QUESTIONS: Rebbi Chiya teaches that one is obligated to swear when witnesses
testify that he owes half of the amount of money that the claimant claims.
The Gemara derives Rebbi Chiya's ruling from a Tzad ha'Shaveh from Hoda'as
Piv and Ed Echad. The Gemara asks that we should not be able to derive Rebbi
Chiya's ruling from this Tzad ha'Shaveh, since neither Hoda'as Piv nor Ed
Echad makes the defendant "Huchzak Kafran," whereas when two witnesses
testify that he owes half of the claim, he is "Huchzak Kafran."
The Gemara answers that even when two witnesses contradict his word
regarding the loan (and he is a "Kofer b'Milveh"), he retains the status of
a valid witness, and therefore even when witnesses testify against him he is
not "Huchzak Kafran."
There are a number of questions on this Gemara.
(a) How can the Gemara state that the person is not "Huchzak Kafran" when he
is contradicted by an Ed Echad? Obviously, since we are making the defendant
swear, we suspect that he is lying and we hope that the fear of a Shevu'ah
will motivate him to admit the truth. It is clear, then, that we do suspect
him of lying, and nevertheless we require him to swear! Why is this
different than when he is contradicted by the testimony of two witnesses?
(b) RASHI himself writes at the beginning of the Sugya (3b, DH d'Leika
l'Meimar Hachi) that a person who is "Kofer ba'Kol" (denies owing anything)
is suspected of stealing, and therefore we cannot make him swear because we
suspect that he will swear falsely. That same logic should apply to a person
who is contradicted by an Ed Echad: since he was "Kofer ba'Kol," we should
suspect him of stealing, because he is not just stalling for time, and
therefore we should not be able to accept his Shevu'ah! Not only is the
Gemara difficult to understand (because it says that an Ed Echad does not
make him "Huchzak Kafran"), the Halachah of the Torah that an Ed Echad makes
the defendant swear is difficult to understand if every "Kofer ba'Kol" is
suspected of swearing falsely! (MAHARI KATZ 3b)
(c) The Gemara concludes that when two witnesses obligate a person to pay
half of the claim, the defendant is not "Huchzak Kafran" because every
person who denies owing a loan ("Kofer b'Milveh") retains his status as a
valid witness to testify in other cases ("Kasher l'Edus") since he might be
just stalling for time. According to this, if witnesses testify in court
about an object that the defendant is holding, and they say that half of it
belongs to someone else, the defendant should not be able to make a Shevu'ah
since he is "Kofer b'Pikadon," and one who denies owing a Pikadon is invalid
for giving testimony, and nor may he make a Shevu'ah. However, the very case
in our Mishnah from which Rebbi Chiya derives his ruling is discussing just
such a situation -- when the "Anan Sahadei" testifies that half of the Talis
that a person is holding does not belong to him! How, then, can the
defendant swear in such a situation? (PNEI YEHOSHUA, NACHALAS DAVID)
(a) There are two types of people who are "Chashid a'Mamona," suspected of
stealing money. The first type is a person whom we suspect of stealing a
particular item for which he is brought to court to swear in order to attest
to his ownership. Such a person has never been caught stealing an object in
the past. We are making him swear now simply because he is suspected of
trying to steal this object. This type of suspicion is the subject of the
Gemara's discussion later (5b) regarding whether or not a person who is
"Chashid a'Mamona" is also "Chashid a'Shevu'asa," and this is the type of
person to whom Rashi is referring (on 3b) when he says that a person who is
"Chashid a'Mamona" is also "Chashid a'Shevu'asa."
The second type of "Chashid a'Mamona" is a person who has been proven in the
past to have attempted to take an object that was not his, such as when two
witnesses testified that the person denied a loan or stole money in the
past. Since it has been confirmed that this person is a thief, we have
greater reason to suspect that he will steal again, and that he will even
swear falsely to attain his goals. It is to such a person that our Gemara
refers when it uses the words "Huchzak Kafran."
The Rishonim (RABEINU YEHUDAH HA'CHASID in Tosfos 5b; see also TOSFOS
RABEINU PERETZ here) explain that a person in this second category is
suspected of swearing falsely even according to those who maintain that one
who is "Chashid a'Mamona" is *not* "Chashid a'Shevu'asa." The reason for
this is because a person who has not yet stolen money might refrain from
stealing for the first time because of the fear of making a false Shevu'ah.
