My whole issue all along has not been with the Halacha, rather the S'ma's SEVARA that it is a bigger Chiddush for a Shomer to swear Aino B'Rshuso when he admits he is Chayiv and pays, than when he claims he is Patur and pays. If it were not for the S'ma's words, I would have said that there are, indeed, Sevaros Noteh to both directions - that a Shomer must swear Aino B'Rshuso whether he admits he is Chayiv and pays, or he claims he is Patur pays, as all the Rishonim and Poskim hold, as you point out.
The problem with the S'ma saying that it's a bigger Chiddush for the Shomer to have to swear when he admits Chiyuv and pays, is that if that were the case, the Gemara should not be able to ask on him from the Mishnah in Shevuos because:
a) Rav Huna said his Halacha of Shuvua She Aino B'Rshuso on our Mishnah, which, even if THE PRINCIPLES of Hakna'as Keifel can be extended to include cases where the Shomer admitted Chiyuv, the Poshut Pshat is that the Mishnah is a case where the Shomer Chinam claimed PTUR and is paying. (The Rivan, Tosfos' 2nd Pshat, who says an UKIMTA that the Shomer admitted Chiyuv through Pshia, is a Chiddush).
b) The Mishnah of Malveh Al HaMashkon states "V'Avad HaMashkon", presumably, we know this because the Shomer Sachar told us so (except according to the Ukimta of Rabah, of Eidim She Nigneveh). This Loshon is no different than when our Mishnah says "Nigneveh" or "Avdo"; it is the Shomer's telling us what happened to the Chefetz. (Although Tosfos 33b d.h. 'V'Negnevu' does offer a Pshat that 'WE know it was stolen', Tosfos says we still need the Shomer to tell us HOW it was stolen, i.e. in a way of Chiyuv or Ptur.) That being said, the words "V'Avad HaMashkon" in the Mishnah in Shevuos relate an admission of CHIYUV by the Malveh, as a Shomer Sachar, and the amount that is deducted from the balance of the loan (which is currently under dispute), is his payment for the loss he is responsible for as a Shomer Sachar.
If it were indeed a bigger Chiddush for a Shomer to have to swear when he admits Chiyuv and pays, and the Pashtus is that Rav Huna said his Halacha on a case where the Shomer claimed Ptur and pays, then the Gemara should not be able to ask a Kasha on him from Malveh Al HaMashkon, a case where the Shomer admits he is Chayiv and pays for the Aveidah of the Mashkon! There is an easy Dichuy to the Kashah; perhaps Rav Huna only said a Shomer must swear Aino B'Rshuso in the least Michudishdik case, i.e. a Shomer who claims Ptur and pays.
Unless I'm missing something, the Gemara's Kasha on Rav Huna seems to prove the Sma's very Svara to be wrong.
Perhaps I'm making more of an issue than there really is, which I alluded to earlier when I wrote that maybe the S'ma means that once we know the Halacha is that a Shomer must always swear Aino B'Rshuso - whether he admits he is Chayiv and pays, or he claims he is Patur and pays..
"There is still a slight Adifus for the Mechaber to state the Halacha of the Shvua in regards to Shomrim who are Chayiv and pay, as opposed to Shomrim who are Patur and pay."
But it must be only slightly Adif, otherwise if it's too big of a Chiddush, than the Gemara loses the ability to ask a Kasha on him from Malveh Al HaMashkon, unless we learn the Mishnah in HaMafkid as also a case of admission of Chiyuv, like the Rivan.
I am still reviewing what you have written regarding the Shach and the Ketzos, but at first glance, I do not understand how the Ketzos who holds there is no Shvua She Aino B'Rshuso when the Shomer swears to Patur himself and does not pay, fits with the Ritva in our Sugya, who explained that R'Sheshes was talking about a Shomer who swears to Patur himself and does not pay; he must swear Aino B'Rshuso. According to the Ketzos, what then would be the Chiddush of Rav Huna, if even R"Sheshes referred to a Shomer who pays?
