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Kesuvos, 88

1) THE DIFFERENCE BETWEEN A SHEVU'AH D'ORAISA AND A SHEVU'AH D'RABANAN

QUESTIONS: The Mishnah (87a) lists the Shevu'os d'Rabanan that a woman might need to make in order to collect her Kesuvah. Among these are listed the Shevu'ah of "Pogemes" (which is made when the husband claims that he paid her all of the Kesuvah, and she admits that she received part of it) and the Shevu'ah of "Ed Echad" (which is made when a single witness supports the husband's claim that he paid the Kesuvah). The Gemara tells us that in the case of the Shevu'ah of Ed Echad, if the husband is cunning, there is a way for him to require her to make a Shevu'ah d'Oraisa instead of the Shevu'ah d'Rabanan that she is supposed to make. By paying the Kesuvah to her a second time in front of witnesses, thereby turning one of the two payments of her Kesuvah into a loan, he can then require her to make a Shevu'ah d'Oraisa in order to exempt herself from repaying the loan. She will either have to make the Shevu'ah d'Oraisa, or repay one of the payments.

RASHI explains that the advantage in having her make a Shevu'ah d'Oraisa is that it is a much more serious Shevu'ah, since it is done with the name of Hashem and while holding a Sefer. Hence, she is more likely to back out from making a Shevu'ah d'Oraisa than a Shevu'ah d'Rabanan.

Why does Rashi explain that the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan is that a Shevu'ah d'Oraisa is made with the name of Hashem and while holding a Sefer? Earlier (87b), when Rami bar Chama initially thought that the Shevu'ah of a Pogemes is a Shevu'ah d'Oraisa, Rashi explains that the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan is that a person who is obligated to make a Shevu'ah d'Rabanan can "reverse" the Shevu'ah and ask the other litigant to swear. In contrast, if the person is obligated to make a Shevu'ah d'Oraisa and he does not want to, he has to pay and he has no option of reversing the Shevu'ah. Since the Shevu'ah of Pogemes in our Mishnah is d'Rabanan, if the woman does not want to swear in order to receive her Kesuvah, she can tell her husband to swear that he paid her in order to be exempt from paying the Kesuvah. If he does not make a Shevu'ah, she will take the Kesuvah.

Why does Rashi not explain the same way here? Rashi could explain that the Gemara here is saying that if the husband is cunning and he wants to prevent the woman from reversing the Shevu'ah onto him, he could turn it into a Shevu'ah d'Oraisa! (Indeed, this is the way TOSFOS and other Rishonim explain the Gemara)!

(b) Conversely, why does Rashi (87b) explain that when Rami bar Chama mistakenly thought that the Shevu'ah of Pogemes was a Shevu'ah d'Oraisa, he thought so with regard to allowing the Shevu'ah to be reversed onto the husband? Why does Rashi there not explain that Rami bar Chama though that it was a Shevu'ah d'Oraisa with regard to the severity of the Shevu'ah, like Rashi explains here?

ANSWERS:

(a) The Acharonim suggest a number of answers to our first question:

1. The MAHARSHA explains that Rashi does not want to explain that the Gemara's advice to the husband is merely to help him avoid having the Shevu'ah reversed onto him. Having the Shevu'ah reversed onto him is not necessarily a bad thing! After all, we are assuming that the husband is telling the truth and the husband *did* pay the Kesuvah, so he should prefer to have to swear truthfully and keep his money, than for his wife to swear falsely and wrongfully take money from him. The reversal of the Shevu'ah should be to his advantage, so the Gemara would not suggest that the husband make the woman's Shevu'ah into a Shevu'ah d'Oraisa, which she could not reverse onto him!

2. The PNEI YEHOSHUA adds that in Shevu'os (41a) there is an Amora who is of the opinion that even a Shevu'ah *d'Oraisa* could be reversed onto one's opponent. Rashi earlier (87b) is explaining the Gemara only according to the Amora who says that a Shevu'ah d'Oraisa *cannot* be reversed (we will explain soon why Rashi there explains according to that opinion). Here, Rashi is giving a universal difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan, that applies according to all of the Amora'im.

3. REBBI AKIVA EIGER suggests that Rashi understood that even *after* she has already sworn a Shevu'ah d'Rabanan, the husband can still cause the wife to swear *again* a Shevu'ah d'Oraisa, by using the tactic described in our Gemara -- as the RA'AVAD explains our Gemara, according to the YAM SHEL SHLOMO (Bava Kama 9:47). Beis Din would require a second Shevu'ah after she has already sworn only if the first Shevu'ah did not fulfill the requirements of the second Shevu'ah -- for instance if the first Shevu'ah did not require that she use the Holy Name and hold a Sefer, but the second one does. That is why Rashi must explain that the *way a woman swears* a Shevu'ah d'Oraisa is more stringent that the way she swears a Shevu'ah d'Rabanan. (Rebbi Akiva Eiger also suggests another explanation for Rashi based on the SHACH in CM 87:35.)

