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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Shevuos 42

SHEVUOS 42 - Marcia and Lee Weinblatt have dedicated this Daf towards the full recovery of Mrs. Gerti (Gitl bas Golda) Kornfeld, and in honor of the recent births of their grandchildren: Gabriela Esther (to Jodi & Jacob Mugrabi), Esther Rifka (to Tal & Aylon Brandwein), Mordechai (to Aliza & Kenny Weinblatt) and Meir Yaakov (to Roni & Yehuda Blinder). MAZEL TOV!



(a) In a case where Shimon claimed that he had already repaid the debt that Reuven was claiming with a Sh'tar - Reuven admitted that he had received money from Shimon, but claimed that it was in payment of a different debt ('Sitra'i Ninhu').

(b) Rav Nachman rules 'Isra Sh'tara' - meaning that seeing as Reuven admitted to having been paid, the Sh'tar was considered negated (since he did not have the authority to claim 'Sitra'i Ninhu' [see also Tosfos DH 'Isra']).

(c) According to Rav Papa - Reuven is believed, and the Sh'tar retains its validity.

(a) We cite a similar case, but where Reuven claimed 'Sitra'i Ninhu' only after Shimon had countered that Reuven had given him the money for a specific purpose - to purchase oxen to enter into a joint venture (to Shecht them and share the profits).

(b) And when he added 've'Asivas a'Mischasa', he meant - that Reuven had received his money when he turned up at the location where the meat was sold, and taken his share of the profits (and that this was the money under discussion).

(c) Rav Papa rules there - 'Isra Sh'tara' ...

(d) ... seeing as Reuven already went as far as to admit the details of the loan that Shimon described. Consequently, the likelihood that the Sh'tar is indeed invalid is stronger than in the previous case (see Ritva).

(a) Rav Papi rules 'Lo Isra Sh'tara' (like Rav Papa), Rav Sheishes b'rei de'Rav Idi rules 'Isra Sh'tara' (like Rav Nachman). The Halachah is - 'Isra Sh'tara'.

(b) We restrict this ruling however, to where Shimon paid Reuven in the presence of witnesses - and Reuven failed to point out that he still had a documented claim on Shimon ...

(c) ... but if he paid him privately - then Reuven would be believed to say 'Sitra'i Ninhu' with a 'Migu' that he could have denied that Shimon paid him (like Avimi b'rei de'Rebbi Avahu rules in Kesuvos).

(a) In a case where Shimon stipulated that he would believe Reuven whenever the latter claimed that he had not yet paid - he went and paid in front of two witnesses.

(b) Rav Papa objected to Abaye and Rava's ruling, that Shimon must now abide by his own condition and pay - on the grounds that he only accepted Reuven's word against his own (because he did not trust his own memory for whatever reason), but not against that of two witnesses.

(a) Three witnesses are an advantage over two in certain cases of assessment, where the assessment of three is preferable to that of two.

(b) Rav Papa therefore ruled that, in a case where Shimon stipulated that he would believe Reuven like two witnesses, should he claim that he had not yet paid, and then went and paid him in front of three witnesses - Reuven would not be believed (since here too, Shimon had said 'two', but not 'three').

(c) Rav Huna b'rei de'Rav Yehoshua disagreed with that, on the grounds that there is no difference between two witnesses and a hundred (so Reuven is believed, irrespective of how many witnesses were present when Shimon paid him).

(d) In a second Lashon, Rav Huna b'rei de'Rav Yehoshua again maintained that there is no difference between two witnesses and a hundred. This time however, he added - that where Shimon stipulated that he would believe Reuven like three witnesses ... - then he meant specifically three and not four ...

(e) ... because this time, since he already specified three, he clearly meant to preclude more than that; whereas in the previous case, where he specified 'two', he merely meant any amount of witnesses (because 'T'rei ke'Me'ah').

(a) We learned in our Mishnah 'Ein Nishba'in al Ta'anas Cheresh, Shoteh ve'Katan'. Even though a Cheresh cannot speak - he can present a Ta'anah by means of sign language.

(b) We learn from the Pasuk (in connection with the Din of Shevu'as ha'Dayanim) "Ki Yiten *Ish* el Re'ehu Kesef O Keilim Li'shemor" - that the claim of a Katan (whose Nesinah cannot create legal repercussions) does not obligate a Shevu'ah.

(c) We learn the Din by Cheresh and a Shoteh - from the same source as Katan, since they too, have no Da'as.