We've been addressing what the Chiddush of Rav Huna is, over and above what Rav Sheshes already told us on 6a, that a Shomer must take a Shvua She Aino B'Rshuso.
The Ritva explained that, were it not for Rav Huna, we might have thought that the Shomer only needs to swear Aino B'Rshuso when he is swearing to Patur himself. However, if he is paying (like in the case of our Mishnah in HaMafkid), maybe he would not need to swear Aino B'Rshuso. The Ritva's Sevara is: if he really wanted it for himself, he should swear to Patur himself, or deny it. Ka Mashma Lan, Rav Huna, that even when you are paying, you must still take a Shvua She Aino B'Rshuso.
(Rashi at the top of 35a, and also at the bottom of 5b, also seems to learn that this is what Rav Huna is coming to tell us.)
I had written earlier, that according to the Rosh and the Bach's understanding of the Rif, that Rav Huna refers - not back to the Mishnah - but to the Din of R'Yochanan, regarding a Shomer who says 'Hareini Mishalem', we do not have the Kasha the Ritva addresses of: 'Mai Chadis Lan Rav Huna', because Rav Huna is adding a local Chiddush, in regards to the Sugya of Keifel. (According to the Rosh, the Chiddush is in regards to Haknaas HaKeifel, and according to the Bach, it is that the Shomer still has to swear Aino B'Rshuso when he says 'Hareini', even though 'Hareini' is akin to 'Shelem'.)
After some reflection, while I still believe that all to be true, I think it's necessary to say that even according to the Rosh and the Bach's understanding of the Rif, the significant Chiddush of Rav Huna according to the Makshin of our Gemara on 34b, is that a Shomer who pays must still swear Aino B'Rshuso, as the Ritva and Rashi indicate.
I will explain.
The Gemara asks on Rav Huna (and not Rav Sheshes) from the Mishnah of Malveh Al HaMashkon. According to Rashi and the Ritva, this makes perfect sense. It is a case where the Shomer (the Malveh) is not swearing to Patur himself; rather, he is paying for the loss of the Mashkon that he is Chayiv for as a Shomer. If Rav Huna is right, that even when a Shomer pays he must still swear Aino B'Rshuso, there would be no need to transfer the Shvua from Malveh to Loveh.
But according to the Rosh and the Bach's understanding of the Rif, it's not clear why the Gemara chooses to ask the question specifically on Rav Huna, as opposed to Rav Sheshes. If Rav Huna was only adding a local Chiddush, in regards to the Sugya of Keifel, the Gemara should not ask its Kasha of "Im Isa D'Rav Huna" specifically on him, as opposed to Rav Sheshes. According to the Rosh and the Bach, the case of Malveh Al HaMashkon is not relevant at all to the Rif's version of what Rav Huna was talking about, i.e. a Shomer who says 'Hareini Mishalem' and the Sugya of Keifel.
Therefore, I believe it is still necessary to say, even according to the Rif, that it is a significant Chiddush of Rav Huna that a Shomer who pays must still swear Aino B'Rshuso.
I will first explain this according to the Rosh's understanding of the Rif (as explained via the Derisha).
When Rav Huna said that a Shomer who says "Hareini" must swear Aino B'Rshuso before he gets the Keifel, at the same time, he is also being Michadesh to us that a when a Shomer pays, he must still swear Aino B'Rshuso. We would not have known this from Rav Sheshes on 6a. And therefore, the Gemara brings the Mishnah of Malveh Al HaMashkon as a Kasha against him.
Now according to the Bach's understanding of the Rif, it is a bit more difficult to say this, since he explicitly says that Rav Huna holds a Shomer who pays - does NOT swear Aino B'Rshuso - only a Shomer who says "Hareini' must swear Aino B'Rshuso.
However, if we analyze the underlying Svara of why the Rif holds this way, namely, because when the Baal accepts the money from the Shomer it's considered a Mechilah, this presupposes the Chiddush that even when the Shomer pays, we DON'T say - 'if he really wanted it for himself, he should swear to Patur himself, or deny it' - like the Ritva explained, and that there is still an obligation for him to swear Aino B'Rshuso.
