KESUVOS 18 (1 Adar) - dedicated in memory of Mordecai (Marcus) ben Elimelech Shmuel Kornfeld, who perished in the Holocaust along with most of his family. His Yahrzeit is observed on 1 Adar. May his death and the deaths of the other Kedoshim of the Holocaust atone for us like Korbanos.

1)

(a)Rebbi Yehoshua's concession to Raban Gamliel in a case of 'ha'Peh she'Asar' is confined to property that belonged to his friend's father, because he is speaking about land. We ask why he does not speak about a case of movable goods, in which case he could establish it by the friend himself. What is the case?

(b)We answer, like we answered earlier, that we would then have a problem with the Seifa (when there are witnesses). What would then be the problem? What do we rule with regard to someone who borrows money with witnesses?

1)

(a)Rebbi Yehoshua's concession to Raban Gamliel in a case of 'ha'Peh she'Asar' is confined to property that belonged to his friend's father, because he is speaking about land. We ask why he does not refer to a case of movable goods, in which case he could establish it by the friend himself - when he admits to having made a loan of a Manah from his friend, but claims that he repaid it.

(b)We answer, like we answered earlier, that we would then have a problem with the Seifa (where there are witnesses). The problem would then be - that, even if he borrowed with witnesses, the Halachah entitles him to repay the loan without them. Consequently, he will be believed to say that he did; so why does the Tana say that he is not?!

2)

(a)We then suggest that the Tana could have chosen an alternative case of 'ha'Peh she'Asar ... '; namely, 'I have a Manah of your father's, of which I paid him half'. What would be the Chidush that would give this case the edge over the case in our Mishnah?

(b)Rebbi Eliezer ben Yakov and the Rabanan dispute this case in a Beraisa. Rebbi Eliezer ben Yakov says 'There are times when a person swears on his own statement'. What do the Rabanan say?

(c)We reject the suggestion that the Tana ought to have presented this case, on the grounds that Rebbi Yehoshua would then not hold like either Tana. Why would he not hold ...

1. ... like Rebbi Eliezer ben Yakov?

2. ... like the Rabanan?

2)

(a)We then suggest that the Tana could have chosen another case of 'ha'Peh she'Asar ... '; namely, 'I have a Manah of your father's, of which I paid him half'. The Chidush giving this case the edge over the case in our Mishnah would be - that, although someone who admits to part of a claim ('Modeh b'Miktzas'), is normally Chayav to make a Shevu'ah, he is Patur.

(b)Rebbi Eliezer ben Yakov and the Rabanan dispute this case in a Beraisa. Rebbi Eliezer ben Yakov says 'There are times when a person swears on his own statement' - the Rabanan say that he is like someone who returns a lost article, who is Patur from a Shevu'ah.

(c)We reject the suggestion that the Tana ought to have presented this case, on the grounds that Rebbi Yehoshua would then not hold like either Tana. He would not hold ...

1. ... like Rebbi Eliezer ben Yakov - who obligates him to swear, even when there are no witnesses (so why would he believe him in the Reisha?!).

2. ... like the Rabanan - who exempt him even when there are witnesses (as we shall see later - so why does he not believe him in the Seifa)?

3)

(a)What is a 'Meishiv Aveidah'?

(b)What Takanah did the Chachamim enact regarding a Meishiv Aveidah? Why did they do that?

(c)This poses a difficulty with Rebbi Eliezer ben Yakov, who obligates a Shevu'ah in the previous case. On what grounds do we reject the suggestion that ...

1. ... he calls it Ta'anas Atzmo because it speaks when a child is claiming from him?

2. ... it speaks when it is a Gadol who is claiming?

3. ... it is others who claim and he who confesses?

3)

(a)A 'Meshiv Aveidah' is - someone who volunteers to return a lost article or to pay back a loan.

(b)The Chachamim enacted a Takanah - that a Meshiv Aveidah is Patur from a Shevu'ah (in order to encourage people to return lost articles and to pay back loans).

(c)This poses a difficulty with Rebbi Eliezer ben Yakov, who obligates a Shevu'ah in the previous case. We reject the suggestion that ...

1. ... he calls it Ta'anas Atzmo because it speaks when a child is claiming from him - because, if that was so, he would not be Chayav a Shevu'ah (as we learned in Gitin).

