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Shevuos, 37

1) THE OBLIGATION TO BRING A "KORBAN" FOR "SHEVU'AS HA'PIKADON" WHEN THERE IS "HASRA'AH"

QUESTIONS: Although a person normally is not obligated to bring a Korban when he sins intentionally, b'Mezid, the sin of a Shevu'as ha'Pikadon is an exception. Even if he knows that it is prohibited to swear falsely and deny possession of another person's money, he is obligated to bring a Korban if he does so. The Gemara asks whether this is true even when the person received Hasra'ah, a warning, before swearing falsely. Perhaps the verse only obligates him to bring a Korban when the person sinned without Hasra'ah and is not Chayav Malkus. When, though, he sinned with Hasra'ah, perhaps he is punished with Malkus and he will not receive a second punishment of having to bring a Korban.

RASHI asks why the Gemara does not ask the same question with regard to Shevu'as ha'Edus, for which the verse also obligates a Korban when one sins b'Mezid. The Gemara should ask what the Halachah would be when a person is warned not to swear falsely denying knowledge of testimony that will benefit another person. Perhaps he will receive Malkus and be exempt from a Korban.

Rashi answers that the question is not applicable in the case of Shevu'as ha'Edus since it is impossible, for practical reasons, to give Hasra'as Vadai to not swear falsely that one does not know testimony. Rashi explains that this is because those who administer the Hasra'ah cannot possibly know that the witnesses know testimony. Therefore, the Hasra'ah is, at best, a Hasra'as Safek -- when they warn the potential witnesses not to swear falsely, they can say only that "*perhaps* you are transgressing a sin."

Rashi's explanation is difficult to understand for a number of reasons.

(a) First, Rashi's words are sufficient only according to the opinion that maintains that Hasra'as Safek is not a valid Hasra'ah. The Gemara, though, could have asked its question regarding Shevu'as ha'Edus according to the opinion (of Rebbi Yochanan; see Shevuos 3b) that maintains that Hasra'as Safek *is* a valid Hasra'ah!

(b) Second, if the witnesses who administer the Hasra'ah do not know whether or not the potential witnesses know testimony because there is no way to prove that they know, then the reason why the potential witnesses will not be punished is not because of a lack in the Hasra'ah. They will not be punished because we will never know whether or not they sinned, since it is possible that they indeed do not know testimony!

Perhaps Rashi means that even if we find proof that the potential witnesses indeed did know testimony when they denied it, they will not be punished with Malkus, because those who administer the Hasra'ah were not aware of that fact at the time of the Hasra'ah. (See below, next question.) However, as TOSFOS points out, such Hasra'ah is not considered to be lacking at all; it is a proper Hasra'ah, as Tosfos proves from the Gemara in Kesuvos (33a), which asserts that it is possible to give Hasra'ah to Edim Zomemim and punish them only when Mazimim come later and prove that those Edim were Edim Zomemim. (TOSFOS DH Hezid)

(c) Third, as the MAHARI BEN LEV points out, it certainly *is* possible for the witnesses administering the Hasra'ah to know that the potential witnesses know testimony, such as in a case, for example, when those who gave the Hasra'ah were present when the event occurred and they saw the other witnesses watching the event. Why, then, do these people who saw the witnesses not testify themselves?

According to the opinion of Rebbi Yochanan (37b), even if those people *were* able to testify, the second set of witnesses can be Chayav for Shevu'as ha'Edus. Even according to Rabah, though, who exempts witnesses from Shevu'as ha'Edus when other witnesses were present, there are a number of cases in which those administering the Hasra'ah could be sure that the other witnesses know testimony, and yet they themselves are not able to testify. For example, they might be related to one of the parties in the dispute, or they might be related to each other at that time, and before they gave the Hasra'ah their common relative died. (MAHARSHAL)

(Another possible situation in which those giving Hasra'ah could know for certain that the potential witnesses know testimony would be a case in which the potential witnesses admitted in front of other witnesses that they knew testimony, and then they later swore that they did not know testimony.)

Moreover, if no case can be construed in which those giving the Hasra'ah knew that the potential witnesses know testimony, because there would then be another set of witnesses to the event and there would be no Chiyuv for Shevu'as ha'Edus, then the same argument should make it impossible to construe a case in which Hasra'ah can be given in a case of Shevu'as ha'Pikadon, and yet the Gemara says that Hasra'ah can be given in such a case! (MAHARSHA)

Why, then, does Rashi assert that it is impossible for those administering the Hasra'ah to know for certain that the potential witnesses know testimony?

