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Shevuos 41

SHEVUOS 41 - dedicated in memory of Mordecai (Marcus) ben Elimelech Shmuel Kornfeld, who perished in the Holocaust along with most of his family. His Yahrzeit is observed on 1 Adar. May the deaths of the Kedoshim of the Holocaust atone for Klal Yisrael like Korbanos.



(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' - meaning that 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 de'Rabbanan, 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 Shevu'ah de'Rabbanan.

(a) We learned in a Mishnah in Gitin 'Metzi'as Chashu Yesh Bahen Gezel Mipnei Darkei Shalom'. Rebbi Yossi says - 'Gezel Gamur'.

(b) Not that a 'Chashu' acquires from Hefker mi'd'Oraysa - but 'Gezel Gamur mi'de'Rabbanan', as Rav Chisda explains.

(c) 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).

(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.

(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.

(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), and then they leave him.

(a) Rav Papa rules in a case where Shimon ...
1. ... claims that the Sh'tar which 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, Lo Tipara Ela bi'Shevu'ah'. 'ha'Pogemes Kesuvasah' means - that she admits that she has already received some of the money.

(c) Despite the fact that, in our case, we also make the claimant swear, Rav Ashi explained that our case is different than the above Mishnah - inasmuch as 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 - on the grounds that a Talmid-Chacham has no more right to 'take people's coats' than anybody else.

(e) 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).

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

(c) 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).




(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 had stipulated that he do 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 pay him in front of witnesses and the following day, the latter claimed 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 believes the debtor should he claim that he did indeed pay in front of 'P'loni u'Peloni, but that they had gone overseas (land Shmuel holds like Rebbi Yehudah ben Beseira).

(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, by suggesting - that they are not referring to the stipulation that the creditor made at the time of the loan, but to the time of the 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 would agree - that if the debtor could not prove that he had paid, he would have to pay (a Kashya on Shmuel).

(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 rule - that he is believed, like Shmuel (in spite of Rav Ashi's objection).

(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 - since he (Levi) had made a point of specifically naming Reuven and Shimon because he did not trust Yehudah's witnesses.

(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'O'nes.

(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. Nevertheless, if he insisted on his stipulation being met, he could 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.

(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 seeing as Shimon claimed that he had not borrowed the money, he had certainly not repaid it, in which case, despite the witnesses testimony that he repaid the loan, he was obligated to pay. Note, that this ruling is 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').

(c) 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 obligated to pay.

(d) Rava disagree with that however - on the basis of the S'vara that a person does not tend to note details (or to forget 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).

(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 each) - which were used in the tanning of 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 the 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 commodities was not something that a businessman would forget.

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