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Kollel Iyun Hadaf, Jerusalem

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Bava Metzia 3



(a) If Reuven and Shimon deposit money by Levi, one of them deposits one Manah, the other, two, and each one then claims that the two is his, the Tana Kama in the Mishnah in ha'Mafkid rules that each one takes a Manah and the third Manah is put away until Eliyahu comes. Rebbi Yossi says - that the entire three hundred is put away until Eliyahu comes.

(b) What makes us think that the author of our Mishnah cannot be Rebbi Yossi is - that, according to him, we ought to put the Talis away too.

(c) This is not a problem according to the Rabbanan, who, when all's said and done, require the third Manah (over which they are arguing), to be put away - because they only say that in the case of ha'Mafkid, where there is definitely a swindler, whereas in our case, where it is possible that both in the case of Metzi'ah and in the case of purchase, the Talis belongs to both of them, as we explained earlier, they consider more feasible to say 'Yachloku'.

(a) According to Rebbi Yossi however, who holds that all three Manah are put away until Eliyahu comes (and not divided), even though one Manah definitely belongs to Reuven and one Manah, to Shimon, then here, where the Talis might belong either to one or to the other, it should certainly be put away (and not divided). We nevertheless reconcile Rebbi Yossi with our Mishnah - by confining Rebbi Yossi's ruling to where there is definitely a swindler (similar to the S'vara of the Rabbanan), but not to where both claimants might be telling the truth.

(b) Alternatively, we try to answer that the K'nas is applicable in the case of the Pikadon, it is not applicable in the case of Metzi'ah, because there is nothing with which to force the hand of the one who is lying. But we refute this answer - by referring to the case of purchase, where the Tana says 'Yachloku', even though it would be possible to force the swindler's hand with the money that he already paid to the seller.

(c) The problem with the case of 'Chenvani al Pinkaso', where according to both the Rabbanan and Rebbi Yossi, both the worker and the storekeeper claim their dues from the Balabos (according to one, with a Shevu'ah, according to the other, without one) is - why, bearing in mind that one of them is definitely a swindler, we do not say 'Yehei Munach ad she'Yavo Eliyahu'?

(d) In fact, they both agree that in there, we cannot say 'Yehei Munach ad she'Yavo Eliyahu' - because the storekeeper can argue that he does not accept the Shevu'ah of the worker, and that he paid him at the behest of the Balabos; and the worker can argue that it is he the Balabos, who owes him money, and not the storekeeper. In short, the Balabos has to pay the penalty for trusting the storekeeper to pay the worker's wages without stipulating or bringing witnesses.

(a) In a case where Shimon denies the Manah that Reuven claims from him, but witnesses testify that he owes him fifty Zuz - Rebbi Chiya in a Beraisa, rules that Shimon pays fifty Zuz, and swears on the other fifty.

(b) The reasoning behind this ruling is - that Hoda'as Eidim (what the witnesses force him to admit) should not be worse than Hoda'as Piv (what he admits of his own volition - for which he has to swear a Shevu'ah d'Oraysa).

(c) And he proves it from our Mishnah - where 'Anan Sahadi' (we are witnesses, a Chazakah that is similar to the testimony of two witnesses) that what each one is holding is his, and we see that both have to swear on the other half (the half that they are holding and on which there is no 'Anan Sahadi').

(a) Initially, we think that the defendant's own admission is more reason to obligate him to swear than witnesses, because of Rabah. According to Rabah, we would hesitate to obligate a 'Modeh be'Miktzas' (someone who admits to half the claim) from a Shevu'ah - because he is a 'Meishiv Aveidah' (a Mashal to 'Migu', since he could have denied the claim completely, similar to someone who volunteers to return a lost article, who is Patur from a Shevu'ah because he could have denied finding it in the first place.

(b) The Torah does not, in fact, consider this a 'Migu' - because the truth is that a borrower (according to those who transfer "Ki Hu Zeh" to a loan, as we learned in the last Perek of Bava Kama) would not have the gall to deny entirely, the claim of someone who did him a favor and lent him money.

