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Shevuos, 49

1) "GILGUL SHEVU'AH" FOR "SHEVU'OS D'RABANAN"

OPINIONS: The Gemara (end of 48b) concludes that the principle of "Gilgul Shevu'ah" applies to a Shevu'ah d'Rabanan, an oath mandated by the Rabanan, just as it applies to an oath mandated by the Torah. When a person is required to take an oath mid'Rabanan, he can be made to take other oaths that are relevant (which, without taking the first oath, he could not be made to swear). The Gemara then discusses when this applies. Rav Huna says that we apply "Gilgul Shevu'ah" to all cases of a Shevu'ah d'Rabanan, with the exception of the case of a worker who must take an oath that he was not paid (see Rashi). Rav Chisda says that "we are not lenient" with regard to anyone except for a worker who claims he was not paid. Rav Chisda seems to be saying that instead of being lenient and not requiring that the additional Shevu'os be made, we apply "Gilgul Shevu'ah" and require that the additional Shevu'os be made, except in the case of a worker who claims that he was not paid. The Gemara inquires what the difference is between these two opinions, and it answers that the difference is whether we may "open for him" or not. What does the Gemara's answer mean?

(a) RASHI explains that the difference between Rav Huna and Rav Chisda is whether or not the Beis Din makes a claim of "Gilgul Shevu'ah" for the claimant. That is, according to Rav Huna (who says "la'Kol Megalgelin"), if the claimant does not know that he can make the defendant take additional oaths through "Gilgul Shevu'ah," then Beis Din makes that claim for him. Rav Chisda argues and says that when the claimant does not demand additional oaths, Beis Din may not suggest it for him.

It seems that according to Rashi, both Rav Huna and Rav Chisda agree that there is no "Gilgul Shevu'ah" in the case of a worker who makes a Shevu'ah that he was not paid (for, otherwise, Rashi would have specified this difference).

(b) The RITVA agrees with Rashi's understanding of the difference between Rav Huna and Rav Chisda. However, the Ritva adds that they also argue about a case of a worker. Rav Huna maintains that in the case of a worker, the employer has the right to make the worker take an additional oaths through "Gilgul Shevu'ah," although Beis Din does not suggest that he make that claim, as Beis Din may do in other cases. Rav Chisda maintains that in other cases, the claimant may request that additional oaths be taken through "Gilgul Shevu'ah," but Beis Din does not make that claim for him. In the case of a worker, the employer's request that the worker take additional oaths is rejected.

(c) The RAMBAM (Hilchos Sechirus 11:9) has an entirely different approach. He states that when a worker says that he was not paid and thus he must swear in order to collect his money, we are not stringent with him and we do not add any oaths at all; he makes the single Shevu'ah that he is required to make, and no more. In all other cases, we are stringent and require the defendant to make additional oaths through "Gilgul Shevu'ah."

The MAGID MISHNEH explains that the Rambam understands Rav Huna as saying that it is the worker's *right* to refuse to take additional oaths. If, however, he does not exercise that right, Beis Din does not do it for him, and thus the employer can make the worker take additional oaths. Rav Chisda argues and maintains that Beis Din tells the worker outright that he does not have to take any additional oaths. The Rambam rules like Rav Chisda.

It is interesting to note that the Ritva says that "there are some who give this explanation" (he does not mention the Rambam), and he concludes by saying that it is more preferable than his own explanation. However, he states clearly that the Halachah follows the view of Rav Huna, in contrast to the Magid Mishneh's explanation of the Rambam.

The KESEF MISHNEH questions this explanation. First, Rav Chisda was a student of Rav Huna. Why would the Rambam rule like the student against his Rebbi? Moreover, why does the Rambam go out of his way to use the language of both Rav Chisda ("Mekilim") and Rav Huna ("Megalgelim")?

The Kesef Mishneh therefore prefers the RAN's explanation. The Ran writes that the Rambam learns that Rav Huna and Rav Chisda are not arguing. Rav Huna states that a worker *never* has to take another oath through "Gilgul Shevu'ah." Rav Chisda agrees, and he *adds* an additional Halachah. Even though Beis Din never gives advice or favors one side, in this case Beis Din is allowed to comfort the worker and say that he should not worry, since he can just take an oath and receive his money, without having to worry that he will be forced to take additional oaths.

