley given at the same
                    time that Reuven claims that he gave wheat.
<br>               <b><font color='darkgreen'>iii. Question (Taz):</font></b> Why did the Shulchan Aruch omit
                    the Rambam's opinion, that when there are
                    witnesses, Shimon is liable?
<br>               <b><font color='darkgreen'>iv.  (Shach 15):</font></b> In Siman 400:3, the Shulchan Aruch
                    brings only the Rambam's opinion! Perhaps this
                    is because there, the witnesses do not know
                    which damaged, so they do not contradict him.
                    If one claims wheat and witnesses say that he
                    is owed wheat or barley, the defendant must pay
                    at least barley. Reuven claims 'they testify
                    about wheat, like I say. If you say that they
                    testify about barley, pay me for the barley.'
                    Here, it is as if he admitted that he did not
                    lend barley. His admission overrides the
                    witnesses. I explain the Shulchan Aruch, but I
                    say that the Ramah's Perush is primary.
<br>               <b><font color='darkgreen'>v.   Gra (22):</font></b> The Gemara exempts even though we
                    must say that there are witnesses, for we hold
                    that half-damage of a Tam is a Kenas (fine), so
                    unless there are witnesses he is totally
                    exempt. <br>


lvr: 46
dfh: b
trd:
<p>
<br>          <b><font color='darkgreen'>1.   If Shimon admitted to part of the land but denied
               (all) the Kelim, he is exempt (we do not make a
               primary oath about land);
<br>          <b><font color='darkgreen'>2.   If he admitted to part of the Kelim but denied (all)
               the land, he must swear (about the remaining Kelim,
               and also about the land);
<br>          <b><font color='darkgreen'>3.   Inference:</font></b> When he admitted to all the Kelim but
               denied all the land, he is exempt because we do not
               swear about land. In a corresponding claim of two
               kinds of Kelim, if he admitted to one kind, he would
               be liable!
 </font></b></font></b>    (f)  Rejection: No, even if two kinds of Kelim were claimed
          and he admitted to one kind, he is exempt;
<br>          <b><font color='darkgreen'>1.   The Mishnah teaches Kelim and land to teach that if
               he admits to part of the Kelim but denies the land,
               he must swear even about the land.
 </font></b>    (g)  Question: Another Mishnah teaches this!
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> When one must swear about Metaltelim, the
               claimant can also force him to swear about land
               (through Gilgul).
<br>     <b><font color='darkgreen'>(h)  Answer:</font></b> Primarily, this law is taught in our Mishnah.
          There, it is taught along with other laws of land.
<br>     <b><font color='darkgreen'>(i)  (R. Chiya bar Aba citing R. Yochanan):</font></b> If Reuven claimed
          wheat and barley, and Shimon admitted that he owes
          barley, he is exempt from swearing.
<br>     <b><font color='darkgreen'>(j)  Question:</font></b> R. Yitzchak said that R. Yochanan taught that
          he must swear!
<br>     <b><font color='darkgreen'>(k)  Answer:</font></b> Amora'im argue about the opinion of R. Yochanan.
<br>     <b><font color='darkgreen'>(l)  Question (Mishnah):</font></b> If Reuven claimed wheat, and Shimon
          admitted that he owes barley, Shimon is exempt. Raban
          Gamliel obligates.
<br>          <b><font color='darkgreen'>1.   Inference:</font></b> Chachamim exempt because the admission
               was unlike the claim, but if Reuven claimed wheat
               and barley, and Shimon admitted that he owes barley,
               he must swear!
<br>     <b><font color='darkgreen'>(m)  Answer:</font></b> No, Chachamim exempt even in that case;
<br>          <b><font color='darkgreen'>1.   The Mishnah discusses when he claimed only wheat, to
               teach that Raban Gamliel obligates even in this
               case.
 </font></b>    (n)  Question (Mishnah): If Reuven claimed Kelim and land, and
          Shimon admitted to (all) the land but denied the Kelim,
          or admitted to (all) the Kelim but denied the land, he is
          exempt;
<br>          <b><font color='darkgreen'>1.   If Shimon admitted to part of the land but denied
               (all) the Kelim, he is exempt;
<br>          <b><font color='darkgreen'>2.   If he admitted to part of the Kelim but denied (all)
               the land, he must swear (also about the land);
<br>          <b><font color='darkgreen'>3.   Inference:</font></b> When he admitted to all the Kelim but
               denied all the land, he is exempt because we do not
               swear about land. In a similar case of a claim of
               two kinds of Kelim, if he admitted to one kind, he
               would be liable!
 </font></b></font></b>    (o)  Answer: No, even if two kinds of Kelim were claimed and
          he admitted to one kind, he is exempt;
<br>          <b><font color='darkgreen'>1.   The Mishnah teaches Kelim and land to teach that if
               he admits to part of the Kelim but denies the land,
               he must swear even about the land.
 </font></b>    (p)  Question: Another Mishnah teaches this!
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> When one must swear about Metaltelim, the
               claimant can also force him to swear about land
               (through Gilgul).
<br>     <b><font color='darkgreen'>(q)  Answer:</font></b> Primarily, this law is taught in our Mishnah.
          There, it is taught along with other laws of land.
<br>
<b><font color='blue'>3) ADMISSION TO A DIFFERENT MIN THAN WAS DENIED (cont.)</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Question (R. Aba bar Mamal - Beraisa):</font></b> If Reuven claimed
          an ox and Shimon admitted that he owes a Seh (or vice-
          versa), Shimon is exempt. If he claimed an ox and Seh and
          Shimon admitted to one of them, he must swear.
<br>     <b><font color='darkgreen'>(b)  Answer #1 (R. Chiya bar Aba):</font></b> The Beraisa is like Raban
          Gamliel.
<br>     <b><font color='darkgreen'>(c)  Rejection:</font></b> Raban Gamliel obligates even in the Reisha
          (Reuven claimed an ox, and Shimon admitted to a Seh)!
<br>     <b><font color='darkgreen'>(d)  Answer #2 (R. Chiya bar Aba):</font></b> The Beraisa is Admon (38b,
          who obligates swearing for a claim of barrels of oil and 
          an admission of empty barrels).
<br>          <b><font color='darkgreen'>1.   R. Chiya:</font></b> This is not a flimsy defense, to say that
               <i>perhaps</i> the Beraisa is Admon. R. Yochanan
               explicitly said this!
<br>     <b><font color='darkgreen'>(e)  (Rav Anan citing Shmuel):</font></b> If Reuven claimed wheat, and
          Shimon admitted that he owes barley, if he rushed to
          admit because he sensed that Reuven was about to claim
          barley as well, Shimon must swear. If not, he is exempt.
<br>     <b><font color='darkgreen'>(f)  (Rav Anan citing Shmuel):</font></b> If Reuven claimed two needles,
          and Shimon admitted to one of them, he is liable;
<br>          <b><font color='darkgreen'>1.   The Torah specified 'Kelim' to teach that one is
               liable for a claim of any two Kelim (Tosfos - as
               long as each is worth a Perutah; Rambam - even if
               they are not worth a Perutah).
 </font></b>    (g)  (Rav Papa): If Reuven claimed Kelim and a Perutah, and
          Shimon admitted to the Kelim and denied the Perutah, he
          need not swear;
<br>          <b><font color='darkgreen'>1.   If he admitted to the Perutah and denied the Kelim,
               he must swear.
 </font></b>    (h)  Rav Papa holds like Rav in one respect, and like Shmuel
          in another.
<br>          <b><font color='darkgreen'>1.   He holds like Rav regarding the denial (it must be
               two Ma'os (or two Kelim)). He holds like Shmuel
               regarding a claim of wheat and barley, and an
               admission of barley (he must swear).
<br><b><font color='darkgreen'></font></b>
<br><b><font color='blue'>4) THE OATH OF HESES</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Version #1 (Mishnah):</font></b> If Reuven claimed a Maneh, and
          Shimon denied owing anything, he is exempt.
<br>     <b><font color='darkgreen'>(b)  (Rav Nachman):</font></b> Shimon must swear a (Rabbinical) oath
          called Heses.
<br>     <b><font color='darkgreen'>(c)  Question:</font></b> What is the reason?
<br>     <b><font color='darkgreen'>(d)  Answer:</font></b> There is a Chazakah (i.e. human nature) that
          Reuven would not claim if Shimon did not owe him.
<br>     <b><font color='darkgreen'>(e)  Objection:</font></b> Just the contrary. There is a Chazakah that
          one is not so brazen to deny owing his creditor!
<br>     <b><font color='darkgreen'>(f)  Answer:</font></b> Shimon intends to pay. He just wants to evade
          Reuven until he can pay.
<br>          <b><font color='darkgreen'>1.   (Rav Idi bar Avin):</font></b> One who denies a loan (and is
               contradicted by witnesses) is not disqualified from
               testifying (we assume that he intended to pay when
               he is able);
<br>          <b><font color='darkgreen'>2.   One who denies a deposit (and witnesses testify that
               he did have it) is disqualified from testifying
               (surely, he intended to steal it).
 </font></b>    (g)  Version #2 (Rav Chaviva) (Mishnah): If Reuven claimed a
          Maneh from Shimon in front of witnesses, and Shimon
          admitted that he owes it, and the next day, Reuven
          claimed it again, if Shimon answers 'I paid you', he is
          exempt.
<br>     <b><font color='darkgreen'>(h)  (Rav Nachman):</font></b> Shimon must swear Heses.
<br>          <b><font color='darkgreen'>1.   According to Version #1, surely Heses applies also
               to the case of Version #2.
<br>          <b><font color='darkgreen'>2.   According to Version #2, Heses only applies in the
               case of Version #2, when there are grounds to
               believe the claim, but not in the case of Version
               #1.
</font></b></font></b><p>

sjt:
</p><p>
<font><b>2) THE IMPLICATION OF THE WORD 'KESEF' VERSUS 'KESAFIM'</b></font>
<br>QUESTION: Rav Anan in the name of Shmuel says that when one person claims from another that he owes him two needles, and the defendant admits that he owes one needle, he is obligated to make a Shevu'ah that he does not have the other needle. The Torah states, 'When a man gives to his friend money (Kesef) or utensils (Kelim) to guard...' (Shemos 22:6). The word 'Kelim' teaches that one must make a Shevu'ah even for the smallest utensil. <b>RASHI</b> (DH l'Mah) explains that if this was not the Torah's intention, then the verse would have said, 'When a man gives his friend <i>monies</i> (Kesafim) to guard,' in the plural form. Had the verse said 'Kesafim,' it would have taught that just as a Shevu'ah for partial admission (Modeh b'Miktzas) of money is made only on 'Kesafim' -- two silver Me'ah which are significant, a Shevu'ah for partial admission of utensils is made only on significant utensils. This would exclude things such as needles that are not important. The Torah's mention of 'Kelim' includes even unimportant utensils.
</p><p>
Rashi implies that the word 'Kesafim' itself means coins of silver. <b>TOSFOS</b> (39b, DH Mah), however, says that this assumption is incorrect. The Mishnah in Kidushin (2a) states that a woman becomes betrothed when the man gives her a Perutah, the smallest denomination of copper coin. The Gemara there (11a) derives this from a Gezeirah Shavah of 'Kichah.' The verse with regard to Kidushin says, 'Ki Yikach' (Devarim 24:1), and another verse says, 'I have given the Kesef for the field, take (Kach) it from me' (Bereishis 23:13). The verse clearly uses the word 'Kesef' with reference to a <i>copper</i> coin. Why, when the verse with regard to Shevu'ah says 'Kesef,' would one think that it refers to a silver coin?
</p><p>
ANSWERS:
<br>(a) The <b>KETZOS HA'CHOSHEN</b> (CM 88:2) answers the question of Tosfos based on the Gemara in Kidushin (11a). Rav Yehudah says in the name of Rav Asi that every 'fixed Kesef' mentioned in the Torah refers to Kesef Tzuri, money of the higher quality of Tzur (Tyre). Rashi (DH Kesef Katzuv) writes that the money of Kidushin is not fixed.
</p><p>
Rashi (DH Katzuv) explains that 'fixed money' refers to the money in situations in which the Torah states explicitly how much must be given. Examples of this are the penalties of 50 Shekel that a man must give to the father of the girl he raped (Devarim 22:29) and the 30 Shekel that a man must give to the owner of a slave that was killed by his ox (Shemos 21:32). Rashi writes that in such cases, the Torah states the specific sum that one must pay, and that one must pay in Shekalim.
