meta: {"file": "/data/tomer/Sefaria-Export/txt_done/Talmud/Bavli/Commentary/Tosafot/Seder Nezikin/Tosafot on Bava Metzia/English/merged.txt"}
text: Tosafot on Bava Metzia
  תוספות על בבא מציעא
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  This file contains merged sections from the following text versions:
  -Tosafot, Translated by Jan Buckler.
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  -Sefaria Community Translation
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  Tosafot on Bava Metzia
  
  
  
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  Two [people are] holding a garment. The subject of our Mishna is how we resolve disputes about ownership. We need to understand why the Mishna’s author R’ Yehudah Hanasi, chose to discuss this subject at this point in the Mishna. As Tosfos points out, there is a precise order to the rulings of the Mishna.The previous Maseches, Bava Kama, concludes with a Mishna (119a) that discusses whether the shavings of a carpenter belong to the carpenter or to the householder who is employing him.Since at the end of the latter1<i class="footnote">The last two Perakim of Bava Kama each begin with the word Hagozel. The first is called the first Hagozel and the second is called the latter Kagozel.</i> Hagozel (119a) the Mishna is speaking about the division of the shavings of a carpenter with the householder who is employing the carpenter and presumably pays for the wood, where the Mishna teaches:A) the shavings of an adze,2<i class="footnote">See Artscroll Bava Kama 119a note 57.</i> which are thin and not very valuable, they belong to [the carpenter] andB) those shavings made by a hatchet, which are much thicker and more readily usable, they belong to the householder.The Mishna there is discussing the ownership of disputed property, so [the Mishna] here also teaches the laws of division of property whose ownership is in dispute.Tosfos now discusses the assumption that there must be a reason for the order in which the Mishna was arranged and that there must be a reason why the first Mishna of Bava Metzia follows the last Mishna of Bava Kama.3<i class="footnote">Tosfos seems to be asking why it is necessary to provide a reason for why the first Mishna of Bava Metzia follows the last Mishna of Bava Kama. This is puzzling. Even if Tosfos is correct that there is an opinion according to whom it is not necessary to have a a reason for the order of these Mishnayos, it is still necessary for Tosfos to explain the order of the Mishnayos according to those who hold that there must be a reason for the order of the Mishna. See מהר"ם who puts Tosfos question in a slightly different context. Tosfos is to be understood notr as asking a question, but rather as explaining that even the one who holds there is no order for Nezikin as relates to a dispute followed by an anonymous Mishna, there must still be a reason why Rebbe put them in the order that he did. He also offers a second explanation of Tosfos question which is strongly disputed by מהר"ם שי"ף.</i>We must first familiarize ourselves with two principles about the order of Mishnayos:The Gemara relates in Bava Kama 102a that Rav Huna ruled in accordance with R’ Yehudah. Rav Yosef was upset with Rav Huna for stating his halachic decision in this matter. It seems that Rav Yosef held there was no need for Rav Huna to state that ruling, because it is elementary that we must rule in accordance with R’ Yehudah. We will now review that Gemara and gain a better understanding of the concept of the order of the Mishna.But why did Rav Huna need to say that the halacha follows R’ Yehudah? This is a situation where we first have a dispute and then an anonymous Mishna, and when we have a dispute followed by an anonymous Mishna that rules in favor of one of the disputants the halacha follows the anonymous Mishna. The Gemara explains:The dispute is in Bav Kama (100b): one who gave wool to a dyer to dye it red and he dyed it black, or to dye it black and he dyed it red. R’ Meir says: [The dyer] gives the [wool owner] the value of his wool. The dyer now owns the dyed wool at the price of raw wool plus his expenses. It is as if he stole the wool and acquired ownership by altering it from raw wool to dyed wool.R’ Yehudah says: If the improvement of the dyed wool is greater than the expenses paid to dye the wool, [the wool owner] gives the [dyer] the expenses. If the expenses are greater than the improvement, [the wool owner] pays [the dyer] the amount of the improvement. As opposed to R’ Meir who holds that the dyer acquired ownership by dying the wool the wrong color, R’ Yehudah holds that the dyer is treated as one who improved his associate’s property without being asked to do so. He is always on the losing end as was explained. He is paid whatever is less, the expenses of dying the wool or the added value of the dyed wool. Whereas, according to R’ Meir who rules that the dyer acquires the wool, this may be to his advantage if the price of wool rose in the interim or if the color that he dyed it is now worth more than the other color. The anonymous Mishna is in Bava Metzia which follows Bava Kama. As we learned in a Mishna: Whoever alters the instructions given to him has the lower hand in resolving the ensuing dispute. For example: the dyer who did not follow instructions and dyed the wool the wrong color loses. He will treated as a worker who did not follow instruction as R’ Yehudah holds. Whoever retracts has the lower hand.Since we do have a situation of an anonymous Mishna following a dispute and we do rule that in such cases we follow the anonymous Mishna, why did Rav Huna need to rule like R’ Yehudah in this matter? It is very plain that the halacha must follow R’ Yehudah.The Gemara defends Rav Huna:What does Rav Huna hold? It is necessary to rule like R’ Yehudah. I might think that this situation does not qualify as a dispute followed by an anonymous Mishna because there is no order for the Mishna, and this might be an anonymous Mishna followed by a dispute where we rule in accordance with the opinion that argues with the anonymous Mishna.What does Rav Yosef say to this argument: If so, in any case of a dispute followed by an anonymous Mishna we should say - there is no order to the Mishna and it may be an anonymous Mishna followed by a dispute? Since we do have the rule that we follow an anonymous Mishna that is preceded by a dispute, we must assume that there is an order to the Mishna and that the Mishnayos were all written in order.What does Rav Huna say to Rav Yosef’s argument? When do we not apply the concept that - there is no order to the Mishna and we do follow the rule that the halacha is in accordance with an anonymous Mishna that follows a dispute, that is within one Maseches. All the Mishnayos within one Maseches definitely are in order and we must rule in accordance with an anonymous Mishna that follows a dispute, but in two Masechtos, we do say - there is no order to the Mishna. If for example: An anonymous Mishna in Eiruvin follows a dispute in Shabbos, we do not follow the anonymous Mishna in Eiruvin. So too, in the case of a dispute in Bava Kama and anonymous Mishna in Bava Metzia, we would not automatically rule in favor of R’ Yehudah. It was therefore necessary for Rav Huna to state his opinion that the halacha follows R’ Yehudah.If so why did Rav Yosef feel that it was unnecessary to rule in favor of R’ Yehudah? Because he holds that all of Nezikin (the three Bavas, Bava Kama, Bava Metzia and Bava Basra) are one Maseches. Thus within the thirty Perakim of these three Masechtos, there is an order and a dispute in Bava Kama that is followed by an anonymous Mishna in Bava Metzia or Bava Basra is considered to be in order and we must follow the anonymous Mishna.In summation:A) Within one Maseches all agree