Once a person has already stolen (even if he was forced by Beis Din to
return what he stole), he is more brazen and might even swear falsely in
order to steal again. That is why our Gemara states that a person who is
contradicted by an Ed Echad is not "Huchzak Kafran," while a person who was
proven by witnesses to have lied with regard to half of a loan is "Huchzak
Kafran" and should not be allowed to swear with regard to the second half of
(b) Although Rashi rules that a person who is "Chashid a'Mamona" *is*
"Chashid a'Shevu'asa" (see Insights to 3b), at this point the Gemara thinks
that we are trying to prove from the Tzad ha'Shaveh that anyone who is
"Chashid a'Mamona" is *not* "Chashid a'Shevu'asa." That is why the Gemara
suggests that until a person is "Huchzak Kafran" we allow him to swear even
though he is "Chashid a'Mamona."
According to Rashi, the Gemara concludes that a person who is "Chashid
a'Mamona" is indeed "Chashid a'Shevu'asa." However, if witnesses prove a
person guilty of lying in court when he was "Kofer ba'Kol," we do not
consider him to be "Chashid a'Mamona," since he might be just stalling for
time (see MAHARI KATZ 3b). (This logic applies only when witnesses obligate
him to pay, according to Rashi; if we do not know that there are witnesses
then we consider a person who is "Kofer ba'Kol" to be "Chashid a'Mamona," as
we explained on 3b in the name of the Ritva.)
According to Rashi, an Ed Echad also can make a person swear only in a case
where the person is not "Chashid a'Mamona" and where he might be stalling
for time, such as when he was guarding an object for someone and the object
was lost (see Insights to 6a).
According to the first answer of TOSFOS (5b, DH d'Chashid), even if a person
is "Huchzak Kafran" for lying in the past, he is still permitted to swear
mid'Oraisa. According to Tosfos, it is not clear why the Gemara thought that
when two witnesses testify against the defendant and make him "Huchzak
Kafran" that he should not be able to swear mid'Oraisa.
It seems that according to Tosfos, the Gemara is simply suggesting a Pircha
for the Tzad ha'Shaveh, saying that Ed Echad and Hoda'as Piv have something
in common which the testimony of two witnesses does not have, and therefore
we cannot learn from those two Halachos that a person must swear when two
witnesses testify that he is obligated to pay half of the claim. (MAHARI
KATZ 3b; see Tosfos 5a, DH Iy Isa.)
(c) The straightforward answer seems to be that the Gemara indeed could have
asked such a question to refute Rebbi Chiya's source from our Mishnah.
Instead, it refutes Rebbi Chiya's assertion of his source from our Mishnah
in other ways, by pointing out that in our Mishnah, the testimony not only
shows that each one does not own the other half, but that they do own the
half that they are holding. Therefore, the Gemara did not ask this question.
The RASHBA (in the beginning of the Sugya, 3a) offers a similar answer to
another question that he asks on how our Mishnah can serve as the basis for
Rebbi Chiya's ruling.
Some Acharonim answer that even though the fact that each claimant is
holding half of the item is equivalent to the testimony of witnesses that
each owns half ("Anan Sahadei") with regard to the Halachah of "Modeh
b'Miktzas," nevertheless it is not strong enough to give the claimants the
status of liars ("Huchzak Kafran"). The "Anan Sahadei" is not as strong as
actual testimony of witnesses who testify against a person's claim.
Therefore, in the case of our Mishnah, the claimants are not "Huchzak
Even though the claimants in the Mishnah are not "Chashid a'Mamona" to the
same extent as a person against whom witnesses testified, nevertheless Rebbi
Chiya proves from our Mishnah that a person can make a Shevu'ah when
witnesses testify against him. His proof is that since, in the case of our
Mishnah, we avoid giving the claimants the status of "Huchzak Kafran" by
saying that the "Anan Sahadei" is not strong enough proof against each one,
then also when witnesses testify against a person who denies owing a loan we
will not give him the status of "Huchzak Kafran" since it is possible that
he is merely stalling for time. (PNEI YEHOSHUA, NACHALAS DAVID)
Alternatively, the Gemara earlier (2b) explains that even when a person is
not suspected of stealing, we do suspect him of making a claim to a lost
item that his friend found. The reason for this is because he might be
"Moreh Heter," allowing himself to seize the item from his friend's
possession, saying that since his friend did not pay anything for the item,
he may take it. Similarly, when his friend *bought* a Talis, a person who is
not a thief might be "Moreh Heter" and take a Talis that his friend bought
when both he and his friend paid the seller and the seller agreed to sell it
to his friend. He will allow himself to take it, saying that he is entitled
to it since he paid money for it, even though the seller agreed to sell it
to his friend, and his friend can go and buy another one from someone else.
Perhaps the Gemara learned that when a person steals by being "Moreh Heter,"
he is *not* "Chashid a'Shevu'asa" (see Insights to 5b). That is why the
claimants in our Mishnah are not considered to be "Huchzak Kafran," even
though each one is denying his friend's ownership of the part of the item
that is in his hands.