Practically speaking, however, 99% of the time, there is no application of that Chiyuv, because the Baal's acceptance of the money is considered a Mechilah and overrides that Chiyuv. But if we could find a case where the Shomer pays (and did not swear to Patur himself or deny it) and the payment cannot be considered a Mechilah by the Baal, and the Shomer STILL does not swear Aino B'Rshuso, that would indeed be a Kasha on Rav Huna.
That is the case of Malveh Al HaMashkon.
The Shomer has paid the Loveh for the Mashkon by deducting its value from the balance of the existing loan.
However, the payment was not accepted by the Loveh in a Tzurah of Mechila. Rather, it was given earlier, in the form of a loan. That being the case, there's no Giluy here that the Loveh was Mochel the Shomer from swearing Aino b'rShuso like typical cases of Shelem.
Consequently, the absence of a Shevua She Aino B'Rshuso in this case is indeed a Kasha on Rav Huna, even according to the Bach's understanding of the Rif.
B'Chavod v'Yedidus Rav, and a Freilichen Purim.
-Daniel Steinberg
(a) I argue that the Poshut Pshat in the Mishnah 33b is that it refers to both a Taanas Petur and a Taanas Chiyuv. What I mean to say is that the reason the other Rishonim do not say like the Rivan is not because
they disagree fundamentally with him; and hold that in din the Mishnah can only be referring to a Taanas Petur; but rather because they learnt that the literal meaning suggests that the standard case was that it was stolen without peshiyah on the part of the shomer. There is no basic argument between the Rivan and the other Rishonim about Taanas Chiyuv and Taanas Petur, just a pshat question how to explain the word Nignevu.
I am going now, bs'd, to cite some Mefarshim who I think support what I argued above that the Poshut Pshat also includes where the Shomer admitted Chiyuv.
1) In fact, the first explanation cited by Tosfos 33b DH Nignevu also implies that the Mishnah could equally be referring to a Taanas Chiyuv. Tosfos writes that the Mishnah states that it was stolen, but it could also have said that he was Posheya. The Mishnah only stated Nignevu, because it is the normal way that a Shomer would claim that it was stolen, since a person usually argues that he is exempt from paying.
I argue that Tosfos is saying that the Mishnah chose the case of Petur simply because that is a more frequent Taana but it could just as easily have been a Taanas Chiyuv.
2) I also found Achronim who explain that the Rivan himself holds that the Mishnah is not only discussing a case where he argued Chiyuv, but is in fact discusiing all cases. Otzar Mefrashei Hatalmud cites Yavin Shemuah and Mayan HaChochmah (I saw the Mayan HaChochmah inside) that Rivan does not mean to say that the Mishnah only refers to Nignevu by Peshiyah, but he means that the Mishnah included all different kinds of Geneva; either Oness or Peshiya. We learn that the Poshut Pshat in the Mishnah is that it does not have to mean only Petur but can just as easily mean Chiyuv.
3) The Tiferes Yisroel #3 writes that even if the Shomer claims that it was stolen because of Peshiyah the owner also gives the kefel to the Shomer. The way of the Tiferes Yisroel is only to say Poshut Pshat but he says the pshat of the Rivan that the Mishnah also mentioned a Taanas Chiyuv.
1) Yes I think that is correct that there is only a slight Adifus for the Taanas Chiyuv more than Taanas Petur, and that is why the Gemara can ask on Rav Huna from Malveh Al HaMashkon.
2) Indeed I do not see how we can reconcile Ketzos 294:5 with Ritva 34b DH Amar Rav Huna. In fact, there seem to be 2 major opposing Shittos lined up here:-
(a) This Shittah of the Ritva that even though he pays he still must swear she-eino birshuso. This seems to go together with the Shach end 66:124 that there is a stronger svara that he must swear when he does not pay than when he does pay, but in fact he must swear in both cases.
