1) PROOF THAT "SAFEK D'ORAISA L'CHUMRA" IS "MIN HA'TORAH"

QUESTION: The Gemara earlier quotes a Beraisa which states that the "Sfeikos" ("doubtful ones") go into the pen to be counted for Ma'aser Behemah. The Gemara now seeks to clarify exactly what kind of doubtful animal the Beraisa discusses. The Beraisa cannot be referring to doubtful firstborn animals (Safek Bechor), because the verse, "Yiheyeh Kodesh" -- "it will be holy" (Vayikra 27:32), teaches that only an animal which can become Kadosh as Ma'aser is counted towards Ma'aser Behemah, and not an animal which may already be holy, such as a Safek Bechor.

The SHEV SHEMAITSA (1:3) writes that the Gemara here seems to support the view of the RAMBAN and RASHBA in their famous argument with the RAMBAM with regard to the status of the principle of "Safek d'Oraisa l'Chumra." This principle states that in situations of doubt about a Torah law, one must conduct himself stringently (l'Chumra). Is the principle of "Safek d'Oraisa l'Chumra" a Halachah d'Oraisa (i.e. the Torah mandates that the doubt be treated stringently) or is it a Takanah d'Rabanan (i.e. the Rabanan enacted that one act stringently in a case of doubt, while mid'Oraisa one may act leniently)? (See Insights to Kidushin 73:1 and Chulin 11:3.)

The Rambam (Hilchos Tum'as Mes 9:12, Hilchos Avos ha'Tum'ah 16:1) rules that the general rule of "Safek d'Oraisa l'Chumra" is only mid'Rabanan. The Torah itself permits an item that is not certainly forbidden, but about which there is a doubt. The Chachamim, however, enacted a decree that whenever there is a doubt about an Isur d'Oraisa, one must conduct himself stringently.

The Ramban and Rashba maintain that the principle of "Safek d'Oraisa l'Chumra" is a Torah law. The Shev Shemaitsa points out that the Gemara here supports their opinion, because it says that the verse of "Yiheyeh Kodesh" excludes a Safek Bechor from being counted towards Ma'aser Behemah since it is already Kadosh. The only way that a Safek Bechor can have Kedushah is if the Torah itself rules "Safek d'Oraisa l'Chumra." According to the Rambam, how can the Torah consider a Safek Bechor to be Kadosh? Since "Safek d'Oraisa l'Chumra" is only a Takanah d'Rabanan, by Torah law the animal is not Kadosh at all.

ANSWER: The RASHASH in Yevamos (13a) writes that there is no question on the Rambam's opinion from this Gemara. Although the Rambam rules that the animal is permitted to be used for ordinary purposes, it still has some element of Kedushah (its Eimurim are placed on the Mizbe'ach, even according to the opinion that Kodshim Kalim are "Mamon Ba'alim"). Accordingly, it is appropriate for the Torah to call the animal "Kevar Kodesh." One who eats the animal is considered to have eaten something forbidden.

The KEHILOS YAKOV (#8) cites proof for the Rashash's assertion from the Gemara in Kidushin (57b) in which Rava says that the bird which is sent away during the purification process of a Metzora is permitted to be eaten, since the Torah would not command that one send away a bird of Kodshim if someone might chance upon it and eat it. The Kehilos Yakov points out that if the one who finds the bird does not know that it was a Korban, why is Rava's teaching necessary? The person who finds it may assume that it is an ordinary bird, since most birds in the wild have not been consecrated for the process of purification of a Metzora! It must be that without Rava's teaching one might have thought that although the person is not forbidden from eating the bird that he finds, when he eats the bird sent away by the Metzora it is considered as though he has eaten Isur and not Heter. (Y. MONTROSE)

2) TWO PEOPLE HOLDING ON TO A "SHTAR CHOV"

QUESTION: The Beraisa discusses a case in which two people, a Malveh and Loveh (lender and borrower), are holding on to a Shtar. The Malveh claims that it fell from him and it was not yet paid. The Loveh claims that it was he who dropped it and it was paid already. Rebbi rules that the Malveh may collect the debt with the Shtar after he is Mekayem it. Raban Shimon ben Gamliel rules that the Malveh and the Loveh split the value of the loan of the Shtar ("Yachloku").

