[3a - 52 lines; 3b - 31 lines]

1)[line 1]ואיכא למימר כולה למר ואיכא למימר כולה למרIKA L'MEIMAR KULAH L'MAR V'IKA L'MEIMAR KULAH L'MAR- we must conclude that it belongs fully to one or the other

2)[line 3]דליכא דררא דממונאD'LEIKA DERARA D'MAMONA- there is no (a) loss of money [since the cases of our Mishnah are those of an Aveidah, in which the Talis is completely profit, and a business deal, in which each party will be reimbursed the half of his money for which he has not received goods] (RASHI); (b) state of uncertainty as to the owner of the item under dispute even before the claims of the litigants (TOSFOS to 2b DH Heicha)

3)[line 4]דאיכא למימר דתרוייהו היאD'IKA L'MEIMAR D'TARVAIHU HU- (a) [and furthermore,] it is possible to say that it [truthfully] belongs to both of them [since it is possible that they lifted it together] (RASHI); (b) since it is possible that it belongs to both of them [and therefore no dispute is assumed unless they claim otherwise (presumably how TOSFOS to 2b DH Heicha would explain)

4)[line 7]ותוקףV'TOKEF- and seize

5)[line 10]א"כ, מה הפסיד רמאי?IM KEN, MAH HIFSID RAMAI? - if so, what does the liar stand to lose [e.g. in acase in which a trustee does not recall to whom the third sum belongs]? (MANEH SHELISHIS)

(a)In a case in which one of two litigants is clearly lying, the Rabanan and Rebbi Yosi disagree as to whether both of them are penalized. The Rabanan rule that neither one receives the amount under dispute; Rebbi Yosi maintains that both are penalized so as to offer the swindler an incentive to tell the truth.

(b)The case in which they disagree is one in which two people entrust sums of money to a trustee. One deposits 100 Zuz and the other 200. When they return, each claims to be the owner of the larger sum, and the trustee does not recall which is telling the truth. The Rabanan rule that each litigant receives the 100 Zuz that is clearly his, and the third sum of 100 Zuz ("Maneh Shelishis") is placed into escrow to await the arrival of Eliyahu ha'Navi, who will identify the true owner. Rebbi Yosi counters with, "Im Ken, Mah Hifsid Ramai?" - "If so, what does the swindler stand to lose?" Rebbi Yosi therefore maintains that all 300 Zuz are placed into escrow to await the arrival of Eliyahu ha'Navi. Since under such a ruling each litigant loses even that which is definitely his, a potentially dishonest man has an incentive to abandon his false claim (Mishnah, 37a).

6)[line 10]יהא מונח עד שיבא אליהוYEHEI MUNACH AD SHE'YAVO ELIYAHU- should remain [in escrow] until the arrival of Eliyahu ha'Navi

7)[line 13]האHA- this [entire Talis]

8)[line 14]דודאי האי מנה דחד מינייהו הואVADAI HAI MANEH D'CHAD MINAIHU HU- that [third] Maneh (100 Zuz) definitely belongs to one of them [and it is therefore not logical for them to divide it]

9)[line 24]קניסKANIS- he penalized

10)[line 24]כי היכי דלודיKI HEICHI D'LODI- so that he will admit

11)[line 25]פסידאPESEIDA- loss

12a)[line 25]תינח מציאהTEINACH METZIA- this [second answer] works well for [the first case of our Mishnah, in which] a lost item [was found (see 2a), since the swindler owned no part of the Talis to begin with]

b)[line 26]מקח וממכר מאי איכא למימר?MEKACH U'MEMKAR MAI IKA L'MEIMAR?- what is there to say [according to this second answer to explain why Rebbi Yosi would agree to] the [second] case of [our Mishnah, in which each of the two litigants would indeed lose the money that they gave to] purchase [the Talis were it placed in escrow]?

