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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.

1)

(a)If Rebbi Chiya cannot learn the 'Kal va'Chomer' (obligating a Shevu'ah by Ha'ada'as Eidim) from Eid Echad directly (as we just explained), then from where does he learn it?

(b)What is the source for 'Gilgul Shevu'ah'?

(c)How do we answer the Pircha that whereas by Eid Echad it is the Shevu'ah that obligates the defendant, by Eidim it is the testimony that obligates him (so how can Rebbi Chiya learn the one from the other)?

(d)But Piv is not subject to Hakchashah and Hazamah like Eidim are, as we asked earlier. So from where do we finally learn the 'Kal va'Chomer'?

1)

(a)Since Rebbi Chiya cannot learn the 'Kal va'Chomer' (obligating a Shevu'ah by Hoda'as Eidim) from Eid Echad directly (as we just explained), he learns it from the Gilgul Shevu'ah of Eid Echad (which, like that of Eidim, is on something which the Eid did not testify).

(b)The source for 'Gilgul Shevu'ah' is the Pasuk in Naso "ve'Amrah ha'Ishah 'Amen Amen' ".

(c)In answer to the Pircha that whereas by Eid Echad it is the Shevu'ah that obligates the defendant, by two witnesses, it is the testimony that obligates him (so how can Rebbi Chiya learn the one from the other), we answer 'Piv Yochi'ach' (that we learn from Piv what we cannot learn from Eid Echad).

(d)But Piv is not subject to Hakchashah and Hazamah like Eidim are, as we asked earlier. But Eid Echad is! So we finally learn the 'Kal va'Chomer' from a Tzad ha'Shaveh from Eid Echad and Piv.

2)

(a)What Pircha can we ask on the 'Tzad ha'Shaveh'? On what grounds might Hoda'as Eidim not be believed him with a Shevu'ah, even if Hoda'as Piv and Ha'ada'as Eid Echad are?

(b)We refute this Kashya however, on the basis of a statement by Rav Idi bar Avin Amar Rav Chisda. What distinction does he draw between someone who denies a loan and someone who denies a Pikadon?

(c)What is the reason for this distinction?

2)

(a)However, we can still ask that, even if we believe the defendant with a Shevu'ah by Hoda'as Piv and Hoda'as Eid Echad, we cannot believe him by Hoda'as Eidim because when witnesses testify against him, he is proven to be a liar, in which case we cannot trust his Shevu'ah, which is not the case by Hoda'as Piv and Eid Echad.

(b)We refute this Kashya however, on the basis of a statement by Rav Idi bar Avin Amar Rav Chisda who validates subsequent testimony of someone who denies a loan, but not of somebody who denies a Pikadon (from which we see that someone who denies a loan is not considered a liar).

(c)The reason for this distinction is because a loan is meant to be spent, and it is feasible that the debtor does not have the money and is embarrassed to confess (as we learned on the previous Daf), whereas this reason will not apply to a Shomer who denies a deposit (who has no excuse not to have the deposit handy when it is claimed from him).

3)

(a)We further query the 'Kal va'Chomer', by asking 'Mah le'ha'Tzad ha'Shaveh she'Bahen, she'Kein Einan be'Toras Hazamah? What do we mean by that? Why the Din of Hazamah does not apply to an Eid Echad?

(b)Why does Rebbi Chiya not consider this a Pircha?

(c)We conclude that there is no Kashya on Rebbi Chiya's 'Kal va'Chomer', but that his proof from our Mishnah cannot pertain to the current Halachah. Why not?

(d)What conclusion do we therefore draw from this regarding the Shevu'ah of our Mishnah?

3)

(a)We further query the 'Kal va'Chomer', by asking 'Mah le'ha'Tzad ha'Shaveh she'Bahen, she'Kein Einan be'Toras Hazamah by which we mean that even an Eid Eched, whose testimony is disqualified through Hazamah, is not subject to the Dinim of Eidim Zomemin. When we say that the law of Hazamah does not apply to an Eid Echad, we mean that the Pasuk "Ka'asher Zamam" does not apply to him, that he is not punishable like two witnesses are.

(b)Rebbi Chiya not consider this a Pircha however, on the grounds that, seeing as his testimony is disqualified through Hazamah the fact that he is not punishable is irrelevant, since it does not serve to strengthen his testimony.

(c)We conclude that there is no Kashya on Rebbi Chiya's 'Kal va'Chomer', but that his proof from our Mishnah cannot pertain to the current Halachah because even Rebbi Chiya would agree that if two witnesses were to testify that the defendant does not owe the claimant anything (for example, if the same two witnesses who obligate him to pay fifty Zuz, were to conclude that he has already paid the other fifty), he would not need to swear. Then how can he prove Hoda'as Eidim from our Mishnah, where each defendant also has witnesses ('Anan Sahadi'), testifying that the other half belongs to him, and the Shevu'ah cannot therefore be a branch of Modeh be'Miktzas.

