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Shevuos, 39

1) THE SEVERITY OF A FALSE "SHEVU'AS BITUY"

QUESTION: The Gemara says that before administering a Shevu'as Modeh b'Miktzas, the Beis Din warns the defendant about the severity of making a false Shevu'ah. The Beis Din describes to him how the entire earth trembled at the moment that Hashem gave the Mitzvah, "Lo Sisa Es Shem Hashem... la'Shav" (Shemos 20:7), at Sinai.

The Shevu'ah that Beis Din administers is equivalent to a Shevu'ah about a past event (Shevu'as Bituy). The Gemara earlier (20b) cites Rav Dimi who states that when one makes a false Shevu'ah about a past event, he transgresses the Isur of "Lo Sisa." However, Ravin there (21a) argues with this and says that one transgresses "Lo Sisa" only when he makes a Shevu'as Shav, but not when he makes a false Shevu'ah about a past event. Rather, when one makes a false Shevu'as Bituy, he transgresses, "ve'Lo Sishav'u vi'Shmi la'Shaker" (Vayikra 19:12). Why, then, according to Ravin, does the Beraisa teach that Beis Din warns the defendant about the severity of the Isur of "Lo Sisa?" (RAMBAN)

ANSWERS:

(a) The RAMBAN explains that the Beis Din mentions the verse of Shevu'as Shav because the severity of a Shevu'as Shav is more commonly known. However, the Chachamim understood that the same severity applies to a false Shevu'ah about a past event.

(b) The RASHASH adds that the source for comparing a Shevu'as Bituy to a Shevu'as Shav is the verse that the Gemara cites earlier (21a) that teaches us to compare a Shevu'as Bituy (Shevu'as Sheker) to a Shevu'as Shav. That source is the second word, "la'Shav," at the end of the verse of "Lo Sisa." The Beraisa, according to this, is merely citing the beginning of the verse, but its intention is that Beis Din is to mention the entire verse.

QUESTIONS: The Beraisa discusses the way in which we make the witnesses make a Shevu'as ha'Edus, and, tangentially, it explains the verse that describes the covenant that was made with the people to reinforce their acceptance of the Torah at Sinai (in Devarim 29:13-14; see TORAS CHAIM). The Beraisa says that the covenant was made not only to reinforce their acceptance of the Mitzvos that they received at Har Sinai, but also to reinforce their acceptance of the Mitzvos that would be given at a later time. This is derived from the verse, "Kiyemu v'Kiblu" (Esther 9:27), which teaches that, at the time of the Purim miracle, the Jewish people "fulfilled that which they had already accepted" at Har Sinai. It seems that the Gemara is explaining the letter Vav in the word "v'Kiblu" to mean the same as the letter Shin ("she'Kiblu"), meaning that they fulfilled *that which* they had accepted (see Beitzah 7b). A similar Gemara in Megilah (19b) tells us that Hashem alluded in the Luchos to all of the Mitzvos, even the Mitzvos that the Nevi'im would later institute, such as the reading of the Megilah.

There are a number of questions on this Gemara.

(a) How could the Jewish people in the Midbar have accepted to keep the Mitzvah of reading the Megilah? If this Mitzvah was given to them by Hashem in the Midbar, then it should be considered a Mitzvah d'Oraisa!

(b) The Gemara in Shabbos (88a) seems to give an entirely different interpretation for the verse "Kiyemu v'Kiblu." The Gemara says that the Jewish people were forced to accept the Torah at Har Sinai, and they accepted it willingly only at the time of Purim. "Kiyemu v'Kiblu" means, "They fulfilled willingly that which they were forced to accept earlier."

The Gemara in Shabbos implies that the verse is discussing not only the Mitzvos that were given in later generations, but *all* of the Mitzvos, even those that the Jewish people accepted at Har Sinai. All of the Mitzvos needed to be re-accepted willingly.

How are these two Gemaras to be reconciled? (TOSFOS (DH Kiyemu) cites the Gemara in Shabbos but does not seem to be bothered by the inconsistency.)

