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Kollel Iyun Hadaf, Jerusalem

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Bava Metzia 4



(a) Rebbi Chiya cannot learn the 'Kal va'Chomer' (obligating a Shevu'ah by Hoda'as Eidim) from Eid Echad directly (as we just proved), but from - the Gilgul Shevu'ah of an Eid Echad (which, like that of Eidim, is on something which the Eid did not testify).

(b) The source for 'Gilgul Shevu'ah' is - the Pasuk in Naso "ve'Amrah ha'Ishah Amen Amen".

(c) We ask that whereas by Eid Echad it is the Shevu'ah that obligates the defendant, by two witnesses, it is the testimony that obligates him (so how can Rebbi Chiya learn the one from the other). And we answer - 'Piv Yochi'ach' (that we learn from Piv what we cannot learn from Eid Echad).

(d) But Piv is not subject to Hakchashah and Hazamah like Eidim are, as we asked earlier. So we learn that from Eid Echad. We finally learn the 'Kal va'Chomer' - from a Tzad ha'Shaveh from Eid Echad and Piv.

(a) However, we can still ask that, even if we believe the defendant with a Shevu'ah in the cases of the Tzad ha'Shaveh, we cannot believe him by Hoda'as Eidim - because when witnesses testify against him, he is proven to be a liar, in which case we cannot trust his Shevu'ah, which is not the case by Hoda'as Piv or by Eid Echad.

(b) We repudiate this Kashya however, on the basis of a statement by Rav Idi bar Avin Amar Rav Chisda - who validates subsequent testimony of someone who denies a loan, but not of somebody who denies a Pikadon (from which we see that someone who denies a loan is not considered a liar).

(c) The reason for this distinction is - because a loan is meant to be spent, and it is feasible that the debtor does not have the money and is embarrassed to confess (as we learned on the previous Daf), whereas this reason will not apply to a Shomer who denies a deposit (because, if he is honest, there is no excuse for him not to have the deposit handy when it is claimed from him).

(d) When we say that the law of Hazamah does not apply to an Eid Echad, we mean - that the Pasuk "Ka'asher Zamam" does not apply to him, that he is not punishable like two witnesses are.

(a) In spite of what we just explained, Rebbi Chiya rejects the Pircha that the law of Hazamah applies to Eidim but not to the 'Tzad ha'Shaveh' - on the grounds that, when all's said and done, the testimony of one witness is disqualified through Hazamah (and the fact that he is not punishable is irrelevant, since it does not serve to strengthen his testimony).

(b) We conclude that there is no Kashya on Rebbi Chiya's 'Kal va'Chomer', but that his proof from our Mishnah cannot pertain to the current Halachah - because even Rebbi Chiya would agree that if two witnesses were to testify that the defendant does not owe the claimant anything (for example, if the same two witnesses who obligate him to pay fifty Zuz, were to conclude that he has already paid the other fifty), he would not need to swear. Then how can he prove Hoda'as Eidim from our Mishnah, where each defendant also has witnesses ('Anan Sahadi'), testifying that the other half belongs to him, and the Shevu'ah cannot therefore be a branch of Modeh be'Miktzas.

(c) The conclusion that we are forced to draw from here is - that the Shevu'ah in our Mishnah is not the Shevu'ah d'Oraysa of Modeh be'Miktzas, but a Shevu'ah de'Rabbanan, as we explained above according to Sumchus.

(a) We also conclude that Rebbi Chiya's proof from our Mishnah pertains to the other Din of Rebbi Chiya regarding 'Heilech' - which in effect, is 'Modeh be'Miktzas', but where the part that the defendant admits owing is intact for the claimant to take.

(b) Rebbi Chiya proves from our Mishnah that 'Heilech' is Chayav to swear - since, bearing in mind that whatever a person is holding is considered his, it is as if each claimant had witnesses that the other claimant owed him half the garment, which he is currently holding, and is therefore 'Heilech'. Yet the Tana obligates him to swear.

(c) Rav Sheishes rules that 'Heilech' is Patur from a Shevu'ah - because it is as if the claimant already has the part that the defendant admits to, and as for the remainder, to that he does not admit.

(d) Rav Sheishes explains the Shevu'ah in our Mishnah - in the same way as Rebbi Chiya explained it above (that it is a Takanas Chachamim, seeing as each defendant also has 'witnesses' who testify on his behalf).

