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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Shevuos 43



(a) We extrapolate from 'Eser Gefanim Te'unos Masarti Lach ... Rebbi Meir Mechayav' that Rebbi Meir holds 'Kol ha'Mechubar le'Karka Eino ke'Karka'. The problem with this is - why he then needs to refer to a case where the vines are laden. Why did he and the Rabbanan (who would then hold 'Kol ha'Mechubar le'Karka ke'Karka Dami') not argue over empty vines?

(b) Rebbi Yossi b'Rebbi Chanina therefore, establishes our Mishnah by vines that are due to be harvested - Rebbi Meir holds that the grapes are considered picked, and the Rabbanan hold that they are not.

(a) Abaye attempts to qualify our Mishnah 'Ein Nishba'in Ela al Davar she'be'Midah ... ', by confining it to where the claimant said 'Bayis' Stam, but where he said 'Bayis Zeh Malei', where the amount is self-evident, the debtor will be Chayav a Shevu'ah, even though the claimant did not verbalize the amount.

(b) Rava refutes Abaye's statement, based on the Seifa 'Zeh Omer ad ha'Ziz, ve'Zeh Omer ad'ha'Chalon, Chayav' - since, according to Abaye, the Tana ought to rather to have concluded 'Bameh Devarim Amurim, be'Bayis S'tam, Aval 'be'Bayis Zeh Malei, Chayav'.

(c) Rava therefore concludes - that he is not Chayav a Shevu'ah until the claimant claims Davar she'be'Midah, she'be'Mishkal ve'she'be'Minyan, and the debtor likewise admits to the same.

(a) We cite a Beraisa in support of Rava. In a case where Reuven claims ...
1. ... a Kur of produce and Shimon denies it - the Tana rules Patur (because he is a 'Kofer ba'Kol').
2. ... a large Menorah (or a large belt), and Shimon admits that he owes him a small one - the Tana rules Patur.
3. ... a Menorah weighing ten Litrin, and Shimon admits that he owes him one weighing five - the Tana rules Chayav.
(b) The Beraisa ends with the 'Klal' requiring a Davar she'be'Midah ... ' on the part of both the claimant and the debtor - which comes to exclude 'Bayis Malei Zeh' (see Tosfos DH 'La'av la'Asuyi').

(c) The reason for the Tana's ruling (Patur) in the case of a large Menorah and a small one is - because it is a case of 'Ta'ano Chitin ve'Hodeh Lo bi'Se'orin' (see Rashash).

(d) Initially, Rav Shmuel bar Rav Yitzchak establishes the case of the Menorah of ten and five Litrin (where the Tana rules Chayav) - where Reuven claims from Shimon a Menorah made of parts weighing ten Litrin, and Shimon admits to the same Menorah, but with half the parts removed, weighing only five.

(a) We refute Rav Shmuel bar Rav Yitzchak's explanation from the case of a large belt and a small one - where the Tana could also have ruled Chayav by establishing it by a belt made of parts joined together, in the same way as we established the case of Menorah (and since he did not do that, it is clear that the Tana does want to deal with such a case).

(b) Rebbi Aba bar Mamal finally ascribes the Chiyuv in the case of the Menorah of ten and five Litrin - to the fact that a Menorah of ten Litrin can be filed down to five (in which case it will be 'mi'Miyn ha'Ta'anah').

(a) In a case where the creditor loses the security he received against the loan and claims that the loan was a Sela, and the security was worth a Shekel (half a Sela), if the debtor counters that it was worth ...
1. ... a Sela, and that he therefore owes him nothing - our Mishnah rules that the debtor is Patur from a Shevu'ah.
2. ... three Dinrim and he owes him one Dinar - the Tana rules that he is Chayav a Shevu'ah.
(b) And in a case where the debtor claims that the security was worth two Sela'im (in which case it is the creditor who owes him a Sela), and the creditor counters that it was worth only ...
1. ... one, and that they are quits - the Tana rules that the creditor is Patur from a Shevu'ah.
2. ... five Dinrim and that he therefore owes him only one Dinar - he rules that he pays him the Dinar and swears on the rest.
(c) The Tana obligates the creditor (the guardian of the Pikadon) to swear how much the Pikadon was worth, and not the debtor (the Pikadon's owner) - because he is afraid that if the latter swears, the former will produce the Pikadon, and prove the former a liar (disqualifying him from being a witness, even though he may only have erred in his assessment).



