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Kollel Iyun Hadaf, Jerusalem

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Shevuos 45



(a) Our Mishnah rules that in a case where the defending litigant is a gambler, lends on interest, indulges in pigeon-racing or does business with Sh'mitah-produce - then the second litigant swears and takes.

(b) According to Rebbi Yossi, if both litigants are suspect of making false oaths, the Shevu'ah returns to its place (which will be explained in the Sugya). Rebbi Meir says - 'Yachloku'.

(c) 'Chenvani al Pikaso' does not refer to a case where the storekeeper cites his ledger in which it is recorded (see Tosfos Yom-Tov) that Reuven owes him two hundred Zuz, who subsequently claims that he paid - because since there are no grounds to suspect the purchaser, there is no reason to impose a Shevu'ah on him.

(a) The case of 'Chenvani al Pinkaso' is - that of Reuven who asked a storekeeper to give his son a Sa'ah of wheat or his employee a Sela in small coins on his account, and the former claims that he gave, whereas the latter claims that he did not receive.

(b) According to the Tana Kama - the storekeeper swears that he paid as instructed and the son or the employee swears that he did not receive the goods or the money, and both then take from Reuven.

(c) ben Na'nes objects to this ruling - on the grounds that it is not feasible for the Chachamim to institute what is certainly a Shevu'as Shav (seeing as the two Shevu'as clash). Consequently, he maintains, they both claim without a Shevu'ah.

(d) Rebbi Yehudah does not argue with the Tana Kama in this case (see Tiferes Yisrael).

(a) In a case where Reuven asks a storekeeper for a Dinar's worth of fruit, and when the latter asks for the money, he claims that he already paid him and that he put the money in his purse - the Tana obligates Reuven to swear a Shevu'as Heses that he paid (see Gilyon ha'Shas, and Tosfos 48a DH 'Nishba').

(b) And in a case where Reuven first paid the storekeeper and when he subsequently asks him for the fruit, the storekeeper claims that he gave them to him and that he took them home - he obligates the storekeeper to swear.

(c) According to Rebbi Yehudah, whoever has the fruit has the upperhand - in which case Reuven does not need to swear in the earlier case ...

(d) ... because a storekeeper would not give the customer his goods before receiving payment.

(a) The Tana Kama rules, in a case where Reuven asks a banker for a Dinar's worth of small coins ...
1. ... and when the latter asks for the Dinar, he claims that he already gave it to him and that he put it in his purse - that Reuven must swear that he already paid.
2. ... and first hands him the Dinar; then, when he asks for the coins, the banker claims that he already handed them over - that the banker must swear that he indeed did.
(b) Rebbi Yehudah - argues, like he argued in the previous case, that no banker would hand his customer a Dinar's worth of coins before having received the Dinar. Consequently, Reuven is Patur from a Shevu'ah in the first case.

(c) Our Mishnah compares Yesomim who claim a debt with a Sh'tar to 'Pogemes Kesuvasah', 'Eid Echad Me'idah she'Hi Peru'ah', and to someone who claims from Nechasim Meshubadim or from the property of Yesomim - all of whom must make a Shevu'ah before claiming.

(a) Before the Yesomim can claim, they must make a triple Shevu'ah. They must swear that their father did not inform them either at the time of his death or at any time prior to that, that the debt was paid - and that they did not find a receipt declaring that it was paid.

(b) Rebbi Yochanan ben Berokah - includes even a son who is born after his father died in the previous Halachah of 'Nishba'in ve'Notlin'.

(c) And Rebbi Shimon ben Gamliel rules - that if witnesses testified that, before the father died, he admitted that the Sh'tar had not been paid - the Yesomim may claim without a Shevu'ah.

(a) Our Mishnah rules that Shutfin, Arisin, Apotropsin, and a woman whose husband appointed to manage his estate, or a son who is managing his deceased father's estate - can all be made to swear even though nobody is claiming from them (this will be explained in the Sugya).

(b) 'Apotropsin' in this context - refers to custodians of the property belonging to Gedolim (not to Ketanim [which is a Machlokes Tana'im in Gitin] , as it normally does).

(c) Once Shutfin and Arisin have divided the property or the goods, they are no longer obligated to swear - unless the one partner is Chayav a Shevu'ah anyway (in which case he can be made to swear about the Shutfus by means of a 'Gilgul Shevu'ah').

(d) The Tana concludes the Mishnah with the statement - 've'ha'Shevi'is Meshametes es ha'Shevu'ah' (meaning that Sh'mitah cancels loans and Shev'os that are relevant to them).

(a) We learn from the Pasuk "ve'Lakach Be'alav ve'Yeshalem" - that one only swears in order to become absolved from paying, but not in order to receive.

(b) The problem with Rav Yehudah Amar Shmuel, who, in reply to the question why we rule 'Nishba'in ve'Notlin' regarding a Sachir, replies ...

1. ... initially 'Halachos Gedolos Shanu Ka'an' is - that 'Nishba'in ve'Notlin' is not among the 'Halachos le'Moshe mi'Sinai'.
2. ... in answer to the problem) 'Takanos Gedolos Shnu Ka'an' is - that this implies that there are small Takanos (which is simply not true).
(c) So Rav Nachman finally quotes Shmuel - as having said 'Takanos Kevu'os Shanu Ka'an.

(d) The problem with the suggestion that ...

