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Shevuos 49


***** Perek Arba'ah Shomrin *****


(a) Our Mishnah obligates a Shomer Chinam to swear on everything - incorporating theft, loss and O'nes ('Shevurah u'Meisah').

(b) The Din of ...

1. ... a Sho'el is - that he is Chayav to pay for everything.
2. ... a Shomer Sachar and a Socher is - that he swears on Shevurah u'Meisah, but has to pay for Geneivah va'Aveidah.
(c) In spite of what we learned, a Sho'el is Patur with a Shevu'ah - in a case of 'Meisah Machmas Melachah', if the animal died (or depreciated) due to regular work.
(a) Despite our having already learned these Halachos in Bava Metzi'a, Rebbi found it necessary to repeat them here - because of the Din of Korban Shevu'ah that is determined by the Chiyuv and P'tur of the Shomer, as we shall now see.

(b) If the owner owns asks for his ox, and the Shomer Chinam claims that it died, or was broken, captured, stolen or lost, when in reality, anything else happened to the animal other than what he claimed; the owner then demanded a Shevu'ah, and the Shomer swore - he is Patur from bringing a Korban Shevu'ah.

(c) And in the same case, only where the Shomer Chinam denied having received the ox in the first place - the Tana issues the same ruling.

(d) The common reason for both of these rulings is - because the Shomer Chinam's Shevu'ah did not exempt him from paying (since even if his response would have been correct, he would have been Patur). The criterion for being Chayav a Korban Shevu'ah is -that the Shevu'ah that he made exempts him from paying.

(a) The Tana rules, in a case where, after the Shomer Chinam claims and swears that the ox ...
1. ... went lost, witnesses testify that he ate the animal - that the Shomer is Chayav to pay the value of the ox.
2. ... was stolen, witnesses testify that he is the thief - he is obligated to pay double (due to the Din of 'To'en Ta'anas Ganav').
(b) In both of the above cases, the Din will differ if he himself confesses that he ate it or stole it - inasmuch as he is then obligated to pay an extra fifth, and to bring an Asham Gezeilos.

(c) He does not pay Kefel in these cases - because of the principle 'Modeh bi'Kenas Patur'.

(d) We learn from the Pasuk (in connection with Gezel ha'Ger) "Vehisvadu es Chatasam Asher Asu" - that one only pays an extra fifth and brings an Asham by one's own admission (but not on the testimony of two witnesses).

(a) Our Mishnah rules in a case where Shimon denies knowledge of the ox that Reuven claims he stole from him, and witnesses testify that ...
1. ... he did steal it - that he is obligated to pay double (Kefel).
2. ... he Shechted or stole it - that pays four or five times the amount that he stole (Arba'ah va'Chamishah).
(b) The Tana is not speaking here, when Shimon swore - because actual theft does not require a Shevu'ah for the Ganav to be sentenced to pay.

(c) And the Tana goes on to cite a case where Shimon saw that witnesses were about to go to Beis-Din, and he preempted them and admitted to having stolen, but denied having Shechted or sold the animal. Should the witnesses subsequently testify that he did steal the animal and Shechted or sold it, Beis-Din obligate Shimon to pay only the Keren ...

1. ... but not the Kefel - on the basis of the principle 'Modeh bi'Kenas Patur'.
2. ... but not Arba'ah va'Chamishah - because whoever is not Chayav Kefel, is not Chayav Arba'ah va'Chamishah either (seeing as he would actually be paying three or four times, and not four or five, as prescribed by the Torah.



(a) In a case where Reuven asks a Sho'el what happened to his ox, and he replies that it died, or was broken, captured, stolen or lost, when in reality, anything else happened to the animal other than what he claimed; the owner then demands a Shevu'ah, and the Sho'el swears, our Mishnah exempts the Sho'el from a Korban Shevu'ah - because here again, the Shevu'ah that he made did not exempt him from paying (this time because even after the Shevu'ah, he still remains Chayav to pay).

(b) And in a case where the Sho'el denies having received the animal, and swears to that effect, and witnesses testify that the animal died, was wounded, captured, stolen or lost - the Tana obligates him to bring a Korban (because his oath would have exempted him from paying).

(c) In a case where a Shomer Sachar or Socher claims, backing his claim with a Shevu'ah, that the animal ...

