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Bava Metzia, 5

1) THE SHEPHERD WHO DENIED RECEIVING THE SHEEP

QUESTION: The Gemara relates an incident in which a shepherd denied receiving any sheep from the owner, and later witnesses testified that he ate two of the sheep which were deposited with him. The Gemara says that according to Rebbi Chiya -- who says that the testimony of witnesses is equivalent to Hoda'as Piv (his own admission) -- the shepherd must swear that he did not receive the rest of the sheep, with a Shevu'ah of "Modeh b'Miktzas." Abaye asks how can the shepherd be trusted to swear if he has been proven, by the witnesses, to be a thief? The Shevu'ah of a thief is not accepted! (See TOSFOS 5b, DH d'Chashid, and 3b, DH b'Chulei.) The Gemara answers that indeed the thief is not trusted and does not swear. Instead, we apply the enactment of the Chachamim which allows, in this situation, for the claimant to swear that his claim is true and to collect from the thief. This follows the enactment of the Chachamim that whenever a Shevu'ah needs to be administered to a thief, we transfer the Shevu'ah to the claimant and allow him to swear and collect the money he is claiming.

How does this enactment of the Chachamim apply in the case of the shepherd? The Gemara earlier (4a) explains that Rebbi Chiya cannot derive from his Kal v'Chomer (or Tzad ha'Shaveh) that witnesses can force a person to make a Shevu'ah of "Modeh b'Miktzas" when the person is "Huchzak Kafran." The Kal v'Chomer teaches only that when the defendant is not "Huchzak Kafran" he must make a Shevu'ah. Accordingly, Rebbi Chiya should have no source for teaching that a Shevu'ah of "Modeh b'Miktzas" should be made by the shepherd in this case, since he is "Huchzak Kafran" (for witnesses testified that the shepherd willfully denied the claim in order to avoid returning an object that was entrusted with him). Since there is no source for such a Shevu'ah, there should be no source for allowing the claimant to make a Shevu'ah and collect! (TOSFOS, DH Iy, according to MAHARAM and SHITAH MEKUBETZES)

ANSWERS:

(a) TOSFOS answers that since we learn from a Kal v'Chomer that there is a Shevu'ah when witnesses testify that a person owes part of a loan, we should not differentiate between a loan and a Pikadon.

The words of Tosfos are difficult to understand. In the case where witnesses testify about a loan, we learn from a Kal v'Chomer that the defendant must swear. For a case in which they testify about a Pikadon, we have no source for the Shevu'ah! Why, then, should we not differentiate between a loan and a Pikadon? (We normally no not apply "Lo Pelug" to Halachos that are learned from the Torah.)

Perhaps Tosfos means that the Chachamim instituted that we allow the claimant to make a Shevu'ah and collect even in the case of a Pikadon, since, when witnesses testify about a loan, they obligate the defendant to make a Shevu'ah d'Oraisa, and if the defendant is "Huchzak Kafran" the Chachamim allow the claimant to make a Shevu'ah and collect. Even though the Chachamim do not give the claimant the right to make a Shevu'ah and collect when the Shevu'ah is only mid'Rabanan, in this case the Shevu'ah was never placed on the defendant and then reversed onto the claimant. Rather, the Chachamim instituted in the first place that the claimant may make a Shevu'ah and collect.

(b) Other Rishonim do not ask the question of Tosfos. Perhaps they understand that "Huchzak Kafran" is not actually being used as a Pircha to the Tzad ha'Shaveh in the Gemara earlier (4a). Rather, the Gemara means that even if we can learn from a Tzad ha'Shaveh that two witnesses can require a person to make a Shevu'ah of "Modeh b'Miktzas," nevertheless we should exempt the defendant from a Shevu'ah if he is "Huchzak Kafran" simply because he is not trusted to swear. (Even though the Gemara uses the words "Mah l'ha'Tzad ha'Shaveh..." which imply a Pircha, its intention is to say, plainly, that a liar cannot swear, as Rashi and the Ritva explain; see MAHARAM and TORAS CHAIM, who ask why the Gemara does not say outright that a liar cannot swear.) Accordingly, it is clear why our Gemara is justified in saying that the defendant really should swear because of the Tzad ha'Shaveh, but since he is unable to swear, the Chachamim will reverse the Shevu'ah and allow the claimant to collect with a Shevu'ah.

