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Shevuos 38



(a) Rebbi Meir says in a Beraisa 'K'lal Eino Chayav Ela Achas; P'rat Chayav al Kol Achas ve'Achas'. The ramifications of ...
1. ... 'Klal' are - 'Eino Chayav Ela Achas'.
2. ... 'P'rat' are - 'Chayav al Kol Achas ve'Achas'.
(b) Rebbi Eliezer and Rebbi Shimon merely repeat the views they expressed in our Mishnah (with regards to when and how many times to insert the word 'Shevu'ah'). Rebbi Yehudah says 'Shevu'ah Lo Lecha, ve'Lo Lecha ve'Lo Lecha - Chayav al Kol Achas ve'Achas'.

(c) According to Rav Yehudah Amar Shmuel, what Rebbi Meir considers a K'lal, Rebbi Yehudah considers a P'rat, and vice-versa. It is obvious that he holds 'Shevu'ah Lo Lecha, Lo Lecha, Lo Lecha' is a K'lal, whereas Rebbi Meir will consider 'Shevu'ah Lo Lecha ...

1. ... Lo Lecha, Lo Lecha' - a P'rat, and ...
2. ... ve'Lo Lecha, ve'Lo Lecha', a K'lal.
(a) According to Rebbi Yochanan however, Rebbi Meir agrees with Rebbi Yehudah that 'Shevu'ah Lo Lecha, ve'Lo Lecha, Lo ve'Lecha' is a P'rat, and they argue whether - 'Shevu'ah Lo Lecha, Lo Lecha, Lo Lecha' is a P'rat (Rebbi Meir) or a K'lal (Rebbi Yehudah) ...

(b) ... and the only case Rebbi Meir considers a K'lal is - 'Shevu'ah Lo Lachem'.

(a) Shmuel derives his opinion from the Beraisa, whereas Rebbi Yochanan derives his from our Mishnah. Rebbi Yochanan explains that when Rebbi Yehudah (in the Beraisa) said 'Shevu'ah Lo Lecha, ve'Lo Lecha ve'Lo Lecha Chayav al Kol Achas ve'Achas', seeing as Rebbi Meir holds that way too, he meant - that, in this point, he agrees with Rebbi Meir, and it is with regard to 'Shevu'ah Lo Lecha, Lo Lecha Lo Lecha (Chayav al Kol Achas ve'Achas') that he argues.

(b) Shmuel disagrees with that - because a Tana normally presents the point with which he disagrees, not that with which he concurs.

(c) Rebbi Yochanan infers from Rebbi Meir in our Mishnah 'Shevu'ah she'Ein Lachem be'Yadi, Eino Chayav Ela Achas' - that 'Shevu'ah Lo Lecha, ve'Lo Lecha, Lo ve'Lecha' must be 'Chayav al Kol Achas ve'Achas'.

(a) Shmuel counters Rebbi Yochanan's proof - by equating 'Shevu'ah Lo Lecha, ve'Lo Lecha, ve'Lo ve'Lecha' with 'Shevu'ah she'Ein Lachem be'Yadi' (at least, according to Rebbi Meir).

(b) This creates a problem with our Mishnah however, which rules 'Chayav al Kol Achas ve'Achas' in the cases of a. 'Shevu'ah she'Ein Lecha be'Yadi, ve'Lo Lecha, ve'Lo Lecha'; b. 'Ten Li Pikadon, u'Sesomes Yad, ve'Gezel va'Aveidah', and c. 'Ten Li Chitin, u'Se'orin ve'Kusmin'. What makes us think that the author is Rebbi Meir is - the principle that the author of a 'S'tam Mishnah is generally Rebbi Meir'.

(c) To accommodate Shmuel therefore, we attempt to amend our Mishnah - by simply removing the offensive 'Vav' in the six words concerned.

(d) The problem with this is - how it is possible for so many errors to have crept into the original text.