that there is an order to the Mishnayos and we must follow an anonymous Mishna that is preceded by a dispute. B) Between two Masechtos there is no order and when there is an anonymous Mishna in Eiruvin preceded by a dispute in Shabbos, we need not follow the anonymous Mishna. C) Within the three Mascehtos of Bava Kama, Bava Metzia and Bava Basra, there is a dispute. Rav Yosef holds they are considered one Maseches and we must follow an anonymous Mishna in Bava Metzia or Bava Basra that is preceded by a dispute in Bava Kama. Rav Huna holds that they are each separate Masechtos and they are like Shabbos and Eiruvin.Even though when considering two Masechtos, there is no order to the Mishna, and furthermore, there is one who holds that all of Nezikin is not one Maseches and it would seem that there is no need to explain why the beginning of Bava Metzia follows the end of Bava Kama, [that there is no order to Mishnayos between two Masechtos] has been said only insofar as a dispute followed by an anonymous Mishna. We cannot infer that the halacha follows the anonymous Mishna when it appears in a latter Maseches i.e. when the dispute is in Shabos and the anonymous Mishna in Eiruvin, because Rebbe did not learn the Masechtos according to the common order of the Shas. Rather he learned with his students according to the order that the students wished to learn. For example: When Rebbe finished teaching Shabbos, he may have started Bava Metzia because the students felt that they would be more successful learning Bava Metzia.However, when he put [the Masechtos] together, he put them together in a logical order. It is necessary Maseches to have a reason why each Maseches was taught after the Maseches that precedes it, as [the Gemara] deduces at the beginning of Maseches Shavuos (2a): Let us see, the Tanna just concluded Makkos etc. [why did he teach Shavuos after Makkos?]. So too, in Sotah (2a) the Gemara explains why it follows Nazir. We see that even if we do not follow an anonymous Mishna that was preceded by a dispute when the anonymous Mishna and the dispute are not in the same Maseches, there is still rhyme and reason for the order of the Masechtos. In our Mishna as well, we must know why Trebbe chose to teach this Mishna after concluding the last Mishna in Bava Kama.
  They divide [the garment]. Our Mishna rules that when we have a dispute over a garment and the two litigants are each holding the garment, it is to be divided between them after each of the litigants swears that his claim is true.There are other places in the Talmud where the Gemara offers different solutions to a dispute about ownership. Tosfos here will explain why in this case we rule that the garment is to be divided after the litigants swear and why elsewhere other solutions are used.The Gemara that Tosfos quotes in Bava Basra 34b is not an exact quote. The Gemara discusses a dispute between two litigants about the ownership of a boat. According to the conclusion of the Gemara the ruling is: כל דאלים גבר - Whoever is more powerful will win.1<i class="footnote">See רא"ש סי' א who says that כל דאלים גברmight mean, whoever brings better evidence, or whoever might physically overpower the other. He explains that the true owner is most likely to work harder to defend his assets.</i> In other words the courts allow the litigants to fight it out and the stronger party will overpower the weaker party. The Gemara there does not say that they should divide the ship as it says here that they must divide the garment. Why?This is bewildering! Why is this case different than the boat about which [the Gemara] says in Perek Chezkas Habatim (34b): Whoever is stronger will overpower his fellow litigant?We can answer: That our Mishna where the litigants are each in possession of the garment is different, because it is considered as if each one definitely owns half of the garment, because we, the court, are witnesses,2<i class="footnote">The literal translation of אנן סהדיis - we are witnesses. Obviously, this is not meant in a literal sense, because we are truly not witnesses since the court never saw anything happen with the disputed garment. In a figurative sense, we are witnesses because we see that each of the litigants is to some degree in possession of the garment. There are many differing opinions about the meaning of “we are witnesses” in regard to the disputed garment:a) Some are of the opinion that it is purely logical that when we see a garment in Ruvain’s possession that we should assume that the garment is his. We have no reason to suspect that Ruvain stole the garment or acquired it in an illegal way. Thus, by seeing it in Ruvain’s possession, we can testify that it is his. This concept extends even to when both Ruvain and Shimon are holding the garment. Both are assumed to be honest people and “we testify” that each has a right to the garment.b) Others hold that the concept of “we are witnesses” does not mean that we are truly convinced that whatever is in Ruvain’s possession is actually his. Rather, insofar as ruling in matters of disputed property when we have no other evidence to the contrary, we assume that what is in his possession is his. This “we testify” is merely a way of expressing that the judges can only rule based on what they see, and all they actually see is that it is presently in Ruvain’s possession and they must rule accordingly. This of course more readily extends to when the garment is held by two litigants. We are never convinced that the garment actually belongs to Ruvain when he is holding it himself. It is merely a function of the courts to rule in favor of one who is in possession. Certainly, when both are in possession we are not convinced that the garment actually belongs to both. However, the rule of possession says that we must view the dispute as if both are owners of the garment.</i> by virtue of seeing that each litigant is holding half the garment, that what he is holding is his. When Ruvain and Shimon are both holding the garment, we cannot rule - whoever is stronger will win, because that in effect is taking the rights to half the garment away from the ultimate loser, who is presently in possession of half the garment. We have no right to take away half the garment from him when we have no evidence or any other reason to rule that it does not belong to him. In Bava Basra 34b, neither of the litigants are in possession. The ruling - that the stronger party will win - is not taking away from the ultimate loser that which is definitely his, because neither of the litigants is in possession of the contested boat. The court may choose not to rule in favor of either of the litigants, since there is no evidence for either side.Tosfos raises a difficulty with this explanation that the reason we divide the garment is because each of the litigants has some degree of possession. The Gemara on 3a quotes a Mishna on 37a, where it appears that the litigants definitely are not in possession of the disputed property and compares it to our Mishna. The Mishna later on 37a:Two people, Ruvain and Shimon, deposited money with one custodian, Levi. This one deposited one hundred zuz and that one deposited two hundred zuz. When it comes time to collect their money, this one says two hundred zuz are mine and that one says two hundred zuz are mine. The custodian gives this one a hundred zuz and that one a hundred zuz and the remaining one hundred zuz will be held in abeyance till Eliyahu comes and tells us who the rightful owner is.The Gemara on 3a compares the third hundred-zuz to the garment in our Mishna. At first glance it seems that the comparison is unfair. In our Mishna the litigants are in possession of the disputed garment. In the Mishna on 37a the disputed money is held by Levi, a third party. According to Tosfos criteria, when the disputed money is not in the litigants’ possession we should rule – כל דאלים גבר whoever is stronger will, win as we do in Bava Basra 34b. Tosfos must explain why the Gemara feels that it is a fair comparison.So too, the case of the third hundred-zuz, which [the Gemara] 3a compares to the garment of our Mishna, where the Gemara is asking that they should divide the third hundred-zuz even though each of the litigants is not in possession of that hundred zuz? This seems to contradict Tosfos’ explanation that a division is called for only when the litigants are in possession. The third hundred-zuz is not in the possession of the litigants. The custodian is holding it.