(d) Rav reconciles the above with the Seifa of our Mishnah 'Aval Nishba'in al Ta'anas Katan', by establishing the latter like Rebbi Eliezer ben Ya'akov, who rules in a Beraisa - that if someone admits to a Katan that his father lent him a Manah of which he returned half, he is Chayav to swear (and there the Nesinah was fully functional).

(a) Rebbi Eliezer ben Ya'akov actually refers to the case as 'Nishba al Ta'anas Atzmo' - because it is the debtor who admitted to the Katan that he borrowed the money, and not the Katan who claimed from him.

(b) The Chachamim therefore argue with him - on the basis of the Din of 'Hashavas Aveidah', which is not subject to a Shevu'ah (incorporating all cases where there is no claimant [as we have already learned]).

(c) The problem with Rebbi Eliezer ben Ya'akov is - how he can argue with this established Halachah.

(d) We reject the suggestion that it is a real Katan who is claiming from him, because of the principle 'Ein Nishba'in al Ta'anas Katan'. So we establish it when the claimant is a Gadol, whom the Tana refers to as 'a Katan' - because when it comes to his father's affairs, he is considered a Katan.




(a) With regard to the Kashya why Rebbi Eliezer ben Ya'akov refers to it as 'Ta'anas Atzmo', we reject the answer 'Ta'anas Acherim ve'Hoda'as Atzmo' - on the grounds that every claim is 'Ta'anas Acherim ve'Hoda'as Atzmo'. In that case, a. why does Rebbi Eliezer ben Ya'akov say 'sometimes', and b. why do the Rabbanan argue with him?

(b) So we establish the Machlokes Tana'im when in fact it is a Katan who is claiming from him, and they argue over Rabah's explanation of 'Modeh be'Miktzas'. What makes this claim subject to a Shevu'ah any more than the regular claim of a Katan is - the fact that it was a Gadol who handed the debtor the money and not the Katan (as we explained earlier).

(c) And Rebbi Eliezer ben Ya'akov then refers to it as 'Ta'anas Atzmo' - because the claim of a Katan is generally considered Ta'anas Atzmo (even though in this case, it is not).

(a) Rabah explains that 'Modeh be'Miktzas' is not Patur from a Shevu'ah with a 'Migu' of 'Kofer ba'Kol' - because a debtor would not have the Chutzpah to deny entirely, the claim of someone who did him a favor and lent him money.

(b) As a matter of fact, he really now wants to admit to the entire claim, as Rabah goes on to say - but cannot, because he doesn't have the means to pay, so he makes a compromise and admits to half, with the intention of admitting to the rest when he obtains the rest of the money.

(c) Rabah needs to add that he really wants to admit to the entire claim - because if he didn't, the Torah would not allow someone who is suspect in money-matters to swear (because whoever is suspect in the one is suspect in the other).

(d) We finally establish the basis of the Machlokes on the She'eilah whether 'Ein Adam Me'iz Panav bi'Fenei Ba'al Chovo' extends to the creditor's son (from whom the debtor did not actually borrow) or not. The reasoning behind ...

1. ... Rebbi Eliezer ben Ya'akov's ruling, who holds that it does is - that consequently, the debtor is not Meishiv Aveidah (since he has no 'Migu' of Kofer ba'Kol, as we explained).
2. ... the Chachamim's ruling, who holds that it doesn't is - that consequently, he has a 'Migu' of Kofer ba'Kol, rendering him a 'Meishiv Aveidah'.
(a) The Reisha of our Mishnah rules - 'Manah le'Aba be'Yadcha; Ein Lecha be'Yadi Ela Chamishim Dinar - Patur Mipnei she'Hu ke'Meishiv Aveidah'.

(b) This does not contradict the Seifa, which we just established like Rebbi Eliezer ben Ya'akov - because it speaks when the son himself is not sure (in which case everyone agrees that the debtor would be Me'iz Panim, and is therefore a 'Meishiv Aveidah' as we just explained).

(a) Shmuel establishes the Seifa when a claimant claims from the property of Yesomim (unconnected to Rebbi Eliezer ben Ya'akov). The source of this Shevu'ah is - the principle that one can never claim from Yesomim without a Shevu'ah.

(b) To answer the Kashya that we have already learned this in a Mishnah in 'Kol ha'Nishba'in', we cite a Beraisa quoted by Abaye Keshisha - who says that the Mishnah speaks even by Gedolim, how much more so, Ketanim. Consequently, one of the Mishnos refers to Ketanim, the other, to Gedolim.

(c) The Beraisa also mentions the Din - of claiming from Yesomim only Ziburis (inferior quality lands), as opposed to the Beinonis that a creditor normally has the right to claim.