1. ... the basis of this Takanah is for the sake of the employee's Parnasah is - that Chazal would not punish Reuven (the employer) for the sake of another man's Parnasah.
2. ... because the employer will gladly agree with the Takanah, since it enables him to find workers more easily - because by the same token, the employee will gladly agree that the employer to swear, so that he will will have less trouble in finding a job.
3. ... the previous point is no problem, since the employer out of necessity, will employ him anyway - because by the same token, the employee will of necessity, work for the employer anyway (in which case, we may as well let the employer swear).
(a) So we finally ascribe the reason for placing the Shevu'ah with the employee to the fact that the employer is too busy to remember whether he paid him or not. The Shevu'ah is - merely to satisfy the employer.

(b) Nevertheless, Chazal did not institute that he ...

1. ... gets paid with witnesses (to avoid swearing unnecessarily) - because it is too much trouble for the employer to have to find witnesses for each and every payment.
2. ... receives his wages before commencing work - because both parties prefer wages to be paid at the end, the one because he does not always have cashs so early in the morning, the other, to ensure that he doesn't spend it (or lose it) in the course of the day.
(c) In a case where the employee claims that the employer promised him two Zuz, and the employer claims that they agreed on one, the Beraisa rules - 'ha'Motzi me'Chavero Alav ha'Re'ayah' (and the empoyer is believed).

(d) We do not apply the S'vara there 'that an employer is too busy to remember' - because even though he may be too busy to remember which employees have been payed and which haven't, he will certainly remember how much he agreed to pay them.




(a) In a case where the employee claims his wages after the time limit prescribed by the Torah has expired, the Beraisa rules - 'Harei Zeh Eino Nishba ve'Notel'.

(b) We initially ascribe this ruling to the Chazakah - that an employer would not contravene the La'av of 'Lo Salin Pe'ulas Sachir ... " (Kedoshim).

(c) We resolve this with what we just learned (that an employer is too busy to remember these things) - by establishing that a person will exert himself in order not to transgress a La'av.

(d) And after pointing out that the employee too, has a Chazakah that he would not transgress the La'av of 'Bal Tigzol' - we conclude that the employer has an extra Chazakah based on the fact that an employee makes sure to claim his wages before the time of expiry.

(a) Rav Nachman Amar Shmuel qualifies our Mishnah - by establishing it to where the employer hires the employee in the presence of witnesses, but where he does not, he is believed ...

(b) ... on the basis of a 'Migu', since he could have denied having employed him in the first place (see Tosfos DH 'Mitoch').

(c) Rebbi Yitzchak commented 'Yeyasher' - because that is also what Rebbi Yochanan said.

(d) This does not mean that Resh Lakish disagreed with Rebbi Yochanan - because as we learned in connection with a similar episode, either Rebbi Yitzchak was not in the Beis-Hamedrash when Rebbi Yochanan finished the Sugya, so he did not know whether Resh Lakish argued with Rebbi Yochanan or not, or Resh Lakish was drinking water at the time that Rebbi Yochanan made his statement, and by the time he had finished drinking, Rebbi Yiztchak had already left the Beis Hamedrash. Either way, he did not know what Resh Lakish said in this regard.

(a) Rav Menashya bar Z'vid quoting Rav conforms with this ruling. Rava disagrees with Rami bar Chama, who praised this opinion - because if that were so, he argued, a Shomer Sachar should be Patur from a Shevu'ah by Shevurah u'Meisah. He should be believed since he could have denied having received the article in the first place (see Chidushei ha'Ran).

(b) Initially, we refute Rava's proof - by establishing the Shevu'ah in a case where he received the Pikadon in the presence of witnesses.

(c) Neither will he be believed because he could have claimed that he returned the article - in a case where he received it against a Sh'tar, because then he would not be believed to say that he returned the article without witnesses.

(d) We can extrapolate from here - that even though someone who receives a Pikadon in front of witnesses does not need to return it in front of witnesses, if he receives it against a Sh'tar, he does, because otherwise, the fact that he did not ask for the Sh'tar in exchange for the payment, is proof that he did not pay.

(a) When Rami bar Chama, with reference to Rav Sheishes (whom we are about to cite), quoted the Pasuk in Shmuel "Vayasem David es ha'Devarim he'Eileh be'Libo" - he meant that, like David, Rav Sheishes sought the truth, by trying to discover whether the Halachah is like Rav and Shmuel or not?

(b) When Rav Sheishes asked Rabah bar Shmuel what he had learned regarding Sachir, he cited him the Mishnah in Bava Metzi'a, 'Sachir bi'Zemano Nishba ve'Notel' which he qualified - by confining it to where the employer and the employee are arguing over whether the latter received his wages or not, but not if their dispute revolves around the amount that they fixed, in which case the Tana holds 'ha'Motzi me'Chavero, Alav ha'Re'ayah'.

(c) Rav Sheishes extrapolates from the Seifa of that Mishnah - that seeing as the Tana specifically mentions a Re'ayah (witnesses), the Reisha, which does not, clearly believes the Sachir even when there are no witnesses ...

(d) ... disproving the opinion of Rav and Shmuel.

13) Rav Nachman bar Yitzchak refutes Rav Sheishes' proof - by establishing the Reisha, as well as the Seifa, when there are witnesses. And the reason the Tana did not say so, he explains - is because he only mentions a proof that obligates immediate payment, but not one that obligates a Shevu'ah first.

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