ANSWERS:

(a) The MAHARATZ CHAYOS suggests that since the Chachamim derived -- by using the Torah's own thirteen Midos she'ha'Torah Nidreshes ba'Hen -- the thirteen exegetical principles of expounding Torah law -- that it is permitted to write down the Megilah (as described in Megilah 7a), it is as if this Mitzvah was accepted at Har Sinai along with all of the other Mitzvos of the Torah.

However, the Gemara here implies that even *reading* the Megilah (and not just writing it) is alluded to in the Torah.

The RAMBAM and RAMBAN (Sefer ha'Mitzvos, Shoresh Rishon) quote these Gemaras to show that when the Jewish people accepted the Torah, they also accepted to follow all of the institutions of the Chachamim of each generation. This is what the Gemara means when it says that the Jewish people accepted at Har Sinai even to fulfill the Mitzvos that would be given to them later by the Chachamim.

(According to the Rambam in Sefer ha'Mitzvos (Shoresh Rishon; Lo Sa'aseh #312; Mitzvas Aseh #174), the prohibition of "Lo Sasur" -- "Do not turn away from what they (the Chachamim) instruct you" (Devarim 17:11) -- obligates a person to keep the Mitzvos d'Rabanan. Nevertheless, the Jewish people also accepted upon themselves the yoke of Mitzvos d'Rabanan, just as they accepted upon themselves the Mitzvos of the Torah. According to the Ramban there, there is no Mitzvah d'Oraisa to follow the Mitzvos d'Rabanan. Rather, what obligates us to follow the Mitzvos d'Rabanan is the Kabalah, the acceptance, which our Gemara discusses.)

(b) HE'OROS B'MASECHES SHEVUOS suggests that the Chachamim can learn multiple Derashos from a single verse (as the Gemara implies in Sanhedrin 34a). He seems to learn that the two Gemaras indeed differ about what is learned from the verse, "Kiyemu v'Kiblu."

Perhaps we can reconcile the Gemaras based on what the TORAS CHAIM here suggests. The Toras Chaim explains that the source for what our Gemara learns from the verse is from the order of the words in the verse. It is the normal manner to first accept a Mitzvah, and then to fulfill it. Accordingly, the verse should say, "Kiblu v'Kiyemu" (and not "Kiyemu v'Kiblu"), in order to show that the Jewish people accepted the Mitzvah of Megilah and then observed it. Since, instead, the verse first writes "Kiyemu," this implies that the Mitzvah was given earlier, and it was necessary only to accept it later. According to this understanding, both the Derashah of our Gemara and the Derashah of the Gemara in Shabbos may be learned from the same verse.

Our Gemara is inferring from the fact that "Kiblu" is written after "Kiyemu" that it was not necessary to accept the Mitzvah of reading the Megilah in the times of Purim, because it was already accepted at the time of Kabalas ha'Torah. The Gemara in Shabbos is learning from the fact that the verse adds the word "v'Kiblu" after it says that they fulfilled the Mitzvah of Megilah that the Jewish people made a second acceptance once they began to observe the Mitzvah of Mikra Megilah. That second acceptance was a willing acceptance of the entire Torah which they had received originally under duress.

39b

QUESTIONS: Rav and Shmuel argue about the minimum requirements for being obligated to make a Shevu'ah of Modeh b'Miktzas. According to Shmuel, the Shevu'ah can be applied whenever the claimant demands at least two Ma'os or more, and the defendant admits to owing a Perutah or more and denies owing a Perutah or more. According to Rav, the Shevu'ah is applied only when the defendant admits to a Perutah or more of the total sum that is claimed, and denies at least two Ma'os of the claim.

That is, Shmuel maintains that the two Ma'os are the minimum amount that the claimant must claim, while Rav maintains that the two Ma'os are the minimum amount that the defendant must deny.