1. ... died, when in reality, it was captured or vice-versa - the Tana exempts him from a Korban (since he would have been Patur even if he had not made the Shevu'ah).
2. ... was stolen, when in reality, it went lost or vice-versa - he exempts him too (seeing as he is Chayav to pay, even with the Shevu'ah).
3. ... died, or was wounded or captured, when in reality, it was stolen or went lost - the Tana obligates him to bring a Korban Shevu'ah (because the Shevu'ah would have exempted him from paying).
4. ... was stolen or went lost, when in reality, it was wounded or captured - he exempts him from a Korban, seeing as a. the Shevu'ah did not exempt him from paying, and b. without it, he would have been Patur anyway.
(a) When Rav Nachman Amar Rabah bar Avuhah established our Mishnah, which refers to four types of guardians, like Rebbi Meir, Rava objected - on the grounds that even those who argue with Rebbi Meir agree with that statement.

(b) What Rav Nachman really meant was - that the author of our Mishnah, *who gives a Socher the same Din as a Shomer Sachar*, must be Rebbi Meir.

(c) Rabah bar Avuhah reconciled his statement with the Beraisa, which presents this opinion in the name of Rebbi Yehudah, whereas Rebbi Meir says 'Socher ke'Shomer Chinam' - by switching the opinions in the Beraisa.

(d) Despite the fact that there are only three Dinim, we explain our Mishnah 'Arba'ah Shomrim Hein' - with regard to the number of Shomrim (as indeed the words suggest), even though there are only three Dinim.

(a) Regarding all the cases that we just cited where the Shomer is absolved from a Korban Shevu'ah, Rav comments - that they are nevertheless Chayav because of Shevu'as Bituy.

(b) According to Shmuel, they are Patur because of Shevu'as Bituy, too - and is therefore Patur from a Korban Oleh ve'Yored. According to Rav however, he is Chayav (assuming that he was Meizid on the Shevu'ah but Shogeg on the Korban).

(c) Rav's reason is because the Shevu'ah is applicable 'be'La'av ve'Hein (Nignav, ve'Lo Nignav)'; Shmuel's - because it is not applicable in the future.

(d) The problem with this Machlokes is - that we have already learned it before.

(a) To answer the Kashya, we explain that even if they had argued in the case of 'Shevu'ah she'Zarak P'loni ... ', we would have thought that, in our case, Rav would agree with Shmuel, because of a statement by Rebbi Ami, who says that any Shevu'ah that is enforced by Beis-Din - is not subject to a Shevu'as Bituy.

(b) And having taught us their Machlokes here, they found it necessary to repeat it there - to teach us that Shmuel's ruling of Patur is not confined to our case, because of Rebbi Ami, but extends to a Shevu'ah which the Nishba made of his own volition, where it is not subject to a Shevu'as Bituy, because it does not pertain to the future, as we explained. Note, that in any event, it is of course, subject to a Shevu'as Shav, for which he would receive Malkos, if he transgressed be'Meizid.

(c) Rebbi Ami learns from the Pasuk (in connection with the Shevu'as Bituy) "O Nefesh Ki Sishava" - that a Shevu'as Bituy is confined to a Shevu'ah that is made on the Nishba's volition, precluding one that is enforced by Beis-Din.

(d) This in turn, is based on a statement of Resh Lakish, who learns that the word "Ki" - has any one of four meanings 'I' (If or when), 'Dilma' (perhaps), 'Ela' (but) or 'de'Ha' (because).

(e) Rebbi Ami now interprets "Ki Sishava" as - 'if he swears' (with connotations of swearing voluntarily).

(a) Rav, on the other hand, interpret "Ki Sishava" - as 'because he swore' (meaning that he must bring the Korban whether he chose to swear or not).

(b) Rebbi Elazar sides - with Rav, obligating all cases in our Mishnah to bring a Korban Shevu'ah, except for two (which might be construed as even three or four) ...

(c) ... one of them is 'Eini Yode'a Mah Atah Sach' of a Sho'el. The other - is the Geneivah or Aveidah, which the Shomer Sachar or Socher denied with a Ta'anah of Meis, Nishbar or Nishba.

(a) The Tana of our Mishnah categorizes all of the above cases into two 'K'lalim'. Of all the possible computations of changing from Chovah to Chovah, from P'tur to P'tur, from Chavah to P'tur and from P'tur to Chovah, the only one which renders a Shomer Sachar (or Socher) Chayav is - from Chovah to P'tur.

(b) In the second 'K'lal' - he only obligates a Korban Shevu'ah in a case where the Nishba's Shevu'ah alleviates his situation, but not where it aggravates it.

***** Hadran Alach 'Arba'ah Shomrin', u'Selika Lah Maseches Shevu'os *****

On to Avodah Zarah


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