</p><p>
The Ketzos ha'Choshen asserts that if the Torah would have said that one gave to his friend 'Kesafim' to guard, since the plural word 'Kesafim' means a minimum of two, it would have been considered as though the Torah specified a fixed amount for the value of Kelim. Consequently, the Torah would have been referring to money of the Tzuri denomination. Since Rashi in Kidushin (11a, DH u'Tenan) writes that the lowest denomination in Tzuri money is the silver Me'ah, it would emerge that one would swear only against a claim of two Kelim of the value of two silver Me'ah.
</p><p>
In contrast, the word 'Kesef' stated with regard to Kidushin is in the singular form. Since one does not need two to use coins, it is not considered a fixed amount, and thus even a copper Perutah may be used.
</p><p>
However, the <b>TABA'AS HA'CHOSHEN</b> (the notes of <b>HA'GA'ON RAV CHAIM PINCHAS SHEINBERG</b> shlit'a on the Ketzos ha'Choshen) points out that the logic of the Ketzos ha'Choshen is not conclusive. It is possible that when the Gemara in Kidushin refers to fixed Kesef, it refers only to sums stated explicitly in the Torah (the sums of 30, 50, and 100 mentioned by Rashi). In contrast, the word 'Kesafim' would not refer specifically to two; it only <i>alludes</i> to two. Therefore, it might not be classified as 'fixed Kesef.'
</p><p>
(b) <b>REBBI ELAZAR MOSHE HA'LEVI HOROWITZ</b> answers that Rashi maintains that if the Torah wanted to mention any denomination of money, it would have said just 'Kesef,' the general term for money. The plural word 'Kesafim' would have implied two 'Kesef' -- 'silver' coins (as in the verse 'Zahav va'Chesef u'Nechoshes' -- 'gold, silver, and copper,' Shemos 25:3), which must mean at least two silver Me'ah. (D. Bloom) </p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) OATHS, BOTH MID'ORAISA AND MID'RABANAN</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Question:</font></b> What is the difference between mid'Oraisa and
          mid'Rabanan oaths?
<br>     <b><font color='darkgreen'>(b)  Answer:</font></b> The defendant cannot reverse an oath mid'Oraisa
          (refuse to swear, and demand that the claimant swear if
          he wants to collect). He can reverse an oath mid'Rabanan
          (of Heses).
<br>     <b><font color='darkgreen'>(c)  Question:</font></b> Mar bar Rav Ashi holds that he can reverse even
          an oath mid'Oraisa;
<br>          <b><font color='darkgreen'>1.   What will he say is the difference between
               mid'Oraisa and mid'Rabanan oaths?
 </font></b>    (d)  Answer: For mid'Oraisa oaths, if the defendant refuses to
          swear, Beis Din sells his property to pay the claimant.
          Beis Din does not do so for mid'Rabanan oaths.
<br>     <b><font color='darkgreen'>(e)  Question:</font></b> What is the difference according to R. Yosi,
          who holds that Beis Din collects from his property even
          for mid'Rabanan (laws, including) oaths?
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> It was enacted for the sake of Shalom
               that if a child, lunatic or deaf-mute takes an
               object of Hefker, it is considered theft if someone
               takes it from him;
<br>          <b><font color='darkgreen'>2.   R. Yosi says, it is absolute theft.
<br>          <b><font color='darkgreen'>3.   (Rav Chisda):</font></b> He means that it is absolute theft
               mid'Rabanan.
<br>          <b><font color='darkgreen'>4.   Question:</font></b> What do the Tana'im argue about?
<br>          <b><font color='darkgreen'>5.   Answer:</font></b> R. Yosi holds that Beis Din returns it to
               the child, lunatic or deaf-mute. Chachamim hold that
               they do not.
 </font></b>    (f)  Answer: For mid'Oraisa oaths, if the defendant is
          disqualified from swearing, we reverse the oath onto the
          claimant, and then the defendant must pay;
<br>          <b><font color='darkgreen'>1.   Mid'Rabanan oaths are enactments. We do not make an
               enactment (to reverse the oath when he is
               disqualified from swearing) for an enactment
               (rather, he is exempt).
 </font></b>    (g)  Question: According to Chachamim (of R. Yosi), if the
          defendant refuses to swear a mid'Rabanan oath, Beis Din
          does not sell his property to pay the claimant. How do we
          induce him to pay?
<br>     <b><font color='darkgreen'>(h)  Answer #1:</font></b> We excommunicate him (until he pays).
<br>     <b><font color='darkgreen'>(i)  Objection (Ravina):</font></b> That is the ultimate coercion to pay!
<br>     <b><font color='darkgreen'>(j)  Answer #2 (Rav Ashi):</font></b> We excommunicate him until the time
          to lash him (i.e. after he endures 30 days), then the
          Niduy is lifted.
<br>     <b><font color='darkgreen'>(k)  (Rav Papa):</font></b> If Reuven showed a document saying that
          Shimon owes him, and Shimon claimed he paid, he is not
          believed. We tell him to pay;
<br>          <b><font color='darkgreen'>1.   If Shimon asked Reuven to swear that he was not
               paid, Reuven must swear.
 </font></b>    (l)  Question (Rav Acha brei d'Rava): (A Mishnah teaches that)
          if a document was partially paid, the claimant must swear
          to collect. Rav Papa says so about every document!
<br>     <b><font color='darkgreen'>(m)  Answer (Rav Ashi):</font></b> If a document was partially paid, <i>we</i>
          (Beis Din) insist that the claimant swear to collect;
<br>          <b><font color='darkgreen'>1.   If it was not paid at all, we tell the defendant to
               pay. If he asks the claimant to swear, he must
               swear.
<br>          <b><font color='darkgreen'>2.   A Chacham need not swear.
<br>          <b><font color='darkgreen'>3.   Objection:</font></b> May a Chacham freely take others' money?!
<br>          <b><font color='darkgreen'>4.   Version #1 (Rashi) Answer:</font></b> Rather, we do not allow a
               Chacham to swear (therefore, he does not collect).
<br>          <b><font color='darkgreen'>5.   Version #2 (Tosfos ha'Rosh) Answer:</font></b> Rather, we do
               not tell a Chacham to swear. (If he seizes the
               money, he keeps it. If he wants to swear and
               collect, he may.)
<br><b><font color='darkgreen'><b><font color='darkgreen'></font></b></font></b>
<br><b><font color='blue'>2) MUST A LOAN BE REPAID IN FRONT OF WITNESSES?</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If Reuven claimed a Maneh from Shimon...
<br>     <b><font color='darkgreen'>(b)  Version #1 (Rav Yehudah citing Rav Asi):</font></b> If Levi lent
          Yehudah in front of witnesses, Yehudah must repay in
          front of witnesses. (If he cannot bring witnesses that he
          repaid, he must pay (again));
<br>     <b><font color='darkgreen'>(c)  (Rav Yehudah citing Shmuel):</font></b> Yehudah can say 'I paid in
          front of Ploni and Almoni, and they went abroad.' (Tosfos
          - he is even believed to say 'I paid you without
          witnesses, Migo he could have said 'I paid in front of
          Ploni and Almoni, they went abroad.' Rashba - he is not
          believed to say that he paid without witnesses.)
<br>     <b><font color='darkgreen'>(d)  Question (Mishnah):</font></b> If Reuven claimed a Maneh from Shimon
          in front of witnesses, and Shimon admitted that he owes
          it, and the next day, Reuven claimed it again, if Shimon
          answers 'I paid you', he is exempt.
<br>          <b><font color='darkgreen'>1.   Claiming money in front of witnesses is like lending
               in front of witnesses, yet Shimon need not bring
               witnesses that he repaid. This refutes Rav Asi!
<br><b><font color='darkgreen'>
&lt;</font></b>br&gt;

sjt:
<font><b>1) THE DIFFERENCE BETWEEN A SHEVU'AH D'ORAISA AND A SHEVU'AH D'RABANAN</b></font>
<br>QUESTION: The Mishnah (38b) teaches that when one person claims that another person owes him a Maneh, and the defendant denies owing anything, he is exempt from paying as well as from making a Shevu'ah. Rav Nachman (40b) rules that he nevertheless must make a Shevu'ah d'Rabanan, called a Shevu'as Heses, even though he denies everything. The basis for the need for such a Shevu'ah is the assumption that a person would not claim money unless it was actually owed to him.
</p><p>
The Gemara (beginning of 41a) asks, what is the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan? <b>RASHI</b> (DH Shevu'ah) explains that a Shevu'ah d'Oraisa refers to a Shevu'as Modeh b'Miktzas, which a person must make when he admits to part of a claim. A Shevu'ah d'Rabanan refers to a Shevu'as Heses.
</p><p>
The Gemara explains that one difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan is that a Shevu'ah d'Rabanan may be 'exchanged' from the defendant to the claimant, while a Shevu'ah d'Oraisa cannot be 'exchanged.' Rashi (DH Meipach) explains that in the case of a Shevu'ah d'Rabanan, the defendant may tell the claimant that if he makes a Shevu'ah he may collect the money he claims.
</p><p>
The Gemara says that according to Mar bar Rav Ashi, who maintains that even a Shevu'ah d'Oraisa may be 'exchanged,' there is another difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan: collecting from the defendant's land if he refuses to make a Shevu'ah. In the case of a Shevu'ah d'Oraisa, if the defendant refuses to make a Shevu'ah but also insists that he owes nothing, Beis Din may order that the debt be collected from his land. In the case of a Shevu'ah d'Rabanan, Beis Din may not collect the debt from the defendant's land (under normal circumstances).
</p><p>
What, though, is the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan according to Rebbi Yosi, who maintains that Beis Din may seize the defendant's land when he refuses to make even a Shevu'ah d'Rabanan? The Gemara explains that according to Rebbi Yosi, the difference is where the defendant is not trusted to make a truthful Shevu'ah (for example, he lends money with interest; see Mishnah, 45a). If a person who is required to make a Shevu'ah d'Oraisa is suspected of swearing falsely, the opportunity to swear is given instead to the claimant to make the Shevu'ah and take the money he claims. This is not an option in the case of a Shevu'ah d'Rabanan.
</p><p>
<b>TOSFOS</b> (DH Mai) cites <b>RASHI</b> in Kesuvos (88a, DH li'Yedei) who writes that the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan is that when one makes a Shevu'ah d'Oraisa he must hold a Sefer Torah in his hands while he swears. This is not necessary in when one makes a Shevu'ah d'Rabanan.
</p><p>
Tosfos questions Rashi's explanation. If this indeed is a difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan, then why does the Gemara here not mention it?
</p><p>
ANSWER: The <b>HAGAHOS MAIMONIYOS</b> (Hilchos Shevu'os 11:5) cites the <b>MAHARAM MI'ROTENBURG</b> who explains that Rashi agrees that a Sefer Torah must be held even when one makes a Shevu'ah d'Rabanan. However, the Gemara in Kesuvos (88a) is discussing a case in which one witness testifies that a woman's Kesuvah has been paid. The Mishnah in Kesuvos (87a) states that in such a case she cannot collect her Kesuvah unless she makes a Shevu'ah that she has not yet been paid. Rava there (87b) gives two reasons for why this Shevu'ah is only mid'Rabanan. The first reason is that all Shevu'os mandated by the Torah <i>exempt</i> a person from payment, while this one enables the woman to <i>collect</i> money. The second reason is that by denying his ex-wife's claim to the Kesuvah money, her former husband denies that his land is a target for collection for the Kesuvah. Accordingly, her Shevu'ah is a Shevu'ah to collect from <i>land</i>, and the law is that mid'Oraisa no Shevu'ah is made on land. For these reasons, Rava concludes that this Shevu'ah is only mid'Rabanan. The only reason why she swears is to appease her former husband; according to the letter of the law, she should <i>not</i> be required to make a Shevu'ah at all.
</p><p>
Since, the reason for making the Shevu'ah in that case is weak, Rashi there explains that she does not need to hold a Sefer Torah when she makes that Shevu'ah. (D.Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>12) CAN ONE DECLINE AN ENACTMENT TO MAKE THE OTHER PARTY SWEAR?</font></b>
<br><b><font color='darkgreen'>     </font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.  </font></b> One cannot reverse an oath mid'Oraisa (refuse to
               swear, and require the claimant swear to collect).
               One can reverse an oath mid'Rabanan.
<br>          <b><font color='darkgreen'>2.  </font></b> Mar bar Rav Ashi holds that he can reverse even a
               Torah oath.
<br>          <b><font color='darkgreen'>3.  </font></b> R. Yosi holds that if the defendant is Pasul
               (disqualified from swearing), we reverse a Torah
               oath onto the claimant, and he pays. Mid'Rabanan
               oaths are enactments. We do not enact (to reverse
               the oath) for an enactment.
<br>               <b><font color='darkgreen'>i.   Bava Basra 49b (Rava):</font></b> If an enactment was made
                    to benefit a person, he can say 'I do not want
                    the enactment.'
