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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Kesuvos 18

KESUVOS 16-19 - have been anonymously dedicated by a unique Ohev Torah and Marbitz Torah living in Ramat Beit Shemesh, Israel.



(a) Rebbi Yehoshua's concession to Raban Gamliel in a case of 'ha'Peh she'Asar' is confined to property that belonged to his friend's father, because he is speaking about land. We ask why he does not refer to a case of movable goods, in which case he could establish it by the friend himself - when he admits to having made a loan of a Manah from his friend, but claims that he repaid it.

(b) We answer, like we answered earlier, that we would then have a problem with the Seifa (where there are witnesses). The problem would then be - that, even if he borrowed with witnesses, the Halachah entitles him to repay the loan without them. Consequently, he will be believed to say that he did; why does the Tana say that he is not?

(a) We then suggest that the Tana could have chosen another case of 'ha'Peh she'Asar ... ' Manah le'Avicha be'Yadi ve'He'echaltiv P'ras'. The Chidush giving this case the edge over the case in our Mishnah would be - that, although someone who admits to part of a claim ('Modeh be'Miktzas'), is normally Chayav to make a Shevu'ah, *he* is Patur.

(b) Rebbi Eliezer ben Ya'akov and the Rabbanan dispute this case in a Beraisa. Rebbi Eliezer ben Ya'akov says 'Pe'amim Adam Nishba al Ta'anas Atzmo' - the Rabbanan say that he is like someone who returns a lost article, who is Patur from a Shevu'ah.

(c) We reject the suggestion that the Tana ought to have presented this case, on the grounds that Rebbi Yehoshua would then not hold like either Tana. He would not hold ...

1. ... like Rebbi Eliezer ben Ya'akov - who obligates him to swear, even when there are no witnesses (so why does he believe him in the Reisha)?
2. ... like the Rabbanan - who exempt him even when there are witnesses (as we shall see later - so why does he not believe him in the Seifa)?
(a) The Chachamim enacted a Takanah - that a Meishiv Aveidah (someone who volunteers to return a lost article or to pay back a loan) is Patur from a Shevu'ah (in order to encourage people to return lost articles and to pay back loans).

(b) This poses a difficulty with Rebbi Eliezer ben Ya'akov, who obligates a Shevu'ah in the previous case. We (initially) reject the suggestion that he calls it Ta'anas Atzmo because it speaks when a child is claiming from him - because, if that was so, he would not be Chayav a Shevu'ah (as we learned in Gitin).

(c) And we reject the suggestion that it speaks when it is a Gadol who is claiming - because how can Rebbi Eliezer ben Ya'akov then refer to it as 'Ta'anas Atzmo'?

(d) Neither can we accept the suggestion that it is Ta'anas Acheirim ve'Hoda'as Atzmo - because isn't that what every case of Modeh be'Miktzas is, and it is clear that this case is the exception rather than the rule?

(a) We conclude that Rebbi Eliezer ben Ya'akov and the Rabbanan argue over Rabah's statement. Rabah explains why the Torah obligates a Modeh be'Miktzas (someone who admits to part of a claim) to take an oath. The reason that a Modeh be'Miktzas does not deny the claim completely is - because at the outset, he really wants to deny everything, but doesn't have the Chutzpah to deny directly into the face of his benefactor.

(b) In reality, he wants to admit the whole thing, but admits to part of it - in an effort to stall for time, until he has the money to pay his entire debt. Consequently, seeing as, basically, he is assumed to be an honest man, the Torah obligates him to swear, to force him to own up and pay (see Tosfos DH 'u've'Chuli').

(c) The case that Rebbi Eliezer ben Ya'akov and the Chachamim dispute is - when it is the *son* of the creditor who claims the money (which explains why Rebbi Eliezer ben Ya'akov refers to it as 'Ta'anas Atzmo' - as we explained earlier) as opposed to the creditor himself.

(d) The basis of their dispute is - whether, seeing as it is not the creditor himself who is claiming the money, the debtor will have the Chutzpah to deny the claim entirely or not: According to ...

