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1) WHO IS THE TANA OF OUR MISHNAH?

(a) Suggestion: Our Mishnah is not as R. Yosi.

1. (Beraisa - R. Yosi): (Reuven and Shimon deposited money by Levi, who forgot who gave which amount; each claims the larger amount.) The law must force the liar to lose (so he will be induced to admit) - therefore, neither side gets any of the money until Eliyahu resolves the matter (or 1 side admits).
2. Question: Nor is the Mishnah as Chachamim - they agree that neither side gets any of the contested money (the difference between the 2 amounts) until Eliyahu comes;

i. Here, the entire garment is contested!

3. Answer: The Mishnah can be as Chachamim - there, all the contested money belongs to one of them, we leave it until Eliyahu;

i. Here, perhaps each owns half, they swear and divide it.

4. But R. Yosi says, even the smaller amount, which surely each side is entitled to, we leave until Eliyahu - here, perhaps 1 side is not entitled to anything, all the more so we leave it for Eliyahu!

(b) Rejection: Our Mishnah can be as R. Yosi.

1. Explanation #1: R. Yosi's law is when we know that 1 side is lying;

i. Here, perhaps neither intends to lie - perhaps they picked it up at the same time (and each thinks he picked it up first)!

2. Explanation #2: R. Yosi's law is when the liar loses by waiting until Eliyahu - this entices him to admit;

i. Here, the liar doesn't lose anything, he will never admit - there is no reason to leave the garment until Eliyahu!

3. Objection: This explains the case of a found object - but by a bought object, R. Yosi should say that we leave it until Eliyahu!

i. We must say as Explanation #1.

(c) Question: In the case of the grocer who claims to have paid workers (as he was asked), and the workers say they were not paid - both R. Yosi and Chachamim should say that we leave the money until Eliyahu, 1 side is surely lying!
(d) Answer: There, the grocer can tell the employer 'I paid them as you asked me, you must repay me - "I refuse to accept the workers' oath"!
(e) The workers can tell the employer 'We worked for you, you must pay us - we refuse to accept the grocer's oath"!
(f) Therefore, both sides collect from (and swear to) the employer.

(a) (R. Chiya): Reuven told Shimon 'You owe me 100'; Shimon denied the entire claim. Witnesses testify that he owes 50 - he pays 50 and swears that he owes no more.

1. We should not say that his own admission (to part of the claim) has more power to make him swear than witnesses - a Kal va'Chomer refutes this!

(b) Support (Mishnah): Reuven and Shimon are holding a garment; Reuven says 'I found it'...

1. Since each is holding half the garment, we are witnesses that each owns what he holds (contradicting the other's claim that he owns it all).

(c) Question: What did R. Chiya mean 'We should not say that his own admission has more power than witnesses - a Kal va'Chomer refutes this'?
(d) Answer: We should not say that the Torah only imposes an oath when he admits, because of Rabah's reason.

1. (Rabah): The Torah obligates a borrower to swear (when he partially admits to the claim) because it is established human nature that a borrower is not brazen enough to (fully) deny the lender's claim;

i. If not for this, he would deny the entire claim.

2. Because borrowers are not brazen, he would like to admit to the full claim;

i. He denied part of it to stall until he has the money to pay the loan.

3. The Torah imposed the oath on him, in order that he will admit to the full claim.

i. One might have thought, since this does not apply when witnesses testify, he does not swear - we hear, this is not so, because of the Kal va'Chomer.

(a) Question: What is the Kal va'Chomer?
(b) Answer #1: A man's mouth (admission) does not obligate him to pay money, yet it obligates him to swear - witnesses, who can obligate him to pay, all the more so they obligate him to swear!

1. Question: But his mouth obligates him to pay - his admission is as 100 witnesses!
2. Answer: The money referred to is a fine.

i. A man's mouth does not obligate him to pay fines, yet it obligates him to swear - witnesses, who can obligate him to pay fines, all the more so they obligate him to swear!

3. Question: A man's mouth obligates him to bring a sacrifice - we cannot learn to witnesses, who do not obligate him to bring a sacrifice!
4. Answer: R. Chiya holds as R. Meir who says that witnesses obligate him to bring a sacrifice.

i. (Mishnah - R. Meir): Two witnesses told Reuven 'You ate Chelev'; he said 'I did not eat' - he brings a sacrifice; Chachamim say, he does not bring.
ii. R. Meir: If testimony of 2 witnesses can cause him to be killed, all the more so it can obligate him to bring a sacrifice!
iii. Chachamim: He can say, I ate intentionally, therefore I do not bring a sacrifice.

5. Question: A man's mouth obligates him to bring a guilt-offering - we cannot learn to witnesses, who do not!
6. Answer: The same answer we gave for a sacrifice applies to a guilt-offering.
7. Question: A man's mouth obligates him to pay an added fifth - we cannot learn to witnesses, who do not!
8. Answer: R. Chiya holds as R. Meir; just as he learns from a Kal va'Chomer that witnesses obligate him to bring a sacrifice, he learns that they obligate him to pay an added fifth.

(c) Objection: A man's mouth cannot be contradicted or Huzam (e.g. if Reuven said that he saw his ox damage at a certain time and place, and witnesses testified that he was not there at that time, he is liable) - we cannot learn to witnesses, who can be contradicted or Huzmu!
(d) Answer #2: Rather, R. Chiya learns a Kal va'Chomer from 1 witness: 1 witness does not obligate him to pay money, yet it obligates him to swear - 2 witnesses, who can obligate him to pay, all the more so they obligate him to swear!
(e) Objection: But 1 witness makes him swear on what the witness testifies - we cannot learn that 2 witnesses make him swear on what they do not testify!