QUESTIONS: The Gemara records a Machlokes between Rebbi Chiya and Rav
Sheshes regarding whether one is obligated to swear in a case of "Heilach,"
where one admits to owing part of a loan and pays it in court at the time of
the claim. Is such a case considered a normal case of "Modeh b'Miktzas," and
the defendant must swear regarding the part that he denies owing, or is the
part that he paid now ("Heilach") considered to be no longer part of the
claim, and it is now considered as though he is "Kofer ha'kol."
The Gemara cites proof to Rav Sheshes that "Heilach" is exempt from a
Shevu'ah. If a person shows a Shtar which states that someone borrowed from
him "a number of Sela'im" without specifying how many, and the lender claims
that he lent five and the borrower claims he borrowed only three, Rebbi
Akiva exempts the borrower from a Shevu'ah of "Modeh b'Miktzas," since he
could have exempted himself from a Shevu'ah by saying that he owes only two.
Rebbi Shimon ben Elazar argues and maintains that the borrower still must
swear, because it is still considered a normal case of "Modeh b'Miktzas."
Why does Rebbi Shimon ben Elazar exempt the borrower from a Shevu'ah when he
claims that he owes only two? It must be because those two Sela'im are
considered "Heilach" since they are written in the Shtar, and what is
written in the Shtar is considered as though it is being paid outright
(since a person's land is Meshu'abad to pay it).
RASHI (DH Eino Ela) explains that according to Rebbi Akiva, the reason the
borrower is exempt from a Shevu'ah when he claims that he owes only two is
because the Shtar supports his claim, since if he had borrowed more than
two, the amount would have been written explicitly in the Shtar.
Why does Rashi explain that the reason Rebbi Akiva exempts the borrower from
paying when he says that he owes two is because the Shtar supports his
claim? He should have explained that the reason the borrower is exempt is
because when he says that he owes two, it is considered "Heilach," as the
Gemara explains according to Rebbi Shimon ben Elazar! (PNEI YEHOSHUA)
Second, why does Rashi explain that Rebbi Akiva exempts the borrower from a
Shevu'ah because the Shtar supports his claim? When the Gemara rejects this
proof that "Heilach" is exempt, it offers two reasons to exempt the borrower
from a Shevu'ah when he says that he owes two -- either because the Shtar
supports his words, or because a Shtar is considered like Karka (land), and
one does not make a Shevu'ah on Kefiras Shi'abud Karka'os. Why does Rashi
not say that Rebbi Akiva exempts the borrower from a Shevu'ah either because
the Shtar supports him or because it is a Kefirah of a Shi'abud Karka'os?
Third, if the Gemara knew that Rebbi Akiva exempts the borrower from a
Shevu'ah when he says that he owes two because the Shtar supports his claim,
then why did the Gemara think that Rebbi Shimon ben Elazar exempts the
borrower, when he admits to owing two, from a Shevu'ah for a different
reason -- because it is "Heilach?" Perhaps, he, too, exempts the borrower
because the Shtar supports his claim, as the Gemara itself concludes when it
rejects the proof from Rebbi Shimon ben Elazar's view! (RAMBAN)
ANSWER: Rashi indeed could have explained that Rebbi Akiva exempts the
borrower from a Shevu'ah when he admits to owing two because of "Heilach."
However, that would not suffice to explain why Rebbi Akiva exempts the
borrower from a Shevu'ah when he admits to owing *three*, for a number of
First, if "Heilach" is exempt from a Shevu'ah, then why does Rebbi Shimon
ben Elazar not exempt the borrower from a Shevu'ah when he admits to owing
three because of a "Migu" of "Meishiv Aveidah," like Rebbi Akiva rules?
Two approaches to this question are given by the Rishonim. TOSFOS (4a, DH
u'Shema Mina) explains that if "Heilach" is exempt from a Shevu'ah because
"Heilach" is tantamount to "Kofer ha'Kol," then the borrower must be very
brazen in order to claim that he owes only two, as we find in every case of
"Kofer ha'Kol." For this reason, when the borrower admits to owing three, he
does not have a "Migu" that he could have claimed to owe only two, as we
find in every case of "Modeh b'Miktzas."
TOSFOS RABEINU PERETZ does not seem to accept the logic of Tosfos. Even
though "Heilach" is judged Halachically as "Kofer ha'Kol" and is exempt from
a Shevu'ah, the claim of "Heilach" does not require the gross brazenness of
a person who is "Kofer ha'Kol." Why should it take more brazenness to *pay*
the amount that he admits to owing, than to *owe* the amount that he admits
that he owes (NACHALAS DAVID)? Even if admitting to two is considered
"Heilach," when the borrower admits to owing three he should be considered
to be "Meishiv Aveidah."