This explanation, though, seems very difficult to understand. How can the Rambam say that Rav Huna and Rav Chisda are not arguing, when the Gemara itself says, "What is the difference between them? The difference is 'to open for him'?" The Kesef Mishneh answers that the Amora who asked the question, "What is the difference between them," misunderstood the opinions of Rav Huna and Rav Chisda. The Gemara responded that the difference between them is merely that Rav Chisda adds an additional point to the law that the worker does not have to take additional oaths.

(d) The RITVA in Kidushin (27b) gives another explanation. The Ritva there says that Rav Huna maintains that anyone is able to make his disputant take additional oaths through "Gilgul Shevu'ah," but Beis Din may not suggest it, while in the case of a worker, the worker can *never* be forced to take additional oaths. Rav Chisda is stringent and says that "we are not lenient" on the defendant in most cases, but rather Beis Din informs the claimant right away of any possible oaths that he can add to the oath already being taken by the defendant. However, we *are* "lenient" in the case of a worker, and we do not divulge these additional oaths unless the employer requests them. (Y. Montrose)

49b

QUESTION: The Mishnah in Shevu'os concludes with two rules regarding when a Shomer is guilty and when he is innocent when he makes a false Shevu'as ha'Pikadon (when his claim was found to be untrue). The first rule is that if, by lying, the Shomer remains liable to pay for the object (as he would be if he told the truth), or he remains exempt, or he obligates himself when he is really exempt, he is not held accountable for making a false Shevu'as ha'Pikadon. He is held accountable for making a false Shevu'as ha'Pikadon only if, by lying, he exempts himself when he is really liable.

The second rule is that if, by lying, he decreases his liability, he is held accountable for making a false Shevu'as ha'Pikadon. If he makes and swears to a claim which increases his liability, he is exempt.

These two rules seem to contradict each other. According to the first rule, a Shomer is guilty of making a false Shevu'ah only when he swears to a claim that would have exempted him from paying for the object, when in truth he was obligated to pay for it. In any other case, he is exempt. According to the second rule, though, only a Shomer who makes a false Shevu'ah, claiming that he is guilty, when in truth he is innocent, is exempt from liability for making a false Shevu'ah, which implies that a Shomer in either of the first two cases of the first rule (he claims he is liable when he really is liable, or he claims he is exempt when he really is exempt) is *Chayav* for his Shevu'as ha'Pikadon! How are we to reconcile these two rules?

ANSWERS:

(a) The text of the Mishnah as it appears in the Yerushalmi indeed does not contain the first rule mentioned in our Mishnah. Moreover, the Yerushalmi's first words in the Gemara are that if the oath does not better or worsen his case, he is still guilty for Shevu'as ha'Pikadon, which is consistent with the implication that we inferred from the wording of that rule in our Mishnah.

The TOSFOS YOM TOV, apparently bothered by this question, says that the RAN does have the first rule in his text of the Mishnah. He suggests that the Ran might not have had the second rule in his text. Indeed, the Tosefta does not have the second rule in its text, and that rule also does not appear in the text of the Mishnah in old manuscripts, as the DIKDUKEI SOFRIM points out.

(b) The TOSFOS YOM TOV suggests an answer to explain the Girsa as it appears in our text, which has both rules. We can explain that when the Mishnah says that a Shomer who does not change his degree of liability through his claim (the first two cases of the first rule) is similar to a Shomer who swears and thereby makes his situation worse (the case of the second rule), and that is why he is not held accountable for making a false Shevu'as ha'Pikadon.

The MAREH HA'PANIM on the Yerushalmi says that the text of the Yerushalmi in the Gemara is incorrect, and should read that someone who does not change his situation is *not* guilty. He explains that the Yerushalmi understands the Mishnah in this manner, as explained by the Tosfos Yom Tov.

The TIFERES YISRAEL, who also gives the explanation of the Tosfos Yom Tov, points that he wrote in his MEGILAS SETARIM that there are three common ways to answer an implied contradiction, and this manner is one of them (i.e. by showing that the intent of one statement is really the same as the inference of the other). He says that the Gemara itself gives a similar answer (in Pesachim 19b and Kidushin 5b) when it says that the implication of the first part of a certain statement was exact in its intention, while the second part of the statement was not exact in its intention.

The second manner of resolving an implied contradiction, he says, is by showing that one of the two contradictory statements is based on a textual error, which is the answer that we gave above, according to the Girsa of the Yerushalmi and the Tosefta (see also Beitzah 24b and Gitin 73b). (The third manner, he says, is mention in TOSFOS to Chulin 15b, and is to show that the lines of reasoning behind the cases implied are not similar.) (Y. Montrose)