ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf 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
(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
(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
(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
(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.
(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
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.
(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'.
(c) So Rav Nachman finally quotes Shmuel - as having said 'Takanos Kevu'os
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).
(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.
(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).
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.
(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
(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
(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
(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?
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.
(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.