(b) The Shittah of Ketzos 294:5 that when he wants to pay he does not have to take a Shevua. He only needs to swear when he wants to pay since we are worried that he has taken a fancy to the item and is prepared to pay for it. Rabbi Akiva Eiger agrees with Ketzos. This is in Chidushei Rabbi Akiva Eiger, in the margin of Shulchan Aruch Choshen Mishpat 291:4, who writes that Chazal only made a Takana of shevua she-eino birsheso when he pays, since people do not think there is a prohibition of stealing if one pays, but if he does not pay we do not suspect him of stealing, so he is not required to swear.
(c) The question now is:- how does Ketzos answer the question of the Ritva that what does Rav Huna tell us that we did not know already from Rav Sheshes? The answer can be that the shevua of Rav Sheshes is a shevua deoraisa whilst the shevua of Rav Huna is a shevua derabanan. Reuven was mafkid a shirt with Shimon and Shimon claims the shirt was burnt b'ones. Witnesses testified that they saw a shirt being burnt b'ones but they do not know which shirt. Shimon is exempt mideoraisa but miderabanan he must take the shevua of Rav Huna and according to Ketzos this is ony when he pays.
[ The case I have given here is cited in Shulchan Aruch Choshen Mishpat 294:4 and the beginning of Ketzos 294:5].
Reb Daniel, you have done such an incredible job, learning this sugya so much b'Iyun Rav!!!
Warm wishes
Dovid Bloom
Shalom, R'Dovid,
I'm still working through all of the important and thorough He'aros you've brought. This is indeed a wide and deep Sugya. In the meantime...
It certainly seems there are multiple Mehalchim as to whether the Pashut Pshat of our Mishnah refers Davka to a case of a Shomer who claims Ptur, or Davka a Shomer who admits Chiyuv, or as you have written, that it possibly refers to both.
I just wanted to share with you a few wonderful Cheshbonos I came across that indicate the Mishnah is either Davka a case of Ptur, or Davka a case of Chiyuv, based on:
a) How Rava and Abaye in Bava Kamma 108a interpret our Mishnah,
b) The Machlokes between the Bach and the Ketzos regarding a Shomer who admits Chiyuv, if he must also say "Hareini" in order to get the Keifel.
1. R'Akiva Eiger brings R'Leib Dayan, who demonstrates Rashi MUST learn the case of the Reisha as a case where the Shomer claimed he was Patur and then paid, and CANNOT learn the Reisha of our Mishnah like the Rivan, where the Shomer admitted he was Chayiv (Poshea) and doesn't want to swear falsely, and pays.
He quotes Rashi in Bava Kamma (108a, d.h. "Tav'uhu Baalim L'Shomer Chinam...") in Shitas Rava, who interprets the Seyfa of our Mishnah to be a case where the Shomer swore to Patur himself ("Nishba"), but paid afterwards (V'LoRatzah L'a'aMod B'Shvuaso"); such a Shomer still gets the Keifel.
Rashi, in referencing the Shomer's payment, adds the words, "Lifnim Mishuras HaDin" - implying that the payment of the Shomer in such a case must be beyond the letter of the law in order to qualify to receive the Keifel.
What that means is that if the Shomer admitted he was Poshea and had sworn falsely to Patur himself, and then wanted to pay to fulfill his true obligation, he would not receive the Keifel, since his payment is no longer "Lifnim Mishuras HaDin".
R'Leib Dayan points out, therefore, Rashi cannot learn the Reisha like the Rivan, as a case where the Shomer admitted Chiyuv instead of swearing falsely, because the Din that would emerge from the Seyfa, i.e. the converse case, where the Shomer actually did swear falsely to Patur himself and subsequently admitted Pshia and paid, would no longer be true according to Rava. Such a Shomer would not receive the Keifel (according to Rashi in Shitas Rava), since his payment is not "Lifnim Mishuras HaDin".
Therefore Rashi MUST learn the case of the Reisha as a case where the Shomer claimed he was Patur, and then paid.
A2. The Shaar HaMishpat demonstrates that the Rashba MUST hold that the Mishnah is DAVKA referring to a case where the Shomer admitted he was Chayiv (Poshea) and doesn't want to swear falsely, and pays, like the Rivan.
