Previous daf

1)

(a) Rav Kahana asked Rav Acha bar Huna, Rav Shmuel B'rei de'Rabah bar bar Chanah and Rav Yitzchak B'rei de'Rav Yehudah - who had been learning Shevu'os with Rabah, whether Heizid bi'Shevu'as ha'Pikadon is Chayav a Korban even one was warned.

(b) Assuming that the Nishba was warned, he might be ...

1. ... Chayav a Korban - because now that the Torah prescribes a Korban be Meizid, which it does not usually do, we take the Chidush to its extreme.
2. ... Patur - because perhaps it is only when there is no warning, where no Malkos is due, that one has to bring a Korban, but when there is a warning, why should he not receive Malkos

(c) The third possibility is - that one brings a Korban as well as receiving Malkos.

(d) They did not ask the same She'eilah by Shevu'as ha'Eidus, which is also Chayav be'Meizid - because seeing as nobody can really know that the alleged witnesses really know what is being asked of them, there is no such thing as a 'Vaday Hasra'ah' (see also Tosfos DH 'Heizid).

(a) The three Chachamim tried to resolve Rav Kahana's She'eilah from the Beraisa 'Chamurah Heimenah Shevu'as ha'Pikadon, she'Chayavin al Zedonah Malkos ve'al Shigegasah Asham ... ' - which clearly speaks when the Nishba was warned (otherwise he would not receive Malkos), and the Tana sentences him to Malkos, implying but not a Korban (like the second side of the She'eilah).

(b) When the Tana then says 'Chamurah Heimenah Shevu'as ha'Pikadon' - he means that Shevu'as ha'Pikadon be'Meizid is more stringent than Shevu'as ha'Eidus, who brings a Korban under the same circumsances, because a person would rather bring a Korban than receive Malkos.

(c) Rava bar Isi refutes their proof however, by establishing the Beraisa in question (which holds that there is no Korban for Shevu'as ha'Pikadon be'Meizid) like Rebbi Shimon (who learned like that in 'Shevu'as ha'Eidus) but according to the Rabbanan, who hold that one brings a Korban be'Meizid too, one might be Chayav a Chatas as well as Malkos in the case where he was warned (like the third side of the She'eilah).

(a) Rav Kahana himself goes one step further, establishing the Beraisa like the Rabbanan, and changing the text. He knew that his version was the correct one - because he was the one to introduce the Beraisa in the first place.

(b) The proof from the Beraisa now falls away - since it is possible to establish the Beraisa when there was no warning (and therefore no Malkos), as we will explain shortly.

(c) Rav Kahana explains the words 'Chamurah Heimenu Shevu'as ha'Pikadon' to mean - that whereas the Chatas of Shevu'as ha'Eidus has no minimum price-tag, that of the Asham Gezeilos does, as we explained in our Mishnah.

(d) There no proof from ...

1. ... Rav Kahana's version of the Beraisa that one is Chayav a Korban besides Malkos since the Beraisa specifically writes 'Echad Zedonah ve'Echad Shigegasah Asham ... ' - seeing as the Tana could be speaking when there was no warning.
2. ... our Mishnah 'Eino Chayav al Shigegasah, u'Mah Hu Chayav al Zedonah, Asham ... ' - because there too, the Tana might be speaking when there was no warning.

(a) We try to resolve Rav Kahana's She'eilah from the Beraisa 'Lo Im Amarta be'Nazir Tamei she'Kein Lokeh, Tomar bi'Shevu'as ha'Pikadon she'Eino Lokeh', based on the inference from the Reisha, that it must be speaking where there was a Hasra'ah. In that case, the Seifa clearly holds that there is no Malkos, but there is a Korban (like the first side of the She'eilah).

(b) We refute this proof by explaining 'Eino Lokeh' to mean that Malkos is insufficient and that he requires a Korban too (like the third side). The problem with this explanation is - the inference that in the Reisha, Malkos will suffice, when the Torah specifically obligates a Tamei Nazir to bring a Korban.

(c) The answer is - that it may well be that Malkos does indeed complete the Kaparah, and the purpose of the Korban is to enable the Nazir to begin counting his Nezirus afresh.