[The Gemara] considers the fact that the guard who was empowered by both litigants is holding the third hundred-zuz for both of them, as if they themselves are in possession of it. This case is not similar to the ship, which is not in anybody’s possession. The third hundred zuz is actually in possession of both litigants because the guard is holding it for both litigants.3<i class="footnote">Tosfos here assumes that the custodian is holding for both depositors and we therefore view the situation as we do - two who are holding a garment. There are some who say that the רא"ש disagrees. He holds that the custodian is holding the third hundred-zuz for the true owner, not for both depositors.</i>Insofar as possession is concerned the third hundred-zuz is comparable to the garment of our Mishna, therefore the Gemara differentiates between the two cases as follows: there in the case of the third hundred-zuz, it definitely belongs to only one of [the litigants], and a division cannot be true justice, therefore it should remain in abeyance till Eliyahu comes and tells us who the true owner is,but in regard to a garment where it can be said that it truly belongs to both of them4<i class="footnote">It is possible that they both picked up the garment at the exact same time.</i> and we are not definitely violating the rights of one of the litigants, we rule they are to divide it.We now have two criteria for division:A) The litigants are in possessionB) The division can be true justice, because it is possible that they share ownership.Tosfos explains another case that the Gemara compares to “two people who are holding a garment”. So too, the case of two, the borrower and the lender, who are holding a document, which [the Gemara] later (7a) compares to our Mishna of two people who are holding a garment, that case is comparable because they are both holding [the document]. The division might be true justice because it is possible that [the borrower] paid [the lender] half and the borrower may only owe the other half. Since we have met both criteria:A) That both litigants are showing possession and B) it is possible that our ruling is true justice, we must rule that the value of the document is divided.But why isn’t the same true of the third hundred-zuz that is held by the guard? There too A) it is being held by the guard for both litigants and B) it is possible that one bought into a partnership in the ‘third hundred zuz’, i.e. Ruvain bought something from Shimon and Shimon is using fifty zuz of the third hundred as payment for his purchase.However, in the case of the third hundred-zuz it is not the norm for one to acquire ownership of half of the third hundred-zuz while it is in the possession of his associate, the custodian.5<i class="footnote">This statement is a bit puzzling. We say that the borrower may have paid half the debt and therefore the division can be truly just. Why would we not say that Ruvain, the original owner of the third hundred-zuz used half to pay a debt to Shimon, the other litigant? See אוצר מפרשי הש"ס` who explains that there is virtually no way that ownership of half the hundred-zuz could possibly be transferred without the knowledge of the custodian. Cash cannot be transferred via חליפין-an exchange. The only possible method of acquisition is מעמד שלשתן, where the owner tells the custodian in the presence of the receiver that half the money would now belong to him. But for this acquisition to be effective it must be done in the presence of the custodian. Tosfos is saying that it is highly unlikely that this method of acquisition was used and the custodian forgot about it.</i>Tosfos concedes: The case of the contested boat is also one where the division might be true justice? But in the case of the contested boat, even though it is possible that [the boat] belongs to both, which satisfies criteria B) since they are not in possession of [the boat], criteria A) has not been met and the ruling is that whoever is stronger will win.6<i class="footnote">See בבא בתרא לד: ד'ה ההוא ארבאwhere Tosfos there follows the same path as he does here. Towards the end Tosfos presents the opinion of ריב"א who holds that the division does not depend on the fact that the litigants are in possession. He believes that in the case of the third hundred-zuz, the litigants are not in possession and even so the Gemara initially argues that there should be a division. He holds that the deciding factor is that both litigants must be claiming what they truly believe, but if one of them is definitely willfully lying there is no division. In our Mishna each of the litigants believes that he picked up the lost garment first or that he was the true purchaser of the garment. Neither is necessarily attempting to cheat the other. This is not so about the boat. one of the litigants is definitely not telling the truth and we therefore do not rule for a division. See Rashi here 2a ד'ה במקח ובממכרwho seems to say the same as ` ריב"א that division is an option only when we are not dealing with a definite cheater. If each of the litigants claims that he wove the garment, leaving no room for legitimate error, we do not divide the garment.</i>But according to Sumchus,7<i class="footnote">The commentators are somewhat puzzled about why Tosfos needs to discuss Sumchus’ opinion at all. Why was it necessary to mention his position when discussing the criteria for a division in our Mishna?A) There are those who say that Tosfos wants to show that Sumchus can agree with the Gemara in Bava Basra 34b, which rules in the case of the boat - whoever is more powerful will win. In that case there is no obvious doubt to the observer and Sumchus’ ruling of division without swearing is not in effect. It was only said when there is an obvious doubt such as in the case of the dead calf that may have been killed by the ox. Otherwise, even he agrees that we follow the ruling of whoever is more powerful will win.B) Others suggest that Tosfos wants to show that Sumchus can essentially agree with the ruling of our Mishna that when A) the litigants are both in possession of the garment and B) the division can be true justice, the garment is divided with both parties taking an oath. Sumchus’ ruling in the case of the dead calf is an unrelated ruling, because in that case both are not presently in possession of the dead fetus (only the ox owner is in possession of the money that the calf owner is claiming)and a division is definitely not true justice, since only one of the litigants is entitled to the money. Sumchus’ ruling there is based on the fact that there is an obvious doubt without the claims of the litigants. This alone, according to Sumchus, is another basis for division despite the fact that both criteria of our Mishna are lacking.</i> even when [the litigants] are not in possession of the disputed [property] and the division cannot be true justice, when there is a obvious doubt about who the owner of this money is, which means that even if [the litigants] were not making any claims, the courts would have a doubt as to whom the property in question belongs, we rule that they must divide the property.