(d)The conclusion that we are forced to draw from here is that the Shevu'ah in our Mishnah is not the Shevu'ah d'Oraysa of Modeh be'Miktzas, but a Shevu'ah de'Rabbanan, as we explained above according to Sumchus.

4)

(a)We also conclude that Rebbi Chiya's proof from our Mishnah pertains to the other Din of Rebbi Chiya regarding 'Heilech'. What is 'Heilech'?

(b)How does Rebbi Chiya prove from our Mishnah that 'Heilech' is Chayav to swear?

(c)On what grounds does Rav Sheishes rule that 'Heilech' is Patur from a Shevu'ah?

(d)How will Rav Sheishes then explain the Shevu'ah in our Mishnah?

4)

(a)We also conclude that Rebbi Chiya's proof from our Mishnah pertains to the other Din of Rebbi Chiya regarding 'Heilech' which in effect, is 'Modeh be'Miktzas', but where the part that the defendant admits owing is intact for the claimant to take.

(b)Rebbi Chiya proves from our Mishnah that 'Heilech' is Chayav to swear since, bearing in mind that whatever a person is holding is considered his, it is as if each claimant has witnesses that the other claimant owes him half the garment, which he is currently holding, and is therefore 'Heilech'. Yet the Tana obligates him to swear.

(c)Rav Sheishes rules that 'Heilech' is Patur from a Shevu'ah because it is as if the claimant already has the part that the defendant admits to, and as for the remainder, to that he does not admit.

(d)Rav Sheishes explains the Shevu'ah in our Mishnah in the same way as Rebbi Chiya explained it above (that it is a Takanas Chachamim, seeing as each defendant also has 'witnesses' who testify on his behalf).

5)

(a)Seeing as even Rebbi Chiya is bound to agree that the Shevu'ah in our Mishnah is a Takanas Chachamim (as we explained above), how can he prove from it that Heilech is Chayav to swear mi'd'Oraysa?

5)

(a)Although Rebbi Chiya is bound to agree that the Shevu'ah in our Mishnah is a Takanas Chachamim, he nevertheless proves from it that Heilech is Chayav to swear mid'Oraisa because otherwise, the Rabbanan would not shave instituted a Shevu'ah in our Mishnah, since it is not their way to institute a Shevu'ah de'Rabbanan, unless it has a precedent min ha'Torah.

4b----------------------------------------4b

6)

(a)What does Rebbi Shimon ben Elazar say about a Sh'tar which specifies 'Sela'im' or 'Dinrim' (but not how many), if the creditor claims five and the debtor admits to three?

(b)Rebbi Akiva exempts him from a Shevu'ah, because it is Meishiv Aveidah. What does he mean by that?

(c)What can we extrapolate from the fact that Rebbi Shimon ben Elazar specifically mentions three? What would be the Din if the debtor admitted to two?

(d)What does this prove (regarding the Din of Heilech)?

6)

(a)If a Shtar which specifies 'Sela'im' or 'Dinrim' (but not how many), the creditor claims five and the debtor admits to three Rebbi Shimon ben Elazar compares it to Modeh be'Miktzas, and obligates the debtor to swear.

(b)Rebbi Akiva exempts him from a Shevu'ah, because it is Meishiv Aveidah since he could have admitted to two Sela'im ... , in which case he would have been believed.

(c)From the fact that Rebbi Shimon ben Elazar mentions specifically three we can extrapolate that, had the debtor admitted to two, he would have been Patur.

(d)Seeing as the creditor has a Shtar, the debtor's admission is automatically Heilech a clear proof that Heilech is Patur from a Shevu'ah (a Kashya on Rebbi Chiya).

7)

(a)We conclude however, that Rebbi Shimon ben Elazar might obligate him even if he admitted to two Sela'im or Dinrim. Then why did he mention specifically three?

(b)We refute this answer however, due to the Lashon of the Beraisa. What ought Rebbi Shimon ben Elazar to have said had he mentioned 'three' only on account of Rebbi Akiva?

(c)So we conclude that, had the debtor admitted to only two Sela'im, he would indeed have been Patur from a Shevu'ah, but that is even if Heilech were Chayav. Why is that? What makes this case better than Heilech?

(d)As a matter of fact, he ought to be Patur anyway because every Sh'tar is a claim on all the debtor's Karka, which are all Meshubad to the creditor (and there is no Shevu'ah on Karka, whether the debtor denies Karka or admits it). Then why is he Chayav to swear if he admits to three?

7)

(a)We conclude however, that Rebbi Shimon ben Elazar might obligate him even if he admitted to two Sela'im or Dinrim, and he mentioned three only in order to counter Rebbi Akiva, who exempts him even there.

