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Shevuos 46

SHEVUOS 46 (7 Adar) - dedicated in memory of the passing (on 7 Adar 5748/1988) of Moreinu Ha'Rav Ha'Gaon Rav Shaul David Ha'Kohen Margulies ZT'L, Av Beis Din of Prushkov (suburb of Warsaw), Rav of Congregation Degel Israel (Queens, N.Y.), examiner for Yeshivas Chachmei Lublin (in Poland) and close disciple of ha'Gaon Rav Meir Shapiro (initiator of the Daf ha'Yomi). Dedicated by Rebbetzin Margulies and Rabbi and Mrs. David Sheinfeld.



(a) They sent from Rav's Beis-Hamedrash to ask Shmuel, who will have to swear in a case where the craftsman claims that he was promised two Zuz, and the employer counters that they only agreed on one. To which Shmuel replied - that the employer swears and the craftsman loses out.

(b) The reason that he gave to differentiate between this ruling and that of 'Sachir bi'Zemano Nishba ve'Notel' is - because the employer remembers the price that he fixed, even if he does not remember whether he paid the employee or not (as we explained earlier).

(c) Rav Nachman reconciles this with Rabah bar Shmuel, who concluded (in this very case) 'ha'Motzi me'Chavero, Alav ha'Re'ayah', not to imply that if the employee does not prove his claim, he loses outright - but to teach us that if he brings proof, then he absolves the employer from the need to swear. If he cannot, then the employer must swear, and only then does he (the employee) lose.

(a) We have a problem with Shmuel however, from a Beraisa which discuses a case where a tailor claims two Zuz for repairing a coat, and the owner claims that he only agreed to pay one. The Tana rules that as long as the tailor still has the coat in his possession - the owner must bring proof that he agreed to pay only one.

(b) If he already returned it to the owner, and claims his wages within the time limit, the Tana applies the ruling of our Mishnah 'Sachir bi'Zemano ... '; whereas in a case where he claims his wages after the time limit has expired - he will have to prove that the owner agreed to give him two Zuz.

(c) The middle ruling 'Nasno bi'Zemano, Nishba ve'Notel' is a Kashya on Shmuel, according to whom the Tana ought to have said 'Yishava Ba'al ha'Bayis, ve'Yafsid Uman'.

(d) To reconcile the Beraisa with Shmuel, Rav Nachman establishes the author as Rebbi Yehudah, who says - that whenever the Ba'al ha'Bayis is Chayav a Shevu'ah d'Oraysa (such as 'Modeh be'Miktzas'), the Sachir swears and takes.

(a) We reject the suggestion that the Rebbi Yehudah is referring to by Rav Nachman is the one in our Mishnah 'Rebbi Yehudah Omer, ad she'Tehei Sham Miktzas Hoda'ah' - since he only comes there to be more strict with the Sachir than the Rabbanan (who forbid him to swear and take when the employer is 'Kofer ba'Kol'), not to be more lenient (by permitting him to swear and take by 'Shetayim Katzatzta', even where the Rabbanan don't).

(b) We therefore conclude that he is referring to Rebbi Yehudah in the Beraisa. The Tana Kama there stresses that the Sachir only swears as long as it is within the time limit set by the Torah. Rebbi Yehudah restricts this ruling to a 'Modeh be'Miktzas'. His two examples of ...

1. ... 'Modeh be'Miktzas' are - 1 where the Sachir claims fifty Dinar for his work, and the employer argues that he already paid him twenty-five; 2 the case of 'Shetayim Katzatzta Li ... '.
2. ... 'Kofer ba'Kol (who does not swear) are - 1 where the 'employer' denies ever having employed him; 2 where he counters that he already paid him in full.
(c) The logistical problem Rav Shisha b'rei de'Rav Idi has with confining the 'Kula' of Katzatz to Rebbi Yehudah is - that if the Rabbanan are lenient with a Sachir there where Rebbi Yehudah is strict (by 'Kofer ba'Kol'), how can we suggest that they are strict with him, where Rebbi Yehudah is lenient (in the case of 'Shetayim Katzatzta Li ... ')

(d) On the other hand, the problem with extending it to the Rabbanan is - that Rabah bar Shmuel (who draws a distinction between where the employer denies having paid and where he disputes the amount) will then be arguing with Tana'im.

4) To reconcile Rabah bar Shmuel with the Beraisa, Rava concludes that in fact, Rebbi Yehudah and the Rabbanan argue over two separate issues. The reason that ...
1. ... Rebbi Yehudah is strict with the Sachir in the case of 'Kofer ba'Kol' is - because, in the first instance, the initial Shevu'ah on the employer is only mi'de'Rabbanan (a Shevu'as Heses), and he applies the principle 'Takanta li'Takanta Lo Avdinan'.
2. ... the Rabbanan are strict with him in the case of 'Shetayim Katzatzta Li ... ' is - because, they maintain, an employer remembers how much he fixed with the employee (as we have already explained).
(a) In a case where Reuven picks up an ax and announces that he is going to chop down Shimon's tree, and Shimon's tree is subsequently found to have been chopped down - Rav Nachman absolves Reuven from having to pay ...