(a) Our Mishnah concludes 'Aval Nishba'in ... le'Hekdesh'. Shmuel establishes this ruling - in the same way as he established 'Aval Nishba'in le'Katan ... ' (that precedes it) 'Lipara mi'Nechsei Hekdesh' (meaning that if Reuven produces a Sh'tar-Chov against Shimon, who has declared all his property Hekdesh, he must swear).

(b) We ask on this from the same Mishnah in 'Kol ha'Nishba'in' - that here too, the Tana has already taught us that one cannot claim from Nechasim Meshubadim without a Shevu'ah (and there seems to be no reason why Meshubad to Hekdesh should be any different than Meshubad to a Hedyot).

(c) We answer that Hekdesh might indeed be different - inasmuch as a person who is suspected of collusion against Hedyot, will not necessarily do such a thing against Hekdesh (in which case, a Shevu'ah ought not to be necessary).

(d) Rav Huna rules that a Shechiv-Mera who declares 'Manah li'Peloni be'Yadi' after declaring all his property Hekdesh - is believed, and we give the Manah to P'loni without a Shevu'ah because 'Ein Adam Oseh Kenunyah al Hekdesh.

(e) We reconcile this with our Mishnah, which holds 'Adam Oseh Kenunyah im Hekdesh' - by pointing out that Rav Huna is speaking about a Shechiv-Mera, who stands to gain nothing anyway, and we have a principle 'Ein Adam Chotei ve'Lo Lo' ('Reuven will not sin for Shimon's benefit')

(a) Our Mishnah lists four things over which one does not swear. The first three are Avadim, Sh'taros and Karka'os. The fourth is - Hekdesh.

(b) Neither are they subject to - Tashlumei Kefel or Tashlumei Arba'ah va'Chamishah.

(c) A Shomer Chinam does swear over them - neither does a Shomer Sachar have to pay?

(d) According to Rebbi Shimon, one does swear over Kodshim she'Chayav be'Acharayusan - meaning Kodshim for which he is responsible, such as someone who declares 'Harei Alai Olah' (which he is obligated to fulfill even if he designates an animal which is subsequently stolen [as opposed to 'Harei Zu']).

(a) When Rebbi says 'Yesh Devarim she'Hein ke'Karka, ve'Einan ke'Karka' - he means that if Shimon denies five out of ten attached, laden vines that Reuven claims from him, he is obligated to swear.

(b) The Chachamim maintain - that whatever is attached to the ground, is considered Karka (and is not therefore subject to a Shevu'ah).

(c) The principle that governs the Tana's ruling that 'Bayis Malei Masarti Lach ... ve'ha'Lah Omer Eini Yode'a, Ela Mah she'Hinachta Atah Noteil, Patur' is - 'Ein Nishba'in Ela al Davar she'be'Midah, ve'she'be'Mishkal, ve'she'be'Minyan' (One only swears over something that has a specified measure, weight or number) .

(d) In the case of 'Zeh Omer ad ha'Ziz, ve'Zeh Omer ad ha'Chalon' - the Tana rules 'Chayav (Shevu'ah)'.

(a) The Beraisa learns from the Pasuk ...
1. ... "Al Kol D'var Pesha ('Klal') al Shor al Chamor ... (P'rat), al Kol Aveidah' (K'lal) - that one is only Chayav Kefel for things that are similar to the P'rat (i.e. if they are moveable and have an intrinsic value, to preclude Avadim, Sh'taros and Karka'os).
2. ... "Yeshalem Shenayim *le'Re'eihu*" - that Hekdesh is not subject to Kefel either.
(b) The source to exempt Avadim, Sh'taros, Karka'os and Hekdesh from 'Tashlumei Arba'ah va'Chamishah' - is the fact that one is already Patur from Kefel, since the Torah obligates 'Tashlumei Arba'ah va'Chamishah, and not 'Tashlumei Sheloshah ve'Arba'ah'.

(c) We learn from the Pasuk ...

1. ... (in connection with the Shevu'ah of a Shomer Chinam) "Ki Yiten Ish el Re'eihu (K'lal) Kesef O Keilim (P'rat) Lishmor (Klal)" - that a Shomer Chinam of Avadim, Sh'taros or Karka'os is not obligated to swear.
2. ... (in connection with the Chiyuv Geneivah va'Aveidah of a Shomer Sachar) "Ki Yiten Ish el Re'eihu (K'lal) Chamor O Shor O Seh (P'rat) ve'Chol Beheimah Lishmor (K'lal)" - that a Shomer Sachar of Avadim, Sh'taros or Karka'os is not obligated to pay.
3. ... "Re'eihu" in both cases - that a Shomer of Hekdesh is Patur from swearing and from paying.
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