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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.
2. ... an admission is - when he admits that he owes him the article.
(c) One would demand a Shevu'as ha'Shomrin from ...
1. ... a Shomer Chinam - if he claimed that the article was stolen.
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).
(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.
(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 receive.
2. ... half the Talis belongs to him - because that is not what he is claiming.
(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.
(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 a'Shevuasa'.

(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 hand.

(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 domain.

(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 domain.

(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.

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