There is strong reason to suggest that "Huchzak Kafran" is not a Pircha, since it is not consistent with the normal logic of a Pircha. Normally, a Pircha shows that the cases from which we are learning the Halachah (Ed Echad and Hoda'as Piv, in our case) are more Chamur than the case to which we want to apply the Halachah (Hoda'as Edim, in our case), and therefore we cannot derive the Halachah from these two cases. "Huchzak Kafran," however, does not weaken the power of the witnesses. To the contrary -- it is because of the Chumra of witnesses that they are able to make the defendant a "Kafran." Rather, "Huchzak Kafran" is introducing an entirely new reason to exempt the defendant from a Shevu'ah in the case of witnesses (Hoda'as Edim). This cannot be used as a Pircha on a Tzad ha'Shaveh. (RITVA 4a)

Tosfos understands the Gemara literally to be asking a Pircha from "Huchzak Kafran," because he is following his opinion elsewhere. Later (5b), Tosfos (DH d'Chashid) writes (according to his first answer) that mid'Oraisa even a thief is trusted to swear. As such, "Huchzak Kafran" cannot provide a reason for not allowing a thief to swear. Rather, it must be a Pircha on the Tzad ha'Shaveh (see Insights to 4a).

5b

QUESTION: The Gemara says that a person who is found to be Kofer b'Pikadon -- who falsely denies that an object was deposited with him to watch -- becomes invalidated from being a witness (Pasul l'Edus). He becomes Pasul l'Edus, though, only if witnesses testify that the Pikadon was in his possession at the time that he denied it.

In contrast, one who is shown to be Kofer b'Milveh -- who denies owing a loan -- remains a valid witness. Presumably, this is true even when witnesses testify that a sum of money equal to the amount of the loan is in his possession at the time that he denies it.

Why, though, should he be valid to give testimony if he has the money with which to pay and yet still refuses to pay? Even though he is only denying a Milveh, he should still be Pasul l'Edus since it is clear that he is not merely stalling for time but that he has no intention to pay at all! (RITVA)

ANSWER: The RITVA answers that even if a person has the amount of money equal to the amount of the loan, we assume that he perhaps owes an equal amount to another person, and the other person is pressing him harder for the repayment (or that he needs the money for another pressing venture). Therefore, we may assume that he is just stalling for time and he indeed intends to pay back the loan.

In contrast, if he denies owing a Pikadon, since he is not permitted to use the Pikadon for his own personal use, we must assume that he is a thief and has no intention to pay it back at all. (See also SHITAH MEKUBETZES in the name of "MORI.")

QUESTIONS: The Gemara teaches that one who is shown to be Kofer b'Milveh -- who denies owing a loan -- remains a valid witness and may give testimony, while one who is shown to be Kofer b'Pikadon -- who falsely denies that an object was deposited with him to watch -- becomes invalidated from being a witness (Pasul l'Edus). RASHI explains that when a person denies owing a Pikadon, we cannot assume that he is merely attempting to stall for time ("Mishtamet") and that he has intention to pay back later, because one is not permitted to use a Pikadon for his own use.

Rashi is bothered by a question: when the Shomer denies owing the Pikadon, why do we not assume that the Shomer lost the Pikadon through his own negligence and is thus obligated to reimburse the owner with money, and he is stalling for time since he presently has no money with which to reimburse the owner? Rashi (DH b'Pikadon) answers that if the Pikadon became lost (through Peshi'ah, his own negligence), then the Shomer should simply claim that its loss was not do to any negligence on his part, and he can exempt himself from paying in this manner. Since he did not claim that the Pikadon was lost but rather he denied ever receiving the Pikadon, we assume that he intends to steal the Pikadon and keep it for himself. (Rashi is discussing a Shomer Chinam who is exempt from liability in cases of Geneivah v'Aveidah, but the same logic can be applied to a Shomer Sachar or to a Sho'el. When they lost the item and wanted to delay paying the compensation to the owner, they should have claimed that the item was lost through Ones, or that it was Meisah Machmas Melachah, rather than claiming that they never received the item in the first place.)

