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Kollel Iyun Hadaf, Jerusalem

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Shevuos 32



(a) We cannot learn Shmuel's Din ('Ra'uhu she'Ratz Achareihen') from our Mishnah, which begins its definition of Shevu'as ha'Eidus with the words 'Amar li'Shenayim Bo'u ve'He'iduni", implying that 'Ratz Achareihem' is not good enough - because it is possible that 'Amar' is 'La'av Davka' (not specifically required).

(b) We learn from "ve'Kichesh ba'Amiso" (written in Vayikra in connection with Shevu'as ha'Pikadon) - that Shevu'as ha'Pikadon does not require 'Amar' (like Shevu'as ha'Eidus does).

(a) Saying 'La'av Davka' in both Mishnah's poses a Kashya on Sh'muel - because seeing as in neither case is it necessary, why did Rebbi insert it?

(b) There would be no problem if 'Amar' came to preclude 'Ratz Achareihem' (not like Shmuel) - because then we could always say that the Tana wrote 'Amar' by Shevu'as ha'Pikadon because it needed to write it by Shevu'as ha'Eidus.

(c) We answer that Rebbi inserted it in both cases - because it is more common.

(d) In support of Sh'muel, we cite a Beraisa - which invalidates a Shevu'as ha'Eidus where the witnesses open the dialogue, when they perceive the litigant chasing them, and which concludes 've'Im be'Pikadon, Chayav'.

(a) Our Mishnah invalidates a Shevu'as ha'Eidus that the witnesses denied outside Beis-Din. Abaye learns this from the Pasuk "Im Lo Yagid ve'Nasa Avono" - which implies that the denial Amust take place in a location where their Hagadas Eidus (testimony) would be valid.

(b) When Rav Papa then asked Abaye why we do not also invalidate the Shevu'ah itself, when it is made outside Beis-Din, he answered based on the Beraisa "le'Achas", 'le'Chayav Al Kol Achas ve'Achas' - by which the Tana means - that if the litigant mentioned five Shevu'os, then the witnesses are Chayav five Korbanos.

(c) This D'rashah answers Rav Papa's Kashya - since this D'rashah can only pertain to a Shevu'ah that the litigant makes the witnesses make outside Beis-Din (because inside Beis-Din, we will exempt them on all but the first Shevu'ah (due to the principle 'Keivan she'Higid, Shuv Eino Chozer u'Magid, as we explained in the Mishnah).

(a) We learned in our Mishnah that if the two witnesses denied the Shevu'ah simultaneously, they are both Chayav. The problem with this is - the pronciple 'I Efshar Le'tzamtzem' (meaning that it is not possible for two people to begin something at exactly the same moment (in which case one of the two must have preceded the other).

(b) Rav Chisda establishes the author of our Mishnah as Rebbi Yossi Hagelili, who holds 'Efshar Le'tzamtaem'. Rebbi Yochanan establishes it even like the Rabbanan. And he answers the original Kashya (from 'I Efshar Le'tzamtzem') - by requiring that the second witness denies knowledge of the testimony 'Toch K'dei Dibur' of the first witness.

(c) According to some texts, we establish 'Toch K'dei Dibur' either as 'K'dei She'eilas Talmid le'Rav - ('Shalom Alecha Rebbi [others add 'u'Mori']), or as K'dei Rav le'Talmid' ('Shalom Alecha').

(d) We nevertheless reconcile this explanation with the fact that the wording of Shevu'as ha'Eidus 'Shevu'ah she'Ein Anu Yod'im Lecha Eidus' said by two people inevitably takes longer than 'Toch K'dei Dibur' - by requiring the second witness to begin his denial 'Toch K'dei Dibur' of the first (and not that he must conclude his testimony 'Toch K'dei Dibur' from the beginning of the first one's).

(a) We establish our Mishnah, which exempts the second witness from Shevu'as ha'Eidus (should he testify after 'Toch K'dei Dibur'), like the Rabbanan of Rebbi Elazar b'Rebbi Shimon, but not like Rebbi Shimon ben Elazar), who holds - that even a single witness is subject to Shevu'as ha'Eidus.

(b) Initially, we establish the basis of their Machlokes as - whether a single witness comes to make the defendant swear (the Rabbanan [consequently, his denial is not Chashuv]), or to make him pay (Rebbi Shimon).

(c) The Rabbanan Darshen the Pasuk "Lo Yakum Eid Echad le'Chol Avon u'le'Chol Chatas", 'Aval Kam Hu li'Shevuah'. Rebbi Shimon will Darshen it "Lo Yakum Eid Echad le'Chol Avon u'le'Chol Chatas" - 'Aval Kam Hu le'Mamon'.

(d) Based on a statement of Abaye, which we are about to discuss, we conclude that even according to the Rebbi Elazar b'Rebbi Shimon, one witness comes to obligate the defendant to swear, and the reason that he obligates him to bring a Korban for his denial - because he holds 'Davar he'Gorem le'Mamon, ke'Mamon Dami' (like his father [whereas the Rabbanan hold 'La'av ke'Mamon Dami']).

(a) When Abaye said (with regard to Shevu'as ha'Eidus) 'ha'Kol Modim ...
1. ... be'Eid Sotah she'Chayav', he meant - an Eid Tum'ah (one witness who saw the Sotah actually sinning), in which case, even the Rabbanan will agree that he will be Chayav a Korban, should he deny having witnesses it - because the Torah believes one witness to cause her to lose her Kesuvah.
2. ... be'Eidei Sotah she'Patur', he meant - two Eidei Kinuy (two witnesses who witnessed the husband warning his wife not to seclude herself with P'loni), in which case even Rebbi Elazar b'Rebbi Shimon will agree that they will be Patur, because it is it only a 'Gorem de'Gorem' (meaning that even if the witnesses would testify, it will still require Eidei S'tirah (who saw her seclude with the man forbidden by her husband) as well her refusal to drink the Mei Sotah, before she will lose her Kesuvah.
(b) The case in which the Rabbanan and Rebbi Elazar b'Rebbi Shimon then argue is - that of 'Eidei S'tirah' who swear, where Rebbi Elazar b'Rebbi Shimon obligates the witnesses to bring a Korban, because it is a 'Davar ha'Gorem le'Mamon' (as we explained).