The Gemara asks why Rebbi allows the Malveh to collect with the Shtar if they are both holding on to it. Does he disagree with the ruling of the Mishnah (2a) that says that the Talis is divided between the two claimants when they are both holding it? The Gemara answers that Rebbi agrees that the value of the loan is split, but only after the Malveh is Mekayem the Shtar, because until he is Mekayem the Shtar the Loveh is believed to say that he paid it. (This is because Rebbi rules that "ha'Modeh b'Shtar she'Kesavo Tzarich l'Kaimo").

Why does the Gemara question Rebbi's statement based only on the ruling of the Mishnah? Even without the Mishnah, Rebbi's statement seems logically unsound. If both the Malveh and Loveh are holding the Shtar, why should the Malveh's rights to the Shtar be honored more the Loveh's rights?

Perhaps the Gemara means that Rebbi's ruling can be defended on the logical basis cited later by the Gemara which discusses "Lo Chaishinan l'Pira'on" -- we do not take into account the possibility that the Loveh paid back the loan that is written in the Shtar (since the moment a Loveh pays the loan, he tears up the Shtar; see Rashi to 7b, DH v'Rebbi Yosi). Therefore, Beis Din honors the Malveh's claim and does not accept the Loveh's claim that the Shtar was paid. However, if this is correct, why should the ruling of the Mishnah be relevant to the case of two people holding a Shtar? A Shtar is different from a Talis; the Shtar's very existence proves that the Shtar was not paid and that the Malveh's claim is true!

ANSWERS:

(a) The MAHARI KATZ (cited by the Shitah Mekubetzes) explains that if the Shtar was found entirely in the hands of the Loveh, then even those who are of the opinion that we are not "Chaishinan l'Pira'on" agree that we would accept the Loveh's claim that the Shtar was paid. (This would apply even if the Loveh would not have a "Migu" to say that he could have destroyed the Shtar, such as when witnesses saw the Shtar in his hands before he came to court.) The reason for this is that the fact that the Loveh is holding the Shtar is proof that it was paid, which counteracts the Chazakah that says that a Loveh normally destroys a Shtar as soon as it is paid.

In Rebbi's case, the Loveh's grasp of half of the Shtar should be viewed as a "half-proof" that the Shtar was paid, and the Loveh should be required to pay only half of the loan. (See also MAHARAM SHIF.)

If not for the ruling of the Mishnah, one might have thought that when two people are holding a Shtar, Beis Din should rule "Yehei Munach" (the Shtar should be left in escrow) and neither of them may keep it. Consequently, the Malveh would be able to collect the entire loan, as Rebbi rules, based on the fact that the Shtar is not destroyed, since there no longer is any proof to counteract it. However, since the Mishnah says "Yachloku," Rebbi also should rule "Yachloku."

(b) The RITVA makes a cryptic statement which seems to be intended as an answer to this question. The Ritva implies that even if the existence of the Shtar proves that the loan was not paid back, nevertheless when the Loveh is holding on to the Shtar he should be given half of it. What difference does it make if he owns a whole Shtar or half a Shtar, if in either case the loan will be collected? The difference is that the loan will not be collected from Nechasim Meshubadim. (Also, sometimes it is beneficial for the Loveh not to have a Shtar attesting to the loan in the hands of the Malveh; see Tosfos to Kidushin 27a, DH Chozer.)

The ruling of Rebbi might apply in a case in which the Malveh lost the Shtar and gave up hope of ever finding it. Consequently, the Shtar becomes Hefker, like the Talis in the case of the Mishnah. The Loveh and the Malveh are now arguing over who keeps the Shtar itself (that is, who keeps the piece of paper). The loan, however, must be paid in any case, since we know that it was not paid (because the Shtar would have been torn up had it been paid).