1. ... Rebbi Eliezer ben Ya'akov - there is no difference between the creditor and his son in this regard. A person will not dare to deny the loan, in which case, this is not considered 'Meishiv Aveidah' (volunteering to pay), and he will not be believed any more than he is with every loan.
2. ... the Rabbanan - it is only against the claim of the creditor himself that the debtor will not have the Chutzpah to deny the loan entirely, but not when his son is the claimant. Consequently, in this case, where it is the son who is claiming, and the debtor could well have denied the entire claim, but chose not to, it is considered 'Meishiv Aveidah' (because he declared himself obligated), and he is believed.



(a) Witnesses who verify their signatures on a document, are nevertheless believed to invalidate it, when they add 'Anusim Hayinu' - because 'ha'Peh she'Asar ... '.

(b) To invalidate the document - they might also claim that they were Ketanim when they signed or P'sulei Eidus (relatives or gamblers).

(c) If there are other witnesses however, who recognize their signatures, then they are not believed - and the same will apply if their signatures appear on a document that has been confirmed by Beis-Din (in which case, their own verification is no longer necessary - in which case it is no longer a 'Peh she'Asar').

(a) Rami bar Chama (according to our initial understanding) restricts 'Anusim Hayinu' in the *Seifa* of our Mishnah (where they are not believed) to when they said 'Anusim Hayinu *Machmas Mamon*', but had they said 'Anusim Hayinu *Machmas Nefashos*', they would have been believed. In the latter case, they are believed because 'ha'Peh she'Asar ... ' - whereas in the former, they are not, even with 'Peh she'Asar', due to the principle 'Ein Adam Meisim Atzmo Rasha' (a person, who is considered a close relative to himself, is not believed on any self-denouncement that renders him a Rasha).

(b) We reject this explanation however, on the basis of the Pasuk "Im Lo Yagid" - from which we learn the principle 'Keivan she'Higid, Shuv Eino Chozer u'Magid' (once a witness has testified, he cannot retract). Consequently, in the Seifa, where witnesses substantiate their signatures, how can they now retract and claim that they were Anusim Machmas Nefashos?

(c) Based on the Lashon 'Hagadah' ("Im Lo Yagid"), we try to restrict 'Keivan she'Higid to verbal testimony, establishing Rami bar Chama's explanation by testimony that is written. Resh Lakish negates this contention however - with his principle 'Eidim ha'Chasumin al ha'Sh'tar, Na'aseh ke'Mi she'Nechkerah Eidusan be'Beis-Din' (signed evidence in a document is considered as if it had been examined and accepted in Beis-Din).

(a) We therefore amend Rami bar Chama's statement, connecting it with the Reisha. What he now says is - that we only believe the witnesses in the Reisha, with a 'Peh she'Asar' when they claim 'Anusim Hayinu Machmas Nefashos', but not when they claim 'Anusim Hayinu Machmas Mamon'.

(b) They are not believed in the Reisha, in spite of 'ha'Peh she'Asar' - because 'Ein Adam Oseh Atzmo Rasha'.

(c) But in the Seifa, where the Sh'tar is substantiated without their testimony, they are not believed either way, because of 'Keivan she'Higid ... '.

(a) In the Reisha, we believe the witnesses, even if they claim that they are P'sulei Eidus. It will not automatically invalidate them (in the same way as it invalidates 'Anusim Hayinu Machmas Mamon') due to 'Ein Adam Meisim Atzmo Rasha' - because our Mishnah speaks when they claimed that they had previously been relatives or slaves, but that that was no longer the case (see Cheishek Shlomoh DH 'ha'Eidim she'Amru').

(b) Rebbi Meir, in a Beraisa, disagrees with the Tana of our Mishnah. According to him - the witnesses are not even believed in the Reisha of the Mishnah, even if they claim 'Anusim Hayinu Machmas Nefashos' or 'Ketanim' or 'P'sulei Eidus Hayinu'.

(c) The only real problem with Rebbi Meir is from the case of 'Anusim Hayinu (Machmas Nefashos)', where there is no apparent reason not to believe the witnesses on account of 'ha'Peh she'Asar', but not from the other two cases. There no problem from ...

1. ... 'P'sulei Eidus Hayinu' - because, in his opinion, the creditor is always particular not to sign P'sulei Eidus on his document (and even the witnesses cannot be believed when they testify otherwise).
2. ... Ketanim - because of Resh Lakish's statement 'Chazakah Ein ha'Eidim Chosmin al ha'Sh'tar Ela-im-kein Na'aseh be'Gadol' (see Tosfos DH 'Chazakah').
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