<br>          <b><font color='darkgreen'>4.   Shevuos 46b (Rava):</font></b> R. Yehudah says that when the
               Torah obligates the employer to swear, Chachamim
               enacted that the worker swears and collects. If he
               must swear only mid'Rabanan, there is no second
               enactment for the worker. Chachamim say that in both
               cases the worker swears and collects.
<br>          <b><font color='darkgreen'>5.   Kesuvos 87b (Mishnah):</font></b> If one witness says that the
               Kesuvah was paid (she must swear to collect).
<br>          <b><font color='darkgreen'>6.   (Rava):</font></b> The oath is mid'Rabanan, to appease the
               husband.
<br>          <b><font color='darkgreen'>7.   (Rav Papa):</font></b> A clever husband will force her to swear
               mid'Oraisa. He pays the Kesuvah again in front of a
               second witness. He joins the witnesses and claims
               that the first payment was a loan. (She contradicts
               the first witness.)
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rif (20a):</font></b> For a Torah oath, if the defendant says
               'let the claimant swear and receive', and the
               claimant demands Torah law', we do not reverse the
               oath. We reverse a mid'Rabanan oath. Mar bar Rav
               Ashi reverses even Torah oaths. If the one obligated
               to swear is Pasul, mid'Oraisa the claimant swears
               and collects. A mid'Rabanan oath is an enactment,
               and we do not make an enactment for an enactment.
               The Halachah does not follow Mar bar Rav Ashi.
<br>          <b><font color='darkgreen'>2.   Rif (Kesuvos 48a):</font></b> When the claimant must swear to
               receive, he cannot reverse the oath onto the
               defendant. If the claimant says 'swear to me that
               you do not owe to me, or that you paid me, and be
               exempt', the defendant can say 'I need not swear.
               The ability to swear and be exempt helps me; I do
               not want this. You must swear to collect.' In cases
               like this, one can decline an enactment.
<br>          <b><font color='darkgreen'>3.   Rambam (Hilchos To'en 1:4):</font></b> If one must swear
               mid'Rabanan to collect, he cannot reverse the oath
               onto the claimant. If he does not want to swear, he
               does not collect. My Rebbeyim said that he can say
               'I decline Chachamim's enactment for me (to swear
               and collect). I want to be like any other claimant,
               who forces the defendant to swear Heses.' If the
               defendant wants to reverse it onto the claimant, the
               claimant must swear Heses in order to receive.
<br>               <b><font color='darkgreen'>i.   Magid Mishneh (DH v'Horu):</font></b> This is proper
                    reasoning. Surely he may lower his law and be
                    like other claimants, who make the defendant
                    swear Heses. Also the Ramah says so; this is
                    primary.
<br>               <b><font color='darkgreen'>ii.  Hagahos Maimoniyos (30):</font></b> We do not enact for an
                    enactment when both of these are against the
                    defendant.
<br>               <b><font color='darkgreen'>iii. Magid Mishneh (2:1):</font></b> A Pasul may not swear even
                    Heses, even if the claimant wants to let him
                    swear, for regarding Heses the opponent does
                    not swear (and collect when the defendant
                    cannot swear).
<br>               <b><font color='darkgreen'>iv.  Lechem Mishneh (DH Kosav):</font></b> Do not say that the
                    enactment that a Chashud may not swear is for
                    the claimant's benefit (and he may say 'I do
                    not want it. Let him swear!') If it were for
                    his benefit, we would not exempt a Chashud from
                    swearing. Rather, the claimant would swear and
                    receive!
<br>          <b><font color='darkgreen'>4.   Rashba (41a DH Ika):</font></b> The Rif allows reversing only
               Shevu'as Heses. If the claimant says 'swear to be
               exempt', the defendant can say 'you may swear and
               collect. If you allow me to swear and be exempt, I
               decline', just like one may decline an enactment for
               his benefit. The Ramban supports this from Heses. It
               is primarily for the defendant, but he can say 'you
               may swear and collect. If not, I won't pay' (i.e.
               the claimant has the lower hand - <b><b><b>PF</b></b></b>.) All the more
               so, a claimant cannot reverse an oath to collect,
               which was enacted for him, onto the defendant!
<br>          <b><font color='darkgreen'>5.   Rosh (Kesuvos 9:25):</font></b> If one cannot take a Shevu'ah
               mid'Oraisa, he must pay. A Pasul does not take a
               Shevu'ah mid'Rabanan, and need not pay, like it says
               in Kol ha'Nishba'in**. The Rif wrote in a Teshuvah
               that if one admits that his document was partially
               paid, the borrower swears and he is exempt. We say
               that we do not enact for an enactment (to reverse a
               Shevu'ah mid'Rabanan), i.e. for Shevu'as Heses, but
               not for Shevuos of the Mishnah. Also, if we would
               say for Heses that the opponent of a Pasul swears
               and receives, the enactment for the enactment would
               cause one to pay. For a partially paid document, he
               swears and he is exempt. This is better than letting
               the Pasul receive without an oath. Do not say that
               mid'Oraisa and mid'Rabanan oaths differ about
               reversing the oath. Shevu'as Heses is mid'Rabanan,
               and we reverse it only from the defendant to the
               claimant. He says 'if I owe you, swear!' A claimant
               cannot reverse his oath to the defendant, and say
               'if you are exempt, swear!' The defendant can say 'I
               do not want to swear. If you want, swear and
               collect. If not, go! I do not owe you.'
<br>               <b><font color='darkgreen'>i.   <i></i>Maharshal (Kesuvos 88a DH Iy):</font></b> This is not
                    explicit in Shevuos. There, when the defendant
                    cannot take a mid'Rabanan oath to avoid paying,
                    we do <i>not</i> say that the claimant swears and
                    collects. Tosfos holds that the same applies to
                    an oath to swear and collect.
<br>               <b><font color='darkgreen'>ii.  Maharsha (Kesuvos 88a DH Tosfos):</font></b> Also Tosfos
                    proves this from Perek Kol ha'Nishba'in (47a);
                    the text 'Shevu'as ha'Dayanim (41a)' is wrong.
                    If a defendant cannot take a Torah oath to be
                    exempt, we say that the claimant swears and
                    collects. We do not say so about a mid'Rabanan
                    oath.
<br>          <b><font color='darkgreen'>6.   Terumas ha'Deshen (32):</font></b> All agree that one can
               reverse a Shevu'ah mid'Rabanan (other than Heses),
               which requires holding a Chefetz (Kodesh item, e.g.
               Sefer Torah). Can one say 'you need not hold a
               Chefetz', so his opponent cannot reverse on him a
               severe oath with a Chefetz? It seems that he can
               pardon his rights. One who can impose an oath may
               let his opponent swear 'by the life of your head'
               (Sanhedrin 24a). Even after his opponent reversed
               the Shevu'ah to him, he can say 'swear a light oath
               to me, or I will swear a light oath to you.' The
               defendant still has the choice. He did not lose
               anything! This is unlike the Rosh (Shevuos 7:19),
               who says that if one was obligated to swear, and
               feared lest he be forced to swear about other
               matters through Gilgul, he may not say 'I will pay
               and not swear.' Rather, he pays all the claims, or
               he swears about everything through Gilgul. There, he
               wants to pay, to avoid swearing about the others. If
               he would pay just the first claim, the claimant
               would lose. The Rambam's Rebbeyim say that if Levi
               can swear to collect, he may say 'I waive this
               enactment. Let the defendant swear Heses.' The Rosh
               disagrees. Even if he says 'I am like a regular
               claimant, who obligates Heses', the defendant cannot
               reverse the oath. If not, the Rosh should have said
               that this is an advantage of a Torah oath (it can
               never be reversed). Even if one may not say 'make a
               light oath' after it was reversed onto himself,
               surely one may believe his opponent more than
               himself to let him swear.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (CM 87:11):</font></b> For a Shevu'ah
               mid'Oraisa, if the one who must swear said 'tell him
               to swear, and then I will pay', we do not force his
               opponent to swear. Also, if one must swear to
               receive, even though the oath is mid'Rabanan, he
               cannot reverse it on his opponent Bal Korcho
               (against his will).
<br>               <b><font color='darkgreen'>i.   Shach (30):</font></b> If one witness testifies that a
                    document was paid, the bearer must swear to
                    collect, Rashi and Tosfos hold that he can
                    reverse the oath; the witness does not help the
                    borrower. The Rambam and Tur hold that he
                    cannot reverse it. He can waive the enactment,
                    and claim without the document. The witness
                    exempts the borrower from swearing.
<br>          <b><font color='darkgreen'>2.   Shulchan Aruch (12):</font></b> One who must swear mid'Rabanan
               to collect cannot reverse the oath onto the claimant
               Bal Korcho, but he can say 'I decline the enactment
               that Chachamim made for me. I want to be like any
               other claimant, who can force the defendant to swear
               Heses.' If the defendant wants to reverse it onto
               the claimant, we force the claimant to swear Heses
               if he wants to receive.
<br>               <b><font color='darkgreen'>i.   Darchei Moshe (6):</font></b> The Terumas ha'Deshen says
                    that the Rosh and Tosfos argue with the
                    Rambam's Rebbeyim.
<br>               <b><font color='darkgreen'>ii.  Rebuttal #1 (Bach 20):</font></b> Perhaps the Rosh holds
                    like the Tur (88:24), that even for a Torah
                    oath, one can say 'swear Heses, and I will pay
                    you.' The Rambam could agree. He just teaches
                    that even for an oath to receive, which is an
                    enactment, the claimant can reverse. Chachamim
                    did not enact for an enactment, i.e. when both
                    enactments are Bal Korcho.
<br>               <b><font color='darkgreen'>iii. Rebuttal #2 (Shach 35):</font></b> The Tur concludes
                    unlike this opinion (that even for a Torah
                    oath, he can make the claimant swear Heses).
                    However, the Terumas ha'Deshen's proof is
                    invalid. In Kesuvos, the Rosh could not have
                    said a Torah oath is better, for it cannot be
                    reversed. After he pays her again, she could
                    return the money and make him swear Heses that
                    he paid her beforehand! Further, if one can
                    ignore his document and force a Shevu'as Heses,
                    the same applies if she needed to swear
                    mid'Oraisa. Also, a supporting witness exempts
                    from Heses (so she cannot reverse on him)!
                    Rashi and Tosfos say that a Torah oath cannot
                    be reversed. If a witness obligates an oath and
                    it is reversed, he does not exempt from an
                    oath. However, if a claimant demands an oath
                    without a witness and it is reversed, the
                    witness exempts him. All agree with the
                    Rambam's law; it is obvious!
<br>               <b><font color='darkgreen'>iv.  SMA (30):</font></b> One can decline an enactment for his
                    benefit, for we are not Mezakeh (acquire) for
                    someone against his will.
<br>
<font color='blue'><i>See also:</i>
<br><b>WHEN BOTH PARTIES ARE DISQUALIFIED FROM SWEARING </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>     <b><font color='darkgreen'>(e)  Answer:</font></b> (Claiming money in front of witnesses is <i>not</i>
          like lending in front of witnesses.) In the Mishnah, the
          loan was given without witnesses. Reuven showed that he
          trusted Shimon (so Shimon need not repay with witnesses);
<br>          <b><font color='darkgreen'>1.   Rav Asi's law is only when the loan was in front of
               witnesses.
 </font></b>    (f)  Version #2 (Rav Yosef) (Rav Yehudah citing Rav Asi): If
          Levi lent Yehudah in front of witnesses, Yehudah need not
          repay in front of witnesses, unless Levi stipulated that
          he must do so;
<br>     <b><font color='darkgreen'>(g)  (Rav Yehudah citing Shmuel):</font></b> (Even if Levi stipulated)
          Yehudah can say 'I paid in front of Ploni and Almoni, and
          they went abroad.'
<br>     <b><font color='darkgreen'>(h)  Question (Mishnah):</font></b> Reuven claimed a Maneh from Shimon in
          front of witnesses. Shimon admitted that he owes it.
          Reuven told him 'you must repay it in front of
          witnesses.' The next day, Reuven claimed it again, and
          Shimon said 'I paid you.' He is liable, for he must repay
          it in front of witnesses;
<br>          <b><font color='darkgreen'>1.   This refutes Shmuel!
 </font></b>    (i)  Answer: Tana'im argue about this law.
<br>          <b><font color='darkgreen'>1.   (Beraisa):</font></b> If Levi told Yehudah 'I (just) lent you
               in front of witnesses. Repay me in front of
               witnesses', if Yehudah cannot prove that he paid, he
               must pay (again);
<br>          <b><font color='darkgreen'>2.   R. Yehudah ben Beseira says, Yehudah can say </font></b>'I paid
               in front of Ploni and Almoni, and they went abroad.'