(a) When Rabah's Talmidim told him over Rav Kahana's She'eilah, he had a problem with the fact that Rav Kahana only asked about a case where the witnesses actually warned the Nishba - implying that if they hadn't, he would certainly be Chayav. But surely, in such a case, where he could not deny the loan (or whatever), irrespective of the fact that he wasn't Chayav Malkos, it should not be considered a denial of Mamon, and he should not be Chayav.

(b) The Beraisa Darshens the Pasuk (in connection with Shevu'as ha'Pikadon) "ve'Chichesh Bah", 'P'rat le'Modeh le'Echad min ha'Achin O le'Echad min ha'Shutfin', meaning - that he admitted that he owed one of the brothers or partners who claimed from him.

(c) The Tana then learns from "ve'Nishba al Sheker" - to preclude someone who borrows with a document or someone who borrows with witnesses.

(d) Rav Chanina attempts to support Rabah's opinion from the Seifa of the Beraisa - by interpreting it to mean that he denied money on which there was a Sh'tar or Eidim (concurring with Rabah's ruling).

(a) Rabah himself refutes Rav Chanina's proof however by interpreting the Beraisa to mean - that he admitted to the loan but denied having handed him a Sh'tar or that there were witnesses who had seen the transaction taking place (because then he is not denying anything real).

(b) He extrapolated this from the Reisha 'P'rat le'Modeh le'Echad min ha'Achin O le'Echad min ha'Shutfin', which must be speaking (not when he admitted to half of one of the claimants, because then, why should he not be Chayav on the half which he denies, but) - when he admitted that he owed the entire amount to the claimant and denied that his brother or his partner had any claim on him (where again, he is not really denying anything).

(c) We learned in our Mishnah 'Eino Chayav al Shigegasah, u'Mahu Chayav al Zedonah, Asham ... '. On the assumption - that 'Zedonah' refers to the warning of witnesses (see Hagahos ha'Bach), we see from here that one is Chayav even when there are witnesses, a Kashya on Rabah.

(d) Rabah will therefore explain 'Zedonah' to mean Zadon Atzmo, when he deliberately swore falsely, but where there were no witnesses.

(a) The Mishnah in Shevu'as ha'Eidus ruled that if two pairs of witnesses both denied having witnessed a transaction, both are Chayav because either testimony could clinch the deal. We ask why, according to Rabah, the first pair of witnesses is Chayav, seeing as the second pair has not yet testified (in which case he has not really denied anything).

(b) Ravina repudiates this Kashya (like he did in 'Shevu'as ha'Eidus' - by establishing the second pair of witnesses as being related to the first pair through their wives, who were Gosesos when the first pair testified (and it comes to teach us that in spite of the fact that the majority of Gosesin die, we consider them alive up to the point of death), in which case, the second pair was not fit at the time to testify (until one of the pair's wives died).

8)

(a) If a guardian claims that the Pikadon he is looking after has been stolen, swears and then, before witnesses testify, he confesses that he still has it in his possession, the Beraisa rules that he must pay the article plus a fifth and bring a Korban. But if he confessed only after the witnesses arrived, the Tana rules - that he pays the article plus double and brings an Asham, but not an extra fifth ...

(b) ... because of the Pasuk "ve'Shilem Oso be'Rosho va'Chamishiso Yosef Alav", from which we Darshen 'Mamon ha'Mishtalem be'Rosh, Mosif Chomesh ... ' (only when one pays the principle and not more, does one add a fifth, but not when one has to pay double as well).

(c) There is no proof that one is Chayav a Shevu'as ha'Pikadon even on money on which there are witnesses, from ...

1. ... this Beraisa - because we establish it when the wives were related at the time of the Shevu'ah, like Ravina established the Beraisa above.
2. ... the Beraisa that we cited on the previous Amud 'Chamurah Mimenu Shevu'as ha'Pikadon she'Chayavin al Zedonah Makos ve'Al Shigegasah Asham ... ', which must be speaking when there were witnesses and warning (otherwise he would not receive Malkos) as we explained there, (as Ravina asked Rav Ashi) - because, as Rav Mordechai reminded them, Rav Kahana already changed the text of the Beraisa to read 'Echad Zedonah ve'Echad Shigegasah Asham ... '.

(d) And we finally prove from the Beraisa that we also cited on the previous Amud 'Lo Im Amarta be'Nazir Tamei she'Kein Lokeh, Tomar bi'Shevu'as ha'Pikadon she'Eino Lokeh' - which (like we just said about the initial text of the previous Beraisa), must be speaking when there are witnesses and warning, yet the Tana concludes Tomar bi'Shevu'as ha'Pikadon she'Eino Lokeh', implying that he brings a Korban nonetheless (a Kashya on Rabah).