13)[line 26]מחוורתא כדשנין מעיקראMECHAVARTA KED'SHENIN ME'IKARA- it is clear [that the correct answer is] as we answered originally

14)[line 28]חנוני על פנקסוCHENVANI AL PINKASO- see Background to 2:33

15)[line 29]נפקיהNAFKEI- let us remove

16)[line 32]אנא שליחותא דידך קא עבדינאANA SHELICHUSA DIDACH KA AVDINA- I carried out your directive [and gave the goods to your worker]

17a)[line 33]מאי אית לי גבי שכיר?MAI IS LI GABEI SACHIR?- what do I have to do with the hired worker?

b)[line 33]אע"ג דקא משתבע לי, לא מהימן לי בשבועהAF AL GAV D'KA MISHTABA LI, LO MEHEIMAN LI B'SHEVU'A- even if he were to swear to me [that he received the goods], I would not believe his oath

18)[line 34]את האמנתיה, דלא אמרת לי "בסהדי הב ליה"AT HE'EMANTEI, D'LO AMRAT LI, "B'SAHADEI HAV LEI"- you trusted him, as [evidenced by that which] you did not instruct me, "Give him [the goods only] in the presence of witnesses"

19)[line 36]עבדי עבידתא גבךAVADI AVIDTA GABACH- I performed labor for you

20)[line 39]מנה לי בידךMANEH LI B'YADCHA- lit. I have a Maneh (100 Zuz) in your hand; i.e., you owe me a Maneh

21)[line 40]והלהHALAH- the other [litigant] (here, the alleged debtor)

22)[line 42]שלא תהא הודאת פיו גדולה מהעדאת עדים, מק"וSHE'LO TEHEI HODA'AS PIV GEDOLAH ME'HA'ADA'AS EDIM, MI'KAL VA'CHOMER- so that his own admission should not accomplish more than the testimony of witnesses; [this we know] as the result of an a fortiori argument (this entire statement is clarified in the continuation of the Gemara]

23)[line 43]ותנא תונאTANA TUNA- the Tana [of our Mishnah] supports my opinion

24)[line 45](דתפיס) [דתפסי](TAFIS) [TAFSEI]- (he is) [they are each] holding onto [half of the Talis]

25)[line 45]אנן סהדיANAN SAHADEI- lit. we are witnesses; i.e., we may assume

26)[line 46]וקתני "ישבע"UKA'TANI "YISHAVA"- and the Mishnah teaches "he should swear". Each litigant in the case of our Mishnah denies the entire claim against him; namely, that the Talis belongs to the other. There is the equivalent of witnesses that half does indeed belong to the other, since he is holding onto it. The ruling that each must swear that he owns no less than half therefore is akin to an oath taken when witnesses testify that one owes half of a debt that he previously denied.

27)[line 49]דרמיא רחמנא שבועה עליהRAMYA RACHMANA SHEVU'AH ALEI- the Torah placed [a requirement to take] an oath upon him

28)[line 50]מודה מקצת הטענה ישבעMODEH MIKTZAS HA'TA'ANAH YISHAVA - The Oath of One who Partially Acknowledges (MODEH B'MIKTZAS)

(a)If one admits to owing part of what another claims is due him, we must suspect that he truly owes the amount of the entire claim. Since he does not have the funds to pay now - nor the audacity to deny the claim completely - he partially acknowledges the debt in an effort to postpone his repayment. The Torah therefore requires him to take an oath that he does not owe the remainder of the claim (Shemos 22:8; Kesuvos 18b et. al.).

29)[line 51]חזקה אין אדם מעיז פניו בפני בע"חCHAZAKAH EIN ADAM ME'IZ PANAV BI'FNEI BA'AL CHOVO- we may presume that one is not brazen [to deny the truth] in front of his creditor

30)[last line]והאי בכוליה בעי דנכפריהHAI B'CHULEI BA'I D'NICHPEREI- this [debtor] wishes to deny [that he owes] the entire amount

3b----------------------------------------3b

31)[line 1]בכוליה בעי דלודי ליהB'CHULEI BA'I D'LODI LEI- he wishes to admit to him [that he owes] the entire amount [and therefore a) we still accept his oath although we suspect that he is not telling the truth (RASHI); b) we do not simply believe that he is telling the truth that he owes only half the amount (TOSFOS DH b'Chulei)]

