SHEVUOS 41 - 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)

(a)Initially, we present the practical difference between a Shevu'ah d'Oraysa and a Shevu'ah de'Rabbanan as whether we say 'Meipach Shevu'ah'. What does 'Meipach Shevu'ah' mean?

(b)According to Mar bar Rav Ashi, who holds 'Afchinan' even by a Shevu'ah d'Oraysa, the difference between them is whether we say 'Meichas le'Nechseih' or not. What does 'Meichas le'Nechseih' mean?

1)

(a)Initially, we present the practical difference between a Shevu'ah d'Oraysa and a Shevu'ah de'Rabbanan as whether we say 'Meipach Shevu'ah' - the debtor asks the creditor to swear and take (instead of himself swearing and being Patur), which we say by Shevu'os de'Rabbanan, but not by Shevu'os d'Oraysa.

(b)According to Mar bar Rav Ashi, who holds 'Afchinan' even by a Shevu'ah d'Oraysa, the difference between them is whether or not, we say 'Meichas le'Nechseih' which means that - in the event that the debtor refuses to swear a Shevu'ah d'Oraysa, Beis-Din will actually go down to his property and pay the creditor, but not in the case of a Shevu'ah de'Rabbanan.

2)

(a)The Tana Kama in the Mishnah in Gitin learns 'Metzi'as "Chashu" Yesh bahen Gezel Mipnei Darkei Shalom'. What does 'Chashu' stand for?

(b)What does Rebbi Yossi say?

(c)Does this mean that a 'Chashu' acquires from Hefker mi'd'Oraysa?

(d)In that case, what are the ramifications of the Machlokes between Rebbi Yossi and the Chachamim?

2)

(a)The Tana Kama in the Mishnah in Gitin rules 'Metzi'as "Chashu" - which is the acronym of 'Cheresh, Shoteh ve'Katan', Yesh bahen Gezel Mipnei Darkei Shalom'.

(b)Rebbi Yossi says - 'Gezel Gamur' ...

(c)... not that a 'Chashu' acquires from Hefker mi'd'Oraysa - but 'Gezel Gamur mi'de'Rabbanan', as Rav Chisda will explain.

(d)And the ramifications of the Machlokes between Rebbi Yossi and the Chachamim are - whether Beis-Din will enforce the law (Rebbi Yossi, in the same way as we just explained by a Shevu'ah d'Oraysa), or not (the Rabbanan).

3)

(a)What is the practical difference between a Shevu'ah d'Oraysa and a Shevu'ah de'Rabbanan according to Rebbi Yossi?

(b)What is the reason for this ruling?

(c)And what will the Halachah then be in the event that the debtor is suspect on a Shevu'ah de'Rabbanan?

3)

(a)And the practical difference between a Shevu'ah d'Oraysa and a Shevu'ah de'Rabbanan, according to Rebbi Yossi is that - by a Shevu'ah de'Rabbanan, we do not switch the Shevu'ah to the claimant ('Afchinan'), in the event that the defendant is suspect and therefore unable to swear (like we do by a d'Oraysa) ...

(b)... because 'Afchinan' is a Takanas Chachamim, and so is the actual Shevu'ah, and we do not make a Takanah on a Takanah.

(c)In the event that the debtor is suspect on a Shevu'ah de'Rabbanan - he is Patur from swearing and does not need to pay.

4)

(a)On what grounds did Ravina object to Rav Ashi's initial ruling that, according to the Rabbanan of Rebbi Yossi (who hold that Beis-Din do not pay the claimant from the defendant's property by a Shevu'ah de'Rabbanan), one places him in Cherem?

(b)So how did Ravina explain their ruling?

4)

(a)Ravina objected to Rav Ashi's initial ruling that, according to the Rabbanan of Rebbi Yossi (who hold that Beis-Din do not pay the claimant from the defendant's property by a Shevu'ah de'Rabbanan), one places him in Cherem until he relents - on the grounds that in effect, this is simply an alternative way of forcing him to pay ('like holding a person by his 'Beitzim' until he hands over his coat), and is not really any different than Rebbi Yossi's explanation.

(b)So Ravina explained that - they place him in Cherem for thirty days, when, in the event that he still refuses to pay, they give him Malkos de'Rabbanan (for retaining the Cherem), after which they leave him alone.

