BAVA METZIA 4 - Dedicated by Dr. Chaim Bitton as a Zechus for Melissa Leah bat Esther to merit an easy birth and a healthy baby, b'Sha'ah Tovah.

[4a - 44 lines; 4b - 46 lines]

1)[line 1]שעל מה שכפר הוא נשבעAL MAH SHE'KAFAR HU NISHBA- he must swear upon what he denies (see Background to 3:36)

2)[line 2]מגלגול שבועהGILGUL SHEVU'AH - The Extension of an Oath

(a)One who holds the Halachic right to force another to take an oath in Beis Din may require the defendant to deny other claims while under oath, even if they are not of the variety that would normally require him to swear in case of denial (derived from Bamidbar 5:22; see Kidushin 27b and Mishnah and Gemara, Sotah 18). This is termed "Gilgul Shevu'ah" - lit. "rolling an oath". While one has a defendant under oath, he may even go so far as to require him to swear that he is not his slave (Kidushin 28a).

(b)Gilgul Shevu'ah may be applied whether the Shevu'ah taken is a Shevu'ah d'Oraisa or a Shevu'ah d'Rabanan (Shevu'os 48b; see Rashi ibid.).

(c)Our Gemara now introduces the concept that when one requires his defendant to swear based upon the testimony of a single witness, he may extend that oath to include even that which the witness did not directly testify about. From this, we may derive through a Kal va'Chomer that if two witnesses testify that he owes part of what his creditor claims, he must swear that he does not owe the rest.

3)[line 4]שבועה גוררת שבועהSHEVU'A GORERES SHEVU'A- [it is the] oath [that] pulls [the other] oath after it [and not the testimony of the single witness]

4)[line 5]פיוPIV- [the admission of] his own mouth [in a case of Modeh b'Miktzas]

5)[line 5]יוכיחYOCHI'ACH (TZAD HA'SHAVEH - Deriving Halachos from a Common Denominator)

(a)In a Beraisa found in the introduction to the Sifra (the Halachic Midrash on Vayikra), Rebbi Yishmael lists the thirteen methodologies employed by Chazal when determining Halachah from the verses of the Torah. One of them is called "Binyan Av" or "Mah Matzinu" ("just as we have found"). A Binyan Av - literally "building through a father" - refers to establishing a certain law in one area of the Torah, and then applying it to other comparable circumstances.

(b)One may compare two sections of the Torah through a Binyan Av or a Kal va'Chomer only if there is no logical argument against comparing the two sections. If such an argument, known as a "Pirchah," exists, then the Binyan Av or Kal va'Chomer may not be applied.

(c)In the case of a Pirchah, the Gemara will sometimes attempt to reestablish the Mah Matzinu through a "Yochi'ach"/"Tochi'ach (fem.)". Literally a proof, this involves showing that the Halachah that we wish to apply is in effect in a third section of the Torah -- one to which the Pirchah is not applicable.

(d)Usually, the Gemara will respond with a second Pirchah, this time one that draws a distinction between the Yochi'ach and the target of the Mah Matzinu. If this Pirchah does not apply to the first attempted source, then it itself becomes the Yochi'ach.

(e)The Gemara then forms a "Mah ha'Tzad" or "Tzad ha'Shaveh" - a common denominator. This involves finding a property shared by the two prospective sources, aside from the Halachah that we wish to derive. We may then conclude that since the target subject shares the common denominator, the Halachah in question applies to it as well.

(f)The terminology of the Gemara in such a situation is "v'Chazar ha'Din" - the ruling returns [back and forth]; "Lo Re'i Zeh k'Re'i Zeh" - the characteristics of this one are unlike the characteristics of this one, and vice versa; but the "Tzad ha'Shaveh" - the common denominator - teaches us that the derivation is valid. This process can continue, with the Gemara asking a Pirchah upon the common denominator and attempting to introduce yet a third comparison that will solidify the Tzad ha'Shaveh.