32a)[line 2]אשתמוטי הוא דקא מישתמט מיניהISHTAMUTEI HU D'KA MISHTAMIT MINEI- he is attempting to elude [the claim of the creditor]

b)[line 2]עד דהוו לי זוזי ופרענא ליהAD D'HAVU LI ZUZEI U'FARAINA LEI- [I will deny that part of the loan] until I will have money and I will then repay him

33)[line 6]קמ"ל ק"וKA MASHMA LAN KAL VA'CHOMER- the Kal va'Chomer (which the Gemara subsequently explains) [therefore] comes to teach us [that one must swear even when it is the testimony of witnesses that obligates him in half the loan] (see Insights #3)

34)[line 8]אינו דין...?EINO DIN...?- is it not a Kal va'Chomer...? (see Background to 2:42)

35)[line 9]הודאת בעל דין כמאה עדים דמיHODA'AS BA'AL DIN K'ME'AH EDIM DAMI- the admission of a litigant is as [effective] as one hundred witnesses [to obligate him to pay]

36)[line 10]קנסKENAS (MODEH B'KENAS PATUR)

Any payment that constitutes an over-compensation for a monetary loss or is set regardless of the specific circumstances of the damage incurred has the status of a "Kenas" (fine) as opposed to that of Mamon (remuneration). One becomes liable to pay a Kenas only based upon the testimony of valid witnesses; he is never liable to pay a Kenas based upon his own admission. If, after his admission, witnesses subsequently testify to his action in Beis Din, Amora'im disagree as to whether or not he must make these extra payments (see Bava Kama 74b-75a). One is under no moral obligation to pay a Kenas unless it has been placed upon him by Beis Din (RASHBA to Bava Kama 74b; see also MILCHAMOS HASH-M at the end of the third Perek of Kesuvos).

37)[line 13]קרבןKORBAN - a [Chatas] sacrifice (KORBAN CHATAS)

(a)Should one transgress a sin b'Shogeg (unintentionally), for which he would be liable to receive the punishment of Kares (see Background to Gitin 55:42) had he done so b'Mezid (intentionally), he must offer a Korban Chatas. This Korban consists of a female goat or sheep.

(b)One who offers a Korban Chatas first leans on the animal with all his might (Semichah) in the northern part of the Azarah (inner courtyard of the Beis ha'Mikdash). He then recites Viduy, confessing his sin and asking HaSh-m for forgiveness. The animal is then immediately slaughtered. The blood of the Chatas is applied to the Keranos (cubic Amah posts on the corners of the Mizbe'ach) beginning with the southeastern corner of the Mizbe'ach and continuing to the northeastern, northwestern, and southwestern corners. The remaining blood is then spilled onto the Yesod (base) of the Mizbe'ach. The Emurim (parts of a Korban that are burned upon the Mizbe'ach; see below, entry #34) of the Chatas are offered on the Mizbe'ach. Certain parts of the Korban are eaten by Kohanim in the Azarah; they must be consumed before the day following its offering (Vayikra 4:27-31).

38)[line 13]בעדים, שאין מחייבין אותו קרבןEDIM, SHE'EIN MECHAYEVIN OSO KORBAN- witnesses, who do not obligate him [in the offering of] a Korban [Chatas when they claim that he transgressed and he contradicts them[

39)[line 17]חלבCHELEV - Forbidden Fats

(a)Chelev refers to those fats of an animal that are burned upon the Mizbe'ach when it is offered as a Korban. This includes the layer of fat covering the stomachs of the animal, all other fat attached to the stomachs, and the fat lining the kidneys along its flanks (Vayikra 3:4).

(b)One may not consume the Chelev of a kosher Behemah (domesticated animal) (Vayikra 3:17), although one may derive any other benefit from it. "Shuman" is the term for all other fats of a Behemah that are permitted for consumption. Both Chelev and Shuman of a Chayah (non-domesticated animal) may be eaten.