5)

(a)What does Rav Papa rule in a case where Shimon ...

1. ... claims that the Sh'tar Reuven produces against him is already paid?

2. ... asks Reuven to swear that he has not already paid him?

(b)We learned in the Mishnah in Kesuvos 'ha'Pogemes Kesuvasah, Lo Tipara Ela bi'Shevu'ah' (she may only claim with a Shevu'ah). What does 'ha'Pogemes Kesuvasah' mean?

(c)Seeing as in our case too, we make the claimant swear, how does Rav Ashi explain the difference between 'Pogemes' and someone who claims the entire amount by means of a Sh'tar?

(d)What objection did Rav Yeimar raise, when Rav Ashi added that if the creditor is a Talmid-Chacham, Beis-Din will not make him swear?

(e)And what did he mean when he concluded 'Ela Lo Mizdekinan leih le'Dineih'?

5)

(a)Rav Papa rules in a case where Shimon ...

1. ... claims that the Sh'tar Reuven produces against him is already paid that - we disregard his claim and make him pay.

2. ... asks Reuven to swear that he has not already paid him - then we make Reuven swear (see Tosfos ha'Rosh).

(b)We learned in the Mishnah in Kesuvos 'ha'Pogemes Kesuvasah - If the woman admits that she has already received some of the money, Lo Tipara Ela bi'Shevu'ah' (she may only claim with a Shevu'ah).

(c)Despite the fact that, in our case too, we make the claimant swear, Rav Ashi explains that 'Pogemes' and someone who claims the entire amount by means of a Sh'tar - inasmuch as in the latter case, Beis-Din only make the claimant swear if the debtor asks him to.

(d)When Rav Ashi added that if the creditor is a Talmid-Chacham, Beis-Din will not make him swear, Rav Yeimar objected - because a Talmid-Chacham has no more right to 'take people's coats' than anybody else.

(e)And when he concluded 'Ela Lo Mizdekinan Leih le'Dineih', he meant that - we do not make the Talmid-Chacham swear (because it denigrates him, in that it appears that we suspect him of lying), but we do not allow him to claim with the Sh'tar either (seeing as the debtor challenged him to swear).

6)

(a)What was Shmuel's reaction when Rav Yehudah cited Rav Asi's ruling 'ha'Malveh es Chavero be'Eidim, Tzarich Lipara be'Eidim'?

(b)What does our Mishnah say with regard to Shimon who, after admitting in front of witnesses that he owes Reuven money, claims on the following day that he has already paid?

(c)How does this pose a Kashya on Rav Asi?

(d)How will Rav Asi answer the Kashya?

6)

(a)When Rav Yehudah cited Rav Asi's ruling 'ha'Malveh es Chavero be'Eidim, Tzarich Lipara be'Eidim' - Shmuel objected on the grounds that what's to stop Shimon from claiming that he paid in front of P'loni u'Peloni, who have gone overseas.

(b)Our Mishnah rules that if Shimon, after admitting in front of witnesses that he owes Reuven money, claims on the following day that he has already paid - is Patur ...

(c)... a Kashya on Rav Asi (assuming that is, that we equate admitting in front of witnesses with borrowing in their presence).

(d)Rav Asi will answer the Kashya however - by restricting his Din to where the original loan took place in front of witnesses, where the creditor demonstrated that he did not trust the debtor (unlike the case in our Mishnah, where by virtue of the fact that he lent him the money not in front of witnesses, he demonstrated that he trusted him).

41b----------------------------------------41b

7)

(a)According to Rav Yosef, what Rav Yehudah Amar Rav Asi said was 'ha'Malveh es Chavero be'Eidim, Ein Tzarich Lepor'o be'Eidim'. Under which circumstances would the debtor nevertheless have to pay in front of witnesses?

(b)How did Shmuel qualify this latter ruling? When would the debtor not need to bring the witnesses in front of whom he paid to court?

(c)We query Shmuel's ruling however, from our Mishnah. What does our Mishnah say in a case where the creditor stipulated that the debtor pays him in front of witnesses, and the following day, the latter claims that he paid?

(d)To answer the Kashya, we cite a Beraisa, where the Tana Kama rules that, in such a case, the debtor must either pay or bring proof that he did. What does Rebbi Yehudah ben Beseira say?

(e)How does this answer the Kashya?