Shmuel proves his view from the verse (Shemos 22:8) that states that if the claimant gave the defendant two Ma'os of money to watch, and the defendant admitted to owing part of it, then he must make a Shevu'as Modeh b'Miktzas. Rav replies that the verse does not mean that the claim was only two Ma'os. Rather, the verse means that the claim was enough such that the defendant was able to deny two Ma'os (besides what he admitted to owing).

At this point in the Gemara, we would expect Shmuel to retort that the implication of the verse is that the claim was only a total of two Ma'os. This indeed is the way Shmuel proves his view in the conclusion of the discussion. However, Shmuel does not immediately mention this point. Instead, he says that the verse says two words, "Hu" and "Zeh," which imply that only when he denies part and admits to part is he obligated to swear. It seems that Shmuel is asserting that the extra word "Zeh" in the verse is intended to teach that the claim does not have to be more than two Ma'os. Rav replies that the extra word teaches a different Halachah; it teaches that the defendant's partial admission must be of the same type of object that was claimed in order for him to be obligated to swear.

Finally, Shmuel responds that in any case the verse clearly implies that the total claim was only two Ma'os, thereby refuting Rav's view.

(a) Why does Shmuel not use this argument immediately after the first time that Rav responds to his proof? (KOS HA'YESHU'OS)

(b) When Shmuel answers Rav's first response by saying that there is an extra verse, why does he present this in such an unusual way? He should say simply that there is an extra verse to teach an extra Halachah. Instead, he says that the verse says the word "Hu" and it says the word "Zeh" to teach that he is obligated to make a Shevu'ah for denying half of the claim. From the words of Shmuel, we would not have understood that he is trying to learn a Halachah based on an extra verse! (PARDES YITZCHAK)

ANSWERS:

(a) The CHASAM SOFER explains that Shmuel is not able to infer from the verse that the defendant must swear even when he denies less than two Ma'os (in contrast to the view of Rav) until *after* he proves that the admission must be from the same type of object that the claimant demanded from the defendant. If the defendant is obligated to make a Shevu'ah even when he admits to owing a type of object other than the type that was claimed from him, then the case in the Torah might be one in which the claimant demanded money or an object that was worth two Ma'os, and the defendant admitted to owing a different object (worth at least a Perutah) which was not mentioned in the claim. In such a case, the claim was only two Ma'os, and yet the defendant admitted to owing a Perutah's worth and denied two Ma'os. That is why Shmuel first needs to prove from the verse that the admission must involve the same type of object as the claim.

(b) We may understand Shmuel's response regarding the words "Hu" and "Zeh" based on the words of the VILNA GA'ON (in KOL ELIYAHU). The Vilna Ga'on explains that the words "[Ki] Hu Zeh" in the verse imply Modeh b'Miktzas, because the word "Hu" refers to an object that is not in our presence, while the word "Zeh" refers to something that is in our presence. When the Torah says "Hu Zeh," it means that the defendant is saying that part of the money is *not* present (this is the denial), and that part of the money *is* present (this is the admission). Since the verse juxtaposes the money that is admitted with the money that is denied, it implies that these monies are comparable in that both were included in the original claim. This necessarily implies that the denial may be less than the original claim of two Ma'os. (This might be the intention of the KOS HA'YESHU'OS.)

Rav responds that the admission is compared to the denial only insofar as they must involve the same type of object. However, the amounts of the claim and of the admission are not both included in the claim. For example, the claimant demands two chairs, and the defendant admits to owing a third chair which was not included in the claim.

Shmuel replies that this cannot be the case that the verse is discussing. Since Rav agrees that the admission must be to the same type of object as the claim, it is obvious that the Torah requires a Shevu'ah only when the Hoda'ah was an admission to something that was claimed in the claim. Accordingly, it will not suffice for the admission to be to something that was the same type of object of the claim; the admission must be to one of the objects that was actually claimed. An admission to owing an object of the same type but which was not claimed is equivalent to an admission to an object of a different type. Therefore, Shmuel asserts, it can be proven from the verse that the denial may be less than two Ma'os.