ANSWER: The MITZPEH EISAN and PORAS YOSEF suggest that Rashi indeed means to present the same argument as Tosfos concludes. That is, the reason why the Gemara does not ask its question in a case of Shevu'as ha'Edus is because ev en if those giving the Hasra'ah saw with their own eyes that the potential witnesses saw the event in question, nevertheless perhaps the potential witnesses forgot what they saw, and that is why they swear that they cannot testify. (This does not apply to a Shevu'as ha'Pikadon because in that case, the Hasra'ah involves telling the Shomer the *present* situation, and not something that happened in the past. The Masrim say to him, "Do not deny having the other person's object, because we know that it is in your house." Therefore, the Shomer cannot say later that he forgot that he had the object, because the Hasra'ah was reminding him that he had it!)

However, as the PARDES YITZCHAK asks, this does not seem to be consistent with Rashi's words. Although this answers the first question (since this is not a matter of Hasra'as Safek) and the third question (since it is indeed impossible to know whether the potential witnesses can testify), it does not answer the second question! Why does Rashi tell us that there is no Hasra'as Vadai in such a case? He should have said simply that we cannot administer Malkus because we do not know whether the potential witnesses sinned or not! (Even if they admit later that they did know testimony, we cannot punish a person with Malkus based on his own admission because of the rule, "Ein Adam Mesim Atzmo Rasha.")

The answer to this question would seem to be that Rashi is simply following his opinion elsewhere. Rashi in Chulin (80a, DH Lo b'Tayish, see Insights there) writes that if an animal which is a Safek goat is slaughtered the same day as its child, the person who slaughters it is not punished with Malkus, because the Hasra'ah is a Hasra'as Safek, and Malkus cannot be given without a valid Hasra'ah. Rashi clearly applies the rule of Hasra'as Safek to exempt a person from Malkus in a case in which there is a Safek whether or not an Aveirah was done in the first place. In fact, Rashi writes in numerous places that if a person commits a Safek Aveirah, he is exempt from Malkus because he lacks Hasra'ah, since his Hasra'ah was a Hasra'as Safek (Rashi in Yevamos 99b, DH Ein Sofgin; see also Rashi in Yevamos 101a, DH Chayav; Chulin 23b, DH Ela d'Rebbi Yehudah -- see LEV ARYEH there; Chulin 86a, DH she'Eino Sofeg; Sanhedrin 89b, DH Dilma -- see ARUCH LA'NER and Insights there). When Rashi uses the term "Hasra'as Safek" in these places, he is not referring to the Machlokes Amora'im in Makos (15b) regarding whether or not Hasra'as Safek is a valid Hasra'ah. The Gemara in Makos is referring to a situation in which it will become clear later whether the Aveirah was transgressed. In contrast, in the case of a Safek Aveirah, since we do not expect it to become clear later whether or not the Aveirah was transgressed, everyone agrees that the Hasra'ah is lacking, since the transgressor was not warned that what he was doing was definitely an Aveirah. The same would apply with regard to the words of Rashi in our Sugya.

This is also evident from the words of Rashi in Kesuvos (15a) and Bava Kama (44b). The Gemara there discusses a case in which a person throws a stone into a group of ten people, half of whom are Jews and half are Nochrim. Even if the stone kills one of them, the one who threw it is exempt from Misah because of "Safek Nefashos l'Hakel." Rashi explains that we are lenient in a case of a Chiyuv Misah because of the verse, "v'Hitzilu ha'Edah" (Bamidbar 35:25). (See Insights to Bava Basra 50:1.)

Why should it be necessary to exempt a person from Misah because of the verse? Even without the verse he should be exempt, because we do not know that he did an Aveirah! Apparently, Rashi is ruling that since the person was aware that his act constituted a Safek Aveirah (because he was warned), which the Torah prohibits, he can be punished for transgressing the Safek Aveirah (even if we never clarify the Safek). This may be compared to a case in which we have a Safek whether or not an act is prohibited, and a Chazakah (or a Rov) tells us that the act is prohibited. We may administer punishments of Malkus and Misah in such cases, even though the person will be exempt from any punishment if it is discovered later that the act did not constitute a transgression. (See TOSFOS in Gitin 33a, DH v'Afka'inhu.)