7)

(a)According to Rav Yosef, what Rav Yehudah Amar Rav Asi said was 'ha'Malveh es Chavero be'Eidim, Ein Tzarich Lepor'o be'Eidim'. Nevertheless, the debtor would have to pay in front of witnesses - if the creditor stipulated that he does so.

(b)Shmuel qualified this latter ruling - by believing the debtor should he claim that he did indeed pay in front of 'P'loni u'Peloni, but that they had gone overseas.

(c)We query Shmuel's ruling however, from our Mishnah, which rules that in a case where the creditor stipulated that the debtor pays him in front of witnesses, and the following day, the latter claims that he paid - he is Chayav to pay (unless he produces the witnesses in court).

(d)To answer the Kashya, we cite a Beraisa, where The Tana rules precisely in such a case, that either the debtor has to pay or to bring proof that he did. Rebbi Yehudah ben Beseira however - believes the debtor should he claim that he did indeed pay in front of 'P'loni u'Peloni, but that they had gone overseas ...

(e)... and Shmuel holds like Rebbi Yehudah ben Beseira.

8)

(a)We just concluded that Shmuel holds like Rebbi Yehudah ben Beseira. Rav Acha however, queries our current understanding of the Machlokes between the Tana Kama and Rebbi Yehudah ben Beseira. How does he establish the case? If they are not referring to the stipulation that the creditor made at the time of the loan, then what might they be referring to?

(b)What did the creditor then mean when he said 'be'Eidim Hilvisicha, be'Eidim Par'eih li'?

(c)What would even Rebbi Yehudah ben Beseira then hold in the original case, where the creditor made the statement at the time of the loan?

8)

(a)We just concluded that Shmuel holds like Rebbi Yehudah ben Beseira. Rav Acha queries our current understanding of the Machlokes between the Tana Kama and Rebbi Yehudah ben Beseira however, by suggesting that - they are not referring to the stipulation that the creditor made at the time of the loan, but at the time of payment ...

(b)... and when the creditor said 'be'Eidim Hilvisicha, be'Eidim Parei li', he meant to say that since the loan took place in front of witnesses, the debtor ought to have paid him with witnesses (like the first Lashon of Rav Yehudah Amar Rav Asi) ...

(c)... but in the original case, where the creditor made the statement at the time of the loan, even Rebbi Yehudah ben Beseira will agree that - if the debtor cannot prove that he has paid, then he will have to pay (a Kashya on Shmuel).

9)

(a)Rav Papi Amar Rava rules 'ha'Malveh es Chavero be'Eidim, Tzarich Lepor'o be'Eidim' (like the first Lashon of Rav Yehudah Amar Rav). What does Rav Papa Amar Rava say?

(b)And what does Rav Papa rule in a case where the creditor stipulated that the debtor pays in front of witnesses, and the latter subsequently claims that he paid in front of P'loni u'Peloni who went overseas?

9)

(a)Rav Papi Amar Rava rules 'ha'Malveh es Chavero be'Eidim, Tzarich Lepor'o be'Eidim' (like the first Lashon of Rav Yehudah Amar Rav); whereas Rav Papa Amar Rava rules - 'Ein Tzarich Lepor'o be'Eidim', like the second Lashon.

(b)And in a case where the creditor stipulated that the debtor pays in front of witnesses, and the latter subsequently claims that he paid in front of P'loni u'Peloni who went overseas, Rav Papa rules - that he is believed, like Shmuel (in spite of Rav Ashi's objection).

10)

(a)What happened next in a case where Levi stipulated that Yehudah should repay him his loan in the presence of Reuven and Shimon. What did Yehudah do?

(b)What was the basis of Levi's objections (bearing in mind that the witnesses did in fact, testify)?

(c)On what grounds did Rava object to Abaye's ruling 'be'Apei bei T'rei Amar leih, be'Apei bei T'rei Par'eih'?

10)

(a)In a case where Levi stipulated that Yehudah should repay him his loan in the presence of Reuven and Shimon - Yehudah went and paid in front of two other witnesses.

(b)In spite of the fact that two witnesses did in fact, testify, Levi objected on the grounds that - he did not trust Yehudah's witnesses.

(c)Rava objected to Abaye's ruling 'be'Apei bei T'rei Amar leih, be'Apei bei T'rei Par'eih' - upholding Levi's claim, bearing in mind that he had specifically named Reuven and Shimon because he did not trust Yehudah's witnesses.

