BAVA KAMA 107 (8 Adar I) - dedicated in honor of the Yahrzeit of Sarah bas Baruch Hersh Rosenbaum, who passed away on 8 Adar 5776, by her husband Zev Dov Rosenbaum.

QUESTION: Rabah asks, "Why does the Torah say that one who admits to part of a claim must swear? It is because of a Chazakah that a person is not so brazen in the face of his creditor. He really wanted to lie and deny everything, but he would not be so brazen to do so. Instead, he reasons that if he admits to owing everything, the claimant will demand everything now, but if he evades part of the claim now, he will have time to get the rest of the money together and pay him later."
The RASHBA explains that Rabah's question was that if one who denies everything is exempt from an oath according to Torah law, certainly one who partially admits should be exempt from an oath.
This reasoning, however, is problematic. Once the Torah obligates one who partially admits to swear about the rest of the claim, we should reason that certainly one who denies owing anything should be obligated to swear that he does not owe anything! (RASHBA)
(a) The RASHBA answers that since the Torah does not discuss the full denial of a claim but teaches only that a partial denial obligates one to swear, it must be that a full denial exempts one from swearing. If one would have been obligated to swear when he denies owing anything, the Torah would have taught that a full denial obligates one to swear, and we would know that certainly a partial obligates one to swear. We would have reasoned that the defendant is not telling the truth when he admits to part of the claim, but rather he is lying in a cunning way. If one knows that he does not have to swear when he admits to part of a claim, he will always make such an admission when he owes money in order to avoid owing the rest of the money without having to swear. Therefore, had the Torah said that a full denial obligates one to swear, we would have said that a partial denial also obligates one to swear. Since the Torah states instead that a partial denial obligates one to swear, it is clear that there is no obligation to swear for a total denial.
However, the Rashba points out that this explanation is difficult. A partial denial always presents the possibility that the defendant is telling the truth (based on the reasoning that if he wanted to lie, he would have denied owing everything). Since the Torah states that one who did not deny everything still must swear, there is no reason to assume that one who denies everything should not have to swear.
(b) The Rashba quotes others who explain that the source that one who denies a claim in its entirety is exempt from swearing is the rule that a single witness can obligate a defendant to swear (Shevu'as Ed Echad). This rule implies that without a single witness, one who denies a claim does not have to swear. The case of a single witness obviously does not involve a defendant who partially denies a claim, because in such a case even without the witness he is obligated to swear because of his partial denial. The Rashba states that it is possible that the law of a single witness was needed only in cases where there were monetary technicalities that would not obligate an oath (for example, where the denial is less than the minimal amount required for an oath of partial admission). However, he concludes, it seems incorrect to say that the entire law of Shevu'as Ed Echad only applies in a few exceptional cases of small claims. (Y. Montrose)


QUESTION: The Gemara quotes Rebbi Chiya bar Yosef who says that a Shomer who falsely contends that the object he was asked to watch was stolen is not liable to pay Kefel unless he used the object himself (before he swore that it was stolen; see RASHI DH Ad).
Rebbi Chiya bar Aba says that Rebbi Yochanan disagrees and maintains that even if the Shomer did not misappropriate and use an animal deposited with him for safekeeping, if he swore falsely that it was stolen he must pay Kefel. Rebbi Zeira asks Rebbi Chiya bar Aba to clarify Rebbi Yochanan's position. Does he mean that the obligation of Kefel applies only when the animal was not used? The reasoning for such a position would be that if the animal was used, the Shomer might acquire the animal just as a thief sometimes acquires a stolen object. It is possible that if he subsequently took a false oath, he would not become liable for Kefel since he now owns the animal (see Rashi DH Aval Shalach). On the other hand, perhaps Rebbi Yochanan means that he is liable even for Kefel if he did not use it improperly, and he certainly is obligated if he had used it without permission.
Rebbi Chiya bar Aba answers that he did not hear the answer to this particular question, but he heard a similar Halachah. Rebbi Asi in the name of Rebbi Yochanan discussed the following case. A Shomer claimed that the object he was supposed to watch had been lost and he swore to that effect. Afterwards, he asserted -- and swore -- that the object has actually been stolen. Witnesses eventually came forward and testified that the Shomer himself had stolen it. Rebbi Yochanan says that the Shomer is exempt from paying Kefel.
Rebbi Chiya bar Aba suggests that the reason for this Halachah must be that the Shomer acquired the object with the first false oath that he took. This proves that he acquires the object and therefore no longer has to pay Kefel. Rebbi Zeira rejects this reasoning and argues that the Shomer is exempt because he fulfilled his obligation to the owner with his first oath (that the object was lost).
Rashi (DH Lo) explains that since the Shomer took the oath in the first Beis Din, he no longer has any obligation to the owner. The second oath is not an oath enforced by the judges, and therefore it cannot obligate him to pay Kefel.
However, this appears to contradict an earlier Gemara. Rav Hamnuna (106a) cites a Beraisa which discusses the case of a person who made his friend take an oath that he had not stolen from him. His friend said that he was innocent and swore to this effect. The claimant was not convinced, and he made his friend swear again and again, for a total of five times. It was later revealed that he indeed had stolen the object. The Beraisa rules that the "friend" is liable for each false oath (whether he took the oaths inside or outside of Beis Din). According to the reasoning above, why does the Gemara there not say that he is exempt from liability for the subsequent oaths because he already fulfilled his obligation to the owner with the first oath?
ANSWER: The HAGAHOS HA'BACH here (#2) makes a distinction between the obligation to bring a Korban for a false oath and the obligation to pay Kefel. The Gemara earlier (106a) refers to the obligation to bring a Korban for a false oath. For that obligation it makes no difference whether the Shevu'ah was made inside or outside of Beis Din. The Torah says, "For everything about which he has sworn falsely... he shall bring his Korban Asham to Hash-m" (Vayikra 5:24), which implies that one must bring a Korban for every false Shevu'ah that he makes.
In contrast to the obligation to bring a Korban Shevu'ah, one pays Kefel only after he makes a Shevu'ah which Beis Din obligated him to make (see 63b). Once Beis Din has demanded that he make a Shevu'ah, they cannot obligate him again since he has already exempted himself (through the first Shevu'ah) from any liability to the claimant. (Even if Beis Din mistakenly instructs him to make another Shevu'ah, it does not make a difference with regard to the obligation of Kefel.) (D. Bloom)