1)LIKE WHOM IS THE MISHNAH? (cont.)

(a)Objection: This is illogical! If they divide without swearing when there is Drara, and it surely belongs to one, all the more so when there is no Drara, and perhaps it belongs to both! (Rashi - here, perhaps no one loses when we divide it. Tosfos - here, the doubt is due to their claims. Had they kept silent, one could have said that each owns half. All the more so they should divide without swearing! (end of Version #2)

(b)Answer #2: Sumchus can agree here. The oath of our Mishnah is only mid'Rabanan;

1.(R. Yochanan): The oath of our Mishnah is an enactment mid'Rabanan, to deter people from grabbing others' property and claiming it.

(c)Suggestion: Our Mishnah is not like R. Yosi:

1.(Mishnah - R. Yosi): (Reuven and Shimon deposited money by Levi, who forgot who gave which amount; each claims the larger amount.) We must force the liar to lose (so he will be induced to admit). Therefore, neither side gets any of the money until Eliyahu comes and resolves the matter (or one side admits).

2.Question: The Mishnah is also unlike Chachamim! (They say that each side receives the smaller amount, but) they agree that neither side gets any of the contested money (the rest) until Eliyahu comes;

i.Here, the entire garment is contested!

3.Answer: The Mishnah can be as Chachamim. There, all the contested money belongs to one of them, so we leave it (until Eliyahu comes);

i.Here, perhaps each owns half, they swear and divide it.

4.However, R. Yosi says that we leave even the smaller amount, which surely each side is entitled to. Here, perhaps one side is not entitled to anything, all the more so he would say that we leave it!

(d)Rejection: Our Mishnah can be like R. Yosi.

(e)Explanation #1: R. Yosi's law is when one party is surely lying;

1.Here, perhaps neither intends to lie. Perhaps they picked it up at the same time (and each thinks that he picked it up first)!

(f)Explanation #2: R. Yosi's law is when the liar loses by waiting until Eliyahu. This entices him to admit;

1.Here, (even if there is a definite liar,) the liar doesn't lose anything, so he will never admit. There is no reason to leave the garment until Eliyahu!

(g)Objection: This applies to a Metzi'ah. When both paid for the same item, R. Yosi should say that we leave it (and the money) until Eliyahu!

(h)Conclusion: We must rely on Explanation #1.

(i)Question: When Shimon claims that he paid workers (like he was asked), and the workers say they were not paid, both R. Yosi and Chachamim should say that we leave the money until Eliyahu, for one side is surely lying!

(j)Answer: There, Shimon can tell Reuven 'I paid them like you asked me, so you must repay me. I do not accept the workers' oath!'

1.The workers can tell Reuven 'we worked for you, so you must pay us. We do not accept Shimon's oath'!

(k)Therefore, both sides collect from Reuven.

2)CAN WITNESSES OBLIGATE AN OATH?

(a)(R. Chiya - Beraisa): If Reuven told Shimon 'you owe me 100', Shimon denied the entire claim, and witnesses testify that he owes 50, he pays 50 and swears that he owes no more.

1.His own admission should not be stronger than witnesses (one who partially admits to a claim must swear about the rest), for there is a Kal va'Chomer (this will be explained)!

(b)Support (Mishnah): Reuven and Shimon are holding a garment; Reuven says 'I found it'...

1.Since each is holding half the garment, we are (like) witnesses that each owns what he holds (contradicting the other's claim that he owns it all).

(c)Question: What does it mean 'his own admission should not be stronger than witnesses, for there is a Kal va'Chomer'?

(d)Answer: Do not say that the Torah imposes an oath only when he admits, due to Rabah's reason (but not when witnesses say that he owes part);

1.(Rabah): The Torah obligates a borrower to swear (when he partially admits to the claim) because there is a Chazakah (of human nature) that a borrower is not brazen enough to (fully) deny the lender's claim;

i.If not for this, he would deny the entire claim.

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

2.Because borrowers are not brazen, he would like to admit to the full claim;

i.He denied part of it to stall until he has the money to pay the loan.

3.The Torah imposed the oath on him to make him admit to the full claim.

4.One might have thought that since this does not apply when witnesses testify, so he does not swear. A Kal va'Chomer teaches that this is not so.

3)THE KAL VA'CHOMER

(a)Question: What is the Kal va'Chomer?

(b)Answer #1: One's admission does not obligate him to pay money, yet it obligates him to swear. Witnesses can obligate him to pay, all the more so they obligate him to swear!

(c)Question: Admission obligates one to pay. It is like 100 witnesses!

(d)Answer: The 'money' referred to is a fine.

1.Admission does not obligate one to pay fines, yet it obligates him to swear. Witnesses can obligate him to pay fines, all the more so they obligate him to swear!

(e)Question: Admission can obligate one to bring a Korban. We cannot learn to witnesses, who cannot obligate him to bring a Korban!

(f)Answer: R. Chiya holds like R. Meir who says that witnesses can obligate him to bring a Korban.

1.(Mishnah - R. Meir): If two witnesses told Reuven 'you ate Chelev' and he said 'I did not eat', he brings a Korban (Chatas);

2.Chachamim say, he does not bring.

3.R. Meir: If testimony of two witnesses can cause him to be killed, all the more so it can obligate him to bring a Korban!

4.Chachamim: He could say 'I ate b'Mezid, therefore I do not bring a Korban.'

(g)Question: Admission obligates one to bring a Korban Asham. We cannot learn to witnesses, who do not!

(h)Answer: The same answer we gave for a Korban (Chatas) applies to an Asham.

(i)Question: Admission obligates one (who swore falsely to deny a debt) to pay Chomesh (an added quarter of the principal). We cannot learn to witnesses, who do not!

(j)Answer: R. Chiya holds like R. Meir. Just like he learns from a Kal va'Chomer that witnesses obligate him to bring a Korban, he learns that they obligate him to pay a Chomesh.

(k)Objection: Admission cannot be contradicted or Huzam (e.g. if Reuven admitted that he saw his ox damage at a certain time and place, and witnesses testified that he was not there at that time, his admission stands). We cannot learn to witnesses, who can be contradicted or Huzmu!

(l)Answer #2 (to Question (a)): Rather, R. Chiya learns a Kal va'Chomer from one witness. One witness does not obligate one to pay money, yet he obligates him to swear (if he does not agree to pay). Two witnesses can obligate him to pay, all the more so they obligate him to swear!

(m)Objection: One witness makes him swear about what the witness testifies about. We cannot learn that two witnesses make him swear about what they do not testify about!

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