<br>     <b><font color='darkgreen'>(j)  Objection (Rav Acha):</font></b> Perhaps (in the Beraisa) Levi does
          not speak at the time of the loan, rather, later!
<br>          <b><font color='darkgreen'>1.   Levi told Yehudah 'since I lent to you in front of
               witnesses, you should have repaid me in front of
               witnesses';
<br>          <b><font color='darkgreen'>2.   The Tana'im argue in this case, but if Levi
               stipulated at the time of the loan, all agree that
               Yehudah must prove that he paid! (Neither Tana holds
               like Shmuel.)
 </font></b></font></b>    (k)  (Rav Papi citing Rava): The Halachah is, if Levi lent
          Yehudah in front of witnesses, Yehudah must repay in
          front of witnesses.
<br>     <b><font color='darkgreen'>(l)  (Rav Papa citing Rava):</font></b> The Halachah is, if Levi lent
          Yehudah in front of witnesses, Yehudah need not repay in
          front of witnesses, unless Levi stipulated that he must
          do so;
<br>          <b><font color='darkgreen'>1.   Yehudah is (Rif's text - not) believed to say </font></b>'I
               paid in front of Ploni and Almoni, and they went
               abroad.
<br>     <b><font color='darkgreen'>(m)  (Abaye):</font></b> If Reuven lent Shimon, and told him 'repay me in
          front of Ploni and Almoni', and Shimon paid in front of
          other witnesses, this is all that Reuven wanted (Shimon
          is exempt);
<br>     <b><font color='darkgreen'>(n)  (Rava):</font></b> No, he specified Ploni and Almoni, in order that
          Shimon cannot push him off (Rashi - with lying witnesses;
          Tosfos - by naming witnesses who went abroad).
<br>     <b><font color='darkgreen'>(o)</font></b>  Levi lent Yehudah, and told him 'repay me in front of two
          witnesses who learn Halachah. Yehudah paid without
          witnesses, and the money was lost through Ones. They came
          in front of Rav Nachman.
<br>          <b><font color='darkgreen'>1.   Levi:</font></b> I stipulated that the repayment must be in
               front of witnesses who learn Halachah. I took the
               money for a deposit until we would find such
               witnesses.
<br>          <b><font color='darkgreen'>2.   Rav Nachman:</font></b> He gave the money for payment, and you
               accepted it without objection (this shows that you
               pardoned your stipulation);
<br>               <b><font color='darkgreen'>i. </font></b>  If you want, fulfill your stipulation now in
                    front of Rav Sheshes and myself. We learn
                    Halachah! (This was a joke.)
<br>     <b><font color='darkgreen'>(p)</font></b>  Reuven claimed a Maneh from Shimon. Shimon denied that he
          ever owed him. Reuven brought witnesses that Shimon
          borrowed and paid.
<br>     <b><font color='darkgreen'>(q)  (Abaye):</font></b> We cannot obligate him to pay, for the witnesses
          who say that he borrowed say that he paid!
<br>     <b><font color='darkgreen'>(r)  (Rava):</font></b> Since he says that he did not borrow, this is an
          admission that he did not pay (and one is believed to
          obligate himself even if witnesses contradict him).
<br>
<b><font color='blue'>3) THINGS ONE NEED NOT KNOW</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)</font></b>  Reuven claimed a Maneh from Shimon. Shimon said 'I paid
          you in front of Ploni and Almoni.' Ploni and Almoni said
          that they never saw this.
<br>     <b><font color='darkgreen'>(b)  (Rav Sheshes):</font></b> Shimon is Huchzak Kafran (established to
          be a liar. He is no longer believed to say 'I paid you
          not in front of them.')
<br>     <b><font color='darkgreen'>(c)  (Rava):</font></b> No. Anything that is not incumbent on a person
          (Rashi - Shimon need not name witnesses that saw payment;
          R. Chananel - the witnesses were not asked to witness the
          payment), he is not mindful about it (therefore, Shimon
          is not Huchzak Kafran). 
<br>

sjt:
</p><p>
<font><b>2) DEMANDING TO BE PAID BACK IN FRONT OF WITNESSES AFTER THE LOAN HAS BEEN GIVEN</b></font>
<br>OPINIONS: The Mishnah (38b) discusses a case in which the claimant says, 'You owe me a Maneh,' which the borrower openly admits. The claimant continues, 'Return it to me only in front of witnesses.' If, on the following day, he demands the money from the borrower and the borrower replies, 'I returned it already,' the borrower is obligated to pay, since he committed to return the money in front of witnesses.
</p><p>
It is apparent from the Mishnah that even though the claim and admission occurs after the loan was given, the demand that the loan be paid back in front of witnesses remains valid. What is the logic behind this? How does the lender have the right to place new conditions on the loan after he has already lent the money?
</p><p>
(a) The <b>MAGID MISHNEH</b> (Hilchos Malveh v'Loveh 15:1) understands that the <b>RAMBAM</b> maintains that this is based on the verse, 'Eved Loveh l'Ish Malveh' -- 'a borrower is a slave to the one who lends to him' (Mishlei 22:7). When a person takes a loan, he accepts upon himself certain obligations towards the lender, including complying with any conditions he may set for the repayment of the loan even after the loan was made.
</p><p>
The <b>RITVA</b> (40b) quotes the <b>RASHBA</b> who says that according to this reasoning, there is a difference between a person who gives a loan and a person who entrusts a deposit with a guardian. One who gives a loan does a favor for the borrower, and thus the borrower must comply with any conditions made afterwards. One who entrusts an item with a guardian cannot make any conditions after the item has been handed over, because he does not benefit the guardian in any way by giving over the item.
</p><p>
(b) The Magid Mishneh quotes the <b>RAMBAN</b> who says that if the borrower does not accept the lender's condition made after the loan, he is <i>not</i> obligated to return the money in front of witnesses. The Mishnah here refers specifically to a case in which the borrower agrees to the condition (or says nothing at the time the condition is stated). The Ritva also quotes this opinion in the name of the <b>RE'AH</b> and concurs with it.
</p><p>
(c) The <b>ROSH</b> (6:11) and others give an explanation similar to that of the Ramban. However, they argue that if the borrower does not <i>explicitly</i> agree to the condition, he does not have to pay back in front of witnesses.
</p><p>
(d) The <b>RAN</b> (20b of the pages of the Rif, and as cited by the <b>KESEF MISHNEH</b>, Hilchos Malveh v'Loveh 15:1) answers that the reason why the borrower must pay back in front of witnesses is not that the demand of the lender creates an obligation on the borrower. Rather, if the lender warned the borrower to repay only in front of witnesses and the borrower later argues that he returned the money without witnesses, there is an 'Anan Sahadei' that the borrower is not telling the truth. ('Anan Sahadei' literally means 'we are witnesses' and refers to a situation in which his intention is as clear to us as if he had explicitly stated it.) When a lender requests to be paid back with witnesses, the borrower certainly will be careful to pay back with witnesses.
</p><p>
The <b>S'MA</b> (CM 70:12) explains that the Ran maintains that even if the borrower says, at the time the lender expresses his condition, that he wants to pay back only without witnesses, he still must pay back with witnesses. Since the lender explicitly stated this condition, the borrower would not pay back without witnesses, because he certainly wants to remove any suspicions or arguments about his repayment. The Ran and S'ma explain that is also the position of the Rambam.
</p><p>
(e) However, the <b>SHACH</b> (CM 70:9) argues that the Rambam rules differently. If the borrower protested when the lender demanded that the loan be repaid in front of witnesses, he does not have to repay in front of witnesses. In this case, the borrower is not afraid that people will say he is lying when he pays back without witnesses, because he can argue that he relied on the fact that he protested against the lender's demand and did not accept the condition, and therefore he returned the money without witnesses.
</p><p>
The Shach adds that the Rambam may follow the reasoning of the Ramban (as mentioned in (b) above). Only when they both agree to the condition is the borrower bound to pay back in front of witnesses (even though the condition was made after the loan). If the borrower protests and does not accept the condition, he does not have to pay back in front of witnesses. (D. Bloom, Y. Montrose) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) THINGS ONE NEED NOT KNOW (cont.)</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)</font></b>  Levi claimed 600 Zuz from Yehudah. Yehudah said 'I paid
          you with 100 Kavim of gallnuts. Each Kav was worth six
          Zuz.' Levi said that a Kav was worth four Zuz, and
          brought witnesses who said so.
<br>     <b><font color='darkgreen'>(b)  (Rava):</font></b> Yehudah is Huchzak Kafran (therefore, he is not
          believed to say that he paid the remaining 200 with
          money).
<br>     <b><font color='darkgreen'>(c)  Question (Rami bar Chama):</font></b> You yourself say that anything
          that is not incumbent on a person (Rashi - Yehudah need
          not say how he paid; R. Chananel - at the time, the
          witnesses were not asked to remember the price of
          gallnuts), he is not mindful about it (therefore, Yehudah
          is not Huchzak Kafran)!
<br>     <b><font color='darkgreen'>(d)  Answer (Rava):</font></b> People remember prices (therefore, he is
          Huchzak Kafran).

<b><font color='blue'>2) QUESTIONABLE DOCUMENTS</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)</font></b>  Reuven claimed a Maneh from Shimon, and showed the loan
          document. Shimon claimed that he paid him. Reuven said
          'you paid a different debt, and not the loan of this
          document.'
<br>     <b><font color='darkgreen'>(b)  (Rav Nachman):</font></b> Reuven's admission that he received money
          taints the document (Tosfos - he cannot collect with it;
          R. Chananel - to collect, he must swear that he was not
          paid).
<br>     <b><font color='darkgreen'>(c)  (Rav Papa):</font></b> The document is not tainted.
<br>     <b><font color='darkgreen'>(d)  Question:</font></b> According to Rav Papa, why is this different
          than the following case (in which the document is
          tainted)?
<br>          <b><font color='darkgreen'>1.   Levi claimed a Maneh from Yehudah (from a business
               venture. Yehudah was supposed to buy cattle,
               slaughter and sell them), and showed the document.
             </font></b>  i.   Yehudah: You came to where I was selling, and I
                    paid you!
<br>               <b><font color='darkgreen'>ii.  Levi:</font></b> You paid a different debt.
<br>          <b><font color='darkgreen'>2.   (Rav Papa):</font></b> The document is tainted.
<br>     <b><font color='darkgreen'>(e)  Answer:</font></b> There, since the money was given to buy cattle,
          and he was paid where he was selling them, there are
          grounds to say that he paid that debt;
<br>          <b><font color='darkgreen'>1.   In the previous case, we have no such grounds.
               (Since he did not take back the document, there are
               grounds to say that it was for a different debt.)
 </font></b>    (f)  Question: What is the Halachah?
<br>     <b><font color='darkgreen'>(g)  Answer #1 (Rav Papi):</font></b> The document is not tainted.
<br>     <b><font color='darkgreen'>(h)  Answer #2 (Rav Sheshes brei d'Rav Idi):</font></b> The document is
          tainted.
<br>     <b><font color='darkgreen'>(i)</font></b>  The Halachah is, the document is tainted.
<br>     <b><font color='darkgreen'>(j)</font></b>  This is only if he paid in front of witnesses, without
          mentioning the document. If he paid without witnesses,
          Migo that Reuven would be believed to say that he was not
          paid, he is believed to say that he was paid for a
          different debt.
<br>          <b><font color='darkgreen'>1.   Such a case occurred with Avimi brei d'R. Avahu
               (Kesuvos 85a).
<br><b><font color='darkgreen'></font></b>
<br><b><font color='blue'>3) TRUSTING THE LENDER</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)</font></b>  Reuven lent money to Shimon. Shimon said, if you will say
          that I did not pay, I will trust you (i.e. and I will
          repay you). Shimon brought witnesses who saw him pay.
<br>     <b><font color='darkgreen'>(b)  (Abaye and Rava):</font></b> Shimon said that he will trust him!
<br>     <b><font color='darkgreen'>(c)  Rejection (Rav Papa):</font></b> He meant only if the two of them
          will argue, but he did not trust him against witnesses!
<br>     <b><font color='darkgreen'>(d)</font></b>  Levi lent money to Yehudah. Yehudah said, if you will say
          that I did not pay, I will trust you like two witnesses.
          Shimon brought three witnesses who saw him pay.
<br>     <b><font color='darkgreen'>(e)  (Rav Papa):</font></b> Shimon only trusted him like two witnesses,
          but not like three!