11)

(a)What happened next in a case where Reuven stipulated that Shimon must repay his loan in the presence of witnesses who had learned Halachos (Shas)?

(b)When the litigants came before Rav Sheishes, on what grounds did Reuven claim that Shimon still owed him the money?

(c)What did Rav Nachman rule?

(d)What did he grant Reuven? Why did he mention specifically Rav Sheishes by name?

11)

(a)In a case where Reuven stipulated that Shimon must repay his loan in the presence of witnesses who had learned Halachos (Shas) - Shimon paid him S'tam, and Reuven admitted that this was indeed the case.

(b)When the litigants came before Rav Sheishes, Reuven claimed that Shimon still owed him the money - because he said, he had accepted the payment in the form of a Pikadon, which he intended to hold until such time as Shimon produced witnesses of the caliber that he had requested, and that the money had subsequently got lost be'Oneis.

(c)Rav Nachman ruled that - seeing as Reuven admitted that Shimon had paid (and that nothing had been said about a Pikadon, he had forfeited his claim.

(d)Nevertheless, if he insisted on his stipulation being met - he allowed him to produce the money and he (Rav Nachman) and Rav Sheishes, who had learned Shas, Tosefta, Sifra and Sifri, would be happy to stand in as witnesses.

12)

(a)What happened next in a case where Shimon denied having borrowed a hundred Zuz from Reuven? What did the witnesses testify?

(b)Abaye ruled that, seeing as the same witnesses who testified that Shimon had borrowed the money, testified that he had paid, there was nothing more to say. On what grounds did Rava rule that Shimon was Chayav to pay?

(c)Why do we accept Shimon's word against that of the witnesses?

(d)What did Rav Sheishes think in a case where the witnesses who, Shimon claimed, had seen him repay Reuven the loan, denied it?

(e)On what grounds did Rava disagree with that?

12)

(a)In a case where Shimon denied having borrowed a hundred Zuz from Reuven - the witnesses testified that he had borrowed the money but that he had also paid it back.

(b)Abaye ruled that seeing as the same witnesses who testified that Shimon had borrowed the money, testified that he had paid, there was nothing more to say. Rava maintained however, that Shimon was Chayav to pay - seeing as he claimed that he not borrowed the money, and someone who has not borrowed has certainly not paid. Consequently, despite the witnesses testimony that he repaid the loan, he was obligated to pay.

(c)We accept Shimon's word against that of the witnesses - based on the principle 'Hoda'as Ba'al-Din ke'Me'ah Eidim Dami' ('A litigant's admission is as good as a hundred witnesses').

(d)In a case where the witnesses who, Shimon claimed, had seen him repay Reuven the loan, denied it - Rav Sheishes took for granted the fact that Shimon had been proved a liar, and was therefore obligated to pay.

(e)Rava disagreed with that however - based on the S'vara that a person does not tend to note details (or he forgets them) when they are of no consequence. Here too, Shimon was under no obligation to repay the loan in front of witnesses, so he may have thought that he had done so, even if he hadn't (see also Rabeinu Chananel).

13)

(a)In a case where Reuven claimed that Shimon owed him six hundred Zuz, Shimon replied that he had already repaid the loan in the form of one hundred Kabin of gall-nuts, worth six Zuz per Kav. What were gall-nuts used for?

(b)How did Reuven counter Shimon's claim?

(c)When witnesses supported Reuven's claim, Rava ruled that Shimon had lied and that he was Chayav to pay the balance. What did Rava reply when Rami bar Chama queried him from the previous S'vara (that a person is likely to forget details that he does not need to know)?

13)

(a)In a case where Reuven claimed that Shimon owed him six hundred Zuz, Shimon replied that he had already repaid the loan in the form of one hundred Kabin of gall-nuts (worth six Zuz per Kav) - which were used in tanning skins.

(b)Reuven countered - that the gall-nuts were worth four Zuz each (and not six), in which case, there was a balance of two hundred Zuz still outstanding.

(c)When witnesses supported Reuven's claim, Rava ruled that Shimon had lied and that he was Chayav to pay the balance. When Rami bar Chama queried him from his previous S'vara (that a person is likely to forget details that he does not need to know), Rava replied that - the market price of a commodity was not something that a businessman was likely to forget.

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