(a) So (in spite of the principle) we establish the Mishnah like Rebbi, who holds - that with regard to K'lal and P'rat, there is no difference between whether there is a 'Vav' or not ('Lo Sh'na 'K'zayis K'zayis' ve'Lo Sh'na k'Zayis u'K'zayis, P'rata Havi').

(b) We do however, end up by removing the 'Vav' from Rebbi Meir's own statement ' ... Afilu Chitah, u'Se'orah ve'Kusemes ... ' (according to Shmuel), who is coming to teach us, says Rav Acha b'rei de'Rav Ika - that although he said 'Chitah, u'Se'orah ve'Kusemes ... in the singular, he really meant 'Chitin, Se'orin and Kusmin.

(a) Rebbi Yochanan - obligates Shimon to pay in a case where the claimant demands 'Pikadon u'Sesomes Yad, ve'Gezel va'Aveidah ... ', or 'Chitin u'Se'orin ve'Kusmin, she'Yesh Li be'Yadcha', even though it is only the combined claim that amounts to a P'rutah.

(b) Rav Acha and Ravina argue how to explain our Mishnah, and consequently how to establish Rebbi Yochanan. One of them said 'a'Perati Mechayev, a'Kelali Lo Mechayev', meaning - that in the case of 'Chitin, u'Se'orin ve'Kusmin', for example, Shimon is only Chayav three Chata'os, and not a fourth one for 'Shevu'ah she'Ein Lach be'Yadi (his opening words)'.

(c) Whereas the other one holds - that he is Chayav four Chata'os.

(d) This Machlokes will effect Rebbi Yochanan's statement - inasmuch as, according to the first opinion, Rebbi Yochanan refers specifically to the Reisha 'Shevu'ah she'Ein Lach be'Yadi', which is a Klal, but not to the Seifa, which is purely P'ratim (and it is obvious that individual P'ratim cannot combine if each one is less than a Shaveh-P'rutah). Whereas according to the second opinion, Rebbi Yochanan refers to the Seifa too, to the K'lal ('Shevu'ah she'Ein Lach be'Yadi'), with which Shimon's Shevu'ah began.

(a) Rebbi Chiya cites a Beraisa (with reference to the se in our Mishnah where five people claimed from Shimon wheat, barley and spelt) 'Harei Ka'an Chameish-Esrei Chata'os'. The second of the above opinions explain that the Beraisa obligated Shimon to bring fifteen Chata'os (and not twenty) - because the Tana is only concerned with the P'ratim and not with the K'lal.

(b) Whereas the second Beraisa of Rebbi Chiya, which obligates him to bring twenty - is referring, not to the above case of our Mishnah, but to the case of 'Ten Li Pikadon u'Sesomes Yad, Gezel va'Aveidah'.

(c) Rava asked Rav Nachman about a case where five people were claiming from Shimon a Pikadon, a loan, Gezel and a lost article, to which Shimon first responds to one of them 'Shevu'ah she'Ein Lach be'Yadi Pikadon u'Sesomes Yad, Gezel va'Aveidah', ro which he adds 've'Lo Lecha ve'Lo Lecha ... '.

(d) Rav Nachman answered him with the Beraisa 'Harei Ka'an Esrim Chata'os' - which would not be teaching us anything if Shimon had said to each claimant 'Shevu'ah she'Ein Lach be'Yadi Pikadon u'Sesomes Yad, Gezel va'Aveidah'. Consequently, the Tana must be speaking when he replied to one of them, and then added 've'Lo Lecha ve'Lo Lecha ... ' afterwards, thereby resolving Rava's She'eilah.

(a) Rebbi Chiya bar Aba Amar Rebbi Yochanan initially explains that Rebbi Shimon in our Mishnah, rules in the case of 'Anasta u'Pitisa es Biti ... , Patur she'Eino Meshalem K'nas al'Pi Atzmo' (bearing in mind that Shimon is Chayav to pay Boshes and P'gam anyway [as the Rabbanan maintain]) - because the major claim is that of K'nas (and the claim on Boshes and P'gam is only secondary).