(b)We refute this answer however, due to the grounds of the Lashon of the Beraisa, because had Rebbi Shimon ben Elazar mentioned 'three' only on account of Rebbi Akiva then he ought to have said 'Af Zeh Yishava' (presumably by also switching the order, and stating the opinion of Rebbi Akiva first).

(c)So we conclude that, had the debtor admitted to only two, he would indeed have been Patur from a Shevu'ah, but that is even if Heilech were Chayav because, based on the fact that every plural (such as 'Sela'im' or 'Dinarim' in our case) incorporates two, the Sh'tar actually supports the debtor's claim that he owes the creditor two.

(d)As a matter of fact, he ought to be Patur anyway, because every Sh'tar is a claim on all the debtor's Karka, which are all Meshubad to the creditor (and there is no Shevu'ah on Karka, whether the debtor denies Karka or admits it). And the reason that he is Chayav to swear if he admits to three is because the Sh'tar implies only two Sela'im ... . and the third one is considered an oral loan.

8)

(a)Some cite the above proof (reversed) from Rebbi Akiva, who says that he is Patur because of Meishiv Aveidah. What can we then extrapolate from the fact that Rebbi Akiva speaks about three Sela'im ... ? What would the Din be in a case where the debtor admitted to two?

(b)What does this prove?

(c)And how do we refute this proof?

(d)Why must it be so? Why could Rebbi Akiva not possibly obligate the debtor had he admitted to two?

8)

(a)Some cite the above proof (reversed) from Rebbi Akiva, who says that he is Patur because of Meishiv Aveidah when the debtor admits to three implying that had he admitted to two ...

(b)... he would be Chayav, a proof that Heilech is Chayav.

(c)We refute this proof (in the same manner as we did the previous one) by establishing Rebbi Akiva both by two and by three. He only speaks about three Sela'im and Dinarim, to counter Rebbi Shimon ben Elazar who obligates a Shevu'ah even there.

(d)In fact, this must be so because if Rebbi Akiva were to obligate a debtor who admits to two Sela'im ... , how could he possibly exempt one who admits to three? This would only encourage dishonest debtors to admit to three, in order to avoid having to swear.

9)

(a)What is now the obvious Kashya on Rebbi Chiya?

(b)What two answers does he give to this Kashya?

9)

(a)The obvious Kashya on Rebbi Chiya is seeing as Rebbi Akiva exempts two from a Shevu'ah, he must hold that Heilech is Patur (like we asked in the first Lashon from Rebbi Shimon ben Elazar).

(b)Rebbi Chiya will answer just as he answered the Kashya originally either because a Sh'tar is better than Heilech, or because one does not swear on Kefiras Shibud Karka'os.

10)

(a)What does the Mishnah in Shevu'os say in a case where Reuven claims Karka and vessels, and Shimon admits to ...

1. ... the vessels and denies the Karka or vice-versa?

2. ... some of the Karka?

3. ... some of the vessels?

(b)What does Mar Zutra b'rei de'Rav Nachman extrapolate from this Beraisa with regard to 'Keilim ve'Keilim'? Why would this be a proof for Rebbi Chiya?

(c)We answer that really 'Keilim ve'Keilim' is Patur too. Then why did the Tana speak specifically about 'Keilim ve'Karka'?

(d)Why does the Mishnah need to teach us 'Zokekin' by implication, when the very same Mishnah in Shevu'os teaches it specifically?

10)

(a)The Mishnah in Shevu'os rules in a case where Reuven claims Karka and vessels, and Shimon admits to ...

1. ... the vessels and denies the Karka or vice-versa that he is Patur from a Shevu'ah.

2. ... some of the Karka he is Patur, too.

3. ... some of the vessels that he is Chayav a Shevu'ah.

(b)Mar Zutra b'rei de'Rav Nachman extrapolates from this Beraisa that 'Keilim ve'Keilim', similar to 'Keilim ve'Karka' (which is Heilech because Karka, which is always available, is automatically Heilech) would be Chayav a Shevu'ah (a proof for Rebbi Chiya).

(c)We answer that really 'Keilim ve'Keilim' is Patur too, and the reason the Tana speaks specifically about 'Keilim ve'Karka' is to teach us that when he admits to some of the Keilim, he must swear on the Karka too (known as 'Zokekin' for short).

(d)Despite the fact that the very same Mishnah in Shevu'os teaches 'Zokekin' specifically the Tana nevertheless takes the opportunity to teach it again by presenting the case in this way ('Agav G'rara Nasva' it mentions it by the way).

11)

(a)According to Rav Sheishes, who exempts Heilech from a Shevu'ah, why does the Torah need to exempt Karka from a Shevu'ah?

11)

(a)According to Rav Sheishes, who exempts Heilech from a Shevu'ah, the Torah nevertheless needs to exempt Karka from a Shevu'ah in a case when either he dug holes and trenches in it (since 'Heilech' only applies when the article is intact), or when the claimant claimed both Karka and vessels, and the defendant admitted to the vessels.

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