ON WHICH SHEVUOS MAY ONE BE MEGALGEL? [Shevuos :Gilgul]
48b - Question: If a defendant must take a mid'Rabanan oath, can the claimant be Megalgel (force him to swear about other matters)?
Answer (Beraisa): If Levi borrowed from Shimon before Shemitah, and became his partner after Shemitah, Shimon cannot be Megalgel;
Inference: This is because Shemitah cancels the loan. If not for this (e.g. if he borrowed after Shemitah), he could be Megalgel, even though the oath of partners is mid'Rabanan!
Question: Perhaps we infer that if they became partners before Shemitah, and Levi borrowed after Shemitah (and partially admitted), Shimon could Megalgel (about the partnership on the Torah oath about the loan)!
Answer: That cannot be, for the Seifa explicitly teaches this. Rather, one can be Megalgel, even from a mid'Rabanan oath.
(Rav Huna): We are Megalgel from any mid'Rabanan oath, except that of a worker.
(Rav Chisda): For any mid'Rabanan oath, we are not lenient, except for a worker's oath.
Rav Huna holds that we suggest to him. Rav Chisda disagrees.
Kidushin 27b (Ula): We learn an oath of Gilgul from Sotah:
(Mishnah): "She will answer 'Amen Amen'" - she swears that she was not Mezanah with this man or any other man, not during Eirusin or Nisu'in, not while a Shomeres Yavam or after Nisu'in.
He warned her during Nisu'in. He makes her swear about Eirusin through Gilgul.
Question: This teaches about a Gilgul oath about Isurim. What is the source for a Gilgul oath in monetary cases?
Answer (Tana d'Vei R. Yishmael): We learn a Kal va'Chomer. One witness cannot make a Sotah swear, yet when she swears, Gilgul applies. One witness can force one to swear about money. All the more so, Gilgul applies!
Question: This teaches about monetary oaths when the initial claim was Vadai. What is the source when the initial claim was Safek?
Answer (Beraisa - R. Shimon): The Torah discusses oaths outside (the Mikdash, i.e. monetary oaths in Beis Din) and oaths inside (the Mikdash, i.e. Sotah). Just like definite and Safek claims are the same inside, also outside.
Rif: The Yerushalmi brings a case in which Levi was obligated to swear about two Dinarim. He said 'I will pay.' His opponent (David) was Megalgel. Ze'ira told Levi that he must pay every claim or swear about it.
Rosh (Shevuos 7:19): The case is, David claimed the other matters before Levi agreed to pay. If he agreed to pay before he knew about David's intent to be Megalgel, Gilgul would not apply. If one agreed to pay the two Dinarim, and after he was told to pay everything or swear about everything, I am unsure whether he can retract from paying the two Dinarim. He agreed to pay in order to be exempt from swearing. Perhaps even if he left Beis Din, he can retract. Or, once he admitted, he admitted. It seems that he can retract.
Rif: Some ask from the Yerushalmi (Reish Perek ha'Mafkid) that says that if Levi accepted to swear, and saw that David was going to be Megalgel on him, R. Yosi said that he can decide to pay instead. Swearing is a leniency for the defendant. He can swear to be exempt if he wants. They answer that R. Yosi discusses a Shevu'ah mid'Oraisa, but not a Shevu'ah mid'Rabanan. I disagree. Gilgul Shevu'ah is mid'Oraisa, and Chachamim enacted all mid'Rabanan laws like Torah law! If the Torah allowed one to retract, also Chachamim would! Rather, Zeira holds like the first Tana of R. Yosi, who argues with R. Yosi.
Rebuttal (Rosh ibid): This Yerushalmi discusses something else! If a deposit was stolen and the Shomer decides to pay and not swear, the owner gives to him rights to collect Kefel (double payment, if the thief will be caught). If he wanted to swear, and saw that the owner wanted to be Megalgel, and he agreed to pay, we are concerned. I.e. perhaps he agreed to pay to avoid the Gilgul, and not to please the owner (so the owner does not cede Kefel). R. Yosi says that Shevu'ah is a leniency. Once he agreed to pay, it is as if he said so from the beginning, and the owner cedes Kefel. This Perush is better, for it equates the Yerushalmi with the Bavli, i.e. that we are Megalgel on mid'Rabanan oaths. Even one who pays must swear that the animal is not in his Reshus (so paying would not exempt from Gilgul), like the Yerushalmi explicitly said there.