5) Although Rebbi Chiya is bound to agree that the Shevu'ah in our Mishnah is a Takanas Chachamim, he nevertheless proves from it that Heilech is Chayav to swear mi'd'Oraysa - because if it would not, the Rabbanan would not shave instituted a Shevu'ah in our Mishnah, since it is not their way to institute a Shevu'ah de'Rabbanan, unless it has a precedent min ha'Torah.




(a) If a Sh'tar which specifies 'Sela'im' or 'Dinrim' (but not how many), the creditor claims five and the debtor admits to three - Rebbi Shimon ben Elazar compares it to Modeh be'Miktzas, and obligates a Shevu'ah.

(b) Rebbi Akiva exempts him from a Shevu'ah, because it is Meishiv Aveidah - since he could have admitted to two Sela'im ... , in which case he would have been believed.

(c) From the fact that Rebbi Shimon ben Elazar mentions specifically three - we can extrapolate that, had the debtor admitted to two, he would have been Patur.

(d) Seeing as the creditor has a Sh'tar, the debtor's admission is automatically Heilech - a clear proof that Heilech is Patur (a Kashya on Rebbi Chiya).

(a) We conclude however, that Rebbi Shimon ben Elazar might obligate him even if he admitted to two Sela'im or Dinrim, and he mentioned three - only in order to counter Rebbi Akiva, who exempts him even there.

(b) We refute this answer however, due to the grounds of the Lashon of the Beraisa, because had Rebbi Shimon ben Elazar mentioned 'three' only on account of Rebbi Akiva - then he should have said 'Af Zeh Yishava' (presumably by also switching the order, and stating the opinion of Rebbi Akiva first).

(c) So we conclude that, had the debtor admitted to only two, he would indeed have been Patur from a Shevu'ah, but that is even if Heilech were Chayav - because, based on the fact that every plural (such as 'Sela'im' or 'Dinrim' in our case) incorporates two, the Sh'tar actually supports the debtor's claim that he owes the creditor two.

(d) As a matter of fact, he would be Patur anyway, because every Sh'tar is a claim on all the debtor's Karka, which are all Meshubad to the creditor (and there is no Shevu'ah on Karka, whether the debtor denies Karka or admits it). And the reason that he is Chayav to swear if he admits to three is - because the Sh'tar implies only two Sela'im ... . and the third one is considered an oral loan.

(a) Some cite the above proof (reversed) from Rebbi Akiva, who says that he is Patur because of Meishiv Aveidah when the debtor admits to three - implying that had he admitted to two ...

(b) ... he would be Chayav, a proof that Heilech is Chayav.

(c) We refute this proof (in the same manner as we did the previous one) - by establishing Rebbi Akiva both by two and by three. He only speaks about three Sela'im and Dinrim, to counter Rebbi Shimon ben Elazar who obligates a Shevu'ah even there.

(d) In fact, this must be so - because if Rebbi Akiva were to obligate a debtor who admits to two Sela'im ... , how could he possibly exempt one who admits to three? this would only encourage dishonest debtors to admit to three, in order to avoid having to swear?

(a) The obvious Kashya on Rebbi Chiya is - seeing as Rebbi Akiva exempts two from a Shevu'ah, he must hold that Heilech is Patur (like we asked in the first Lashon from Rebbi Shimon ben Elazar).

(b) Rebbi Chiya will answer just as he answered the Kashya originally - either because a Sh'tar is better than Heilech, or because one does not swear on Kefiras Shibud Karka'os.

(a) The Mishnah in Shevu'os rules in a case where Reuven claims Karka and vessels, and Shimon admits to ...
  1. ... the vessels and denies the Karka or vice-versa - that he is Patur from a Shevu'ah.
  2. ... some of the Karka - he is Patur, too.
  3. ... some of the vessels - that he is Chayav a Shevu'ah.
(b) Mar Zutra B'rei de'Rav Nachman extrapolates from this Beraisa - that 'Keilim ve'Keilim', similar to 'Keilim ve'Karka' (which is Heilech - because Karka, which is always available, is automatically Heilech) - would be Chayav a Shevu'ah (a proof for Rebbi Chiya).

(c) We answer that really 'Keilim ve'Keilim' is Patur too, and the reason the Tana speaks specifically about 'Keilim ve'Karka' is - to teach us that when he admits to some of the vessels, he must swear on the Karka too (known as 'Zokekin' for short).

(d) Despite the fact that the very same Mishnah in Shevu'os teaches 'Zokekin' specifically - the Tana nevertheless takes the opportunity to teach it again by presenting the case in this way ('Agav G'rara Nasva' - it mentions it by the way).

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