ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Shevuos 44
(a) We just established that Rebbi Eliezer and Rebbi Akiva argue in a case
where the security is worth less than the loan, and the basis of their
Machlokes is over Shmuel's Din. Alternatively, they argue even in a case
where the security is equivalent to the loan, and they argue over Rebbi
Yitzchak's, who says - 'Ba'al-Chov Koneh Mashkon' ('A creditor acquires the
(b) He extrapolates this from the Pasuk (in connection with the Din of
returning a Mashkon [daily or nightly]) "u'Lecha Tih'yeh Tzedakah" - because
if the creditor did not acquire the security, why would returning it be
(c) We now propose to explain that - Rebbi Eliezer disagrees with Rebbi
Yitzchak, which explains why the creditor does not lose his right to claim
when he loses the security.
(a) The problem with this, based on the fact that Rebbi Eliezer and Rebbi
Akiva are talking about a 'Mashkon be'Sha'as Halva'ah' is - that Rebbi
Yitzchak speaks about a 'Mashkon she'Lo be'Sha'as Halva'ah' exclusively.
(b) The S'vara behind this distinction is - the fact that whereas a Mashkon
be'Sha'as Halva'ah is a private enterprise, a Mashkon she'Lo be'Sha'as
Halva'ah is enacted by the Beis-Din, who claim the Mashkon from the debtor
when he fails to pay.
(c) In fact we conclude, everyone holds like Rebbi Yitzchak, and they argue
in the case of a Mashkon be'Sha'as Halva'ah, over - whether a Shomer Aveidah
is a Shomer Chinam (Rebbi Eliezer), or a Shomer Sachar (Rebbi Akiva).
(a) This is also a Machlokes between Rabah, who says 'Shomer Aveidah
ke'Shomer Chinam', and Rav Yosef ... 'ke'Shomer Sachar'. What makes a Shomer
Aveidah, a Shomer Sachar, according to Rav Yosef is - the fact that he gains
the Mitzvah of Hashavas Aveidah.
(b) We establish Rebbi Akiva like Rav Yosef - because lending a Jew money is
a Mitzvah too ("Im Kesef Talveh es Ami" [Mishpatim]).
(c) We know at the outset that Rabah cannot hold like Rebbi Akiva (who
certainly considers a Shomer Mashkon [and a Shomer Aveidah] a Shomer
Sachar). But we manage to establish Rav Yosef even like Rebbi Eliezer
however, by confining Rebbi Eliezer's Din to a Mashkon - which the creditor
is allowed to use if he needs it. Consequently, Rebbi Eliezer holds, his own
benefit will negate the Mitzvah. He will concede to Rebbi Akiva by a Shomer
Aveidah however, since the finder is not permitted to use the article to
(a) We attempt to base the Machlokes Tana'im in the following Beraisa on
Shmuel's Din ('Aved Kata de'Magla, Avad Alfa Zuzi'). 'ha'Malveh es Chavero
al ha'Mashkon ve'Nichnesah Sh'mitah, af-al-Pi she'Eino Shaveh Ela Palga,
Eino Meshamet, Divrei Raban Shimon ben Gamliel. Rebbi Yehudah ha'Nasi Omer -
Im Hayah Mashkono Keneged Chovo, Eino Meshamet ... '.
(b) On principle, Sh'mitah does not cancel a debt on which there is a
Mashkon - because the Din of Hashmatas Kesafim is based on the Pasuk in
Re'ei "Lo Yigos" (the prohibition of claiming), and a creditor who has a
Mashkon does not need to claim anyway.
(c) Initially, we establish Raban Shimon ben Gamliel's ruling on the half of
the loan that is in excess of the Mashkon - because why would Rebbi Yehudah
ha'Nasi argue on the half that it does cover? What would then be the purpose
of the Mashkon?
(d) In that case - Raban Shimon ben Gamliel will follow the opinion of
Shmuel, and Rebbi Yehudah ha'Nasi will not.
(a) We conclude however, that they are arguing over the half that the
Mashkon covers. The Tana Kama holds that at least the half that is covered
by the Mashkon is not cancelled by the Sh'mitah. Rebbi Yehudah ha'Nasi
however holds - that even that half is cancelled too, because, in his
opinion, a Mashkon serves as no more than a reminder (and has no other legal
***** Hadran Alach, 'Shevu'as ha'Dayanim' *****
(b) Neither Tana, in fact, will then conform with Shmuel's opinion.
***** Perek Kol ha'Nishba'in *****
(a) 'Sachir', 'Nigzal' and 'Nechbal' all belong to the list of cases that
swear and take (as opposed to swearing and not having to pay).
(b) Our Mishnah adds two more cases to the list. One of them is 'she'Kenegdo
Chashud al ha'Shevu'ah' - the other, 'Chenvani al Pinkaso' (both of which
will be defined shortly).
(c) The case of ...
1. ... 'Sachir' is - when Reuven claims his wages from Shimon, who argues
that he has already paid.
(d) The Chidush of Shevu'as Shav is - that even though the Shevu'ah that he
made does not involve financial fraud, he is nevertheless suspected of
swearing falsely. And that is why the Tana says 'va'Afilu Shevu'as Shav'.
2. ... 'Nigzal' is - when witnesses testify that Reuven entered Shimon's
house to take a security without Beis-Din's permission, and he subsequently
denies Shimon's claim that he actually took some objects.
3. ... 'Nechbal' is - if witnesses testify that when Shimon, followed by
Reuven, entered a house, he was unblemished, but when he left, he was
4. ... 'she'Kenegdo Chashud al ha'Shevu'ah' concerns - a Shevu'as ha'Eidus,
a Shevu'as ha'Pikadon and a Shevu'as Shav.
(a) Rebbi Yehudah restricts the above oaths (of 'Nishba'in ve'Notlin') to
there where there is already a Shevu'ah of 'Modeh be'Miktzas'.
(b) The reason for this is - because, in his opinion, Chazal did not
institute a new Shevu'ah (like the Tana Kama holds), but merely switched the
existing one from the defendant to the claimant)
(c) Rebbi Yehudah does not argue - in the first case (that of Sachir),
because the reason for the Shevu'ah, which we will discuss later, does not
call for a distinction between 'Modeh be'Miktzas' and 'Kofer ba'Kol'.