  
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  This [one, who claimed only half is mine,] receives a quarter [of the garment]. In Maseches Kesubos 13b and 14a, we discussed the concept of migo. We will once again review this concept. The word migo literally means - <u>since</u> or <u>because</u>. In the context of this Tosfos, we are saying that when a litigant claims A), even though his claim per se is not necessarily a winning claim, we must believe him since he could have claimed B) which is a winning claim. The word migo is now used virtually in all Talmudic lterature as a noun, which means the better claim that one might have claimed, if he is not telling the truth.What emerges from this discussion is that when considering the claims of a litigant in a court proceeding, the court must look not only at what a litigant is actually claiming, but also at what other claims were available to him.For a better understanding of migo, let us take a look at Bava Basra 45b. Rava cited a Baraisa to support Rabah’s ruling: One who gave his garment to a craftsman and there is now a disagreement about the fee. The craftsman says: You stipulated two zuz as payment. The other says: I stipulated only one zuz. The burden of proof is on the householder that he stipulated only one zuz. Otherwise, he must pay two zuz as the craftsman claims.A bit later the Gemara speculates about the reason for this ruling: Rather, it must be speaking of when there are no witnesses to verify either claim and even so the Baraisa teaches: the craftsman is believed, since if he wanted to cheat, he would have claimed that he purchased the garment and he would have won with that claim because he has possession, therefore we believe him when he says that the garment is not mine, but the householder owes him two zuz for his labor. We see that when the craftsman claims, A) my fee is two zuz and the householder claims it is only one zuz, there is no special reason to believe the craftsman anymore than the householder. However, since he could have claimed B) the article is mine because I purchased it and then we would believe him because he has possession, we must therefore believe claim A) because he could have claimed claim B).This is the concept of migo. When a litigant could have used a winning claim, we must believe his present claim, because if he was a liar, he would have simply claimed the winning claim. The fact that he is using a non-winning claim is proof of his honesty.If you ask: The litigant who claims half is mine, should be believed that half the garment is his, since if he wanted to cheat he could have said - it is all mine, and he would have received half. Tosfos proves that this is an acceptable migo:1<i class="footnote">Why does Tosfos need to prove that this is a usable migo? It is quite evident that he could have claimed - it is all mine, and he would have received half. This seems to be a perfect migo. See שיטה מקובצת who quotes a גליון who says that one who is sharing possession of the garment with his opponent might find it difficult to claim - it is all mine. He may feel that it is somewhat pretentious to claim “it is all mine” when his opponent is equally in possession of the garment as he is. Tosfos must prove that even so, this is an functional migo.</i>The Gemara on 8a discusses using this migo to exempt him from taking an oath: I might think: That by saying only half is mine, he should be thought of as one who is returning a lost object, since he could have just as easily claimed - it is all mine and he should be exempt from swearing. The Mishna speaks of this case to inform us - that he is attempting to deceive us. He thinks: If I claim it is all mine, I will have to swear. I will say that only half is mine, so that I will be like one who is returning a lost object and I will be exempt from swearing. The court insists that he must swear in order to discourage this deception.As [the Gemara] (8a) says this very same migo to exempt him from swearing.2<i class="footnote">The Gemara later on 8a does not use the term migo when explaining why we might think that the litigant who claims “half is mine” should be exempt from swearing. The Gemara there uses the term - he is “returning a lost object”. Tosfos understands that the rule that one who “returns a lost object” is exempt from swearing is based on migo. He could have easily kept the found article and he would have no problem. We should believe him when he says that this is all that he found, because he could have simply kept the whole thing. Since he is returning the object, we will not require an oath. There are other interpretations of that Gemara, which we will discuss when we reach 8a. According to those interpretations, there is no proof to Tosfos’ migo.</i> The Gemara would consent to this migo, if not for the concern that he is attempting to deceive us.Tosfos must now explain why the concept of migo is inoperable in our Mishna. ריב"ם explains: That we do not say the concept of migo to extract money from a litigant. It is only used for defending a litigant from having to pay. Migo works only for the defendant. It does not work for the plaintiff.But why is this thought of as ‘extracting’, the litigant who claims half is mine - is in possession of the half that he wants? For even insofar as the second half3<i class="footnote">One might understand that when A and B are each holding a garment, A is in possession of the portion that is closest to him and B is in possession of the portion closest to him. If that were so, when A claims the entire garment is mine and B claims half is mine, it is only B who is in possession of the portion that is closest to him. He is not attempting to extract anything from A. He only wants to maintain ownership of the portion which is in his possession and this would not be a migo to extract, rather a migo to maintain. Tosfos is explaining that each of the litigants is in possession of the entire garment and any claim to any portion of the garment is inherently a migo to extract from his opponent who has possession of all of the garment, even though it is also in his own possession. See שיטה מקובצת in the name of גליון who vehemently disagree with Tosfos’ understanding that both litigants are equally in possession of the entire garment. He argues that the migo in this case is not to extract, but rather to protect or maintain the portion of the garment that is in the possession of the one who claims “half is mine”. See there for his explanation of why the migo is ineffective.</i> of the garment about which they are arguing, this litigant who is claiming - the entire garment is mine, is equally in possession of the portion of the garment closest to his opponent who is claiming - half is mine, as is [the litigant] who is claiming only half.The Gemara in Bava Basra 32b seems to say that migo is effective even for the plaintiff: That man who said to his friend: Give me one hundred zuz that you owe me, and this is the document. [The defendant] said: It is a forged document. [The plaintiff] bent over and said to Rabah: It is so, the document is a forgery. However, I had a true document and it was lost. I thought: I will hold this forged document in my hand as some bit of evidence. Rabah said: Why should he lie? If he wanted to lie, he would just say that it is a true document.That [Gemara] in Perek Chezkas Habatim 32b where the plaintiff presented his document showing that the defendant owed him money. The defendant claimed that the document was a forgery, whereupon the plaintiff bent over and whispered to Rabah: It is so, the document is a forgery. However, I did have a true document, but it was lost. Rabah believed [the plaintiff] to extract money from the defendant with a migo, since he could have claimed that this was a true document. It is evident from Rabah’s ruling that a migo is effective even for extracting money, not only for defending money.Tosfos is compelled to say that there are two types of migo. One type which is effective only for the defendant and another type that is effective even for the plaintiff. There in Bava Basra 32b, this is the reason that the migo is effective even for extracting funds from the defendant, for