(a) Shmuel concludes that when the Tana states 'Mi Nishba, Mi she'ha'Piladon Etzlo', he must be referring to the Reisha, where the creditor claims that the debt exceeded the value of the Pikadon (and Rebbi Chiya bar Ashi and Rebbi Yochanan concur with him) - because if he was referring to the Seifa, the Kashya 'Mi Nishba' (as well as the answer 'Mi she'ha'Pikadon Etzlo') would be meaningless, seeing as he is the onus of swearing lies on him anyway.

(b) In fact - it refers to the Seifa de'Reisha (the second of the two cases), because the Reisha de'Reisha is a case of 'Kofer ba'Kol', where no Shevu'ah is required.

(c) According to Rav Ashi, we do not switch the Shevu'ah at all, and it is the debtor who swears how much the Pikadon is worth. According to him, when the Tana ...

1. ... asks 'Mi Nishba', he means - who swears first, the debtor as to how much the Pikadon was worth, or the creditor, that he does not have the Pikadon in his possession.
2. ... answers Mi she'ha'Pikadon Etzlo' - he means that the creditor must swear first to preempt the scenario where the debtor swears how much the Pikadon is worth, and the creditor produces it to prove him wrong.
(a) Shmuel rules that if Reuven lends Shimon a thousand Zuz against a security of the handle of a scythe - and the handle gets lost, Shimon is Patur from paying ...

(b) ... because he accepted the handle as a security, which in effect, is in lieu of payment of the loan.

(c) This does not mean that the debtor can turn round to the creditor and tell him to keep the handle as payment of the loan - because, having accepted it as a security only, Reuven retains the right to redeem his money with it (after the specified time, or after thirty days in the case of a S'tam Milveh) as long as it is available.

(a) In a case where Reuven received a security of two handles, and one of them got lost, Shmuel would not issue the same ruling - because since they did not stipulate that each handle covers half the loan, Reuven only needs to pay for the lost handle, and he is still entitled to claim the full thousand Zuz.

(b) Rav Nachman disagrees. In his opinion - since Reuven received two scythe-handles against the loan of a thousand Zuz, it is obvious that each handle covers five hundred Zuz.

(c) He would however, agree with Shmuel - in a case where Shimon gave Reuven a scythe handle and a piece of silver, because the piece of silver is eligible to serve as payment, in which case it simply covers its own value (see Tosfos DH 'Aval').

(d) According to the Neherda'i - even if Shimon gave Reuven the handle of a scythe plus a piece of silver, each one would cover half the loan. Consequently, if Reuven were to lose either of them, he would only be entitled to five hundred Zuz.

(a) In a case where Reuven loses the security that he received against a loan of a Sela, which he claims is worth a Shekel, if Shimon claims that it is worth three Dinrim - our Mishnah rules that Shimon is Chayav a Shevu'ah.

(b) To reconcile this with Shmuel, who says 'Avad Kata de'Magla, Avad Kol Ma'osav' - we establish the Mishnah when Reuven specifically stipulates that he accepts the security only at its market value, whereas Shmuel speaks when he accepted it S'tam.

(c) Rebbi Eliezer rules in a Beraisa that if Reuven loses the security, he swears that he lost it, and claims his loan - Rebbi Akiva accepts Shimon's claim that seeing as Reuven insisted on a security, having lost it, he loses his right to claim.

(d) Rebbi Eliezer agrees - that if the loan is documented (in which case Reuven has the automatic security of 'Shibud Karka'os'), the additional security is intended as payment, and in the event that Reuven loses it, he loses his right to claim.

(a) Rebbi Eliezer and Rebbi Akiva cannot be arguing over a security that is equal in value to the amount of the loan - because if they were, Rebbi Eliezer's ruling would be meaningless.

(b) In that case, they must be arguing when it is worth less (like the case of Shmuel) - and we suggest that Rebbi Akiva follows the opinion of Shmuel, whereas Rebbi Eliezer holds that no person in his right mind would accept a security for more than it is worth.

(c) According to Rebbi Eliezer, the creditor is no more than a Shomer over the security - a Shomer Chinam (which explains why he swears and is Patur).

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