Rambam (Hilchos To'en 1:12): Anyone who must swear, mid'Oraisa or mid'Rabanan, his opponent may be Megalgel on him anything that if he would admit to it, he would need to pay. We do not Megalgel on a worker's oath.
Terumas ha'Deshen (327): If Levi claimed from David, and David reversed the Shevu'ah onto Levi, it seems that David cannot be Megalgel on Levi. Reversing an oath is an enactment, and we do not impose another enactment (Gilgul on a Shevu'ah mid'Rabanan) on an enactment.
Hagahah: Also the Mordechai says that reversing an oath is an enactment, so we do not put an enactment on it, but Semag says in the name of the Rashbam that since the defendant consented, we do impose another enactment.
Terumas ha'Deshen: We conclude that Gilgul applies to everything except for a worker. The Rivan says that the exclusion of a worker includes all who swear and collect, for the oath is for their benefit. All the more so we are not Megalgel when a Shevu'ah was reversed, for there was no enactment that he swear, and he benefits through swearing. The Ri excludes only a worker, for letter of the law he should not need to swear (for we assume that the employer was distracted and forgot). He swears only to placate the employer. Also the Ri would hold that a reversed oath is not letter of the law, for really the defendant should swear or pay. This is why Rabanan say that we do not reverse a Torah oath, unlike Rav Hai Gaon and R. Gershom who rule that we do. I heard from one of the Gedolim that the Halachah does not follow them, even though Or Zaru'a says that we hold like them. Therefore, one does not Megalgel on a reversed oath.
Shulchan Aruch (CM 94:1): If David was obligated to swear in Beis Din, even Heses, his opponent may be Megalgel on him anything that if he would admit to it, he would need to pay.
SMA (1): We learn from Sotah. Her husband suspected her only of this man, but the Torah commands Beis Din to be Megalgel from Safek, i.e. for there are grounds (her immodest actions) to be concerned.
Rema: Some say that if Levi claimed from David, and David reversed the Shevu'ah onto Levi, David cannot be Megalgel on Levi.
Shach (2): This is from the Mordechai. I disagree. This is not an enactment on an enactment. Letter of the law, the defendant is exempt. Rav Nachman enacted Heses, and that he can reverse the oath onto the claimant. Therefore, he can say 'I will pay only if you swear about the Gilgul.' This is unlike a worker, and according to the Rivan, all who swear and collect based on the Mishnah. We hold like the Ri, that we are Megalgel on others who swear and collect, so all the more so we are Megalgel on a reversed Shevu'as Heses. However, the Ritva holds like the Terumas ha'Deshen.
Shulchan Aruch (ibid): If admission would not force David to pay, just to swear, Levi cannot be Megalgel the claim. We do not Megalgel on the oath of a worker to collect. Even if Levi did not demand Gilgul, Beis Din themselves are Megalgel.
Beis Yosef (DH u'Mah she'Chosav Rabeinu Chutz): Rashi explains that Rav Huna and Rav Chisda argue about whether we suggest to the claimant to be Megalgel. The Tur, Ran, Nimukei Yosef and Tosfos rule like Rav Huna, for he was Rav Chisda's Rebbi. The Rambam (Hilchos Sechirus 11:9) holds that they argue about encouraging the claimant to swear and collect.
Beis Yosef (DH v'Chosav ha'Ri, citing the Ri N' Yanir): Some say that for other oaths, Beis Din suggests Gilgul about matters that they know about, but not for matters that they do not know about, for that is like being a lawyer. For a worker, they do not suggest even for matters that they know about. Others say that we do not suggest to a worker to tell the employer not to be Megalgel, but if he says so, we heed him. This is primary.
Beis Yosef (DH v'Chosav ha'Ran, citing the Ran and Mordechai): In Bava Metzia (3b), we suggested that if two witnesses testify about part of a claim, they obligate a Shevu'ah on the rest, Kal va'Chomer from one witness (who obligates through Gilgul). This shows that regarding Modeh b'Miktzas, Beis Din is Megalgel even if the claimant does not request. Also, we learn from Sotah; we are Megalgel even if her husband does not request. Rav Huna and Rav Chisda argue about a mid'Rabanan oath.