even if he would have remained silent, as long as he would not have admitted that [the document] was a forgery, he would have been believed, because the signatures were so well forged that to those who were standing there in the courtroom, they were recognized as the signatures of the witnesses. Since there was no need to respond to the charge of forgery, because it was so well done, a migo that he could have remained silent is effective even to extract funds. However, when one must respond to the charges of his opponent, migo is only effective for maintaining money, but not for extracting it. Here, in Bava Metzia 2a, when one litigant claims that the entire garment is mine, the other litigant cannot remain silent. He must respond with his claim. Since a response is required, the migo is only effective for defending money, but not for the extraction of funds.The Gemara in Bava Basra 32b continues: Rav Yosef said to [Rabah]: What evidence are you relying on to rule in this matter? This document! This document is merely a shard. But if the migo in Bava Basra 32b is so strong that it is effective even for extracting money, why does Rav Yosef disagree with Rabah? Rav Yosef holds that not only is there no special migo capable of extracting funds, but there is not even a migo at all. Since the first claim that he is claiming with this document is admittedly false.We are only to invoke migo when we will ultimately show that [the litigant’s] first claim is true, which we prove by saying that since he could have claimed a different winning claim B) it is proof that what he is presently saying, claim A), is true. But in Bava Basra 32b his initial claim that the defendant owes him money as his document attests, is admittedly untrue. He has admitted that the document is a forgery. For this reason Rav Yosef holds that this is not an acceptable migo, even for maintaining money as is evident in the first story4<i class="footnote">Earlier the Gemara there 32a cites a similar story about the ownership of a field. The plaintiff claimed that the field was his. The defendant responded by saying - I purchased the field from you and this is the document. The plaintiff insisted that the document was a forgery. The defendant privately admitted to Rabah that the document was indeed a forgery, but that he once had a real document which was lost. In that case as well, Rabah ruled in favor of the defendant because he had a migo and Rav Yosef ruled in favor of the plaintiff. He did not accept the migo even for maintaining ownership of the field.</i> mentioned in that Gemara, and certainly not for extracting funds from a defendant.Tosfos now wonders why in the case, where one litigant claims - it is all mine, and the other claims - half is mine, we do not rule in favor of the litigant who claims - it is all mine? Tosfos’ question is based on a Gemara in Yevamos 38a. The Gemara is discussing a case of when Ruvain married Leah and passed away childless. His brother Shimon, then took Leah in Yibum, but he did not wait the required three months needed to ascertain that Leah was not pregnant. Leah gives birth to Chanoch, but his paternity is in doubt. Is he the son of Ruvain the deceased brother or of Shimon the yavam? Yaakov, father of Ruvain and Shimon passes away. If Chanoch is the son of Ruvain, he inherits his father’s share of Yaakov’s estate. If he is the son of Shimon, he inherits nothing, because his father Shimon is still alive and Shimon will inherit all of Yaakov’s estate.Chanoch, whose paternity is dubious and Shimon, the yavam are now coming to divide the estate of Yaakov, the grandfather. [Chanoch] the dubious heir says: This man, referring to himself, is the son of the deceased Ruvain, and half of Yaakov’s estate is mine, since I inherit my father Ruvain’s share. Shimon the yavam says to Chanoch: You are my son and you have nothing at all from Raakov’s estate.The ruling: Shimon the yavam is definitely an heir of Yaakov. Chanoch, whose paternity is in doubt, is a dubious heir of Yaakov. The doubtful heir, Chanoch, cannot extract funds from the definite heir, Shimon.If you ask: Let us apply the ruling that a dubious owner of this garment cannot extract from a definite owner?For the litigant who says: The entire garment is mine, definitely has half the garment. Whereas, in regard to the litigant who says: half the garment is mine, there is a doubt whether he owns any portion at all. The situation is one of a definite owner versus a doubtful owner. We should rule in favor of the definite owner, as [the Gemara] says in Perek Hacholetz (Yevamos 38a): a dubious heir, Chanoch, and the yavam, Shimon, who come to divide the estate of Chanoch’s grandfather, Yaakov. Chanoch, the dubious heir says: I am the son of Ruvain, the deceased son of Yaakov. I am entitled to my father Ruvain’s share in Yaakov’s estate. Half of Yaakov’s estate is mine. Shimon the yavam says: You Chanoch are my son and you own nothing of Yaakov’s estate. The ruling is: Shimon is a definite heir of Yaakov, while Chanoch is a dubious heir of Yaakov, and a dubious heir cannot extract any of the estate from a definite heir. In our Mishna as well, the litigant who claims it is all mine is definitely an owner of at least half of the garment by common agreement, the litigant who claims half is mine is only a dubious owner of some of the garment, we should rule the dubious owner cannot extract from the definite owner and he should receive nothing.We can answer: That there in Yevamos 38a, the yavam Shimon, who is the son of the grandfather Yaakov, is definitely [Yaakov]’s heir. The dubious heir, Chanoch, cannot extract any of [Shimon]’s assets with his dubious claim. However, here in our case where one litigant is claiming all of the garment and his opponent claiming only half, it is not logical that because [Shimon] is definitely the owner of half the garment, that this should help him win the second half.
  
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  He acquired [it] through sight. The Gemara is suggesting that if the Mishna had only written - אני מצאתיה - I found it - one might think that the litigant is claiming that I saw it first and that by seeing it, he acquires the garment. The second phrase of the Mishna - כולה שלי - it is all mine - indicates that seeing is insufficient for acquiring a lost object. One must actually lift up the garment to acquire it.Tosfos will quote two Mishnayos where it is evident that one cannot acquire a lost object by seeing it. If so, why was it necessary for our Mishna to repeat the same ruling?The Mishna on 9b: Even though the Mishna teaches (below 9b): [Ruvain] who saw a lost object and said to [Shimon] “give it to me”. The Mishna rules that Shimon who was asked to pick it up may acquire it for himself. We see that [Ruvain] did not acquire it by seeing it, since Ruvain who asked Shimon to pick it up, obviously was the first to see it and even so Shimon may lift it up for himself. It is evident that Ruvain did not acquire it by seeing it.The Mishna on 10a: So too, we learned in another Mishna: [Ruvain] saw a lost object and fell on it, but did not lift it up and Shimon comes and lifts it up, the Mishna teaches us that [Ruvain] did not acquire it since he did not make a proper act of acquisition. But Ruvain did see it first? Once again we see that seeing the lost object is not a way of acquiring it. Why does our Mishna need to stress this lesson? [The Gemara] could have deflected the proof from those Mishnayos, that seeing is not an act of acquisition, by saying, since [Ruvain] said to Shimon in the Mishna on 9b “give it to me”, or in the Mishna on 10a he fell on it, he is showing his mindset, that he is not satisfied to acquire it by any method of acquisition until it actually reaches his hand. It is only then that those Mishnayos rule that seeing the lost object is not a valid method of acquiring it. However, when one did not in any way indicate that he does not want to acquire the lost object by seeing it, it may very well be that seeing is a proper way of acquiring it. Our Mishna must therefore teach us that even when there is no indication that he is dissatisfied to acquire it by seeing, he cannot acquire it.