(b) Why does Rashi on the previous Daf (87b) not say that a Shevu'ah d'Oraisa is more severe than a Shevu'ah d'Rabanan, instead of saying that a Shevu'ah d'Oraisa cannot be reversed?

1. The PNEI YEHOSHUA explains that our Mishnah groups together the Shevu'ah of Pogemes with the Shevu'ah that the woman must make in order to collect her Kesuvah from the orphans (Yesomim) or from buyers who purchased land from the husband (Lekuchos). Since the Mishnah groups them together without differentiating between them, it implies that the Halachos of the two are similar. Hence, if a Shevu'ah d'Oraisa must be done with the name of Hashem and while holding a Sefer, then Rami bar Chama -- who thought that the Shevu'ah of Pogemes is d'Oraisa -- must have held that a Shevu'ah d'Rabanan also is done with the name of Hashem and while holding a Sefer! (This is in fact the opinion of TOSFOS on 88a, DH Mayesi, and RASHI in Gitin 35a cited by Tosfos.)

Rashi therefore explains that according to Rami bar Chama, who thought that the Shevu'ah of Pogemes is mid'Oraisa, the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan must be whether one can reverse the Shevu'ah onto one's opponent. Even though this difference does exist between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan, the Mishnah nevertheless groups together the Shevu'ah of Pogemes with the Shevu'ah of collecting from Yesomim and Lekuchos, because when it comes to collecting from Yesomim and Lekuchos it is obvious that one cannot reverse a Shevu'ah d'Rabanan on them, since they have no way of knowing whether or not the debt was repaid.

(See also HAFLA'AH 87b who suggests other ways to answer this question.)

2. Perhaps we may explain Rashi's words (87b) in a different manner. The reason Rashi does not say that Rami bar Chama thought that Shevu'as Pogemes has the *severity* of a Shevu'ah d'Oraisa is because, as the Ritva asks, Rami bar Chama would not have made such a mistake. It says clearly in the Mishnah in Shevu'os (which the Gemara here quotes) that there is no Shevu'ah d'Oraisa that is "Nishba v'Notel" -- a Shevu'ah which a person makes in order to *take* money (as opposed to *exempt* himself from giving money) *must* be d'Rabanan. How, then, could Rami bar Chama have thought that this is a Shevu'ah d'Oraisa?

The Rishonim (Ritva, Rashba in Teshuvos 2:54) answer that Rami bar Chama did not really mean to say that the Shevu'ah of Pogemes was a Shevu'ah d'Oraisa, but that it is as severe as a Shevu'ah d'Oraisa since it looks similar to a Shevu'ah d'Oraisa (i.e. Modeh b'Miktzas, where one litigant claims all, and the other admits half). Rava either did not understand that this was Rami bar Chama's intention (Ritva), or he is arguing that it should not have the severity of a Shevu'ah d'Oraisa, since it has no conceptual similarity to a Shevu'ah d'Oraisa; Rava holds the Rabanan would not have given it the severity of a Shevu'ah d'Oraisa.

In defense of Rami bar Chama, the reason Rami bar Chama insists that the Shevu'ah d'Rabanan of the Mishnah is on the same degree as a Shevu'ah d'Oraisa and is different than a normal Shevu'ah d'Rabanan might be because of the question that Rashi (DH Ela Amar) asks. Rashi points out that even if the wife does *not* admit to having received any of the Kesuvah, the husband can require her to make a Shevu'ah d'Rabanan that she was not yet paid (like the Gemara says in Shevu'os 41a). What, then, is the point of the Shevu'ah of our Mishnah? Rami bar Chama answers that the point of the Shevu'ah of our Mishnah is that since she was Pogemes and admitted to receiving part of the Kesuvah, the Shevu'ah is more strict than the normal Shevu'ah d'Rabanan, and she cannot reverse the Shevu'ah onto her husband.

This, then, is why Rashi does not explain that Rami bar Chama holds that the Shevu'ah is d'Oraisa with regard to using the name of Hashem and holding a Sefer (even though that would have been a better distinction, since the distinction Rashi makes regarding reversal of the Shevu'ah is disputed by the Amora'im in Shevu'os, as mentioned above, (a):1). Rami bar Chama agrees that the Shevu'ah is only mid'Rabanan, and the Rabanan certainly would not enact that the name of Hashem be used simply to make the Shevu'ah more severe. Instead, Rashi explains that Rami bar Chama holds that the Rabanan gave it the severity of a Shevu'ah d'Oraisa insofar as not letting the woman reverse the Shevu'ah onto the husband. (M. Kornfeld)

88b