However, if it is true that a person would be Chayav Misah out of doubt, and the only reason he is exempt is because of the verse "v'Hitzilu ha'Edah," then why will a person who does a Safek Aveirah which is Chayav *Malkus* be exempt? The reason he is exempt is not because of "v'Hitzilu ha'Edah," because that verse applies only to Dinei Nefashos, cases which are judged with 23 Dayanim (as we learn from that verse). A case if a Chiyuv Malkus, on the other hand, can be judged with three Dayanim, according to the Chachamim in Sanhedrin (2a), and yet we find no dispute about a person who does an act of a Safek Chiyuv Malkus being exempt from Malkus. Such a person is certainly exempt, even though the verse of "v'Hitzilu ha'Edah" does not apply! It is evident, therefore, that there is another factor exempting a person from Malkus in a case of a Safek. That factor is the rule that Hasra'as Safek is not a valid Hasra'ah, as Rashi writes. (As we mentioned above, this Hasra'as Safek is not subject to the Machlokes between Rebbi Yochanan and Reish Lakish, since this Safek will never be clarified. When a person hears such a Hasra'ah for an Aveirah which he knows cannot be proven, he does not take it as seriously as a normal Hasra'ah, and therefore it cannot obligate him to receive Malkus.)

Rashi's source might be the Gemara in Sanhedrin (89b) which says that a person who is eating dates and people tell him not to eat them because they might be Asur (see ME'IRI and Insights to Makos 21b) cannot be given Malkus because "nobody can give him a [proper] Hasra'ah." The Gemara should have said that he cannot be punished because nobody knows that he sinned! Instead, the Gemara says that he is not punished because nobody can give him Hasra'ah, implying that one who does a Safek Aveirah does not receive Malkus because it is lacking Hasra'ah.

In any case, Rashi in our Sugya is reiterating what he explains elsewhere. A person is exempt from Malkus when he transgresses a Safek Aveirah, because the Hasra'ah is lacking. (M. Kornfeld)

37b

QUESTIONS: Rebbi Yochanan rules that if a person swears falsely, with a Shevu'as ha'Pikadon, and it is later discovered that he not only owes the claimant the money that he denied, but the claimant even has a Shtar written to that effect, the defendant is exempt from guilt for Shevu'as ha'Pikadon. This is because the Torah never obligates a person to swear in disputes involving ownership of land (Karka), and what is written in a Shtar is comparable to land, since the Shtar creates a Shi'abud (lien) on the person's land.

Rebbi Yochanan rules in Bava Basra (175b) that mid'Oraisa a Shi'abud is created not only for a Milveh b'Shtar but even for a Milveh Ba'al Peh. How, then, can the Torah obligate a person to make a Shevu'as ha'Pikadon when someone claims that he owes money? (TOSFOS DH v'Ein)

(b) Even nowadays, when the Chachamim instituted that there is no Shi'abud when a person lends money without a Shtar, how can Rebbi Yochanan rule that a Korban is brought when a person denies owing money which was loaned without a Shtar, but with witnesses? Mid'Oraisa, there exists a Shi'abud on the borrower's property, and, therefore, the claim should be considered a claim of land! Even if the Chachamim do not allow the lender to collect -- based on this Shi'abud -- from the Lekuchos who purchased the land from the borrower, nevertheless the Shi'abud certainly exists, and until the borrower sells his property, his land is Meshu'abad to the repayment of the loan! (RITVA)

ANSWERS:

(a) There appear to be two different approaches in the Rishonim regarding this question.

1. TOSFOS explains that according to Rebbi Yochanan, the only case in which a person will be Chayav for a Shevu'as ha'Pikadon will be when the lender decided to forego his rights to a Shi'abud at the time that he lent the money. Tosfos in Bava Metzia (4b, v'Ein) adds that another case in which there would be no Shi'abud is when the borrower owns no land. (Although it is impossible to know that the borrower did not buy land clandestinely, Tosfos might be referring to a case in which the borrower (who denies, with a Shevu'ah, owing money) admits that he owns no land, obligating himself to bring a Korban for Shevu'as ha'Pikadon.)

2. TOSFOS in Bava Basra (175a, DH Milveh) answers that the case where there is no Shi'abud on the land is when there were no witnesses present when the money was borrowed. Since the lender cannot prove that the loan took place, he cannot collect the loan from Lekuchos. Therefore, there is no relevance to the Shi'abud Karka.

