ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Metzia 5
(a) According to Rav Sheishes, who exempts Heilech from a Shevu'ah, the
Torah nevertheless needs to exempt Karka from a Shevu'ah - in a case when
either he dug holes and trenches in it (since 'Heilech' only applies when
the article is intact), or when the claimant claimed both Karka and vessels,
and the defendant admitted to the vessels.
(b) Rami bar Chama cites a Beraisa which requires both a partial denial and
a partial admission before one of the four Shomrim is obligated to swear.
What constitutes ...
1. ... a denial is - either when he denies having received the article or
when he claims that he has already returned it.
(c) One would demand a Shevu'as ha'Shomrin from ...
2. ... an admission is - when he admits that he owes him the article.
1. ... a Shomer Chinam - if he claimed that the article was stolen.
(d) We initially assume the standard case of Shevu'ah by a Shomer Sachar
say, to be - when he denies one of them, claims that the second one died
be'Ones and admits to having the third one, which he duly hands over to the
owner, proving that Heilech is Chayav.
2. ... a Shomer Sachar or a Socher - ... that an O'nes occurred.
3. ... a Sho'el - ... that it died from work (regular work, not overwork).
(a) The Beraisa currently under discussion is not unanimous - because those
who learn Eiruv Parshiyos (that "Ki Hu Zeh" speaks specifically about a
loan, and not about a Shomer, as we learned earlier) disagrees.
(b) Rav Sheishes, who exempts Heilech from a Shevu'ah, explains the case of
Shevu'as ha'Shomrim, according to this Tana - when the third cow too, died
through the Shomer's negligence, and he offers to pay for it (which is not
of course, Heilech).
(a) The father of Rebbi Apturiki cites a Beraisa, which learns from the
Pasuk "Ki Hu Zeh" - that it is only when the defendant admits to part of the
claim that he is obligated to swear, but not when witnesses force him to do
so (seemingly clashing with Rebbi Chiya's first ruling [that Hoda'as Eidim
obligates the defendant to swear]).
(b) This is no problem for Rebbi Chiya, since he is considered a Tana, and
has the power to argue with a Beraisa (see Tosfos DH 'Rebbi Chiya').
(c) Rebbi Chiya learns from "Ki Hu Zeh" the principle of 'Modeh be'Miktzas',
with which the Tana of Rav Apturiki's father certainly agrees. Only he
learns two D'rashos, one from "Ki" (to include a Modeh be'Miktzas to swear)
and one from "Zeh" (to exclude Hoda'as Eidim from a Shevu'ah).
(a) Rebbi Chiya uses the second D'rashah - to exclude 'Ta'ano Chitin
ve'Hodeh Lo bi'Se'orin' (when Shimon admits to part of a claim, and that
admission pertains to something that Reuven did not claim) from a Shevu'ah.
(b) The other Tana does not learn the P'tur of 'Ta'ano Chitin ve'Hodeh Lo
bi'Se'orin' from anywhere - since he holds like Raban Gamliel, who rules
'Ta'ano Chitin ve'Hodeh Lo bi'Se'orin Chayav.'
(a) It happened once that the shepherd to whom people would hand their
sheep each day with witnesses - received the sheep without witnesses.
(b) When he denied having received any sheep that day and witnesses
testified that he had eaten two of them - Rebbi Zeira commented that, had
the Halachah been like Rebbi Chiya's first ruling (obligating a Shevu'ah in
the case of 'Hoda'as Eidim'), then the shepherd would have had to swear on
the remainder of the sheep.
(c) Abaye object to Rebbi Zeira's ruling - on the grounds that the shepherd
was a Ganav, and as such, he could not be trusted to swear ...
(d) ... to which Rebbi Zeira's replied - that what he meant was that the
Shevu'ah should be switched to the claimants (as is standard in cases where
the defendant is unable to swear).
(a) Despite the fact that the Halachah is not like Rebbi Chiya, Abaye asked
Rebbi Zeira, the shepherd ought to have been Chayav a Shevu'ah because of a
statement of Rav Nachman - who says that a 'Kofer be'Kol' (someone who
denies all that is claimed from him) - is Chayav a Shevu'as Hesses.
(b) Chazal obligated a 'Kofer ba'Kol' to swear - based on the Chazakah that
a person does not claim money unless there are grounds for it.
(c) The Rabbinical obligation for a Kofer ba'Kol to swear is referred to as
a 'Shevu'as Hesses' - because min ha'Torah, he is exempt from swearing, and
it is the Rabbanan who have 'incited' him (from the word Le'hasis, to
incite) to do so.