The Rashba's opinion is that when there are Eidim who say the Shomer is Patur, e.g. Eidei Ne'enseh, the Shomer does not get Keifel when he pays afterwards, because it's impossible to say the Baal had in mind at Shaas Mesirah that the Shomer would pay under those circumstances.
Asks the Ritva (quoted in the Shita) on the Rashba's Svara: According to Rava in Bava Kamma (108a) who holds that when a Shomer swears to Patur himself, but pays afterwards, he still gets Keifel, how is that conceptually any different than when Eidim say the Shomer is Patur and pays afterwards, where the Rashba says he does not get the Keifel? In Rava's scenario as well you cannot say the Baal had in mind at Shaas Mesirah that the Shomer would pay when he's already Patur!
Answers the Shaar HaMishpat: The Rashba must hold that Pshat in our Mishnah is like the Rivan, where the Shomer admits he's Chayiv! The Baal always has in mind at Shaas Mesirah to be Makneh Keifel to Shomrim who pay when they're Chayiv! It's only when they're already Patur (for e.g. via Eidim) that the Baal could not have had the Shomer's subsequent payment in mind from Shaas Mesirah. And that explains the difference between the two scenarios.
We have also corresponded regarding the Shita of the Ketzos, that when a Shomer admits Chiyuv, he need not also say "Hareini Mishalem". The Ketzos asks a question on his own opinion; according to the Rivan, that our Mishnah refers to a case of a Shomer who admits Chiyuv, and R'Yochanan who interprets the word 'Shelem" in our Mishnah to mean "Hareini" - it would seem to be proof that you DO need to also say "Hareini", even when admitting Chiyuv. (The Ketzos answers his own question, however, L'Aniyas Da'ati, it seems to me there is a flaw in the logic of the answer.)
This would be another potential (side) reason why the Pshat of the Mishnah (according to the Ketzos' Kashah on himself) must Davka be referring to a case of a Shomer who claimed Ptur (like A1. above).
What emerges from all of the above is that while THE DIN is that a Shomer gets Keifel whether he claims Ptur or admits Chiyuv (this is clear from Rav Pappa on 34a) it is still possible that for peripheral reasons, the Pshat case of the Mishnah MUST still be referring exclusively to one type of scenario, either a case of a Shomer who claims Ptur, or a Shomer who admits Chiyuv.
A Gutten (Erev) Erev Pesach, and a Chag Kasher v'Sameach.
Warm regards,
-Daniel Steinberg
1) want to say that now that we know Rashi in Bava Kama 108a, DH Tav'uhu, according to Reb Leib Dayan's Pshat, we can understand better Rashi in our Mishnah, Bava Metzia 33b. Rashi here writes that he could have become Patur with the Shevu'ah. I think it is better to say that he could have truthfully sworn that he was not Poshe'a. This is stated by the Shitah Mekubetzes (DH Shilem, in the name of Shitah) who explains that the Mishnah means that if he would have wanted he could have taken a true oath. The Shitah does not write explicitly that this is the Pshat in Rashi, but I suggest that it is better understood if we say that Rashi on 33b is consistent with Rashi in Bava Kama 108a. According to this, Tosfos is coming to argue with Rashi. (It is famous in the Mir Yeshiva that Rav Nachum Pertzovitz zt'l used to say that whenever Tosfos says a different Pshat from Rashi, that means he is arguing with Rashi, even though Tosfos does not write this explicitly. Otherwise, why would Tosfos have to write anything if he agrees with Rashi?) So the Rivan is disputing with hsi father-in-law, Rashi.
2) I do not understand how it can be that the Sha'ar ha'Mishpat writes that according to the Rashba, the Mishnah must be referring to where it is Davka a case where he admits he is Chayav. (I assume you are referring to the Sha'ar ha'Mishpat 285:1, at the end, where he cites the Machlokes between the Rashba and the Ritva, but I do not think that he writes what you say.)
The Rashba (33b, DH Ha d'Nakat) writes that when the Mishnah writes that it was stolen or lost, this is Lav Davka, but it could also be referring to where he argues "Pashati." This means that the Rashba holds there are two possibilities in the Mishnah: either a Ta'anas Petur or a Ta'anas Chiyuv. So the Rashba does not have to hold that the Mishnah is Davka a case where he admitted he was Chayav.