Accordingly, the Gemara is asking that Rebbi should mention not only whether the Loveh must pay the loan, but also what is done with the Shtar (is it given to the Malveh or to the Loveh). Since he makes no mention of who gets the Shtar, he implies that he maintains that it should be left in escrow, "Yehei Munach," in contrast to Raban Shimon ben Gamliel's ruling of "Yachloku." The Gemara therefore asks how Rebbi can argue with the Mishnah that rules "Yachloku."

3) COMPARING A DISPUTE OVER A "TALIS" TO A DISPUTE OVER A "SHTAR"

QUESTION: The Beraisa discusses a case in which two people, a Malveh and Loveh (lender and borrower), are holding on to a Shtar. The Malveh claims that it fell from him and it was not yet paid. The Loveh claims that it was he who dropped it and it was paid already. Rebbi rules that the Malveh may collect the debt with the Shtar after he is Mekayem it. Raban Shimon ben Gamliel rules that the Malveh and the Loveh split the value of the loan of the Shtar ("Yachloku").

The Gemara concludes that the reason why Rebbi does not say "Yachloku" is that the Loveh is believed to say that he paid back the loan written in the Shtar with a "Migu" that he could have said that the Shtar is forged. Once the Malveh is Mekayem the Shtar and proves that it is not forged, Rebbi agrees with Raban Shimon ben Gamliel that the Shtar is divided ("Yachloku").

RASHI (2a, DH b'Mekach u'Memkar) that when each of the claimants holding a Talis claims that he is the one who wove the Talis, it is not divided among them because it is clear that one of them certainly is a liar ("Ramai"). Rather, the law is "Yehei Munach" and the Talis is left in escrow. (See Insights to 2:1.)

According to Rashi, why does the same Halachah not apply in the case of a Shtar Chov in the hands of both the Malveh and Loveh? Since one claims that it was not paid and the other claims that it was paid, clearly one of them is a Ramai! Hence, the Halachah should be "Yehei Munach"! (ROSH 1:1; see TOSFOS to 2a, DH v'Yachloku.)

ANSWERS:

(a) The RASHBA (2a; see also PNEI YEHOSHUA here) answers that in the case of the Shtar, "Yehei Munach" is not an option since, if the Shtar is put in escrow, the Loveh effectively will be meritorious in the case since he will not have to pay the loan.

Perhaps Tosfos and the Rosh do not accept this argument because Beis Din still can rule "Yehei Munach" by requiring the Loveh to pay the money of the loan to the court which will then be placed in escrow, and neither the Loveh nor the Malveh will receive the money.

However, the Rashba (2b) responds to this argument by saying that if the money is taken away from the Loveh and put in escrow, then the Loveh has entirely lost the case, because once the money is no longer in his possession it makes no difference to him whether the money is given to the Malveh or not. Therefore, it is not fair to take the money from the Loveh even if it is not given to the Malveh.

(b) The PNEI YEHOSHUA answers further that Rashi's ruling applies only when two people are holding the fringes of the Talis ("Ochzin") and not when they are holding the Talis itself. When two people are holding the Talis itself ("Adukin"), the Beraisa rules that each claimant receives a share of the Talis until the point at which his hand reaches. This ruling applies even when there is a definite Ramai.

The Beraisa does not discuss two people who are "Ochzin b'Shtar," but rather two people who are "Adukin b'Shtar" -- they are holding the Shtar itself in their hands (as the Gemara on 7b points out when it discusses the Halachah in a case in which one claimant is holding the Tofes and the other is holding the Toref of the Shtar). Therefore, the Shtar is split even though there is a definite Ramai. This might also be the intention of the RI MI'GASH in Tosfos in Bava Basra (34b, DH ha'Hu).

However, Tosfos in Bava Basra there asks that according to this explanation, why does the Gemara here question Rebbi's ruling from the Mishnah and say that he should rule "Yachloku"? The ruling of the Mishnah is not relevant in a case in which the two claimants are holding on to the Shtar! The Gemara should have questioned Rebbi from the Beraisa which discusses two people who are "Adukin b'Talis" and not from the Mishnah which discusses two people who are "Ochzin b'Talis," where the Halachah does not apply when there is a definite Ramai.