(a) In a case where the defendant cannot swear because he is suspected of making a false Shevu'ah - we switch the Shevu'ah to the claimant.

(b) When Abaye continued 'ha'Kol Modim be'she'Kenegdo Chashud al ha'Shevu'ah', he cannot have been referring to a regular case where the borrower is suspect - because that would be another case of 'Gorem le'Mamon (since the claimant may not want to swear), in which case the Rabbanan would argue with Rebbi Elazar b'Rebbi Shimon (and Abaye should not have said 'ha'Kol Modim').

(c) He must therefore have been referring to a case - where both litigants were disqualified from swearing, and which is a clear-cut case, because the Shevu'ah lands on the one whom the Torah obligates to pay, and since he cannot swear, he is obligated min ha'Torah to pay. Consequently, this is a case of Mamon (and not Gorem le'Mamon), and should the witness deny knowledge of the testimony, he will be Chayav a Korban.

(a) In the case of 'Naska de'Rav Aba', one witness testified that Reuven had grabbed a lump of silver from Shimon. Under normal circumstances - Reuven would have had to swear that he did not grab it, in order to be exempt from having to pay.

(b) Rebbi Ami's dilemma - was based on the fact that on the one hand, lacking two witnesses, he could not obligate Reuven to pay, on the other, he could not exempt him completely, since there was one witness who required a Shevu'ah. Neither could the defendant swear, because having grabbed the silver, he was in a way comparable to a Gazlan, who is not believed to swear.

(c) Rebbi Aba, who was sitting in front of Rebbi Ami, solved his dilemma - by sentencing him to pay, because the sole option the Torah gives the defendant is that of making a Shevu'ah. Otherwise, he is Chayav to pay. That being the case, this too, is considered Mamon (and not Gorem le'Mamon), and should the witness deny knowledge of the testimony, he too, will be Chayav a Korban.

(d) In the case of 'Naska de'Rebbi Aba, despite the fact that there are no two witnesses that he grabbed the silver, and he could have denied having done so, we do not believe him with a 'Migu' - because then, every Gazlan would claim that he had merely retrieved his own article, and he would never be Chayav to pay (others say because the one witness weakens the 'Migu').

(a) Rav Papa follows in the footsteps of Abaye. When he says 'ha'Kol Modim be'Eid Misah she'Hu ... '
1. ... Patur', he is referring - to a case where the witness informed the woman that her husband died, but did not testify before Beis-Din. And he is Patur, because, seeing as she is now believed to testify in Beis-Din herself (as we learned in the Mishnah in Yevamos), he has not caused her a loss.
2. ... Chayav' - he is referring to a case where he testified neither to her nor before Beis-Din (because then he has caused her a loss.
(b) Bearing in mind that a woman's basic claim on her Kesuvah is Karka, this does not necessarily mean that Rav Papa holds 'Mashbi'a Eidei Karka Chayav' (despite the fact that this is a major Machlokes later in 'Shevu'as ha'Pikadon') - because he could be speaking in a case where the husband put away Metaltelin for his wife's Kesuvah.
(a) The problem with our Mishnah presenting first the case of 'Kafru Sheneihen be'Zeh Achar Zeh, ha'Rishon Chayav ... ' and then 'Kafar Echad ve'Hodeh Echad ha'Kofer Chayav' is - why the Tana needs to add the latter case, because, if the first witness is Chayav even where the second witness denies too (and where he could argue that his denial made no difference to the litigant), then he should certainly be Chayav in the Seifa, where the second witness admitted, and where his own denial makes that much of a difference.

(b) To answer the Kashya, we establish the Seifa when the second witness initially denied knowledge of the testimony together with the first one and the Chidush, which now affects the Seifa, is - 'Toch K'dei Dibur ke'Dibur Dami', permiting him to retract.

(c) According to Rav Chisda, who established the Reisha ('Kafru Sheneihen ke'Achas') like Rebbi Yossi Hagelili, the Reisha teaches us 'Efshar Letzamtzem', and the Seifa 'Toch K'dei Dibur'. The problem, according to Rebbi Yochanan, who learns the Chidush in the Reisha as 'Toch K'dei Dibur ke'Dibur Dami' is - why the Tana needs to teach us the same Chidush twice.

(d) We solve the problem according to Rebbi Yochanan too - by pointing out that the Tana needs two Mishnahs to teach us two different types of 'Toch K'dei Dibur': one, to combine the testimony of the second witness with that of the first; the other, that a witness is able to retract from his original testimony 'Toch K'dei Dibur'.

(a) In the Mishnah's final case (of two pairs of witnesses), the second pair is clearly Chayav, since the first pair have already denied knowledge of the testimony. The problem with the Mishnah's ruling, obligating the first pair too,is - why they should be Chayav, seeing as the second pair has not yet retracted from the testimony, in which case, the denial of the first pair will not cause the claimant a loss.

(b) To answer the Kashya, we establish the Mishnah - when the second pair of witnesses were related to the first pair via their wives, who were 'Gosesin' (dangerously ill) at the time that the first pair testified.

(c) The Chidush is that even though the majority of Gosesin might well die, we do not follow the majority when it comes to money matters, and it is as though the first pair of witnesses was the only pair.

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