SHEVUOS 38 (18 Teves) - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.
1) MULTIPLE "SHEVU'OS" IN ONE STATEMENT
QUESTION: Rebbi Meir and Rebbi Yehudah disagree about what statement is considered to contain a single, general Shevu'ah ("Klal"), and what statement is considered to contain multiple, separate Shevu'os ("Prat"). According to Rebbi Yehudah, the statement, "[Shevu'ah she'Ein Lecha b'Yadi,] v'Lo Lecha, v'Lo Lecha," is considered to be multiple, separate Shevu'os. The statement, "[Shevu'ah she'Ein Lecha b'Yadi,] Lo Lecha, Lo Lecha," is considered a single Shevu'ah.
Rebbi Meir argues and says that the statement, "Lo Lecha, Lo Lecha," is considered to contain multiple Shevu'os.
Rebbi Yochanan and Shmuel disagree about what Rebbi Meir maintains in the case of the statement, "v'Lo Lecha, v'Lo Lecha." Rebbi Yochanan says that Rebbi Meir maintains that this statement also contains multiple Shevu'os. Shmuel says that Rebbi Meir maintains that this statement is considered a single Shevu'ah (the opposite of Rebbi Yehudah's opinion).
Rebbi Yochanan supports his understanding of Rebbi Meir's opinion from the Mishnah (36b), which is expressing the view of Rebbi Meir and which lists as an example of a single Shevu'ah the statement, "Shevu'ah she'Ein Lachem b'Yadi." This implies that had the defendant mentioned each claimant separately -- whether with the words, "v'Lo Lecha, v'Lo Lecha," or with the words, "Lo Lecha, Lo Lecha" -- his statement would have been considered to contain multiple, individual Shevu'os.
Shmuel refutes this proof. He argues that when a person says, "v'Lo Lecha, v'Lo Lecha," it is as if he said, "Shevu'ah she'Ein Lachem b'Yadi." Therefore, when the Mishnah says that the statement, "I make a Shevu'ah that I do not owe any of you (she'Ein Lachem b'Yadi)," is considered a single Shevu'ah, the same applies when a person says, "I make a Shevu'ah that I do not owe you, and I do not owe you, and I do not owe you (v'Lo Lecha, v'Lo Lecha)."
Shmuel's rejoinder is problematic. How can Shmuel say that "v'Lo Lecha, v'Lo Lecha" is identical to "she'Ein Lachem b'Yadi," and that is why the Mishnah does not mention "v'Lo Lecha, v'Lo Lecha"? Logically, it is not identical, because Rebbi Yehudah differentiates between the two and says that "v'Lo Lecha, v'Lo Lecha" is considered separate Shevu'os! The Mishnah should have taught that "v'Lo Lecha, v'Lo Lecha" is considered a single Shevu'ah according to Rebbi Meir, because that Halachah is not evident from the Halachah that the statement, "she'Ein Lachem b'Yadi," is considered a single Shevu'ah. (RASHBA)
RABEINU CHANANEL explains that Shmuel does not mean that "v'Lo Lecha, v'Lo Lecha" has the same law as "she'Ein Lachem b'Yadi." Rather, Shmuel means that according to Rebbi Meir the statement of "v'Lo Lecha, v'Lo Lecha" is equivalent to saying "she'Ein Lachem b'Yadi." That is why Rebbi Meir maintains that it is not necessary for the Mishnah to mention that "v'Lo Lecha, v'Lo Lecha" is also considered a single Shevu'ah.
The RASHBA considers this approach but rejects it, because the Gemara implies that Shmuel knows for certain that Rebbi Meir considers "v'Lo Lecha, v'Lo Lecha" the same as "she'Ein Lachem b'Yadi," and that is why Shmuel maintains that the Mishnah poses no difficulty to his opinion. (If Shmuel means simply that it is possible to refute the proof against him from the Mishnah in such a manner, then he should have said "perhaps (Dilma) Rebbi Meir maintains that one who says 'v'Lo Lecha...' is the same as one who says 'she'Ein Lachem b'Yadi.'" Since Shmuel uses no qualifying term "perhaps," he clearly understands that Rebbi Meir equates the two statements.)
Where does Shmuel see (other than in the Mishnah itself) that Rebbi Meir considers it so obvious that "v'Lo Lecha, v'Lo Lecha" is the same as "she'Ein Lachem b'Yadi" that he does not have to mention it in the Mishnah?