<br>     <b><font color='darkgreen'>(f)  Version #1 - Rejection (Rav Huna brei d'Rav Yehoshua):</font></b> We
          follow the majority of opinions only regarding estimation
          (of property value). There, the more opinions, the better
          the estimate;
<br>          <b><font color='darkgreen'>1.   Regarding testimony, two witnesses are as good as
               100!
 </font></b>    (g)  Version #2 - Rejection (Rav Huna brei d'Rav Yehoshua):
          Regarding testimony, two witnesses are as good as 100!
<br>          <b><font color='darkgreen'>1.   However, if he said 'I will trust you like three
               witnesses', and Shimon brings four witnesses that
               saw him pay, he is exempt;
<br>          <b><font color='darkgreen'>2.   Since Shimon specified three witnesses, he showed
               that he considers more witnesses to be more
               reliable.
<br><b><font color='darkgreen'><b><font color='darkgreen'></font></b></font></b>
<br><b><font color='blue'>4) SWEARING TO CHILDREN</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> One need not swear to deny the claim of a
          child, lunatic or deaf-mute. We do not make a child
          swear.
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> What is the reason?
<br>     <b><font color='darkgreen'>(c)  Answer:</font></b> 'Ki Yiten <i>Ish</i>... money or vessels to guard',
          but when a child gives, nothing takes effect.
<br>     <b><font color='darkgreen'>(d)  (Mishnah):</font></b> We do swear to a child and to Hekdesh.
<br>     <b><font color='darkgreen'>(e)  Question:</font></b> The Reisha said that one need not swear to deny
          the claim of a child, lunatic or deaf-mute!
<br>     <b><font color='darkgreen'>(f)  Answer #1 (Rav):</font></b> We swear if the child claims money that
          was owed to his father. The Mishnah is R. Eliezer ben
          Yakov;
<br>          <b><font color='darkgreen'>1.   (Beraisa - R. Eliezer ben Yakov):</font></b> Sometimes, one
               swears due to his own claim. If Shimon told Reuven
               'your father gave me a Maneh, and I returned half to
               him', Shimon must swear that he owes only half, due
               to his own claim;
<br>          <b><font color='darkgreen'>2.   Chachamim exempt him from swearing, like a Meshiv
               (one who returns an) Aveidah.
<br>          <b><font color='darkgreen'>3.   Question:</font></b> Does R. Eliezer ben Yakov obligate a
               Meshiv Aveidah to swear?! (Rashi - an enactment
               exempts him; Tosfos - he is believed that he
               returned everything, Migo (since) he could have kept
               it all.)
<br>          <b><font color='darkgreen'>4.   Answer #1 (Rav):</font></b> The case is, a child claims from
               Shimon.
<br>          <b><font color='darkgreen'>5.   Objection:</font></b> Our Mishnah teaches that we need not
               swear to deny the claim of a child, lunatic or deaf-
               mute!
<br>          <b><font color='darkgreen'>6.   Answer:</font></b> Rav really means that an adult claims (money
               of his father) from Shimon;
             </font></b>  i.   He calls him a child, because one is (ignorant)
                    like a child regarding his father's affairs.
<br>          <b><font color='darkgreen'>7.   Question:</font></b> In the Beraisa, R. Eliezer said 'sometimes
               one swears due to his own claim.' This is the case
               of another's claim!
<br>          <b><font color='darkgreen'>8.   Answer:</font></b> It is another's claim, but his own
               admission.
<br>
<br>

sjt:
<font><b>1) 'ISRA SHTARA'</b></font>
<br>OPINIONS: The Gemara discusses a case in which a person claims 100 Zuz from another person, and he has a loan document to support his claim. The borrower replies that he already returned the money. The claimant asserts that the repayment was not for the present debt, but for a different debt. Rav Nachman rules 'Isra Shtara' -- 'the document has been weakened.'
</p><p>
What exactly is Rav Nachman's ruling? Must the borrower repay the loan or not?
</p><p>
(a) <b>RABEINU CHANANEL</b> writes that because the Shtar was weakened, the lender may collect only if he is prepared to make a Shevu'ah, as implied by the Gemara's usage of the term 'Isra' -- 'weakened.' The Shtar is only 'weakened,' but not 'nullified ('Ivtal') altogether, and thus it still has some power. Even if the borrower had written a clause of 'Ne'emanus' ('believability') in the document. (Such a clause entitles the lender to the right to claim the money in Beis Din and collect without having to make a Shevu'ah.) Since the lender admitted that he received some payment (even though he claims it was from a different debt), he may not collect without an oath.
</p><p>
(b) The <b>RIF</b> quotes <b>RAV HAI GA'ON</b> and <b>RAV SHERIRA GA'ON</b> who maintain that 'Isra Shtara' means that the Shtar was not merely weakened, but nullified entirely. They maintain that the borrower may make a Shevu'as Heses that he owes nothing, and exempt himself from paying.
</p><p>
Rav Hai Ga'on and Rav Sherira Ga'on cite proof from the words of the Gemara. Rav Papa argues with Rav Nachman in this case and rules that 'Lo Isra Shtara' -- 'the Shtar is not weakened.' The Gemara asks that Rav Papa himself ruled 'Isra Shtara' in a similar case: a person claimed 100 Zuz from another person, and he had a loan document to support his claim. The borrower replied that the lender knew that he borrowed the money in order to buy oxen (and sell them for slaughter), and that the lender in fact came to the very place where the meat was cut and sold and received his payment for the loan. The lender claimed that the money he received was for a different loan. In that case, Rav Papa ruled 'Isra Shtara.' The Gemara answers the case of the oxen was different; there, the claim was strong and clear enough that, indeed, 'Isra Shtara.' In the first case, the claim is not strong enough, and thus Rav Papa rules 'Lo Isra Shtara.'
</p><p>
Rav Hai Ga'on and Rav Sherira Ga'on point out that the Gemara clearly shows that 'Isra Shtara' means that the document is invalid. In the case of the oxen, Rav Papa accepts the borrower's claim that he returned the money to the lender at the place where the meat was cut and sold. When Rav Papa uses the words 'Isra Shtara,' he clearly means that the Shtar is entirely invalid. It must be that this is also the intention of Rav Nachman when he uses those words.
</p><p>
The <b>RAN</b> refutes this proof. He asserts that even in the case of the oxen, Rav Papa did not mean that the Shtar was annulled. Perhaps the borrower indeed returned a different loan, as the lender claims. In fact, this claim is supported by the fact that the borrower did not take back the Shtar at the time that he claims that he repaid the loan. Rav Papa therefore indeed may rule that the lender may collect the loan with an oath.
</p><p>
(c) <b>TOSFOS</b> (DH Isra) cites the Gemara in Kesuvos (36b) in which Rav Papa says that one may not collect money with a weakened Shtar. Tosfos concludes that 'Isra Shtara' refers to such a Shtar; while one may not collect money with it, it is not torn up by Beis Din.
</p><p>
If the Shtar cannot be used to collect money, then what is the purpose of keeping it? The <b>REMA</b> (CM 58:2) rules that not tearing up the Shtar signifies that the debt remains a doubt, and if the lender would seize the money from the borrower, Beis Din would not take the money away from the lender. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>13) KINYAN OF ATTACHED PEROS</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   (Mishnah - R. Meir):</font></b> If Reuven claimed 'I entrusted
               you with 10 laden vines, and Shimon said 'you
               entrusted me with only five', he must swear.
<br>          <b><font color='darkgreen'>2.  </font></b> Chachamim disagree. Anything connected to land is
               like land; he need not swear.
<br>          <b><font color='darkgreen'>3.   43a (R. Yosi b'Rebbi Chanina):</font></b> They argue about
               grapes ready to be detached. Meir considers them as
               if they were already detached; Chachamim disagree.
<br>          <b><font color='darkgreen'>4.   Bava Basra 84b (Mishnah):</font></b> If Shimon buys attached
               flax from Reuven and he detached any amount, he
               acquires.
<br>          <b><font color='darkgreen'>5.   87a - Question:</font></b> Why does he acquire everything by
               detaching any amount?
<br>          <b><font color='darkgreen'>6.   Answer (Rav Sheshes):</font></b> The case is, the seller said
               'go make any improvement in the field and acquire it
               all.'
<br>          <b><font color='darkgreen'>7.   Kesuvos 50b:</font></b> What is ready to be detached is
               considered to be detached (i.e. Metaltelim), so
               daughters cannot collect them for food.
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rif and Rosh (Shevuos 24a and 6:24):</font></b> We established
               that R. Meir and Chachamim argue about grapes ready
               to be detached.
<br>          <b><font color='darkgreen'>2.   Rif (Kesuvos 18b):</font></b> What is ready to be detached is
               considered to be detached.
<br>          <b><font color='darkgreen'>3.   Rambam (Hilchos Mechirah 1:17):</font></b> Anything attached is
               like land. It is acquired through money, a document
               or Chazakah. If it does not need the land, e.g.
               grapes ready to be detached, they are Metaltelim
               regarding Kinyan and Ona'ah.
<br>               <b><font color='darkgreen'>i.   Magid Mishneh:</font></b> In Shevuos we say that attached
                    Peros, even grapes ready to be detached, are
                    like land for oaths. The Rambam explains that
                    this is when they need the land. If they do not
                    need the land at all; we say in Kesuvos that it
                    is as if they were detached. Alternatively, the
                    law of oaths is different. It seems that the
                    Rambam holds like this in Hilchos Sechirus
                    (2:4).
<br>               <b><font color='darkgreen'>ii.  Hafla'ah (in Kovetz Chiburim in Friedman
                    Shulchan Aruch):</font></b> The Rambam holds that eating
                    Peros is a Chazakah to acquire land. Why did
                    the Gemara ask why he acquires everything by
                    detaching any amount? This forced the Rambam to
                    say that finished attached Peros are considered
                    detached. If they are not finished, it is
                    abnormal to detach them, so this is not a
                    Chazakah.
<br>          <b><font color='darkgreen'>4.   Rambam (Hilchos Sechirus 2:4):</font></b> If one entrusted
               attached Peros to be guarded, even grapes ready to
               be detached, they are like land regarding laws of
               Shomrim.
<br>               <b><font color='darkgreen'>i.   Beis Yosef (CM 95 DH v'Chosav ha'Rambam):</font></b> I say
                    that the Rambam holds like his Rebbi, Ri
                    ha'Levi, that R. Meir and Chachamim argue only
                    about Shomrim, but for everything else
                    Chachamim agree that anything ready to be
                    detached is considered to be detached. The
                    Gemara in Kesuvos is like everyone. A proof if
                    this is that the Rambam rules about a sale that
                    it is like Metaltelim, and regarding Shomrim it
                    is like land.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (CM 95:2):</font></b> If Reuven claimed grapes
               ready to be detached, and Shimon partially admitted,
               he swears about it like about other Metaltelim.
               However, if they still need the land, they are like
               land in every way.
<br>               <b><font color='darkgreen'>i.   Tur:</font></b> The Rambam rules that we swear about Peros
                    ready to be detached, as if they were detached.
                    The Rosh and R. Chananel consider them to be
                    attached. Ri ha'Levi says that this is only for
                    a Shomer; if one sold grapes ready to be
                    detached, since he intends to detach them, they
                    are like Metaltelim in every way, e.g. Ona'ah
                    and Shevu'ah. The Ramah excludes them from
                    whatever land is excluded: Shevuos, theft, and
                    Ona'ah.
<br>               <b><font color='darkgreen'>ii.  Drishah (5):</font></b> The Rambam said that what does not
                    need the land is like Metaltelim regarding a
                    sale, and also regarding Shevu'ah. Really, it
                    applies everywhere. In Hilchos Sechirus he
                    discusses what still needs the land.
<br>               <b><font color='darkgreen'>iii. Shach (9):</font></b> Perush ha'Mishnayos in Shevuos says
                    that the Halachah follows Chachamim when he
                    gave the grapes to be guarded. Regarding sales,
                    Ona'ah and partial admission, the primary claim
                    is not due to Shmirah, so we say that what is
                    ready to be detached is as if it were already
                    detached. This is like his Rebbi, Ri ha'Levi.
                    The Ri ha'Levi, Rambam, and Ran all rule like
                    Chachamim; it seems that the Rif and Rosh
                    agree.
<br>               <b><font color='darkgreen'>iv.  Gra (12):</font></b> The Ramah says that they are like
                    land in all ways. Therefore, the Rema and Tur
                    argue with the Rambam in Siman 193.
<br>          <b><font color='darkgreen'>2.   Shulchan Aruch (CM 193:1):</font></b> Anything attached to the
               ground that needs the ground is like land. It is
               acquired through money, a document or Chazakah. If
               it does not need the land, e.g. grapes ready to be
               detached, they are Metaltelim regarding Kinyan, and
               Ona'ah applies to them.