  
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  [H]e does not acquire [it] through sight. The Mishna teaches us that by merely seeing a lost object, one does not acquire it.There seems to be a contradiction to this ruling from a Gemara later on 118a. The Gemara there quotes a Mishna in Shekalim which cites a dispute about whether those who guard the growing barley in the Shemittah year must be paid for their labor or not. The first Tanna holds that they must be paid. Otherwise, the barley they are guarding would belong to them and the barley for the Omer offering must belong to the public, not to an individual. R’ Yose holds that the guards can work for free if they so desire.The Gemara explains that the first Tanna holds that “guarding” the ownerless barley is a way of acquiring it. If the guards are not paid from public funds, they become the legal owners and the Omer offering must be owned by the public. R’ Yose holds that “guarding” the ownerless barley is not an acceptable method of acquiring it. Thus, even if the guards are not paid, the barley does not become their property and may be used for the Omer offering. The Gemara continues to suggest other ways of explaining the dispute, but they all focus around whether “guarding” the growing barley is an acceptable method of acquisition.The Gemara uses the expression הבטה which literally means looking or watching. Tosfos understands that this is the same as ראיה - seeing, of our Gemara. Thus, we have what appears to be a contradiction. That which [the Gemara] says in Perek Habayis Vehaliyah (below 118a): “watching” an ownerless item is an effective act of acquisition, that is when he did some minimal action, such as constructing a small fence around the barley. Even though he did nothing at all to the barley, “watching” or “guarding” it is an effective act of acquisition, but by merely seeing a lost object and taking no action whatsoever, one does not acquire the object.
  
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  But doesn't [the Mishna] teach: this [one] and this [one]? The Gemara suggested that even though the Mishna uses the phrase אני מצאתיה - I found it, and the phrase כולה שלי - it is all mine, it is not speaking of two different cases. Each of the litigants is simply saying - I found it and it all mine. The Gemara then rejects this suggestion because the Mishna did not need to repeat the words זה אומר - this one says, twice. The Gemara then concludes that the Mishna is in fact speaking of two distinct cases.Tosfos comments: There are places throughout the Talmud, that [the Gemara] asks this question: Why did the Mishna need to repeat “this one says”? There are places where [the Gemara] does not ask this question. [See Tosfos Bechoros 31b 7-8 (ד'ה אם כן] where Tosfos elaborates on this subject and cites many more instances throughout the Talmud. Tosfos does suggest some reason for this inconsistency.
  
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  If [the Mishna] taught [that one must take an oath only about] a lost object etc. Tosfos will add what is lacking in the language of the Gemara.I would say that the Mishna requires an oath only when there is a dispute about a lost object, because one might rationalize his dishonest behavior by saying: My neighbor is not losing anything by my claiming that I picked it up first, after all, he did not invest any time or money in this venture. Therefore, [the culprit] will seize the garment even though he knows that his neighbor found it first. The Rabanan placed an oath upon him, so that he should desist from grabbing the garment and claiming that it is his. Even though he may be able to rationalize taking the garment from his neighbor, most people would not swear falsely in this situation.However, when his neighbor was purchasing the garment, where this rationalization cannot be used, for if he actually knew that his neighbor purchased it first, he would not have seized it, because the neighbor did invest time and effort to locate this particular garment that he needs and the culprit would not do something that is so obviously wrong. Since he did seize it, he must believe that it is truly his and that the seller agreed to sell it to him, as [the Gemara] later concludes, that we are speaking of when the seller took money from both litigants. I might think that he should not swear when they are arguing about a purchase, because he will not desist from seizing the garment because of the requirement to take an oath, because he believes that he is telling the truth. The Mishna inform us that even so, he must swear. Since he is willing to pay for his share, he may not see his behavior as so despicable and can rationalize this as well. However, when faced with an oath he will desist.Tosfos has explained that in both cases, a lost object and a purchase, there is room for rationalization. But what would we rule when one of the litigants is definitely lying and is about to steal from his neighbor? When he definitely cannot be thinking that he is telling the truth, for example, when each one claims “I wove the garment”,1<i class="footnote">See רש"י 2a ד'ה במקח ובממכרwho holds that in the case of each litigant claiming “I wove the garment”, there is no division at all. The garment is held in abeyance till Eliyahu will come and tell us who the rightful owner is.</i> where one of them is intentionally falsifying his claim, or for example in the case of two litigants who are holding a document, the lender says: you still owe me the money and the borrower says: I have already paid. One is definitely lying, as there is no room for error. There it is plain that they must divide the garment with each litigant swearing, because through the oath the culprit will definitely desist from continuing his attempt to steal, because even one who is suspected of possibly stealing money, is not suspected of swearing falsely.
  
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  Let us see from whom the seller took money. Let us first learn a Gemara in Kiddushin 73b that is relevant to understanding our Tosfos.A seller is believed1<i class="footnote">The Gemara does not clearly say why the seller is believed. There is a dispute among the Rishonim as is evident in this Tosfos. An understanding of this dispute will enable us to better understand the underlying movements of this Tosfos. See נחלת דוד for a lengthy exposition of this subject.A) Rashi holds that the seller is believed because he is the only one that really knows the truth. There are similar situations in Kiddushin 73a, such as a midwife or a judge who are believed primarily because they are the only ones who know the truth. רש"י holds that the seller’s testimony is accepted for the same reason. Thus, according to Rashi as long as we are convinced that the seller actually does know to whom he sold the garment we believe him. If however, the situation is one where we have doubts about the seller’s knowledge, we do not believe him. Therefore, as long as the seller has possession of the garment, he has the responsibility to deliver the garment to the true purchaser. Even if the situation was somewhat confusing, such as when they both gave him money, he still must deliver the garment to the right party. However, as soon as he made his choice and no longer has that responsibility, we do not believe him when the conditions were confusing, but we do believe him when only one customer gave money.B) Tosfos (Rabbeinu Tam) holds that the basis for believing the seller is that since the garment is in his possession he has a migo, that he could say that he did not sell the garment at all or that he repurchased it. We must therefore believe him when he says that I sold the garment to this one. Of course, this migo is operable only when the seller has the garment is his possession. Thus, after he releases it, we do not believe him at all. Rabbeinu Tam is compelled to say, as we will soon see, that our Gemara is asking that we should believe the seller, just as we believe any single witness. There is no special authority for the seller when he does not have the migo that he could maintain that he never sold the garment.</i> to say: I sold to this one and not to that one. When is this so: When the sold item is still in [the seller’s] possession, but if the sold item is no longer in [the seller’s] possession, he is not believed. The Gemara asks: Let us see from whom he accepted money? Once we know who gave money, we will know that he is the true owner. Why must we rely on the testimony of the seller? No! This Baraisa is needed to teach us about when [the seller] accepted money from both and he tells us: From one I accepted willingly and from the other I accepted money against my will. It is not known from which customer he accepted the money willingly and from which customer he accepted the money against his will.We can glean from that Gemara that the seller is believed when he still has possession of the article, but not when he has already given the item to the buyers. This presents a problem with our Gemara which asks: We should believe the seller? But in our Gemara the seller no longer has possession. The Mishna is speaking of when the two litigants are holding the garment. The seller has no special say in this matter since he no longer has possession.