(b) Rava compared this to a case of Reuven who claimd from Shimon wheat, barley and spelt, and Shimon swore that he doesn't have Reuven's wheat - and it then transpired that he did not have wheat of Reuven's, but he did have the other two species, he is Patur from a Shevu'ah.

(c) Abaye refuted Rava's comparison however, on the grounds that - whereas there Shimon did not deny barley and spelt, in the case of Rebbi Shimon, Shimon did deny Boshes and P'gam.

(d) He therefore compared Rebbi Shimon's case to a case where Shimon swore that did not have anything of Reuven's, and it then transpired that he did have wheat, in which case he would be Chayav to make a Shevu'ah (the exact opposite of what Rava tried to prove).

(a) When Ravin arrived from Eretz Yisrael, he quoted Rebbi Yochanan - who explained that Rebbi Shimon exempted 'Avasti u'Pitisi es Biti' from a Shevu'ah - because Reuven did not claim Boshes and P'gam in the first place.

(b) Rav Papa explains the Machlokes according to Ravin's interpretation. Reuven would ...

1. ... not claim Boshes and P'gam, where there is K'nas, according to Rebbi Shimon - because when Reuvena is claiming a fixed sum (K'nas), he is probably not concerned with undisclosed amounts (Boshes u'P'gam) that accompany it.
2. ... not forego the Boshes and P'gam, according to the Rabbanan, even though he is already claiming K'nas - because when Reuven claims a sum which Shimon might confess he owes and be Patur from paying, he will certainly not ignore a second claim which Shimon getting get out of paying, should Beis-Din uphold his claim.
***** Hadran Alach, 'Shevu'as ha'Pikadon *****



***** Perek Shevu'as ha'Dayanim *****


(a) We learn from the Pasuk "Asher Yomar Ki Hu Zeh" - the Shevu'ah of 'Modeh be'Miktzas' (someone who admits to part of a claim, who is obligated to swear on the balance).

(b) Our Mishnah gives the minimum claim for which one is Chayav a Shevu'ah, as two 'Kesef'. The minimum amount that one needs to confess, to be Chayav a Shevu'ah is - a P'rutah.

(c) Our Mishnah rules that if Reuven claims two silver pieces from Shimon ...

1. ... and Shimon admits that he owes him a P'rutah, he is Patur from a Shevu'ah - because seeing as the claim consists of silver and the admission, of gold, it is a case of 'Ta'ano Chitin, ve'Hodeh Lo bi'Se'orin' (which will be discussed later in the Mishnah, and) which is Patur.
2. ... plus a P'rutah, and Shimon admits that he owes him a P'rutah, he is Chayav - because he holds 'Ta'ano Chitin u'Se'orin ve'Hodeh Lo be'Echad Meihen, Chayav'.
(d) The Tana rules in the case of ...
1. ... 'Manah Li be'Yadcha, Ein Lach be'Yadi, Patur' - because 'Kofer ba'Kol (someone who completely denies a claim, is Patur).
2. ... 'Manah le'Aba be'Yadcha, Ein Lach be'Yadi Ela Chamishim Dinar, Chayav' - because seeing as the claimant himself did not claim from him, his admission is considered 'Hashavas Aveidah' (volunteering to return a lost article, which Chazal absolved from a Shevu'ah, to encourage people to return the articles that they find).
(a) The Tana rules that if Shimon admits that he owes Reuven a Manah, and the next day he claims that he paid him, he is believed. He would however, be Chayav - if Reuven had stipulated that he pays in front of witnesses.

(b) In a case where Reuven claims a Litra Zahav and Shimon admits to a Litra Kesef, the Tana exempts the latter from a Shevu'ah - because it is a case of 'Ta'ano Chitin ve'Hodeh Lo bi'Se'orin'; whereas if Reuven were to claim a Dinar Zahav, and Shimon admitted to a Dinar Kesef, a Trisis, a Pundiyon or a P'rutah - where Reuven claimed a coin and Shimon admitted to a coin, it is a case of 'Ta'ano Chitin ve'Hodeh Lo be'Chitin'.