2. ... it speaks when it is a Gadol who is claiming - because how can Rebbi Eliezer ben Yakov then refer to it as 'Ta'anas Atzmo'?!

3. ... it speaks when it is others who claim and he who confesses - because that would be a regular case of Modesh b'Miktzas whereas it is clear that this case is the exception rather than the rule.

4)

(a)We conclude that Rebbi Eliezer ben Yakov and the Rabanan argue over Rabah, who explains why the Torah obligates a Modeh b'Miktzas (someone who admits to part of a claim) to take an oath. Why does a Modeh b'Miktzas not deny the claim completely?

(b)In that case, why does he not then admit to the entire claim?

(c)What is now the case that Rebbi Eliezer ben Yakov and the Chachamim dispute?

(d)What is the basis of their dispute? Why, according to ...

1. ... Rebbi Eliezer ben Yakov, is it not considered 'Meishiv Aveidah'?

2. ... the Rabanan, is it considered 'Meishiv Aveidah?

4)

(a)We conclude that Rebbi Eliezer ben Yakov and the Rabanan argue over Rabah's statement. Rabah explains why the Torah obligates a Modeh b'Miktzas (someone who admits to part of a claim) to take an oath. The reason that a Modeh b'Miktzas does not deny the claim completely is - because at the outset, he really wants to deny everything, but doesn't have the Chutzpah to deny directly into the face of his benefactor.

(b)Nevertheless, he does not admit to the entire claim - because he does not have the money, so he stalls for time until such time as has the money to pay his entire debt. Consequently, seeing as, basically, he is assumed to be an honest man, the Torah obligates him to swear, to force him to own up and pay (see Tosfos DH 'uv'Chuli').

(c)The case that Rebbi Eliezer ben Yakov and the Chachamim dispute is - when it is the son of the creditor who claims the money (which explains why Rebbi Eliezer ben Yakov refers to it as 'Ta'anas Atzmo' - as we explained earlier) as opposed to the creditor himself.

(d)And the basis of their dispute is - whether, seeing as it is not the creditor himself who is claiming the money, the debtor will have the Chutzpah to deny the claim entirely or not: According to ...

1. ... Rebbi Eliezer ben Yakov - there is no difference between the creditor and his son in this regard. A person will not dare to deny the loan, in which case, this is not considered 'Meshiv Aveidah' (volunteering to pay), and he will not be believed any more than he would by any regular loan.

2. ... the Rabanan - it is only against the claim of the creditor himself that the debtor will not have the Chutzpah to deny the loan entirely, but not when his son is the claimant. Consequently, in this case, where it is the son who is claiming, and the debtor could well have denied the entire claim, but chose not to, it is considered 'Meshiv Aveidah' (because he declared himself obligated), and he is believed.

18b----------------------------------------18b

5)

(a)Our Mishnah rules that witnesses who verify their signatures on a document are nevertheless believed to invalidate it, when they add 'Anusim Hayinu'. Why is that?

(b)Which other two arguments might they present to invalidate the document?

(c)If there are other witnesses however, who recognize their signatures, then they are not believed. Under which other circumstances are they not believed?

5)

(a)Our Mishnah rules that witnesses who verify their signatures on a document, are nevertheless believed to invalidate it, when they add 'Anusim Hayinu' - because 'ha'Peh she'Asar ... '.

(b)To invalidate the document - they might also claim that they were Ketanim when they signed or Pesulei Edus (relatives or gamblers).

(c)If there are other witnesses however, who recognize their signatures, then they are not believed - and the same will apply if their signatures appear on a document that has been confirmed by Beis-Din (in which case, their own verification is no longer necessary, and it is no longer a 'Peh she'Asar').

6)

(a)How does Rami bar Chama (according to our initial understanding) qualify 'Anusim Hayinu' in the Seifa of our Mishnah (where they are not believed)? On what condition will they be believed?

(b)Why is the former not believed, whereas the latter, is?

(c)On what grounds do we reject this explanation? What do we learn from the Pasuk in Vayikra "Im Lo Yagid"?

(d)Based on the Lashon Hagadah ("Im Lo Yagid"), we try to restrict 'Keivan she'Higid ... ' to verbal testimony, establishing Rami bar Chama's explanation by testimony that is written. What principle does Resh Lakish teach us that negates this suggestion?