(d) Rebbi Zeira answered Abaye - that if not for Rebbi Chiya, it would not
have been possible to obligate the shepherd to swear, seeing as both his
initial obligation to swear, and the switching of the Shevu'ah to the
claimant, are Takanos Chachamim, and 'Takanta li'Tekanta Lo Avdinan' (we
don't institute a Takanah on a Takanah (much in the same way as we don't
institute a 'Gezeirah li'Gezeirah').
(a) We then ask from a statement of Rav Yehudah, who said 'S'tam Ro'eh
Pasul' (because they would allow their animals to graze in other people's
fields). That being the case, why did Abaye need to base his Kashya on the
fact that this particular shepherd was a Ganav?
(b) And we answer - by confining Rav Yehudah's statement to where the
shepherd is shepherding his own sheep (but not those belonging to others,
because we have a principle 'Ein Adam Chotei ve'Lo Lo' [a person does not
tend to sin with money that belongs to others).
(c) We prove this answer, by quoting the Pasuk "Lifnei Iver Lo Siten
Michshol" - which would prohibit us from giving our animals to shepherds if
they were Ganavim (and the fact is, that we do).
(a) We learned in our Mishnah that each of the two finders swear that they
do not own less than half the Talis - a Shevu'ah which implies as much that
they own nothing as that they own a half.
(b) So Rav Huna amends the Shevu'ah to read - 'she'Yesh Li Bah, ve'she'Ein
Li Bah Pachos me'Chetzyah'.
(c) He cannot swear that ...
1. ... the whole Talis belongs to him - because that is not what he will
(d) Consequently, to prevent making a mockery out of Beis-Din, what he
really swears is - that the entire Talis is his, but that, even according to
Beis-Din, who do not believe that, he does not own less than half the Talis.
2. ... half the Talis belongs to him - because that is not what he is
(a) Seeing as each one is holding half the Talis, Rebbi Yochanan explains,
the basis of the Shevu'ah is - a Takanas Chachamim, to prevent a person from
grabbing his friend's Talis and claiming that it is his.
(b) According to Rebbi Yochanan, Chazal instituted a Shevu'ah, despite the
fact that it is based on the suspicion that the finder of the garment is a
Ganav - because they hold 'Migu de'Chashid a'Mamona, Lo Chashid Nami
(c) We refute the proof for this from 'Modeh be'Miktzas', whom the Torah
obligates to swear even though he appears to be suspect on money-matters -
because in fact, he is not suspect of stealing at all, only of pushing off
payment until he obtains funds with which to pay, like Rabah learned above.
(a) We prove the previous S'vara from Rav Idi bar Avin Amar Rav Chisda, who
draws a distinction between someone who denies a loan and someone who denies
a Pikadon (as we learned earlier). This poses a problem however, in
connection with the Beraisa of Rami bar Chama, who requires a partial denial
and a partial admission before a Shomer can swear - since there can be no
justification in denying a Pikadon (and the animal that he denies, according
to Rami's Beraisa, is instrumental in making him swear).
(b) Were it not for the explanation of Rav Idi bar Avin Amar Rav Chisda,
there would be no problem - because the animal may have been stolen or lost
for example, through his negligence, and he denies it until he finds the
animal or the Ganav.
(c) We reconcile the Beraisa of Rami bar Chama with the S'vara of
'Ishtemuti ka'Mishtamet' - by establishing it likewise when the animal was
stolen or lost and he denies it altogether until such time as he finds it.
(d) And Rav Chisda disqualifies someone who denies a Pikadon from
testifying - in a case when there are witnesses who testify that the animal
is in his domain and he knows about it, or that he is holding it in his
(a) Rav Huna rules that a Shomer Sachar who claims that the Pikadon was
stolen or lost - is obligated to swear that he does not have it in his
(b) Neither can we refute the principle 'Migu de'Chashid a Mamona, Chashid
Nami a'Shevu'asa' from there - because there too, he is not suspect, since,
seeing as a Shomer Sachar is liable to pay for Geneivah va'Aveidah, he
allows himself the liberty of claiming that the article is not in his
(c) Rav Acha from Difti asked Ravina that when all's said and done, he
transgresses the La'av of "Lo Sachmod", so why does that not disqualify him
from swearing. Ravina answered - that since people think that, as long as
they pay, they do not transgress "Lo Sachmod", that La'av is not sufficient
justification to suspect him of making a false Shevu'ah, which everyone
knows is forbidden.