רש"י anticipated this problem and explains our Gemara in view of what we have learned in Kiddushin 73b. Tosfos will first quote רש"י and then disagree with his conclusion.Let us return for a moment to the Gemara in Kiddushin 73a. The Gemara says that we do not believe the seller when he no longer has possession. The Gemara immediately asks: Let us see from whom he accepted money. רש"י explains that the Gemara is asking, that since he received money from only one of the customers he most probably remembers which one it was and we should believe him even if he no longer has possession.2<i class="footnote">See preceding note. A)</i> The Gemara essentially agrees with this proposal, but says that we are speaking of when the seller accepted money from both.According to Rashi’s explanation, we may conclude that when he received money only from one of the customers, we believe him even when he no longer has possession of the article. First, let us see how רש"י reconciles our Gemara in Bava Metzia 2b with the Gemara in Kiddushin 73a. רש"י explained our Gemara’s question: Let us ask the seller which of the litigants is the lawful owner of the disputed garment? Even though we have learned that the seller is not believed when he no longer has possession of the sold article, as can be seen in Perek Asarah Yuchsin (Kiddushin 73b), and our Mishna is speaking of when the seller does not have possession? That we do not believe the seller, was said when he accepted money from both customers, but when he accepted money from only one of the customers, he is believed even when the sold article is not in his possession. Our Gemara assumed that the seller most probably received money from only one of the customers and therefore says, let us see from whom the seller took the money. We would believe him if he said which customer gave him the money. The Gemara answers that our Mishna is speaking of when both gave money and we do not believe the seller who says: I accepted the money from this customer willingly.According to this analysis of the Gemara, even if the seller who received money from both customers says he is certain that the garment belongs to this one, we do not believe him. We would believe him only if he had received money from only one of the customers.In view of this analysis, we must take a better look at the next words of our Gemara. Our Gemara reads: ולא ידענא - I do not know. This seems to be a quote of the seller who is admitting that he does not know who the lawful owner is. רש"י quotes a text that reads ולא ידע - he, the seller, does not know. Again this implies that the seller tells us - I do not know who the lawful owner is. What if the seller says I do know? These texts lead us to believe that we would believe him. רש"י says that these texts are incorrect, because we have seen that the Gemara in Kiddushin 73b says that we do not believe a seller who accepted money from both customers.רש"י therefore amends the text of our Gemara: Our text, after this statement of the Gemara that we are speaking of when the seller accepted money from both customers is: And we do not know. This means that even if the seller insists that he sold it to Ruvain, we do not accept his testimony and we, the court, do not know to whom the garment was sold. It is in this case that the Mishna rules that the garment is to be divided after each party swears.After quoting רש"י, Tosfos offers his own explanation of our Gemara and insists that it is not necessary to amend the text. Rashi’s difficulty with our text is that the Gemara seems to be saying that we would believe the seller who says - I do know who the lawful buyer is, even if he accepted money from both customers. This is clearly contradicted by the Gemara in Kiddushin 73a.Tosfos therefore explains that our Gemara’s question: “Let us see from whom he accepted money?”, is not about believing the seller as a special witness3<i class="footnote">See note 1, B), where I explained that Tosfos holds the authority of the seller is based on a migo, which he has when in possession of the garment, but not when he gives it away.</i> in this matter. Rather, the question is - we should believe him as we would believe any single witness.Although a single witness is not believed in money matters, he does have the power to compel a litigant to swear by Torah law. For example: If Ruvain claims that Shimon owes him one hundred zuz and Shimon denies it, by Torah law Shimon is exempt from paying and need not swear. If however, a single witness testifies that Shimon does owe the money, he is required to swear by Torah law.According to Tosfos’ opinion he can also exempt any of the parties in a dispute from swearing. For example: If Ruvain claims that Shimon owes him one hundred zuz and Shimon admits that he owes him fifty zuz, by Torah law Shimon must swear that he only owes fifty zuz. If however, a single witness testifies that Shimon only owes Ruvain fifty zuz, Shimon need not swear. It is this power of the single witness in matters pertaining to an oath that the Gemara refers to, when it asks: Let us see from whom the seller took money. It is for naught that רש"י said this awkward4<i class="footnote">See Tosfos there. According to Rashi we are forced to say that the Gemara is extending the reliability of the seller to even when he does not have possession of the garment. According to Tosfos, the Gemara is constantly maintaining that the seller is especially believed only when he has possession. Also, according to Rashi, we must amend the text. This is not necessary according to Tosfos.</i> explanation. For here in Bava Metzia [the Gemara]’s question is sensible. For even if the sold article is not in the the seller’s possession, [the seller] should be believed as any single witness is. The Gemara’s question is: Why are both litigants required to swear? The one whom the seller corroborates should be exempt5<i class="footnote">See Tosfos there. According to Rashi we are forced to say that the Gemara is extending the reliability of the seller to even when he does not have possession of the garment. According to Tosfos, the Gemara is constantly maintaining that the seller is especially believed only when he has possession. Also, according to Rashi, we must amend the text. This is not necessary according to Tosfos. Tosfos here says as a matter of fact that when a single witness testifies in favor of one of the litigants, that litigant is exempt from swearing. This ruling does not enjoy universally agreement. See Rosh 3, in our Perek for a lengthy discussion of the pros and cons in this issue.</i> from swearing and the other should be required to swear by Torah law? Now that we have explained that the Gemara’s question is that we should listen to the seller as a single witness, the text “ולא ידע - and he did not know”, is reasonable, for if [the seller] did know which customer he intended to sell the article to, he would be believed as a single witness insofar as swearing is concerned.However, [the Gemara] could have answered6<i class="footnote">See מהרש"ל and מהר"ם who explain why this is true only according to Tosfos explanation, but not according to Rashi.A) According to רש"י we believe the testimony of the seller. If the seller was not available, we would not allow the litigants to swear, because upon the seller’s return’ he may testify in favor of one of the litigants. Retroactively, we will see that the court’s ruling caused a false oath. The court will never issue a ruling where it could become obvious that one of the litigants swore falsely.B) According to Tosfos, we do not especially believe the seller. He has the authority of any single witness to require an oath from one litigant by Torah law and to exempt his opponent. If we rule in his absence that both litigants must swear and he returns and testifies in favor of one of the litigants, we would still not have a situation where we know that there was a false oath, because we do not inherently believe the seller. He only has the authority to require an oath and to exempt from an oath. Even if the litigant whom the seller supports did swear, nothing happened. At the very most, he swore when he wasn’t really required to do so. As far as his opponent is concerned, we required him to swear and the seller also requires him to swear. There is no evidence that he took a false oath.</i> the question by saying that the seller is no longer available to us, so that we might ask him. It is then that the Mishna rules: the garment is divided after both litigants swear.Both Rashi’s and Tosfos’ explanation of the words: “Let us see from whom he accepted the money?” have legal ramifications, and our ruling will depend on the seller’s testimony. According to Rashi, the garment will be awarded to the customer that the seller supports. According to Tosfos, the customer whom the seller supports will not have to swear at all and his opponent will be required to swear by Torah law.R’I suggests that the Gemara’s question is simply practical. Let us see what the litigants themselves have to say about the subject and perhaps we can settle the issue. The Gemara does not at all mean that the testimony of the seller is legally binding. R’I explains that the Gemara’s question is as follows: We should ask [the litigants] themselves from whom the seller accepted money. For we do not suspect them of lying about this, to say: I gave the money, when he did not give it at all. And [the litigants] are most probably also not arguing about who gave the money, but about to whom the seller consented to sell the garment. However, they are not arguing about who gave the money. We can therefore expect an honest answer. Once they agree that Ruvain gave the money, we will rule that the seller consented to sell it to Ruvain. Shimon who knows that Ruvain gave the money still believes that the seller wanted to sell the garment to him. We will rule that Shimon’s assumption is incorrect. 