6)[line 6]עד אחדED ECHAD- a) the testimony of a single witness. At this point, the Gemara abandons the attempt to derive a Kal va'Chomer from Gilgul Shevu'ah of a single witness and instead returns to derive a Binyan Av from the testimony of a single witness and his own admission (RASHI as explained by the RITVA); b) [a Gilgul Shevu'ah resulting from the testimony of] a single witness (RITVA)

7)[line 9]וחזר הדין ...V'CHAZAR HA'DIN ...- see above, entry #5:f

8)[line 11]שעל ידי טענה וכפירה הם באין, ונשבעAL YEDEI TA'ANAH U'KEFIRAH HEN BA'IN, V'NISHBA- through a claim [of the creditor] and a denial [of the debtor] they come [to Beis Din] and [the debtor] swears

9)[line 14]לא הוחזק כפרןLO HUCHZAK KAFRAN- he is not established as a liar [whose testimony is no longer accepted in Beis Din, as a result of his admission or the testimony of the single witness]

10)[line 17]הכופר במלוה כשר לעדות; בפקדון פסול לעדותHA'KOFER B'MILVEH KASHER L'EDUS; B'FIKADON PASUL L'EDUS (PESUL EDUS - One who is Disqualified from Giving Testimony)

(a)A Gazlan (thief) is an invalid witness, since his Halachic status is that of a "Rasha" - wicked person (see Shemos 23:1). Therefore, if valid witnesses testify that a certain person stole from another, he is henceforth disqualified from giving testimony in Beis Din.

(b)One acquires the status of a "Rasha" who is disqualified as a witness only if it is clear that his intention was to steal money from another. If it is possible that he was merely attempting to elude the claims of another until he had time to marshal the necessary funds (Ishtamutei), then he remains a valid witness. Accordingly, one who denies a loan remains fit to testify, since we may assume that his intention is only to delay payment. Similarly, a Shomer (custodian) who denies that he holds a Pikadon (the item entrusted to him) is not disqualified even when witnesses testify that he did indeed receive it, since he may have lost it and wishes to buy time with which to find it. If one denies holding a Pikadon and witnesses testify that at that time it was in his possession, however, then he clearly was attempting to steal it, and from that point he has attained the status of a disqualified witness (5a).

11)[line 19]אינן בתורת הזמהEINAN B'TORAS HAZAMAH- they cannot become disqualified through Hazamah (see Background to 3:45)

12)[line 20]רבי חייא תורת הזמה לא פריךREBBI CHIYA TORAS HAZAMAH LO PARICH- Rebbi Chiya does not consider that which a single witness cannot become an Ed Zomem a Pirchah [since his testimony is indeed disqualified if another pair of witnesses claim, "You were then with us", and that which he is not punished with that which he wished to punish the other a) does not imply that his testimony is stronger than that of two witnesses (RASHI); b) is indeed due to that which his testimony is weaker than that of two witnesses, since Beis Din will never punish another based upon it (TOSFOS DH Ad)]

13)[line 21]דקאמר ותנא תונאDEK'AMAR V'TANA TUNA- [the following is possible to ask upon] that which [Rebbi Chiya] said that our Mishnah is a proof to his ruling

14)[line 22]התםHASAM- there [in the case of Rebbi Chiya]

15)[line 22]סהדיSAHADEI- witnesses

16)[line 23](דלא מסיק ליה ולא מידי)(D'LO MASIK LEI V'LO MIDI)- (that [the Malveh] does not hold any [debt] against him). These words, both here and on the next line, appear to be extra, and it is implicit in RASHI that he did not have them (RASHASH).

17)[line 25]בעיBA'I- require

18)[line 30]והילךV'HEILACH- and here they are for you[; I have not spent them]

19)[line 36]כמאן דנקיט להו מלוה דמיK'MAN D'NAKAT L'HU MALVEH DAMI- it is as if the creditor has them in his possession

20)[line 36]באינךEINACH- the other

21)[line 40]ואידך: אין, תקנת חכמים היאV'IDACH, IN, TAKANAS CHACHAMIM HI- and the other one (i.e., Rebbi Chiya) [agrees] - indeed, it is a Rabbinic decree

22)[line 42]כעין דאורייתאK'EIN D'ORAISA- similar to a Biblical law (namely, that of Heilach)


23)[line 1]סלעים; דינריןSELA'IM; DINERIN- [in a case in which a bill of debt states that the debtor owes the creditor] "Sela'im" or "Dinarim" (units of currency)

24)[line 1]חמשCHAMESH- [the sum referred to in the document is] five

25)[line 3]אינו אלא כמשיב אבידהEINO ELA K'MESHIV AVEIDAH- [since he is not forced to admit to any more than two based upon the plural terminology in the document, and he admits to three,] he is considered to be no less than one who returns a lost item [whom the Chachamim exempted from an oath even if the loser claims that the finder kept part of the item (Gitin 48b)]

26)[line 6]פטורPATUR- he is exempt [since the two that he has admitted to are clearly recorded in the document]

27)[line 7]הילך הואHEILACH HU- they are Heilach [since any debt recorded in a document is insured with land that had belonged to the debtor since the time of the loan, and the land is available]

28)[line 12]"אף זה ישבע" מבעי ליה!"AF ZEH YISHAVA" MIBA'I LEI!- he should have expressed his opinion as, "Even in this case he must swear"!