Perhaps the answer to this question may be derived from the first words of Rashi on the Mishnah. According to the way we explained Rashi's words (see Insights there), Rashi explains that the word "Ochzin" in the Mishnah is meant to imply that the Talis is divided between them only when both claimants are holding the fringes. However, if either of the claimants is holding part of the body of the Talis itself, that part is not split but rather it is given to the person who is holding it. Accordingly, the Halachah of "Adukin" may be learned through inference from the words "Shenayim Ochzin" in the Mishnah. When the Gemara asks that Rebbi should agree with the Mishnah, it means that he should agree that when the claimants are not merely "Ochzin" but are holding the object itself, the part that each one is holding is given to him because he is considered to be Muchzak and "ha'Motzi me'Chaveiro Alav ha'Re'ayah," as the Beraisa here teaches. Hence, the Gemara indeed is asking from the Halachah of the Beraisa and not from the Halachah of the Mishnah.

7b----------------------------------------7b

4) THE "TOFES" AND THE "TOREF"

OPINIONS: The Beraisa earlier (7a) discusses a case in which two people, a Malveh and Loveh (lender and borrower), are holding on to a Shtar. The Malveh claims that it fell from him and it was not yet paid. The Loveh claims that it was he who dropped it and it was paid already. Rebbi rules that the Malveh may collect the debt with the Shtar after he is Mekayem it. Raban Shimon ben Gamliel rules that the Malveh and the Loveh split the value of the loan of the Shtar ("Yachloku").

Rebbi Elazar says that the argument between Rebbi and Raban Shimon ben Gamliel applies only when both claimants are holding the Tofes and the Toref of the Shtar. When one is holding only the Tofes and the other is holding only the Toref, each one takes the part he is holding (either the Tofes or the Toref). Rebbi Yochanan disagrees with Rebbi Elazar and asserts that Rebbi and Rebbi Shimon ben Gamliel argue even in the latter case as well.

What exactly are the Tofes and Toref?

(a) RASHI (DH u'Sheneihem) explains that the Toref is the place in the Shtar in which the names of the lender and borrower, the amount of money borrowed, and the time of payment are written. The Tofes is the rest of the Shtar. Rashi later (DH Shtara) writes that the Tofes in fact also contains the names of the lender and borrower and the amount of money borrowed, but not the time of payment. The SHITAH MEKUBETZES explains that Rashi's explanation is consistent with the Gemara in Bava Basra (165b) which discusses the case of a Shtar which records "above" the figure of "one hundred," but records "below" the figure of "two hundred." "Above" and "below" refer to the Toref and Tofes of the Shtar, respectively. This is also the opinion of the ARUCH.

The RITVA questions this explanation. The Gemara later asks (according to some texts) that according to Rebbi Elazar's ruling that the person who is holding the Tofes takes the Tofes, there seems to be no benefit in receiving just the Tofes. What is the Gemara's question? If, as Rashi writes, all of the details of the Shtar (except for the time of payment) are repeated in the Tofes, there clearly is a benefit in receiving the Tofes. If the lender receives the Tofes he will be able to collect money from the borrower!

The Ritva answers for Rashi that the Gemara means to ask how the Tofes is a benefit to the borrower if he is the one holding the Tofes. Since the lender is holding the Toref which has all of the information of the loan, the lender can collect the loan from the borrower, and the borrower's possession of the Tofes is immaterial.

(b) The MAGID MISHNEH (Hilchos Malveh v'Loveh 14:14) gives a different explanation. He writes that the Toref is the place in the Shtar in which almost all of the details of the loan, including the names of all the people involved (the lender, borrower, guarantor, and witnesses) are recorded. The Tofes is the date of the loan which is normally written in the beginning of the Shtar. (Y. MONTROSE)

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