ANSWER: Perhaps the answer to the Rashba's question is that Shmuel learns this from the way Rebbi Meir expresses his view in the Beraisa. In the Beraisa, Rebbi Meir states simply that "if a person includes all the denials in a single Shevu'ah (Kalal), then he is liable for only one Shevu'ah, but if he specifies each claimant (Parat), then he is liable for each one separately." Rebbi Meir does not find it necessary to explain what is considered "Kalal," a Shevu'ah in which multiple claimants are "grouped together," and what is not considered "Kalal." Why does he not mention that when a person says, "v'Lo Lecha, v'Lo Lecha," he is considered to be grouping the claimants together (just as Rebbi Yehudah in the Beraisa specifies that "v'Lo Lecha, v'Lo Lecha" is considered individual Shevu'os)? From this Shmuel infers that according to Rebbi Meir, the status of "v'Lo Lecha, v'Lo Lecha" is so obvious that it does not need to be mentioned (in the Beraisa) explicitly. For the same reason, Rebbi Meir does not write the Halachah of "v'Lo Lecha" in the Mishnah. (M. KORNFELD)
2) THE EXEMPTION FROM A SHEVU'AH IN A CASE OF "MESHIV AVEIDAH"
QUESTION: The Mishnah teaches that if a person approaches another person and says, "I think you owe my father money and did not yet pay him back," and the defendant admits that he owes half of the amount claimed, the defendant is exempt from a Shevu'as Modeh b'Miktzas, because he simply is "returning a lost object" (Meshiv Aveidah). Since he was not challenged with a claim based on definite knowledge of the facts, it is considered as though he is volunteering the information that he owes a certain amount of money. He is doing a favor to the claimant by returning the money, and he is not viewed as though he is denying the part that he does not return.
RASHI explains that the source that a person who is "Meshiv Aveidah" is exempt from an oath is the Mishnah in Gitin (48b), which teaches that when one finds an object and returns it to the original owner who then claims that there was another object that he lost together with the first one, the finder is exempt from a Shevu'as Modeh b'Miktzas because of "Tikun ha'Olam." If he would be required to swear, then no one would return lost objects out of fear of being forced to swear. Similarly, if the defendant is required to swear in the case of the Mishnah here, he would not admit that he owes half (because he wants to avoid having to make a Shevu'ah).
The exemption from a Shevu'ah in a case of Meshiv Aveidah is mid'Rabanan, as the words of the Mishnah in Gitin imply ("Mipnei Tikun ha'Olam"), and as Rashi writes in Kesuvos (18a, DH b'Rebbi Eliezer).
Why does Rashi say that the defendant is exempt from a Shevu'ah only mid'Rabanan? He should be exempt mid'Oraisa because of a Migu that he could have denied everything! Normally, one who is Modeh b'Miktzas does not have such a Migu, because he is embarrassed to lie openly to his opponent and deny everything (as the Gemara says in Bava Metzia 3a, and here in Shevuos 42b). However, when his opponent does not know for certain that anything is owed, the defendant will not be embarrassed to deny the entire loan, and thus he should be exempt from a Shevu'ah because of the Migu.
The same question may be asked on Rashi in Bava Metzia (3a, DH Mipnei Mah). There, Rashi writes that when the Gemara says that the defendant is embarrassed to lie openly to his opponent, it says that in order to explain why Modeh b'Miktzas is not exempt from a Shevu'ah due to the principle of Meshiv Aveidah. There, too, Rashi should write that the Gemara is explaining why Modeh b'Miktzas is not exempt from a Shevu'ah because of a Migu. After all, the Gemara there is explaining "why the Torah obligates one who is Modeh b'Miktzas to make a Shevu'ah." The logic with which one would think to exempt the person from a Shevu'ah must be an exemption that is mid'Oraisa, and not just Meshiv Aveidah, which is mid'Rabanan. (TOSFOS to Shevuos 42a, DH v'Rebbi Eliezer; Bava Metzia 3a, DH Mipnei; Kesuvos 18a, DH v'Rebbi Eliezer.)
The same question may be asked on the Mishnah in Gitin itself, which teaches that one who is Meshiv Aveidah is exempt from a Shevu'as Modeh b'Miktzas because of a Takanah d'Rabanan.