29)[line 14]דקא מסייע ליה שטראKA MESAYE'A LEI SHETARA- the document supports his claim [since that which the witnesses signed on a simple plural terminology implies that the debt was no more than two]

30)[line 15]שטר שעבוד קרקעותSHTAR SHIBUD KARKA'OS- a bill [of debt] in which real estate insures the loan

31)[line 16]ואין נשבעין על כפירת שעבוד קרקעותEIN NISHBA'IN AL KEFIRAS SHIBUD KARKA'OS

(a)If a Jew claims that another owes him money, then in certain situations the defendant is required to take an oath (Shevu'ah) that the claim is false if he does not wish to pay. Examples include a situation in which the claimant has a single witness attesting to his claim (Shevu'as Ed Echad; see Background to 3:47), a situation in which the defendant admits to part of the claim (Shevu'as Modeh b'Miktzas ha'Ta'anah; see Background to 3:28), and a custodian who claims that the object deposited with him was lost in a manner for which he is exempt from paying (Shevu'os ha'Shomrim; see Background to 5:5).

(b)These oaths apply only to claims of movable objects (Metaltelin). If one denies a claim of land (Kefiras Karka), or if one admits to part of a claim but his admission is only to land (Hoda'as Karka), then he is exempt from taking a Shevu'ah. In these situations, the Halachah is "ha'Motzi me'Chaveiro Alav ha'Re'ayah" - the burden of proof rests upon the claimant (Mishnah, 56a).

(c)If a loan is recorded in a document, this creates a lien upon the real estate of the creditor (Shibud Karka'os). Therefore, if one denies owing money recorded in a document, he is denying the lien, and he is exempt from a Shevu'ah.

32)[line 17]איכא דמותיב מסיפאIKA D'MOSIV MI'SEIFA- there are those who ask [on the opinion of Rav Sheshes] from the end of the Beraisa

33)[line 26]האי אערומי קא מעריםHAI I'ARUMEI KA MA'ARIM- [it is likely that] this [debtor] is acting deceptively [when admitting to a debt of more than two]

34)[line 27]אמינאAMINA- I say

35)[line 27]בעינא אשתבועיBA'INA ISHTABU'I- I will need to take an oath

36)[line 28]אימאEIMA- I will say

37)[line 30]קשיא לרבי חייאKASHYA L'RAV CHIYA- [now that we have proven that it is logical that according to Rebbi Akiva the creditor is exempt if he admits to owing two] it is problematic for Rav Chiya [who rules that one who claims Heilach is Chayav]

38)[line 34]טענו כלים וקרקעותTA'ANO KELIM V'KARKA'OS- [if one] claims [in Beis Din that another] owes him [both] utensils and land

39)[line 36]פטורPATUR- he is exempt [from an oath, since he has either denied or admitted to owing land (see above, entry #31)]

40)[line 37]דקרקע לאו בת שבועה היאKARKA LAV BAS SHAVU'A HI- see above, entry #31

41)[line 38]כלים וכליםKELIM V'CHELIM- [in a case in which he claimed that he was owed] two different utensils [and the defendant admitted to one of them]

42)[line 44]זוקקין?ZOKEKIN?- [that one may be forced to take an oath upon land] along with [an oath that he must take on movable property]? (see below, entry #44)

43)[line 44]תנינאTENINA- we have already learned this in a Mishnah

44)[line 44]זוקקין הנכסים שאין להן אחריות את הנכסים שיש להן אחריות לישבע עליהםZOKEKIN HA'NECHASIM SHE'EIN LAHEN ACHRAYUS ES HA'NECHASIM SHE'YESH LAHEN ACHRAYUS LISHAVA ALEIHEM- movable property (lit. property that do not insure) pull along real estate (lit. property that insures) to take an oath upon them; i.e., when one must take an oath regarding Metaltelin (movable property), he can be forced to swear regarding Karka (land) as well (this is an application of Gilgul Shevu'ah; see Background to 4:2)

45)[last line]אגב גררא נסבהAGAV GERARA NASVAH- it was mentioned incidentally