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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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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 security').

(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 considered Tzedakah?

(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 begin with.

(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 ramifications).

(b) Neither Tana, in fact, will then conform with Shmuel's opinion.

***** Hadran Alach, 'Shevu'as ha'Dayanim' *****

***** 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.
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 wounded.
4. ... 'she'Kenegdo Chashud al ha'Shevu'ah' concerns - a Shevu'as ha'Eidus, a Shevu'as ha'Pikadon and a Shevu'as Shav.
(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'.
(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'.

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