3) I looked again at the Sha'ar ha'Mishpat, near the end of 295:1, and he writes that according to the Rashba (cited by the Nimukei Yosef, beginning of 18b in the pages of the Rif), it is only in frequent cases that the Mafkid gives Kefel, and since paying Lifnim mi'Shuras ha'Din is not frequent, it follows that he will not give over Kefel according to the Rashba, so the Rashba disagrees with Rashi in Bava Kama 108a.
4) But I still have my question that the Rashba (33b, DH Ha d'Nakat writes that if it was stolen or lost (from a Shomer Chinam) he also gives Kefel. There seems to be some kind of contradiction in the Rashba.
5) I am thinking more about the Sha'ar ha'Mishpat. (I will continue to think out loud, so to speak, for the moment, since there is something in the Sha'ar ha'Mishpat that I do not understand.)
a) The Sha'ar ha'Mishpat seems to say that it is not "Shechi'ach" (frequent, common) to pay Lifnim mi'Shuras ha'Din. This I find difficult to understand because the Gemara in Bava Metzia 30b states that Yerushalayim was destroyed because they did not act Lifnim mi'Shuras ha'Din, and the Mordechai (Bava Metzia #257) cites the Ra'avan and Aviyah that Beis Din may compel people to act Lifnim mi'Shiras ha'Din. If so, how is it possible to say that it is unusual to do Lifnim mi'Shuras ha'Din if some Rishonim say that you must?
b) I think the answer is that the Sha'ar ha'Mishpat never said that it is unusual to do Lifnim mi'Shuras ha'Din. What he said was that if one has already made a Shevu'ah, then it is unusual to pay Lifnim mi'Shuras ha'Din. This is because the Nimukei Yosef (18b of the pages of the Rif) cites the Rashba who syas that if one is Patur from both paying and swearing, then the Mafkid did not expect the Shomer to pay, since this would be unusual as he does need to pay to exempt himself from either payment or oath.
c) At any rate, the Rashba never said that the Pshat in our Mishnah is only like the Rivan, that the Mishnah is only discussing a case of Chiyuv. What the Rashba said is that the Mishnah could also be discussing a case of Chiyuv, and could also be discussing a case of Patur. This is what the Chidushei ha'Rashba (DH Ha d'Nakat) means when he writes that the Mishnah is discussing all cases, both Patur and Chiyuv. The Nimukei Yosef adds that according to the Rashba, the only case the Mishnah is not discussing is where there is no need to pay at all, either to exempt oneself from payment or from Shevu'ah. In such a case, the Mafkid never thought that he would pay, because he has no need to do so.
Would you at least agree that according to the Ketzos ha'Choshen (295:1), the Mishnah could be referring either to Ta'anas Petur or Ta'anas Chiyuv?
Dovid Bloom
Just one quick comment for the moment.
3) The Mechaber in CM 395:1 writes that whenever the Shomer pays he always must take a Shevua that it is not in his reshus, with the exception of items which are readily available to buy in the market, where there is no worry that he took a fancy to this item. We see that when he pays on a Taanas Chiyuv he also must swear.
I want to relate that once the Maharil Diskin learnt in his shiur the same page of Gemara for 40 consecutive days. At the end of the 40 days the Maharil Diskin said that we could really learn more and more about every point in this Gemara and we still have not yet plumetted to the great depths of the words of even one page of Gemara, but what can we do?! We have to learn the whole of Shas and we do not have time just to learn one Daf!!
[see Sefer Zichron LeMoshe Sefer Zicharon page 107]
Well, Reb Daniel, I hope that what we have written will help you to take thngs further yourself. "Ten LeChochom VeYechkam Od" (Mishlei 9:9) "Give to a wise man and he will become yet wiser".
We have to move on now to other questions.
We should learn lots more sugyos together B'Iyun Rav!
Yasher Koach Gadol
Dovid Bloom