This approach is followed by the RAMBAN and RASHBA. They add that the same will apply when witnesses *were* present at the time of the loan but they died, or when a Shtar was written at the time of the loan but was lost. They add further that even if a Shtar was written at it is still present, as long as there are no witnesses to prove that the loan was not yet paid back, the lender cannot collect from the Lekuchos, and, therefore, there is no relevance to the Shi'abud Karka'os.

However, this answer requires further elucidation. It is true that the Shi'abud cannot be collected from the purchasers when the debt cannot be proven with witnesses or with a Shtar. Nevertheless, the Shi'abud still exists; it just cannot be utilized to collect the loan, since the loan cannot be proven. Why, then, do we not consider the loan to be a dispute regarding a Shi'abud Karka'os?

Apparently, these Rishonim understand that what makes a debt into a land dispute is the fact that the lender can collect land even if the land is sold. This fact makes land the most secure way to collect a loan, since every other possession that a person owns can be hidden or sold, preventing the lender from claiming it. Land, on the other hand, remains accessible and collectable forever. Because the focus of the lender's claim is for the borrower's land, the dispute is considered to be a dispute over land (see Shevuos 38b regarding the intention of the claimant).

Tosfos here and in Bava Metzia does not accept this simple answer of the other Rishonim. He instead asserts that it would be a case of Shi'abud Karka'os unless the borrower has no land or the lender foregoes the Shi'abud. Apparently, Tosfos understands the logic of Rebbi Yochanan differently. The reason the loan is considered to be a dispute over land is because when the borrower owns land, aside from the obligation that is incumbent upon the borrower to repay, the land that he owns becomes like a "Mashkon," collateral, towards the repayment of the loan. (See Pesachim 30a where, according to one opinion, when the loan is collected from the land, it becomes retroactively a sale instead of a loan.) The land is like an "Arev Kablan" for the repayment of the loan. That is why the dispute is considered one over land. According to this logic, even if land cannot be collected from those who purchased land from the borrower, nevertheless land that is still in the borrower's possession remains Meshu'abad to the repayment of the loan, and that is the Shi'abud Karka'os to which Rebbi Yochanan refers.

(b) The answer to our second question will depend on the two opinions cited above in answer to the first question.

1. According to Tosfos in Bava Basra and the Rishonim here (cited above in the second answer to the first question), our second question does not begin. When the Chachamim revoked the privilege of one who lends money with witnesses to collect from Lekuchos, they effectively annulled the Shi'abud of Karka, since the only outcome of the Shi'abud is to allow the collection of property that the borrower sold (in contrast to what we wrote in the question, that the Shi'abud refers also to some type of lien that makes the land more collectable than Metaltelin even when it is not sold). This indeed is the explicit view of the RITVA here, who writes that the Chachamim revoked the Shi'abud from the property through their power of "Hefker Beis Din Hefker," and of other Rishonim.

How can the Ritva say that the Chachamim took away the Shi'abud with "Hefker Beis Din?" If that is true, then why do we rule that a Milveh Ba'al Peh *may* be collected from heirs of the debtor? How is the debt collected from heirs if there is no Shi'abud on the Karka? (NACHALAS DAVID in Bava Metzia)

The answer seems to be that the Chachamim did not annul that part of the Shi'abud (with regard to collecting from the heirs). Nevertheless, the loan is not considered to be a land dispute, since the lender no longer relies on collecting from land, because he knows that the land can be withheld from him (by being sold) just as Metaltelin can be withheld from him. (M. Kornfeld)

2. Tosfos in Bava Metzia, however, apparently follows his opinion there that the definition of Shi'abud Karka'os is that land is a form of a Mashkon or Arev for the repayment of the loan. Therefore, even if the land cannot be collected from the Lekuchos, the dispute should still be considered a land dispute. (See TOSFOS REBBI AKIVA EIGER to Shevuos 5:1 and 6:38.)

Tosfos writes, therefore, that the only case in which a Korban will be brought for Shevu'as ha'Pikadon when a person denies owing a Milveh Ba'al Peh (even after the Chachamim took away the rights of Shi'abud) is a case in which the borrower has no land that is still in his possession (Benei Chorin) at the time of his Shevu'ah. (Obviously, if the lender decided to forego the Shi'abud, the borrower will also be Chayav for Shevu'as ha'Pikadon.)