<br>               <b><font color='darkgreen'>i.   SMA (2):</font></b> Here, the Rema brought the dissenting
                    opinion, i.e. the Tur who rules like Chachamim.
                    In Siman 95, he did not bring it, even though
                    the Tur said that the Rosh and R. Chananel
                    disagree with the Rambam. In Siman 301, the
                    Shulchan Aruch says that it is like land, even
                    if it is ready to be detached. Here he rules
                    oppositely! We must say that when the Rambam
                    and Shulchan Aruch say 'ready to be detached',
                    it still needs the land a little. Therefore, in
                    Siman 301 it is like land. This is only for
                    Shevu'as ha'Shomrim. For Kinyan and Ona'ah it
                    is like Metaltelim, since it will be detached
                    today or tomorrow. This is why it says
                    'regarding Kinyan and Ona'ah.' Siman 95
                    discusses Shomrim. It begins with the text of
                    the Mishnah, but adds 'ready to be detached' to
                    show that it still needs the land a bit. The
                    Shulchan Aruch wrote 'it is like land in every
                    way.' This is not precise, for here we say that
                    it is like Metaltelim for Kinyan and Ona'ah.
                    Rather, it is like land for all laws of
                    Shomrim. The Rema brings Chachamim's opinion
                    that even if it does not need the land at all,
                    it is like land. In Siman 95, the Rema did not
                    dissent. We must say that when it does not need
                    the land at all, he rules like the Rambam; when
                    it needs the land a bit, he holds like the Rosh
                    that it is like land for Shomrim, Kinyan and
                    Ona'ah. Ir Shushan cites an opinion that even
                    if it does not need the land at all, it is like
                    land. Even though it is as if it were detached,
                    it is acquired Agav (along with the land). This
                    is wrong, for all who disagree say that it is
                    like land also regarding Ona'ah. Also, the
                    Rambam says that if flax does not need the land
                    at all, it is acquired Agav. If so, why does
                    the Rema say that some disagree?! Also, if he
                    acquires only the attached Peros, he must say
                    'acquire the land and the Peros Agav.' The Rema
                    should have explained this!
<br>               <b><font color='darkgreen'>ii.  Rebuttal (Shach 1 and Taz):</font></b> The Rambam and
                    Shulchan Aruch do <i>not</i> discuss Peros that
                    still need the land. 'it is like land in every
                    way' <i>is</i> precise. Siman 95 does not discuss
                    Shomrim, rather, admission and denial. Rather,
                    they hold like Ri ha'Levi; when it was given
                    for Shmirah, it is like land.
<br>               <b><font color='darkgreen'>iii. Taz:</font></b> Here, the Rema and Tur rule like the Rosh
                    and R. Chananel say about Shevu'ah (it is
                    considered attached). The Rema did not comment
                    in Siman 95, for some distinguish Shevu'ah from
                    other matters.
<br>               <b><font color='darkgreen'>iv.  Shach (1):</font></b> Therefore, here and in Siman 95 it
                    is like Metaltelim when it does not need the
                    land. I elaborated in Siman 95. The primary
                    opinion is the Rema, who is like the Tur. He
                    did not bother to comment in Siman 95, for in
                    any case one must swear mid'Rabanan. Here he
                    commented, for land is not acquired like
                    Metaltelim at all.
<br>               <b><font color='darkgreen'>v.   Gra (3):</font></b> We hold like Chachamim only regarding
                    Shomrim.
<br>          <b><font color='darkgreen'>3.   Rema:</font></b> Some say that even if they do not need the
               land, they are like land.
<br>               <b><font color='darkgreen'>i.   Gra (4):</font></b> This opinion rules like Chachamim
                    regarding everything except for one who ate
                    finished Peros, or what a creditor can collect.
<br>
<font color='blue'><i>See also:</i>
<b>WHEN <b><b>DO</b></b> <b><b>WE</b></b> CONSIDER ATTACHED PRODUCE <b><b>AS</b></b> <b><b>IF</b></b> <b><b>IT</b></b> WERE DETACHED</b>? (Bava Kama 77</font><font color='blue'>)
<b>DOES</b> A <b>CREDITOR COLLECT FROM ATTACHED PRODUCE</b>? (Bava Metzia 14)
<b><b><b>DO</b></b> <b><b>WE</b></b> SWEAR ABOUT ATTACHED PEROS</b>? (Sanhedrin 15)
<p>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b>LIABILITY OF A SHOMER ON SLAVES, DOCUMENTS AND LAND </b>(


lvr: 46
dfh: b
trd:
<p>
<br>          <b><font color='darkgreen'>9.   Objection:</font></b> The oath of partial admission always
               comes through another's claim, and his own
               admission! (Why did R. Eliezer says <i>sometimes</i>, and
               why do Chachamim argue?)
<br>          <b><font color='darkgreen'>10.  Answer #2 (to Question 3):</font></b> Rather, R. Eliezer and
               Chachamim argue about Rabah's law (Rashi - really, a
               child claims; Tosfos - an adult claims);
<br>               <b><font color='darkgreen'>i.   Question (Rabah):</font></b> Why did the Torah say that
                    one who partially admits to a claim must swear?
<br>               <b><font color='darkgreen'>ii.  Answer (Rabah):</font></b> There is a Chazakah that one
                    (Shimon) lacks the audacity to deny the claim
                    of his creditor (Reuven) (Rashi - because
                    Reuven helped him; Tosfos - because Reuven
                    would know that Shimon is lying);
<br>               <b><font color='darkgreen'>iii. </font></b>Really, Shimon would like to admit to the
                    entire claim. He admits to only part to stall
                    until he can pay it all;
<br>               <b><font color='darkgreen'>iv. </font></b> The Torah imposes this oath on him in order
                    that he will admit to the entire debt.
<br>          <b><font color='darkgreen'>11.  R. Eliezer holds that just like one lacks the
               audacity to deny the claim of Reuven (his creditor),
               he cannot deny the claim of Reuven's son. Therefore,
               Shimon is not like a Meshiv Aveidah;
<br>          <b><font color='darkgreen'>12.  Chachamim say, he cannot deny Reuven's claim, but he
               could deny Reuven's son's claim (Rashi - the son did
               not help Shimon; Tosfos - the son does not know
               whether the debt was paid);
             </font></b></font></b>  i.   Since he <i>chose</i> to admit, he is like a Meshiv
                    Aveidah, and he is exempt.
<br>     <b><font color='darkgreen'>(g)  Question:</font></b> The Reisha shows that the Mishnah is not R.
          Eliezer ben Yakov!
<br>          <b><font color='darkgreen'>1.   (Reisha):</font></b> If Reuven claimed 'you owed my father a
               Maneh' (and I inherited it), and Shimon admitted
               that he owed 50, he (pays 50 and) need not swear,
               for he is like a Meshiv Aveidah.
<br>     <b><font color='darkgreen'>(h)  Answer:</font></b> There, Reuven's claim was uncertain (he does not
          know whether or not Shimon paid), so Shimon is exempt.
<br>     <b><font color='darkgreen'>(i)  Answer #2 (to Question (e) - Shmuel):</font></b> We swear to
          children and Hekdesh to collect from their property.
<br>     <b><font color='darkgreen'>(j)  Question:</font></b> Another Mishnah already teaches this!
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> One who collects from orphans' property
               must swear.
<br>     <b><font color='darkgreen'>(k)  Answer:</font></b> The repetition teaches Abaye Kashisha's law.
<br>          <b><font color='darkgreen'>1.   (Abaye Kashisha - Beraisa):</font></b> The laws of orphans,
               i.e. one who collects from orphans' property must
               swear, and we collect only low quality land from
               orphans, apply to adult orphans, and all the more so
               to minors.
<br>     <b><font color='darkgreen'>(l)  Question:</font></b> Another Mishnah already teaches the law of
          Hekdesh!
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> One who collects from Meshubadim
               (property that the debtor sold or gave to someone
               else) must swear.
<br>          <b><font color='darkgreen'>2.   Why should we distinguish whether the property
               passed to a person or to Hekdesh?!
 </font></b>    (m)  Answer: One might have thought that we only swear when a
          person received it, lest the borrower is scheming with
          the creditor to improperly take the property from the
          buyer (e.g. the loan was already paid), but we are not
          concerned lest one scheme to cheat Hekdesh. The Mishnah
          teaches that we are concerned even regarding Hekdesh.
<br>     <b><font color='darkgreen'>(n)  Question:</font></b> Rav Huna taught that if a Shechiv Mera (one who
          fears lest he die from his illness) made all his property
          Hekdesh, and said that a Maneh of (what we assumed was)
          his property belongs to Ploni, he is believed. There is a
          Chazakah that people do not scheme to cheat Hekdesh!
<br>     <b><font color='darkgreen'>(o)  Answer:</font></b> That applies only to a Shechiv Mera. He would not
          lie, for he does not stand to benefit from it;
<br>          <b><font color='darkgreen'>1.   We are concerned lest a healthy person scheme with
               the one who will take the property from Hekdesh (and
               they will share it).
<br><b><font color='darkgreen'></font></b>
<br><b><font color='blue'>5) THINGS WE DO NOT SWEAR ABOUT</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> We do not swear about slaves, documents, land
          and Hekdesh;
<br>     <b><font color='darkgreen'>(b)</font></b>  The following laws apply to these. A thief does not pay
          Kefel (double) for them, nor four or five (if he later
          slaughtered or sold a stolen (Hekdesh) animal), a Shomer
          Chinam need not swear about them (even through Gilgul), a
          Shomer Sachar need not pay for them (in fact, all
          Shomerim are exempt from swearing and paying for them);
<br>     <b><font color='darkgreen'>(c)</font></b>  R. Shimon says, one swears about Kodshim that have
          Achrayus (a Neder, i.e. a vow to bring a Korban. If the
          animal is disqualified or lost, he must bring another).
          One does not swear about Kodshim without Achrayus (a
          Nedavah, an animal that he made a Korban. If the animal
          is disqualified or lost, he need not bring another.)
<br>     <b><font color='darkgreen'>(d)</font></b>  R. Meir says, some things are like land, but have the law
          of Metaltelim:
<br>          <b><font color='darkgreen'>1.   If Reuven claimed 'I entrusted you with ten vines
               laden with grapes', and Shimon said 'you entrusted
               me with only five', Shimon must swear;
<br>          <b><font color='darkgreen'>2.   Chachamim disagree. Anything connected to land is
               like land. He need not swear.
 </font></b></font></b>    (e)  One must swear only about something with a measure,
          weight or number:
<br>          <b><font color='darkgreen'>1.   If Reuven claimed 'I entrusted you with a full house
               or wallet (e.g. of grain or coins) and Shimon said
               'I don't know how much it was. Take what is there',
               he is exempt.
<br>          <b><font color='darkgreen'>2.   If Reuven claimed 'it was full up to the ledge', and
               Shimon said 'it was up to the window', he is liable.
 </font></b></font></b>    (f)  (Gemara) Question: What is the source that Kefel does not
          apply to these things?
<br>     <b><font color='darkgreen'>(g)  Answer (Beraisa):</font></b> 'Al Kol Devar Pesha' is a Klal. 'Al
          Shor Al Chamor Al Seh Al Salmah' are Pratim. 'Al Kol
          Aveidah' is another Klal;
<br>          <b><font color='darkgreen'>1.   From the Klal u'Frat u'Chlal we learn everything
               similar to the Pratim, i.e. something that can be
               moved and has intrinsic value;
<br>          <b><font color='darkgreen'>2.   We exclude land, for it cannot be moved. We exclude
               slaves, for the Torah equates them to land. We
               exclude documents, for they lack intrinsic value.
               'Re'ehu' (his fellowman) excludes Hekdesh.
 </font></b></font></b>    (h)  (Mishnah): Nor four or five...
<br>     <b><font color='darkgreen'>(i)  Question:</font></b> What is the reason?
<br>     <b><font color='darkgreen'>(j)  Answer:</font></b> (The payment of four or five is Kefel, and an
          added two or three. Since the extra payment of Kefel does
          not apply, we could only obligate two or three above
          principal.) The Torah never obligated payment of three
          (for a Seh) or four (for an ox). 
<br>

sjt:
</p><p>
<font><b>2) AN ARROGANT DENIAL</b></font>
<br>QUESTION: Rabah explains the reason behind the Torah's requirement to make a Shevu'as Modeh b'Miktzas. The Torah requires that when a person admits that he owes part of the money claimed from him, he must make a Shevu'ah that he does not owe the rest of the money. Rabah explains that this is because of a Chazakah that a person does not have the brazenness to openly lie and deny that he owes money in the presence of the person who did him a favor and lent him money. He wants to admit that he owes the full amount, but he does not have the money to pay, and he therefore decides that he will admit that he owes part of the money and will pay the rest of the money when he gets it. The Torah requires that he make an oath in order to deter him from lying in such a way.