Tosfos Rabeinu Peretz therefore explains that when the lender brings proof
through witnesses or a Shtar that the borrower owes part of the loan, it
requires brazenness for the borrower to admit only to what was proven.
Therefore, admitting that he owes only two -- after the lender brought a
Shtar to court to that effect -- requires brazenness, just as "Kofer ha'Kol"
requires brazenness. That is why Rebbi Shimon ben Elazar does not exempt the
borrower from a Shevu'ah when he admits to owing three, for he is not
considered to be "Meishiv Aveidah." (Tosfos (4b, DH l'Olam) also gives this
explanation according to the Gemara's conclusion.)
According to both of these explanations, Rebbi Shimon ben Elazar has strong
reason for not considering the borrower to be "Meishiv Aveidah" when he
admits to owing three. Why, then, does Rebbi Akiva argue and consider the
borrower to be "Meishiv Aveidah?" It must be that Rebbi Akiva holds that it
does *not* require brazenness on the part of the borrower to admit that he
owes only two. Rashi explains that admitting to owing two does not require
the borrower to be brazen because the Shtar supports his claim, making it
appear as though he is telling the truth.
Second, another reason why it would not suffice for Rashi to write that
"Heilach" exempts the borrower from a Shevu'ah when he admits to owing two
is because there is a point in the Sugya at which the Gemara thinks that
according to Rebbi Shimon ben Elazar the borrower is *obligated* to make a
Shevu'ah when he admits to owing two, and nevertheless Rebbi Akiva exempts
him from a Shevu'ah when he admits to owing three because he is "Meishiv
Aveidah." Why should he be considered "Meishiv Aveidah" if he would have
been obligated to swear had he admitted to owing two? (It does not seem
plausible to suggest that Rebbi Akiva argues with Rebbi Shimon ben Elazar at
this point in the Sugya and maintains that the borrower is exempt because of
"Heilach" when he admits to owing two, because that would mean that Rebbi
Shimon ben Elazar and Rebbi Akiva are arguing about the Halachah of
"Heilach." The Gemara, though, does not introduce this Sugya by saying
"Leima k'Tenai," that the Tana'im argue about the Halachah of "Heilach,"
implying that the Gemara wants to prove that all of the Tana'im hold either
that "Heilach" is obligated, or that "Heilach" is exempt (RITZBASH, cited by
the Shitah Mekubetzes).
This is why Rashi finds it necessary to explain that Rebbi Akiva considers
the borrower to be "Meishiv Aveidah" when he admits to owing three, since he
could have made his claim look stronger by admitting that he owes only two,
in which case he would have had the Shtar serving as support for his claim.
Even though he would have to swear if he admits to owing two, nevertheless
the borrower would prefer such a claim since it would give him the support
of the Shtar, as the Gemara suggests in its second version of the proof
That is why Rashi does not write explicitly that Rebbi Akiva exempts the
borrower from a Shevu'ah when he admits to owing *two*, because the Shtar
supports his claim. Even if Rebbi Akiva maintains that the borrower *does*
swear when he admits to owing two, he is exempt from a Shevu'ah when he
admits to owing *three* because the Shtar supports his claim (RITZBASH).
This answers our first question. It also answers the second question. Rashi
does not suggest that the reason Rebbi Akiva exempts the borrower from a
Shevu'ah when he admits to owing two is because a Shtar has Shi'abud
Karka'os, because that would not reduce the brazenness required for the
borrower to deny owing all but two Sela'im. Therefore, it would not explain
why the borrower is "Meishiv Aveidah" when he admits to owing three.
In our third question, we asked that if the Gemara already knew that the
Shtar supports the claim of the borrower when he admits to owing two, then
why did the Gemara not know that this, and not "Heilach," is the reason for
why the borrower is exempt from a Shevu'ah when he admits to owing two? The
RAMBAN answers that the Gemara knew at this point that the Shtar makes it
*easier* for the borrower to admit to owing only two, and denying the rest,
since it supports his claim. However, the Gemara did *not* know that the
proof of the Shtar is so strong that it is able to exempt the borrower from
making a Shevu'ah on the rest of the money. Therefore, the Gemara thought
that it is "Heilach" that exempts him from a Shevu'ah. The Gemara concludes
that even though the Shtar does not say clearly that the borrower borrowed
no more than two, nevertheless it is strong enough evidence to support the
borrower's claim and exempt him from a Shevu'ah on the rest of the money.
The Ramban points out that this answer is implicit in the words of Rashi. In
the Gemara's question, Rashi (DH Eino Ela) explains that the Shtar merely
shows "strong evidence" ("Nikarim ha'Devarim") that only two Sela'im were
borrowed. In the Gemara's conclusion, Rashi (DH v'Shani Hacha) writes that
the witnesses who signed the Shtar "testify to the claim" of the borrower
that he owes only two.