However, the other Rishonim (see, for example, RASHBA and TOSFOS HA'ROSH to Gitin 51a) explain that the Mishnah is exempting one who is Meshiv Aveidah even when the owner presents a claim of certainty ("Ta'anas Bari") and when the finder does not have a Migu (for example, the owner claims to have seen the finder find the object in question). In contrast, Rashi explains that the Mishnah there is discussing a claim of uncertainty ("Ta'anas Shema"), in which case the finder will not be embarrassed to deny the entire claim. According to Rashi, why does the Mishnah in Gitin exempt one from a Shevu'ah in such a case because of the Migu?
ANSWER: The PNEI YEHOSHUA (in Bava Metzia 3a) and others explain that Rashi apparently accepts the opinion of the RI MI'GASH, cited by the ROSH here (7:3). The Ri mi'Gash explains that although a Migu is able to exempt a person from payment, it does not suffice to exempt a person from an obligation to make a Shevu'ah. (The case in which the Migu does not exempt him from a Shevu'ah is as follows: A person claims that he made a partnership with his friend and stipulated at the time that either partner may force the other to swear even in response to a "Ta'anas Shema." If he then tells his friend whom, he claims, was his partner, that he wants him to swear that he did not take more than his share, and the friend admits that he was a partner in the venture, the friend must swear. He is not exempt from a Shevu'ah because of a Migu that he could have denied the entire partnership (as there are no witnesses to support the claim of partnership), because a Migu does not exempt him from a Shevu'ah.)
The Ri mi'Gash proves this point from the fact that one who is Modeh b'Miktzas must make a Shevu'ah even though he has a Migu (that he could have denied everything). The Rosh refutes this proof by pointing out that the Gemara itself says that one who is Modeh b'Miktzas has no Migu because he is embarrassed to deny the entire claim! Apparently, the proof of the Ri mi'Gash is from the Mishnah in Gitin, which says that one who is Meshiv Aveidah is exempt from a Shevu'ah only because of a Takanah d'Rabanan, even though in that case there is a Migu (since the defendant, in that case, is not embarrassed to deny the entire claim).
Accordingly, this might be the opinion of Rashi as well, and this is why Rashi exempts the defendant from a Shevu'ah in the case of the Mishnah here only because of Meshiv Aveidah. (It is not clear why the Ri mi'Gash does not explain, in the case that he mentions, that the partner is exempt from swearing because of the principle of Meshiv Aveidah.)
The Rosh asks further why a Migu should not suffice to exempt a person from a Shevu'ah. The whole purpose of a Shevu'ah is to prove whether or not the defendant owes money, and by refusing to swear he will have to pay. If a Migu provides enough evidence to support the claim of the defendant with regard to the money, then no Shevu'ah should be required!
Perhaps the Ri mi'Gash and Rashi understand that a Migu can exempt a person from paying money only when he is not required to swear, since the defendant has no other way to prove his claim. However, when the defendant is obligated to swear, the Migu does not exempt him from a Shevu'ah since it is possible to prove his claim through the Shevu'ah. The situation is viewed as a case in which the doubt can be resolved through other means ("Davar she'Efshar l'Varer"), in which case Beis Din does not rely on the Migu.
This does not explain the words of Rashi in Bava Metzia, where he writes that the Gemara is suggesting that one who is Modeh b'Miktzas should not be obligated to make a Shevu'ah mid'Oraisa because of the principle of Meshiv Aveidah (if not for the fact that the defendant is embarrassed to deny everything). How can Meshiv Aveidah exempt a person from a Shevu'ah d'Oraisa?
The answer might be that since the Torah has reason to require a Shevu'as Modeh b'Miktzas in an ordinary case (when there is no Migu or Meshiv Aveidah), then it is understandable that the Torah applies a blanket rule obligating a person to make a Shevu'ah even when he is Meshiv Aveidah. The Torah does not take into account that the person might not admit even to half when he is Meshiv Aveidah and exempt himself from a Shevu'ah, because the Torah teaches a general rule that applies to all cases, and in most of the cases in which the rule applies there is no concern that the defendant will lie about the first half. However, if every case of Modeh b'Miktzas would be considered a case of Meshiv Aveidah, then the Torah certainly would not have created such a Shevu'ah, because of the concern that the person would lie about the first half in all cases of Modeh b'Miktzas.
In other words, although Meshiv Aveidah is not sufficient cause for the Torah to exempt a person from a Shevu'ah when he is obligated to swear, it does provide sufficient reason for the Torah not to obligate a person to make a Shevu'ah in the first place. (M. KORNFELD)