6)

(a)Rami bar Chama (according to our initial understanding) qualifies 'Anusim Hayinu' in the Seifa of our Mishnah (where they are not believed) to where they said 'Anusim Hayinu Machmas Mamon' (due to monetary considerations). But had they said 'Anusim Hayinu Machmas Nefashos', they would have been believed.

(b)The former is not believed - due to the principle 'Ein Adam Mesim Atzmo Rasha' (a person, who is considered a close relative to himself, is not believed on any self-denouncement that renders him a Rasha), despite the fact that it is a 'Peh she'Asar'; the latter would have been believed - because of 'ha'Peh she'Asar ... '.

(c)We reject this explanation however, on the basis of the Pasuk "Im Lo Yagid" - from which we learn the principle 'Keivan she'Higid, Shuv Eino Chozer u'Magid' (once a witness has testified, he cannot retract). Consequently, in the Seifa, where witnesses substantiate their signatures, how can they now retract and claim that they were Anusim at all, even if it was 'Machmas Nefashos'?!

(d)Based on the Lashon 'Hagadah' ("Im Lo Yagid"), we try to restrict 'Keivan she'Higid ... ' to verbal testimony, establishing Rami bar Chama's explanation by testimony that is written. Resh Lakish negates this suggestion however - with his principle 'Eidim ha'Chasumin al ha'Shtar, Na'aseh k'Mi she'Nechkerah Eidusan b'Beis Din' (signed evidence in a document is considered as if it had been examined and accepted in Beis Din).

7)

(a)We therefore amend Rami bar Chama's statement, to connect it with the Reisha. What does he now say?

(b)Why are they not believed in the Reisha, in spite of 'ha'Peh she'Asar'?

(c)What will be the Din in the Seifa?

(d)In the Reisha, we believe the witnesses, even if they claim that they are Pesulei Edus. Why will that not automatically invalidate them in the same way as it invalidates 'Anusim Hayinu Machmas Mamon'?

7)

(a)We therefore amend Rami bar Chama's statement, to connect it with the Reisha. What he now says is - that we only believe the witnesses in the Reisha, with a 'Peh she'Asar' when they claim 'Anusim Hayinu Machmas Nefashos', but not when they claim 'Anusim Hayinu Machmas Mamon'.

(b)They are not believed in the Reisha, in spite of 'ha'Peh she'Asar' - because 'Ein Adam Oseh Atzmo Rasha'.

(c)But in the Seifa, where the Shtar is substantiated without their testimony, they are not believed either way, because of 'Keivan she'Higid ... '.

(d)In the Reisha, we believe the witnesses, even if they claim that they are Pesulei Edus. It will not automatically invalidate them (in the same way as it invalidates 'Anusim Hayinu Machmas Mamon') due to 'Ein Adam Mesim Atzmo Rasha' - because our Mishnah speaks when they claimed that they had previously been relatives or slaves, but that that was no longer the case (see Cheshek Shlomo DH 'ha'Edim she'Amru').

8)

(a)Rebbi Meir in a Beraisa, is more stringent than the Tana of our Mishnah. What does he say?

(b)The only real problem with Rebbi Meir is from the case of 'Anusim Hayinu (Machmas Nefashos)', where there is no apparent reason not to believe the witnesses on account of 'ha'Peh she'Asar', but not from the other two cases. Why is there no problem from ...

1. ... Pesulei Edus?

2. ... Ketanim?

8)

(a)Rebbi Meir, in a Beraisa, disagrees with the Tana of our Mishnah. According to him - the witnesses are not even believed in the Reisha either, even if they claim 'Anusim Hayinu Machmas Nefashos' or 'Ketanim' or 'Pesulei Edus Hayinu'.

(b)The only real problem with Rebbi Meir is from the case of 'Anusim Hayinu (Machmas Nefashos)', where there is no apparent reason not to believe the witnesses on account of 'ha'Peh she'Asar', but not from the other two cases. There is no problem from ...

1. ... 'Pesulei Edus Hayinu' - because, in his opinion, the creditor is always particular not to sign Pesulei Edus on his document (and even the witnesses cannot be believed when they testify otherwise).

2. ... Ketanim - because of Chazakah stated by Resh Lakish that it is only Gedolim who sign on a Shtar (see Tosfos DH 'Chazakah').

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