(c)If one consumes a k'Zayis of Chelev intentionally after he was properly warned by valid witnesses, he receives Malkus (thirty-nine lashes). If he did not receive a proper warning, then he is liable to receive Kares (see Background to Sukah 25:25). If he consumed the Chelev unintentionally, then he must offer a Korban Chatas (see above, entry #37). If one is in doubt as to whether the fat that he ate was Chelev or Shuman, then he must offer a Korban Asham Taluy (see Background to Yoma 61:35).

40)[line 19]מיתה חמורהMISAH CHAMURAH- [any one of the four] death penalties [administered by Beis din] (see Background to Bava Kama 23:25a), which are severe

41)[line 21]אשםASHAM - the Asham sacrifice [of one who stole and swore falsely] (KORBAN ASHAM GEZEILOS)

(a)The Torah specifies five cases in which a Korban Asham must be offered. This Korban usually consists of a ram worth a minimum of two Sela'im.

(b)One of these Ashamim is an Asham Gezeilos. One is obligated to offer this Korban if he stole money from his fellow Jew, swore falsely that he holds no such money, and then admits to his guilt. He must first repay what he stole plus an additional fifth (of the ensuing total, which is equal to a quarter of the principle). He then offers a ram in its second year as a Korban Asham in order to receive atonement (Vayikra 5:20-26).

(c)The offering of an Asham is similar to that of a Chatas (see above, entry #37). The main distinction between them is that the blood of an Asham is applied to the lower half of the Mizbe'ach, at the northeastern and southwestern corners only, in such a way that there is Dam on all sides of the Mizbe'ach (Shtayim she'Hen Arba).

42)[line 22]אשם היינו קרבן!ASHAM HAINU KORBAN!- a Korban Asham is equivalent to a Korban Chatas [in that if Rebbi Chiya agrees with Rebbi Meir that witnesses can obligate one in a Korban Chatas, he will also maintain that witnesses can obligate one in a Korban Asham]!

43)[line 23]חומשCHOMESH- a fifth [of the total of what he stole, which is equal to a quarter of the principle] (see above, entry #41)

44)[line 23](כרבי מאיר סבירא ליה)(K'REBBI MEIR SEVIRA LEI)- (agrees with Rebbi Meir). Nowhere do we find a ruling of Rebbi Meir that one can become obligated to pay a Chomesh through the testimony of witnesses. Rather, Rebbi Chiya himself applied the reasoning of Rebbi Meir regarding a Korban Chatas to a Chomesh as well. These words mistakenly appear in our Gemara due to the similarity of these lines to the Gemara above (DIKDUKEI SOFRIM).

45)[line 26]בהכחשה ובהזמהHAKCHASHAH V'HAZAMAH - contradiction and discrediting of witnesses (EDIM ZOMEMIM)

(a)If different sets of at least two witnesses each contradict each other, their testimony is termed "Edus Mukcheshes", and Beis Din takes no action based upon either claim. If, however, one set of witnesses discredit the testimony of another set by claiming that they were instead with them, elsewhere, when they claimed to have witnessed the crime, then the discredited witnesses are termed "Edim Zomemim". The Torah decrees that under such circumstances the second set of witnesses are believed. As a general rule, Edim Zomemim are punished with whatever punishment they attempted to visit upon he whom they testified against (Devarim 19:16-21; see Mishnah, Makos 5a).

(b)Since "Hoda'as Ba'al Din k'Me'ah Edim Dami" (see above, entry #35), the concept of Hakchashah regarding one's own testimony does not apply. If one maintains that he is obligated to offer a Korban, he remains so even if witnesses claim that he is mistaken.

46)[line 27]אתיאASYA- [the Kal va'Chomer] is derived

47)[line 29]מחייבו שבועהMECHAYEVO SHEVU'A (SHEVU'A AL PI ED ECHAD)

Beis Din may not obligate one to pay money to another based upon the testimony of a solitary witness (Devarim 19:15). Such testimony is not pointless, however. From that which the verse (ibid.) stresses that the testimony of a single witness is not acceptable "l'Chol Avon ul'Chol Chatas" - "for any corporal or monetary punishment" - Chazal derive that it is acceptable to require the defendant to swear that his claim is true (Shevu'os 40a). If the defendant refuses to swear, then Beis Din will obligate the defendant according to the testimony of the single witness.

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