(a) If a Shomer is considered Kofer b'Pikadon when he denies receiving the item since he did not claim that it was lost, then why does the Gemara tell us later that a Kofer b'Pikadon is only Pasul l'Edus when witnesses testify that the item is in his possession? He should be Pasul l'Edus even when the item is not in his possession, since he denied the entire Pikadon!

(b) Why would the Shomer consider it an option to claim that the object was lost, rather than denying that he ever received it? If he claims that it was lost, he must swear a Shevu'as ha'Shomrim, saying that he was not negligent in watching it! In contrast, if he claims that he never received it, he is Kofer ha'Kol, and one who is Kofer ha'Kol (who denies owing anything) is exempt from making any Shevu'ah! (Otzar Mefarshei ha'Talmud in the name of YAD SHEL SHLOMO.)

ANSWERS:

(a) RASHI is explaining what the Gemara thought before it concluded that the witnesses must testify that the Pikadon is in the Shomer's possession in order to make him a Kofer b'Pikadon. At this point in the Gemara, the Gemara still thinks that one who is Kofer b'Pikadon is Pasul l'Edus even when we do not know that the Pikadon is in his possession. For some reason, we still do not assume that he is trying to stall for time. Why did the Gemara think that he is not trying to stall for time? Rashi explains that the Gemara thought that if he was trying to stall for time, then he would not have denied the entire Pikadon, but he would have exempted himself in another way, such as by saying that it was destroyed in a manner for which he is not responsible.

The Gemara rejects this explanation because of Rami bar Chama's Beraisa which teaches that if a Shomer denies owing part of a Pikadon, he must make a Shevu'ah of "Modeh b'Miktzas" in order to support his claim. The Gemara proves from here that even though the Shomer denies ever receiving that portion of the Pikadon, we still suspect that he is merely stalling for time and that he plans to repay it eventually. From this ruling it is clear that we do not say that the Shomer would have claimed that he lost it had he planned on eventually paying it back. Because of this, the Gemara concludes that one who is Kofer b'Pikadon is Pasul l'Edus only when witnesses testify that the Pikadon is in his possession. (This also seems to be the way the RAMBAN here explains Rashi.)

(b) Rashi is assuming the position of Rami bar Chama, which the Gemara cites shortly. According to Rami bar Chama, if the Shomer claims that the entire Pikadon was lost, he does *not* have to make a Shevu'ah. He only makes a Shevu'ah if he claims that part of it was lost and part of it was never given to him. The Gemara proves from a Beraisa that even according to Rami bar Chama, we assume that one who is Kofer b'Pikadon is attempting to stall for time unless we can prove that the Pikadon was in his possession at the time he denied having it. (M. Kornfeld)

The YAD SHEL SHLOMO answers differently. He explains that Rashi is following his opinion expressed in Bava Kama (107a, DH Me'iz u'Me'iz), where he writes with regard to a Pikadon that even if a person is Kofer ha'Kol he still makes a Shevu'ah *mid'Oraisa*. Hence, the Shomer gains nothing by denying the entire Pikadon, because even if he denies it he still has to make a Shevu'ah mid'Oraisa.

However, it is not logical to assume that Rashi requires every case of a person who is Kofer ha'Kol when denying that he owes a Pikadon to make a Shevu'ah. Why should we believe the claimant that there was a Pikadon, simply based on his own word, in order to require the defendant to make a Shevu'ah? Rather, it appears that Rashi is referring to a situation in which both the claimant and the defendant agree that there was a Pikadon, but the defendant claims that the object was lost (or destroyed through Ones, or Meisah Machmas Melachah) and that he is therefore exempt from any payment. In such a case, those who argue with Rami bar Chama require the defendant to make a Shevu'ah d'Oraisa (Shevu'as ha'Shomrim) that he was not negligent with the object. It is to this Shevu'ah which Rashi refers when he says that the Shevu'ah applies even to a case of Kofer ha'Kol, unlike Rami bar Chama. However, in the case of our Gemara, when the defendant denies ever receiving a Pikadon, he does not have to swear.