(c) As a matter of fact he really now wants to admit to the entire claim, as Rabah goes on to say - but cannot, because he doesn't have the means to pay, so he makes a compromise and admits to half, with the intention of admitting to the rest when he obtains the money to pay.

(d) Rabah needs to add that he now wants to admit to the entire claim - because if he didn't, the Torah would not allow someone who is suspect in money-matters to swear (because whoever is suspect in the one is suspect in the other).

(a) What we initially set out to prove by citing Rabah is - that, if not for the 'Kal va'Chomer', there would be more reason to obligate Hoda'as Piv to swear than Hoda'as Eidim.

(b) We prove it from the fact - that according to Rabah, Hoda'as Eidim, where the defendant denies the entire claim, ought to be disqualified from swearing, since he is suspect in money-matters, even though Hoda'as Piv is Chayav, as we just explained.




(a) So Rebbi Chiya learns that Hoda'as Eidim obligates a Shevu'ah with a 'Kal va'Chomer' from Hoda'as Piv - because if Piv, which cannot obligate payment of Mamon, obligates a Shevu'ah, Eidim, which can, should certainly obligate a Shevu'ah?

(b) The Halachah regarding a 'Ho'da'as Ba'al-Din' (someone who admits that he owes money) is - 'ke'Me'ah Eidim Dami' (which means that he is believed against any amount of witnesses, and he is therefore obligated to pay), effectively negating the 'Kal va'Chomer'.

(c) If Rebbi Chiya cannot learn the 'Kal va'Chomer from Hoda'as Piv of Mamon, he learns it from - the Ho'da'as Piv of K'nas, because, as we learn from "Asher Yarshi'un Elohim", a person does not pay K'nas by his own admission, only through the testimony of witnesses.

(a) We learn from the Pasuk "*ve'Hisvadah* Asher Chata ve'Heivi" - that Piv obligates a person to bring a Korban, but not Eidim.

(b) This not a Pircha on Rebbi Chiya however - because he holds like Rebbi Meir, who learns that Eidim too, obligate a Korban (whereas the D'rashah is the opinion of the Rabanan).

(c) This Machlokes is based on a Mishnah in K'riysus, where the Chachamim exempt someone from a Chatas if witnesses testify that he ate Cheilev (be'Shogeg). Rebbi Meir obligates him - on the basis of the S'vara 'If witnesses can bring a person to death, then they can surely bring him to a Korban!'

(d) The Chachamim disagree with him on the grounds - of a 'Migu', because he could have said that he ate it be'Meizid (and how can the witnesses know that he didn't) see also Tosfos DH 'Mah').

(a) We cannot ask on the 'Kal va'Chomer from Asham, because Asham too, is a Korban (and Rebbi Chiya holds like Rebbi Meir, as we just explained). We do however, ask from the Chomesh that accompanies an Asham Gezeilos - because one only has to pay it upon admission (which the Pasuk "O Hoda Eilav Chataso" teaches us).

(b) We refute this Pircha too - by establishing Rebbi Chiya like Rebbi Meir, who (in spite of the Pasuk) compares the Chomesh to the Asham, obligating both through Hoda'as Eidim.

(a) We finally refute the previous version of the 'Kal va'Chomer' on the grounds that 'Hakchashah and Hazamah apply to Eidim but not to Piv - due to the principle 'Hoda'as Ba'al Din ke'Me'ah Eidim Dami' (which we just cited earlier); and that is the edge that Piv has over Eidim.

(b) So we switch the 'Kal va'Chomer' from Piv to Eid Echad - who is not believed to extract money, and who is subject to Hakchashah and Hazamah.

(c) The Pircha that we ask on this is - that whereas one witness obligates a Shevu'ah on the money to which his testimony pertains, the testimony of two witnesses (according to Rebbi Chiya) will obligate the Shevu'ah on the remainder (so how can Rebbi Chiya possibly learn the Eidim from Eid Echad?

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