1)

DOES HEILACH EXEMPT FROM SWEARING?

(a)

Question: According to Rav Sheshes, who exempts Heilach, why do we need a verse to exempt land from oaths? Every admission of land is Heilach!

(b)

Answer #1: We need the verse for when he damaged the land (and must pay. This is not Heilach.)

(c)

Answer #2: We need the verse for an admission of Kelim (in a case that is not Heilach) and denial of land.

(d)

(Rami bar Chama): The four Shomrim, i.e. one who guards something for free, or for pay, a borrower, and a renter, swear only when they partially deny and partially admit to the claim.

(e)

Question: What is the case?

(f)

Suggestion: He said 'Heilach (here is what you deposited with me).'

(g)

Rejection: No. Reuven said 'I deposited three cows by you, and all died through your negligence.' Shimon said 'you deposited only two. One died through Ones (beyond my control) and the other died through negligence. I owe you for the latter.' This is not Heilach.

(h)

Question (against R. Chiya's first law (Daf 3a, 2:a) - R. Aftoriki's father - Beraisa #1) Suggestion: If Reuven told Shimon 'you owe me 100', and Shimon denied the entire claim, and witnesses testified that he owes 50, perhaps he must swear about the rest!

1.

Rejection "That he will say 'this is it'" - one swears due to his own admission, but not due to witnesses.

(i)

Answer: R. Chiya is a Tana. He argues with Beraisa #1. (According to our text (on 3a), R. Chiya cited a Beraisa. Perhaps our Gemara means that he cited a Tana, who can argue with Beraisa #1.)

(j)

Question: A verse supports Beraisa #1!

(k)

Answer: The verse teaches that he swears only when he partially admits to the claim.

1.

Tana #1 (of Beraisa #1) learns both laws, for it says "this" and "is it".

2.

R. Chiya learns the following two laws: (1) one swears only for partial admission; (2) the admission must be of the same Min (type) as the claim.

3.

Tana #1 holds like R. Gamliel, that the admission need not be of the same Min as the claim.

i.

(Mishnah): If Reuven claimed wheat from Shimon and Shimon admitted that he owed to him barley, Shimon is (totally) exempt;

ii.

R. Gamliel says, he must swear.

2)

MAY SHEPHERDS SWEAR?

(a)

Reuven was a shepherd. Every day people used to deposit animals with him, with witnesses. One day they gave to him without witnesses. He denied receiving the animals. Witnesses testified that he ate two of the animals.

(b)

R. Zeira: If we hold like R. Chiya's first law, Reuven must swear about the rest.

(c)

Abaye: He is a thief, so we do not let him swear!

(d)

R. Zeira: I meant, (because he cannot swear,) those who claim from him swear and receive.

(e)

Question: Even if we do not hold like R. Chiya's first law, he should be obligated to swear due to Rav Nachman's law!

1.

(Mishnah): If Levi claimed 100 from Shimon and Shimon denied it, he need not swear.

2.

(Rav Nachman): We make him swear Heses (an oath that is Mesis (entices) him to admit. This was enacted after the Mishnah.)

(f)

Answer: Shevu'as Heses is a Rabbinic enactment. We do not apply an enactment (that if the defendant cannot swear, the claimant swears and collects) to an enactment.

5b----------------------------------------5b

(g)

Question: Why did Abaye say that he cannot swear because he is a thief? No shepherd may swear!

1.

(Rav Yehudah): A Stam shepherd (we do not know about him) is disqualified (from testimony and swearing).

(h)

Answer: That refers to shepherds who tend their own animals (they graze them in others' fields). One who tends others' animals is not suspected.

(i)

Support: If not, we could not give animals to shepherds to guard, due to "do not put a stumbling block in front of a blind person (cause someone to transgress)"!

1.

Rather, they are not suspected. There is a Chazakah (established nature of people) that one does not sin solely for someone else's benefit.

3)

THE TEXT OF THE OATH

(a)

(Mishnah): Reuven swears that he does not own less than half...

(b)

Question: He should swear about what he owns, not about what he does not own!

(c)

Answer (Rav Huna): He swears that he owns part of it, and that he does not own less than half.

(d)

Question: He should swear that he owns all of it (like he claimed)!

(e)

Answer: If so, it would seem improper that Beis Din gives to him only half.

(f)

Question: He should swear that he owns half!

(g)

Answer: That would seem like a retraction of his claim that he owns it all.

(h)

Question: The text of the oath of the Mishnah is also like a retraction!

(i)

Answer: The actual text is 'it is all mine. Since you do not believe me about this, I swear that I own part, and I do not own less than half.'

(j)

Question: Since each is holding (and is Muchzak in) half, why do they swear?

(k)

Answer #1 (R. Yochanan): The oath of our Mishnah is a Rabbinic enactment, do deter people from grabbing others' property and claiming it. (Another answer is given on 6a.)

4)

PEOPLE SUSPECTED OF STEALING

(a)

Question: Since he is suspect that he is trying to steal, we should be concerned lest he swear falsely!

(b)

Answer: We do not suspect one to swear falsely just because we suspect that he tries to steal.

(c)

Support: If we would suspect that such one may swear falsely, one who partially denies a claim should not swear!

(d)

Rejection: There we do not suspect that he tries to steal. He merely wants to stall until he can pay, like Rabah taught (4a).

(e)

Support (of Rejection): Rav Idi bar Avin taught that one who denies a loan is not disqualified from testifying. (We assume that he merely wants to stall.) One who denies a deposit is disqualified from testifying (surely he intends to steal it).

(f)

Question (Rami bar Chama's Beraisa): The four Shomrim, i.e. one who guards for free or for pay, a borrower and a renter, swear only when they partially deny and partially admit to the claim.

1.

Why don't we say that since (he denies a deposit and) he is suspected to steal, he is suspected to swear falsely!

(g)

Answer: There he is not suspected of stealing. He merely wants to stall until he finds the thief (if it was stolen) or finds the animal (if it was lost).

(h)

Question: If so, why is one who denies a deposit disqualified from testifying? Perhaps he is just stalling!

(i)

Answer: He is disqualified only when witnesses testify that when he denied it he knew that it was in his house, or he was holding it.

(j)

Question: Rav Huna taught that if a Shomer (one guarding a deposit) says that the deposit was stolen and he wants to pay, he must swear that it is not in his premises (we suspect that he wants to pay for it and keep it).

1.

Since we suspect him of stealing, we should be concerned lest he swear falsely!

(k)

Answer: He does not consider this to be theft. He justifies himself, for he will pay for it.

(l)

Question (Rav Acha mi'Difti): He transgressed "do not covet" (this should disqualify him from swearing)!

(m)

Answer (Ravina): People think that that is only when one tries to take the object without paying.

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