(c) The reason that the Tana exempts Shimon from a Shevu'ah if he admits that he owes Reuven a Lesech of legumes in response to the latter's claim of produce, but obligates him if he claimed from him fruit is - because legumes are considered fruit, but not produce.

(a) The Chachamim hold ...
1. ... 'Ta'ano Chitin ve'Hodeh Lo bi'Se'orin, Patur'. Raban Gamliel holds - 'Chayav'.
2. ... 'ha'To'en la'Chavero Kadei Shemen ve'Hodeh Lo be'Kankanim, Patur' - because the claim is on oil and the admission on the jars (and it is another case of 'Ta'ano Chitin, ve'Hodeh Lo Se'orin'.
(b) Admon rules - Chayav, because according to him, 'Kadei Shemen' incorporates the jars as well as the oil (which is another case of 'Ta'ano Chitin u'Se'orin ve'Hodeh Lo be'Echad Meihen').

(c) Raban Gamliel comments on this Machlokes - that he agrees with Admon.

(d) We have already learned that there is no Shevu'ah on a claim of Karka. Shimon will swear even on the Karka however, in a case where Reuven claims from him Karka and vessels - and he admits to some of the vessels, because he will then be Chayav to swear on the other vessels, and on the Karka due to 'Gilgul Shevu'ah'.

(e) Our Mishnah rules that one ...

1. ... does not swear to the claim of a Cheresh, Shoteh or Katan.
2. ... cannot make a Katan swear.
(a) Rav Yehudah Amar Rav explains that Shevu'as ha'Dayanim entails making whoever swears a Shevu'ah d'Oraysa swear like the Torah writes in Chayei Sarah "Va'ashbi'acha ba'Hashem Elokei ha'Shamayim ... " - as Avraham Avinu said to Eliezer.

(b) Initially, we think that Rav is coming to teach us - that a Shevu'ah d'Oraysa requires Shem ha'Meforash (the four-letter Name of Hashem).

(c) Ravina asked Rav Ashi whether Rav meant to rule like Rebbi Chanina bar Idi, who requires specifically the four-letter Name of Hashem. To which Rav Ashi replied - that in fact, Rav even permits the Nishba to use a Kinuy, and Rav quoted the Pasuk in connection with Avraham Avinu - only with regard to taking an object of Mitzvah in one's hand when swearing (just like Eliezer held Avraham's Bris Milah, which was the first Mitzvah that Avraham was commanded, and was therefore dear to him).

(d) When Rava said that a Dayan who made someone swear by Hashem Elokei ha'Shamayim is considered a 'To'eh bi'Devar Mishnah' (seeing as its source is Rav and not a Mishnah at all) - he considered the words of the Amora'im as authentic as those of our Mishnah?

(e) The ramifications of Rava's statement are - that their ruling is nullified (as opposed to 'Ta'ah be Shikul ha'Da'as', whose ruling is upheld, and who is therefore obligated to reimburse the losing litigants losses).

(a) Rav Papa ruled that a Dayan who made the Nishba hold Tefilin whilst he swore - has the Din of a 'Ta'ah bi'Devar Mishnah' (since he is obligated to hold specifically a Sefer-Torah).

(b) We uphold Rava's ruling, but disregard that of Rav Papa.

(c) A regular Nishba is obligated to stand whilst he swears - a Talmid-Chacham however, is permitted to sit?

(d) Similarly, whereas other Nishba'im hold a Sefer-Torah (Lechatchilah), to ensure that they do not swear falsely - a Talmid-Chacham is permitted to hold Tefilin (in deference to his honor).

(e) The Chachamim nullified a Shevu'ah d'Oraysa nowadays - replacing it with Arur by ten people, for so we learned earlier 'Arur, Bo Shevu'ah'.

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