</p><p>
The Gemara here seems to contradict the Gemara earlier (40b), in which Rav Nachman says that when a person denies that he owes money, he must make a Shevu'as Heses, which is a Shevu'ah mid'Rabanan. Rav Nachman asserts that the reason for such an oath is that there is a Chazakah that a person does not claim money from another person unless his claim has some basis. The Gemara asks that, on the contrary, there is a Chazakah that a person does not have the brazenness to deny the loan in front of the lender. If the lender really lent him money, the borrower would not brazenly deny it. The Gemara therefore explains that because the borrower does not have the money with which to pay, he denies owing <i>anything</i>.
</p><p>
The Gemara there clearly says that a borrower indeed will deny that he owes anything in order to delay the collection of the debt. This clearly contradicts the Gemara here which says that a borrower would not brazenly say that he owes nothing.
</p><p>
ANSWERS:
<br>(a) <b>TOSFOS</b> (40b, DH Aderabah) answers that there is a difference between one who falsely denies the entire claim and one who denies only part of the claim and admits to part of it. When one denies everything, he has no 'Migu' to support his claim; there is no logical basis to believe his present claim, because there is no better claim that he could have said. When one admits that he owes some of the money being claimed from him, he has believability due to a 'Migu'; if he wanted to lie, he would say the better claim that he owes nothing at all. Since there is a logical basis to believe his claim that he owes part of the money, it is understandable why the Torah suspects that he would falsely make such a claim, and thus it mandates that he make a Shevu'ah. In contrast, one who denies everything has no 'Migu' and must explain why the claimant demands money from him. The Gemara therefore asks that since this is a brazen and unreasonable claim, it must be that he is telling the truth, for otherwise he would not make such a claim. Rav Nachman answers that there is some logic to why he would make such a claim falsely (he wants to delay paying until he has money), and thus there is reason to require that he make a Shevu'as Heses.
</p><p>
(b) The <b>RITVA</b> explains that the Gemara earlier (40b) does not mean that a person will deny everything when he does not have the money to pay at present. The Torah understands that a person normally would deny owing some of the money in order to gain more time to pay back, but he would not be so brazen as to deny owing all of it. The Rabanan, however, decreed (for various reasons, such as people becoming more dishonest) that even when a person denies owing everything, he must make a Shevu'ah. The Gemara therefore gives a similar reason to the one given for Shevu'as Modeh b'Miktzas, since the decrees of the Rabanan are often based on Torah precedents. However, this is not a Torah law, but rather a requirement of the Rabanan based on the circumstances of their generation. (D. Bloom) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) WHEN A SHOMER IS EXEMPT</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> A Shomer Chinam need not swear about them
          (even through Gilgul)...
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> What is the source of this?
<br>     <b><font color='darkgreen'>(c)  Answer (Beraisa):</font></b> ''Ki Yiten Ish El Re'ehu' is a Klal.
          'Kesef Oh Chelim' are Pratim. 'Lishmor' is another Klal;
<br>          <b><font color='darkgreen'>1.   From the Klal u'Frat u'Chlal we learn everything
               similar to the Pratim, i.e. something that can be
               moved and has intrinsic value;
<br>          <b><font color='darkgreen'>2.   We exclude land, for it cannot be moved. We exclude
               slaves, for the Torah equates them to land. We
               exclude documents, for they lack intrinsic value.
               Re'ehu' excludes Hekdesh.
 </font></b></font></b>    (d)  (Mishnah): A Shomer Sachar need not pay for them...
<br>     <b><font color='darkgreen'>(e)  Question:</font></b> What is the source of this?
<br>     <b><font color='darkgreen'>(f)  Answer (Beraisa):</font></b> ''Ki Yiten Ish El Re'ehu' is a Klal;
          'Chamor Oh Shor Oh Seh' are Pratim. 'V'Chol Behemah' is
          another Klal;
<br>     <b><font color='darkgreen'>(g)</font></b>  From the Klal u'Frat u'Chlal we learn everything similar
          to the specifics, like above.
<br>     <b><font color='darkgreen'>(h)  (Mishnah - R. Meir):</font></b> Some things are like land, but have
          the law of Metaltelim...
<br>     <b><font color='darkgreen'>(i)  Question:</font></b> This implies that R. Meir holds that things
          connected to land are not like land;
<br>          <b><font color='darkgreen'>1.   Rather than argue about laden vines, he should argue
               with Chachamim about barren trees! (It is a bigger
               Chidush to teach that they are not like land, for no
               part of them is destined to be detached.)
 </font></b>    (j)  Answer (R. Yosi b'Rebbi Chanina): They argue about grapes
          ready to be harvested:
<br>          <b><font color='darkgreen'>1.   R. Meir holds that we consider that they are already
               harvested; Chachamim disagree.
<br><b><font color='darkgreen'></font></b>
<br><b><font color='blue'>2) THE CLAIMS MUST BE QUANTIFIED</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> One must swear only about something with a
          measure, weight or number...
<br>     <b><font color='darkgreen'>(b)  (Abaye):</font></b> Shimon is exempt only if Reuven claimed <i>a</i> full
          house. If he claimed <i>this</i> full house, this quantifies
          his claim (and Shimon must swear).
<br>     <b><font color='darkgreen'>(c)  Objection (Rava):</font></b> If so, why does the Seifa give the case
          when Reuven claimed up to the ledge and Shimon admitted
          up to the window?
<br>          <b><font color='darkgreen'>1.   Rather, it should teach a more similar case, i.e. he
               claimed <i>this</i> full house, and Shimon must swear!
 </font></b>    (d)  (Rava): Rather, one must swear only if the claim and
          denial were both about something with a measure, weight
          or number.
<br>     <b><font color='darkgreen'>(e)  Support (Beraisa):</font></b> If Reuven claimed 'you owe me 30 Sa'im
          of wheat', and Shimon denied it all, he is exempt;
<br>          <b><font color='darkgreen'>1.   If Reuven claimed a large lamp or belt, and Shimon
               admitted that he owes a small one, he is exempt;
<br>          <b><font color='darkgreen'>2.   However, if Reuven claimed 30 Sa'im of wheat, and
               Shimon admitted to owing 15, he is liable. If Reuven
               claimed a lamp weighing ten Literin, and Shimon
               admitted that he owes a lamp of five Literin, he is
               liable.
<br>          <b><font color='darkgreen'>3.   The general rule is, one must swear only if the
               claim and denial were both about something with a
               measure, weight or number.
<br>          <b><font color='darkgreen'>4.   Question:</font></b> What does the general rule come to
               include?
<br>          <b><font color='darkgreen'>5.   Answer:</font></b> Even if he claimed 'this full house', Shimon
               is exempt.
 </font></b></font></b></font></b>    (f)  Question: When Reuven claims a large lamp and Shimon
          admits to a small one, he is exempt. Presumably, this is
          because the admission is unlike the claim;
<br>          <b><font color='darkgreen'>1.   The same should apply when Reuven claims a lamp
               weighing ten Literin and Shimon admitted that he
               owes one of five Literin!
 </font></b>    (g)  Answer #1 (Rav Shmuel bar Rav Yitzchak): The lamp is
          composed of rings. A five Liter lamp is part of a ten
          Liter lamp.
<br>     <b><font color='darkgreen'>(h)  Objection:</font></b> If so, the Beraisa could have taught a case of
          a belt in which one is liable, i.e. a belt of loops sewn
          together (a short belt is part of a long belt)!
<br>          <b><font color='darkgreen'>1.   Rather, we must say that the Beraisa does not
               discuss belts of loops. Similarly, it does not
               discuss lamps of rings!
 </font></b>    (i)  Answer #2 (R. Aba bar Mamal): A five Liter lamp is part
          of a ten Liter lamp, because the latter can be converted
          to the former by scraping off some of the metal.
<br>
<b><font color='blue'>3) A MASHKON (SECURITY) THAT WAS LOST</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If Reuven lent Shimon four Dinarim and took a
          security, and the security was lost (Reuven is liable for 
          it);
<br>          <b><font color='darkgreen'>1.   If Reuven claims that the security was worth two
               (Dinarim, therefore Shimon still owes two) and
               Shimon claims that it was worth four, he is exempt
               (Shimon denies the entire claim);
<br>          <b><font color='darkgreen'>2.   If Reuven claims that the security was worth two,
               and Shimon claims that it was worth three, he must
               swear (Shimon admits to a Dinar and denies a Dinar);
<br>          <b><font color='darkgreen'>3.   If Shimon claims that the security was worth eight
               (so Reuven owes him four), and Reuven claims that it
               was worth four, he is exempt (Reuven denies the
               entire claim);
<br>          <b><font color='darkgreen'>4.   If Shimon claims that the security was worth eight,
               and Reuven claims that it was worth five, he must
               swear.
<br>          <b><font color='darkgreen'>5.   The one who was watching the security (i.e. Reuven)
               swears;
             </font></b></font></b></font></b></font></b></font></b>  i.   If Shimon would swear, perhaps Reuven would
                    show the security (Rashi - and prove that
                    Shimon swore falsely about its value,
                    disqualifying Shimon from swearing again;
                    Tosfos - it would turn out that Shimon's oath
                    was not needed, since we later saw the security
                    and we can evaluate it ourselves).
<br>
<br>

sjt:
<font><b>1) WHY IS THE COLLATERAL CALLED A DEPOSIT?</b></font>
<br>QUESTION: The Mishnah discusses a case in which a lender takes a Mashkon (collateral) from the borrower for a loan, and then he loses the object. The lender and borrower disagree about how much the lost Mashkon was worth. The Mishnah states that an oath must be taken to verify the true value of the Mashkon. The Mishnah concludes, 'Who takes the oath? The person who currently has the Pikadon (deposit).' The Mishnah continues and says that the reason why the lender must make this Shevu'ah (even though a Shevu'ah usually is made by the one who seeks to exempt himself from paying) is the concern that if the borrower were to make the Shevu'ah, the lender might afterwards produce the Pikadon.
</p><p>
Rav Ashi (43b) explains that the Mishnah maintains that <i>both</i> the lender and the borrower must make a Shevu'ah. When it asks, 'Who takes the oath,' it means to ask who swears <i>first</i>. The lender swears that he no longer has the collateral, and the borrower swears how much the lost Mashkon was worth.
</p><p>
Why does the end of the Mishnah use the term 'Pikadon' -- 'deposit,' when the rest of the Mishnah calls it a 'Mashkon' -- 'collateral'?
</p><p>
ANSWERS:
<br>(a) The <b>TOSFOS YOM TOV</b> (DH Mi) answers that the reason why the Mishnah concludes with the term 'Pikadon' is to teach that the same law applies to a Pikadon. If a person who was entrusted with a Pikadon claims that he lost it and is exempt from liability (he was a Shomer Chinam who is exempt from liability in cases of loss or theft), he must swear that the Pikadon indeed is no longer in his possession.
</p><p>
The Tosfos Yom Tov's answer that the Shomer of a Pikadon must swear that the object is no longer in his possession is consistent with Rav Ashi's statement that the lender must swear that the Mashkon is not in his possession (and not how much it was worth).
</p><p>
(However, the Tosfos Yom Tov questions his own explanation. In Bava Metzia (34b), Rav Huna says that a Shomer who claims that he lost the Pikadon must swear that it is not his possession, even if he pays the value of the Pikadon, because of the suspicion that he may have taken a liking to the object and wants to buy it. If the Mishnah here indeed means that a Shomer always must make such an Shevu'ah on a Pikadon that he lost, then why does Rav Huna present this as his own ruling? It is a law stated explicitly in the Mishnah! The Tosfos Yom Tov leaves this question unanswered.)
</p><p>
(b) <b>REBBI AKIVA EIGER</b> quotes the <b>LIKUTEI MAHARIL</b> who answers that the Mishnah is teaching that the word 'Mashkon' is synonymous with the word 'Pikadon.' Accordingly, one who swore never to accept a Pikadon is prohibited from taking a Mashkon for a loan as well. Indeed, this is the ruling of the <b>REMA</b> (YD 217:48).