(b) ... because people do tend to issue threats which they do not necessarily intend to carry out.

(c) Based on this logic, the problem with the case of 'Nigzal' in our Mishnah is - that by the same token, the Tana ought not to have permitted the owner to swear and take, in the case of 'Nigzal' (which is based on no more than a threat).

(d) Even though as we conclude, the Tana is speaking about witnesses who actually saw the 'Gazlan' taking away objects, they cannot testify which objects he took - because the Tana is speaking in a case where they saw him walking out with vessels hidden in his clothes, which they were unable to identify.




(a) Rav Yehudah rules that if Reuven, who is seen leaving Shimon's house with objects hidden in his clothes, claims that he purchased them from Shimon, (and Shimon counters that he lent them to him) - he is not believed ...

(b) ... even with a Shevu'ah.

(c) This will not apply, says Rav Yehudah, to a case where Shimon sells such objects. He will be believed however (with a Shevu'ah) even if ...

1. ... Shimon does not - if they are objects that one tends to hide when passing through the street, or ...
2. ... even if they are not - if Reuven is a shy type of person, who tends to cover objects that he carries in the street.
(d) If neither of these conditions is fulfilled, the combination of facts responsible for his not being believed are - 1. that Shimon does not sell his articles, and 2. that if Reuven really bought them, then there would be no reason for him to hide them.
(a) Shimon is never believed - if he counters that Reuven stole the objects (because he does not have the authority to brand another Jew as a Ganav.

(b) Reuven is always believed, irrespective of the above - if the objects in question are of a kind that people do not tend to lent or rent out.

(a) Rav Huna bar Avin proved this from Rava, who allowed a someone to claim a 'Zuga de'Sarb'la' (a pair of scissors belonging to wool combers) and a 'Sifra de'Agad'ta' - from Yesomim.

(b) The case was - where he claimed that he had lent them to the Yesomim's father.

(c) Rav Huna bar Avin proves from here that - a person is not believed when he claims that he purchased 'Devarim ha'Asuyin Lehashil u'Lehaskir', even with a Shevu'ah (against the owner's claim that he lent or rented them to him), because if he were, then Beis-Din would have presented this argument on behalf of the Yesomim, and would have authorized them to keep the objects.

(a) Rava's ruling was confined to 'Sifra de'Agad'ta' - which one readily lends out because the owner does not study it so extensively; a Sefer Halachah, from which people tend to learn more regularly, he would have considered a 'Davar she'Ein Asuy Lehash'il u'Lehaskir', in which case, the claimant would not have been believed to take it from the Yesomim.

(b) The point in writing a Sh'tar Mechirah for the sale of such Sefarim is - that it absolves the purchaser from the need to swear.

(a) The case of 'Nigzal' currently under discussion, is one of those included in 'Nishba'in ve'Notlin'. Besides the guard - the guard's wife (and obviously the owner's direct family, see Rabeinu Chananel) can swear and claim the objects from the 'Gazlan' on behalf of the Nigzal.

(b) Rav Papa's She'eilah whether this incorporates 'Sechiro u'Lekito' - hired employees, remains unresolved.

(c) Rav Yeimar asked Rav Ashi whether the Nigzal is believed even if he claims that the Gazlan took silver. To which Rav Ashi replied - in the affirmative, provided he is either wealthy in his own right, or the sort of reliable person whom others would trust with their silver.

(a) With regard to the case of 'Nechbal' cited in our Mishnah, Rav Yehudah Amar Shmuel permits the Nechbal to claim even without a Shevu'ah - if he could not have wounded himself.

(b) We are not afraid that ...

1. ... he scratched himself against a wall - because we are speaking about a bite on his back (as we learned in the Beraisa cited by Rebbi Chiya).
2. ... a third person wounded him - because we are speaking when there is nobody else there.
(c) We already learned in our Mishnah that the Tana states 'va'Afilu Shevu'as Shav' to include even such a Shevu'ah that does not entail causing a monetary loss in the Din of she'Kenegdo Chashud'. The Tana does not include a Shevu'as Bituy ...
1. ... in the future (which does not cause a monetary loss either) - because the Nishba may well have meant to abide by his oath at the time and only fell prone to his Yeitzer-ha'Ra afterwards (and we cannot therefore, disqualify him from swearing in future).
2. ... in the past - because when the Tana said 'va'Afilu Shevu'as Shav', he actually meant to include all Shevu'os that are similar (such as Shevu'os Bituy in the past).
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