(a) Rebbi Yochanan disagrees with Rabah's statement. He rules that if someone denies money on which there are ...

1. ... witnesses - he is Chayav?
2. ... a document - he is Patur.

(b) Rav papa attributes Rebbi Yochanan's distinction to the fact that witnesses eventually die, whereas documents remain intact. Rav Huna B'rei de'Rav Yehoshua begs to differ - on the grounds that documents too, tend to get lost.

(c) Rav Huna B'rei de'Rav Yehoshua therefore ascribes Rebbi Yochanan's ruling regarding documents to - the fact that every Sh'tar involves 'Shibud Karka'os' (a basic claim on the debtor's Karka), on which there is no Shevu'ah, as we shall now see.

(d) This resolves the dilemma with regard to the Machlokes between Rebbi Yochanan and Rebbi Elazar who argue whether 'Eidei Karka' are subject to Shevu'as ha'Pikadon or not, as to who said what. Clearly then - Rebbi Yochan an is the one who holds that they are not.

(a) In the Mishnah in Bava Kama, Rebbi Eliezer obligates Reuven to replace the field that he robbed from Shimon in the event that a river subsequently overflowed its banks and swamped it. The Rabbanan rule - that he is Patur.

(b) They argue over the principle - 'Ein Karka Nigzeles' (the opinion of the Rabbanan, with which Rebbi Eliezer disagrees).

(c) The basis of their Machlokes lies in whether to Darshen 'Ribuy, Miy'ut and Ribuy' or 'K'lal u'Prat u'K'lal'. Rebbi Eliezer who Darshens 'Ribuy, Miy'ut ve'Ribuy', includes everything from the second Ribuy in the Pasuk "ve'Chichesh ba'Amiso" ... "O mi'Kol Asher Yishava Alav la'Shaker''. And from the 'Miy'ut' "be'Pikadon O bi'Sesumes Yad ... " he precludes - Sh'taros (which have no intrinsic value).

(d) According to the Rabbanan, the two similarities to the 'P'rat' "be'Pikadon O bi'Sesumes Yad O be'Gazel" that an article must possess before it can be subject to a Shevu'ah are - 'Mitaltel, ve'Gufo Mamon' (moveable and of intrinsic value).

(e) Besides Karka (which is not 'Mitaltel) and Sh'taros (which are not 'Gufo Mamon'), the Rabbanan preclude Avadim, because in Behar, the Torah compares them to Karka (in the Pasuk "ve'Hisnachaltem Osam li'Veneichem").

(a) We try to connect the above-mentioned Machlokes between Rebbi Yochanan and Rebbi Elazar regarding 'Mashbi'a Eidei Karka' to the current Machlokes - posing a Kashya on the Amora'im, as to why they repeat a Machlokes Tana'im.

(b) Rebbi Yochanan would then hold like the Rabbanan, and Rebbi Elazar, like Rebbi Eliezer.

(c) But we refute the Kashya on the grounds that whereas both Rebbi Yochanan and Rebbi Elazar both agree that the Rabbanan will definitely preclude Karka from Shevu'as ha'Pikadon, they dispute Rebbi Eliezer's opinion. In fact, we conclude, even Rebbi Eliezer night hold Patur by 'Mashbi'a Eidei Karka' (like Rebbi Yochanan), because of the 'Mem' in the word "mi'Kol ( Asher Yishava ... ") from which we Darshen "mi'Kol", 've'Lo ha'Kol'. In other words, even Rebbi Eliezer will concede to the Rabbanan, that the Torah precludes Karka from a Shevu'as ha'Pikadon.

(d)

1. Rav Papa attempts to prove Rebbi Yochanan right from our Mishnah, which incorporates a case of 'Ganavta es Shori' in the Din of Shevu'as ha'Pikadon - from which we can infer that he does include 'Ganavta es Avdi'.
2. Rav Papi however quoting Rava, refutes the proof from the Seifa 'Zeh ha'K'lal, Kol ha'Meshalem al-Pi Atzmo Chayav ... ' - which comes to include Eved. Consequently, we cannot learn anything from our Mishnah regarding Eved (or Karka).