PEOPLE SUSPECTED OF STEALING (cont.)
Question: If one suspected of stealing is suspected to swear falsely, why are the following three oaths given?
(Rav Nachman): One (who fully denies a claim) must swear Heses.
(R. Chiya's Beraisa): Both the grocer and the workers swear and collect from the employer.
(Rav Sheshes): (If a Shomer who guards for free says that the deposit was stolen,) he must make three oaths: that he was not negligent, that he did not take the deposit for his own use, and that it is not in his premises.
Answer: Even if we suspect someone of stealing, we are not concerned lest he swear falsely.
Answer #2 (to Question 3:j, 5b - Abaye): (In our Mishnah, even though each is Muchzak in half,) they swear because we are concerned lest one of them grabbed the Talis in order to collect an old debt (the Talis' owner forgot about it and denies it).
Question: If this is the concern (he really is entitled to collect), each should get half without an oath!
Correction: Rather, we are concerned lest one grabbed it to collect a Safek old debt. (Since he himself is unsure, he should not collect.)
Question: Since we suspect that one grabbed another's property to collect mi'Safek (even though this could be theft), we should be concerned lest he swear mi'Safek (that he owns, i.e. is entitled to collect half)!
Answer (Rav Shisha brei d'Rav Idi): One will not swear if he is unsure, but he does not refrain from taking property (to collect his Safek debt).
Question: What is the reason?
Answer: If he later realizes his mistake, he can return the property. One cannot retract a false oath.
IF SOMEONE GRABBED THE GARMENT
Question (R. Zeira): (In our Mishnah) if Reuven grabbed the garment in front of Beis Din, what is the law?
Question: What is the case?
If Shimon kept quiet, he admits that it is Reuven's!
If Shimon protested, (this is not admission;) what else could he do?
Answer: The case is, he was silent, then protested.
Was his initial silence an admission?
Or, does his protest reveal that his initial silence was only because he felt no need to protest, since Beis Din sees what happened?
Answer (Rav Nachman - Beraisa): The case is, both are holding it. If one holds it alone, ha'Motzi me'Chavero Alav ha'Re'ayah (the other must bring a proof to take it from him).
Question: What is the case?
If we understand simply that one holds it, obviously, it is his (unless the other brings proof)!
Answer #1: Rather, (both were holding it, and) Reuven grabbed it in front of Beis Din (and Shimon was initially silent, then protested).
Rejection #1 (and Answer #2 to Question 1): No. Both were holding it, and we told them to split it. They left, and came back with Reuven holding it. Reuven says that Shimon admitted to him; Shimon says that he rented his half to Shimon.
Shimon is not believed. He claims that Reuven is a thief. Surely he would not rent to him without witnesses!
Rejection #2 (and Answer #3): When they entered Beis Din, Reuven was holding the garment itself, and Shimon was holding onto the fringes.
Even Sumchus, who holds that when in doubt, we divide the money without an oath, admits that holding onto the fringes is insignificant.
MAKING DISPUTED PROPERTY HEKDESH
If you will say that if when Reuven grabs it in front of Beis Din, we take it back (and Shimon gets half), if Reuven was Makdish it (declared it Hekdesh), it (Shimon's half; some explain, the entire garment) is not Hekdesh;
Question: If you will say that if when Reuven grabs it in front of Beis Din, he keeps it, if Reuven was Makdish it without grabbing it, what is the law?
Since a declaration to Hekdesh is like an acquisition to a person, this is like grabbing it;
Or, since he did not grab it, it is not in his Reshus (jurisdiction), it does not become Hekdesh.
"If a man will make his house Hekdesh" - just like his house is in his Reshus, one can be Makdish only things in his Reshus. This excludes cases like this (a disputed garment).
Answer: A case occurred in which Reuven and Shimon were fighting over a bathhouse. Each said 'it is mine.' Reuven was Makdish it. R. Chananya, R. Oshaya and all the Chachamim stopped using it.
R. Oshaya asked Rabah to ask Rav Chisda about it.
Rav Hamnuna: A Mishnah teaches the law!
(Mishnah): If there is a Safek Bechor (firstborn male) person or animal, whether Tahor or Tamei (there is a Mitzvah to redeem a Bechor donkey), ha'Motzi me'Chavero Alav ha'Re'ayah.
(Beraisa): One may not shear or work with a Safek Bechor.
If a Kohen took a Safek Bechor, we do not force him to return it, for ha'Motzi me'Chavero Alav ha'Re'ayah (perhaps it is truly a Bechor). Even if he did not take it, one may not shear or work it!
Rejection (Rabah): Perhaps we force a Kohen who took a Safek Bechor to return it. A Safek Bechor is forbidden because Kedushas Bechor comes automatically. (However, one can be Makdish a bathhouse only if it is in his Reshus.)
MA'ASER OF ANIMALS
Support (for Rabah - R. Chananya - Beraisa): Sefeikos (perhaps they are exempt from Ma'aser, e.g. they belong to a Kohen) are tithed with other animals.
If a Kohen who took a Safek may keep it, how could the Yisrael make it Ma'aser? He exempts his obligation with the Kohen's property!
Rejection (Abaye): Perhaps a Kohen who took a Safek he must return it. The case is, there are only nine other animals. In any case, there is no problem:
If the Safek really belongs to the Yisrael, it can truly be Ma'aser;
If it really belongs to the Kohen, the Yisrael has no obligation to take Ma'aser!
Retraction (Abaye): I erred. A Safek is not tithed:
(Mishnah): If an animal already counted (during tithing) jumped back into the pen and was mixed with the uncounted animals, they are all exempt.
If Sefeikos could be tithed, we would be able to tithe without any problem:
If 10 animals leave the pen and none of them were counted before, the 10th is truly Ma'aser;
If one of them was already counted, the 10th is not really Ma'aser, but all are exempted due to Minyan ha'Ra'uy (they were counted when there were 10 animals in the pen that needed to be tithed).
(Rava): Minyan ha'Ra'uy exempts (even if Ma'aser is not taken, e.g. the tenth animal died before it was called Ma'aser).
Conclusion: Rather, we must say that the Torah requires a definite tenth. A Safek (perhaps it was already counted) cannot be Ma'aser (even if really, it was not already counted);
Also a Safek (perhaps it is the Kohen's) cannot be Ma'aser (even if in truth it is the Yisrael's)!