</p><p>
(c) Rebbi Akiva Eiger adds that it appears to him that there is a different reason for why the Mishnah uses the term 'Pikadon.' The Mishnah's intention is to teach that the Mashkon which the borrower gives to the lender is actually no more than a Pikadon. If the Mishnah would refer to the collateral only with the word 'Mashkon,' one would assume that when a borrower gives a Mashkon to a lender, he implies that the repayment of the loan is contingent upon the return of his collateral. By referring to the collateral with the word 'Pikadon,' the Mishnah teaches that although the lender owes to the borrower the value of the collateral object, the repayment of the loan itself is not dependent on the return of the Mashkon/Pikadon; the borrower must repay the loan regardless of whether he receives his object in return. The <b>RAN</b> (24b of the pages of the Rif) indeed writes that if the Mashkon is not worth the full value of the loan, the borrower still must return the remainder of the loan even if it is likely that the Mashkon is still in the possession of the lender.
</p><p>
This opinion is in contrast to the view of Shmuel (43b; see following Insight), who ruled that if the lender does not return the collateral, the borrower does not have to repay the loan. In a case in which a person borrowed a thousand Zuz, gave the handle of his scythe as a Mashkon, and then the lender lost the handle, Shmuel ruled that the lender may not claim his thousand Zuz. The Ran writes that the Halachah does not follow the view of Shmuel, and thus in practice there is no connection between the return of the Mashkon and the repayment of the loan. (D. Bloom, Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>14)  IS GIVING A SECURITY CONSIDERED HEILACH? </font></b>
<br><b><font color='darkgreen'>     </font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> If Reuven lent to Shimon four Dinarim and
               took a security and lost it (Reuven is liable for
               it), if he claims that it was worth two (Dinarim, so
               Shimon still owes two) and Shimon claims that it was
               worth three, he must swear. (Shimon admits to a
               Dinar and denies a Dinar.)
<br>          <b><font color='darkgreen'>2.   Bava Metzia 4b (Beraisa - R. Shimon ben Elazar):</font></b> A
               loan document says 'Dinarim', without specifying an
               amount. The lender says that he lent five and the
               borrower admits to three. Since he admitted to part
               of the claim, he swears;
<br>          <b><font color='darkgreen'>3.  </font></b> R. Akiva says, he is like a Meshiv Aveidah (one who
               returns a lost object, i.e. he could have easily
               said two), and he is exempt.
<br>          <b><font color='darkgreen'>4.   Version #1 - Question:</font></b> R. Shimon ben Elazar
               obligates an oath when he admits to three. Had he
               admitted to only two, he would be exempt. This is
               like Heilach, therefore he is exempt!
<br>          <b><font color='darkgreen'>5.   Answer:</font></b> Really, R. Shimon exempts him when he admits
               to two, even though Heilach is liable. When he
               admits to two, the document supports him, therefore
               he is exempt. Alternatively, when he admits to two,
               there is a lien on his land to pay the entire
               admission. We do not swear due to denial or
               admission of debts that have a lien on land.
<br>          <b><font color='darkgreen'>6.   Version #2 - Question:</font></b> R. Akiva exempts him only
               because he is like a Meshiv Aveidah. Had he only
               admitted to two, he would be liable, even though
               (there is a lien on land to pay two, and) it is like
               Heilach!
<br>          <b><font color='darkgreen'>7.   Answer:</font></b> Even if he admitted to two, R. Akiva
               exempts. The Beraisa discusses three to teach the
               argument about three. R. Shimon obligates because he
               partially admits, and R. Akiva exempts like a Meshiv
               Aveidah.
<br>          <b><font color='darkgreen'>8.   Support:</font></b> If R. Akiva obligated an oath regarding
               two, why would he exempt him when he says three? He
               will scheme to say three to avoid swearing!
<br>          <b><font color='darkgreen'>9.   Question:</font></b> Since R. Akiva exempts regarding two, even
               though he is not a Meshiv Aveidah, the exemption
               must be due to Heilach!
<br>          <b><font color='darkgreen'>10.  Answer:</font></b> When he admits to two he is exempt because
               the document supports him. Alternatively, when he
               admits to two there is a lien on his land to pay
               this, and we do not swear due to such admissions.
<br>          <b><font color='darkgreen'>11.  Kidushin 8b (Rav Nachman):</font></b> If one said 'be
               Mekudeshes to me for a Maneh', and he gave her a
               security, she is not Mekudeshes. Since the Maneh is
               not here, the security takes no effect.
<br>          <b><font color='darkgreen'>12.  Question (Rava - Beraisa):</font></b> If a man was Mekadesh a
               woman with a security, she is Mekudeshes.
<br>          <b><font color='darkgreen'>13.  Answer:</font></b> That refers to a security for the loan of a
               third party;
<br>               <b><font color='darkgreen'>i.   (R. Yitzchak):</font></b> 'It will be Tzedakah (to return
                    the security in its proper time)' shows that a
                    lender acquires a security. If he did not
                    acquire it, it would not be called Tzedakah to
                    return it!
<br>          <b><font color='darkgreen'>14. </font></b> Rav Huna's children agreed to buy a slave for
               Perutos (small copper coins). They did not have
               Perutos with them. They left a piece of precious
               metal for a security. The value of the slave
               increased (and the seller wanted to retract).
<br>          <b><font color='darkgreen'>15.  R. Ami:</font></b> The coins were never given, so the security
               has no effect.
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rambam (Hilchos To'en 3:15):</font></b> If Reuven claimed 100
               Zuz and a Kli from Shimon, and Shimon said 'I owe
               you only a Kli. Here it is', and Reuven says 'this
               is not my Kli', and Shimon admitted that he switched
               his Kli for another, he must swear mid'Oraisa.
<br>               <b><font color='darkgreen'>i.   Kesef Mishneh:</font></b> The Tur said that <i>perhaps</i> the
                    Rambam holds that a security is not considered
                    Heilach. The Rambam says so explicitly (4:6)!
<br>          <b><font color='darkgreen'>2.   Rambam (4:6):</font></b> If Reuven claimed a loan of 100 Zuz
               with a security, and Shimon, and Shimon said 'I owe
               you only 50', if the security is worth 50 or  less,
               he must pay swear and pays the 50 he admits. If the
               security is worth 80, Reuven swears that he is owed
               no less than 80 and receives 80 from the security.
               Shimon swears mid'Oraisa about the 20 he denied.
<br>               <b><font color='darkgreen'>i.   Rebuttal (Ra'avad):</font></b> If it is worth 50, he does
                    not swear, for it is Heilach. Also when it is
                    worth 80, it is Heilach.
<br>               <b><font color='darkgreen'>ii.  Magid Mishneh:</font></b> The Rambam's law follows from
                    Shevuos 43a. The Ra'avad holds that admission
                    of the amount of the security is Heilach. The
                    Rebbeyim of the Rambam disagree. R. Yosef
                    ha'Levi explicitly said that in the name of the
                    Rif that a security is not Heilach.
<br>          <b><font color='darkgreen'>3.   Ran (17b DH ul'Inyan):</font></b> Ba'al ha'Itur says that if
               one gave a security, this is Heilach. R. Yosef
               ha'Levi proves unlike this from Kidushin 8a. If one
               said that he is Mekadesh with money, and gave a
               security for it, since there is no money, the
               security is invalid (she is not Mekudeshes). Bnei R.
               Chiya bought a slave for coins, and gave a security.
               R. Ami ruled that since there is no money, the
               security is invalid (and so is the sale). Likewise,
               the security here is invalid, and it is not Heilach.
               Others reject this proof. There, the security is
               invalid because he never owed. Here, he owed, so the
               security takes effect, and the lender acquires it! I
               say that the proof was valid. A lender acquires a
               security, even at the time of the loan, through the
               money he lent. R. Yitzchak expounded that a lender
               acquires a security given not at the time of the
               loan because it is for collection; this is a Gezeras
               ha'Kasuv. If a security is given for a purchase,
               with what does he acquire it? R. Yosef ha'Levi
               proved from Kidushin that a security is not acquired
               through Meshichah. Likewise, it is not considered
               Heilach.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (CM 87:1):</font></b> Even if he gave a security
               for what he admits to, it is not Heilach.
<br>               <b><font color='darkgreen'>i.   Beis Yosef (DH v'Chosav ha'Ran):</font></b> The Rivash
                    (396) says that only proper payment is Heilach.
                    A security requires assessment of Beis Din and
                    must be collected, and sold. If he authorized
                    the lender to sell the security and be paid
                    from it without Beis Din or anyone else,
                    perhaps this is Heilach.
<br>               <b><font color='darkgreen'>ii.  SMA (9):</font></b> Since the lender will not keep it, for
                    later the borrower will redeem it, this is no
                    better than admission.This is why the Rivash
                    says that it is Heilach if he permits the
                    lender to sell it.
<br>               <b><font color='darkgreen'>iii. Bedek ha'Bayis:</font></b> The Ritva (Bava Metzi'a 4a DH
                    Ela) says that if the value of the security is
                    known, and he gives it immediately for payment,
                    and we know that the borrower has no money, it
                    is Heilach.
<br>               <b><font color='darkgreen'>iv.  Ketzos ha'Choshen (3):</font></b> The Ritva (ibid) says
                    that even if a security is given for absolute
                    payment it is not Heilach, for one can pay the
                    lender Bal Korcho (against his will) only with
                    money. Even if the borrower has no money and
                    can pay the lender Bal Korcho with Metaltelim,
                    since it needs to be evaluated, it is not
                    Heilach. It seems that even if it is given for
                    absolute payment, we know that the borrower has
                    no money and the security's value is known, it
                    is not Heilach. The Ritva meant 'even if the
                    borrower has no money, and he can pay with
                    Metaltelim Bal Korcho (since it needs to be
                    evaluated, it is not Heilach).' We hold that
                    even in this case, the lender can say 'I will
                    wait until you get money.' The Shach connotes
                    that it is Heilach; I disagree.
<br>               <b><font color='darkgreen'>v.   Note:</font></b> The Ritva says 'a security is Heilach
                    only if its value is known, it is given for
                    absolute payment, and it is known that the
                    borrower has no money.' He holds that a
                    borrower without money can force the lender to
                    accept Metaltelim in place of money. The Ketzos
                    says that the Halachah is unlike the Ritva
                    regarding paying Bal Korcho, therefore, it is
                    not Heilach.
<br>          <b><font color='darkgreen'>2.   Rema:</font></b> Some say that if he gave a security it is
               Heilach, for even a document is Heilach.
<br>               <b><font color='darkgreen'>i.   SMA (10):</font></b> It is clear that a document is
                    Heilach, for in Bava Metzi'a (4b) all hold that
                    admission to two is not Modeh b'Miktzas, since
                    the document gives him a lien against the
                    property for two. We learn from here that if
                    Reuven claimed 100, and Shimon immediately gave
                    to him a document obligating himself to pay 50,
                    this is Heilach. The Tur and Rema teach that a
                    document is Heilach even in this case. Ir
                    Shushan says that a document is not Heilach,
                    for it is difficult to collect. This is wrong.
                    The first opinion holds that giving a security
                    or document now (in Beis Din) is different, for
                    the lender did not rely on it from the
                    beginning.
<br>               <b><font color='darkgreen'>ii.  Shach (6):</font></b> A document is Heilach when it has a
                    lien on land. Since we learn about a security
                    from a document, here we must discuss a
                    document without a lien, e.g. the borrower has
                    no land, or he cannot seize from Meshubadim
                    (88:28).
<br>               <b><font color='darkgreen'>iii. Shach (5):</font></b> The Ritva (Bava Metzi'a 4b DH
                    Sela'in) says that a document is Heilach
                    because one cannot deny it, and it gives the
                    lender a lien. When one gives a security,
                    granted, the lender will not lose (he is
                    guaranteed to collect its value), but the
                    borrower could have denied the claim, therefore
                    it is not Heilach. In such a case, it is
                    Heilach only if he gives money. The Ra'avad
                    argues with the Rambam only because the Rambam
                    holds that it is not Heilach even if the
                    security was given at the time of the loan.
                    Also the Ran, Ritva and Nimukei Yosef hold that
                    then it is Heilach. However, I wrote (72:118)
                    the Halachah follows the Rambam. I said (88:51)
                    that if the borrower gave a Kesav Yad (a
                    document in his own handwriting) with Ne'emanos
                    (the lender is trusted to say that he was not
                    paid) it is Heilach. That is because the
                    borrower cannot deny the money itself.
                    Therefore, he does not admit at all to the
                    claim (i.e. the rest). One who gave a security
                    can deny the loan. The lender can collect from
                    the security, but it is not Heilach. Also, if
                    the security will be lost b'Ones, if the
                    borrower denies owing, the lender will lose.
                    Also, he must swear (holding a Chefetz) to
                    collect from the security. If he took a
                    security not at the time of the loan, since the
                    lender acquires the security, all agree that it
                    is Heilach.
<br>
<font color='blue'><i>See also:</i>
<br><b>HEILACH DOES NOT EXEMPT FROM SWEARING </b>(</font><font color='blue'>