  
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  Let us say that our Mishna does not follow Ben Nanas.We can say that [the Gemara] knew quite well that in our Mishna it is possible that both litigants picked it up simultaneously,1<i class="footnote">What is compelling Tosfos to say that the Gemara was initially aware of the inherent difference between the case of Ben Nanas and the case of our Mishna? See אוצר מפרשי התלמוד.A) Some say that Tosfos was looking at the Mishna dealing with the third hundred zuz, where all agree that the third hundred zuz cannot be divided because the division is definitely not true justice as Tosfos has explained earlier 2Ab ד'ה ויחלוקו. If our Mishna is also speaking of a case where the division cannot be true justice, we should rule that the garment is put away and held in abeyance. This forces us to say that in our Mishna it is possible that the garment belongs equally to both and the Gemara at this point was already aware of this.B) Others sayC) A third opinion is that Tosfos felt that it is unlikely that the Gemara was unaware of this logical difference between the case of Ben Nanas where one of the litigants is intentionally swearing falsely and our Mishna where the litigants who are each swearing that they own not less than half may actually be swearing truthfully.</i> whereas, in the case of the storekeeper whose records show that he paid the worker and he denies receiving payment, one is definitely lying and going to swear falsely, but even so the Gemara asks that the ruling in our Mishna should be that they divide the garment without swearing, since it is possible that one will come to swear falsely.2<i class="footnote">We must explain why the Gemara would even make such an assumption.</i> Since Ben Nanas is so concerned about the courts ruling that leads one party to swear falsely, perhaps he holds that even if there is only a possibility of one of the parties swearing falsely, we must avoid swearing.[The Gemara] answers that there in the Mishna concerning the storekeeper and the employee, there will definitely be a false oath. We may assume that Ben Nanas’ ruling is only for similar situation, not when there is only a possibility that one of the litigants may be swearing falsely.
  
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  There, both are not in possession [of the disputed funds]. “There”, refers to the case in Bava kama 46a, where an ox gored a cow. A dead fetus was found next to the gored cow. The cow-owner claims the fetus died as a result to the goring and he is entitled to payment for the dead fetus. The ox owner maintains that the cow aborted the fetus before the goring and he need not pay. Sumchus rules that the disputed funds - the value of the fetus, are to be divided between the cow-owner and the ox-owner. Thus, the ox-owner pays only half. The Rabanan rule that the cow-owner can collect, only if he proves that the ox-owner is liable. In absence of such proof, he pays nothing.At this point in the dialogue, the Gemara posits out that our Mishna which speaks of dividing the garment with an oath is logical according to the Rabanan who disagree with Sumchus. There, in Bava Kama 46a, we are speaking of a case where both are not in possession of the disputed funds.A superficial understanding of the phrase “both are not in possession” indicates that neither the cow or ox-owner is in possession. This is of course not true. The ox-owner definitely is in possession of the disputed funds. Tosfos, therefore adds: only one is in possession of the disputed funds i.e. the ox-owner. It is the cow-owner who is attempting to extract the funds from the ox-owner. The Rabanan rule “the burden of proof is upon the one who attempts to extract funds from his associate”. In our Mishna where both are in possession of the disputed garment, it is to be divided.In the particular case discussed in Bava Kama 46a, it is true that the ox-owner is in physical possession of the disputed funds. However, there is another case in Bava Metzia 100a, where neither has physical possession of the disputed property and even so the Rabanan rule that the plaintiff cannot extract payment from the defendant.The Gemara on 100a: One who exchanges a cow for a donkey, and the cow calved. When the cow-owner takes possession of the donkey, ownership the cow is automatically transferred to the donkey owner. The cow need not be present. This creates a situation where it may not be known when the cow calved and to whom the calf belongs? The Mishna rules: the calf is divided between the two litigants.The Gemara asks: Why should they divide the calf? Let us see in whose domain the calf presently is and [his opponent] will be in the position of one who is attempting to extract from his neighbor and the burden of proof is upon him?The Gemara answers: Rav Chiya bar Abba says in the name of Shmuel: The Mishna is speaking of when [the cow] is standing in a meadow. It is in a place that belongs to neither of the litigants.Once again the Gemara asks: Let us place ownership of the calf in the possession of the first owner, and the other litigant should be one who is attempting to extract from his neighbor and the burden of proof is upon him.The Gemara answers: This Mishna is the opinion of Sumchus who says that money whose ownership is in doubt is divided without the litigants taking an oath.We see from this Gemara that according to the Rabanan we would rule in favor of the cow-owner even if he is only the previous owner and not only when he is in physical possession of the calf. Even though when the calf is standing in a meadow and not in either of the litigants’ domain, the Rabanan hold that - the donkey owner is one who is attempting to extract the calf from [the cow-owner] and the burden of proof is upon him. Neither litigant has possession of the disputed calf. The Gemara says that according to the Rabanan this is a case of - extracting funds from a defendant, which can be done only with proof. How can Tosfos say that we rule in favor of the defendant only when he has possession?Tosfos will now conclude that ‘possession’ need not necessarily be physical possession for one to be considered a defendant. It can also be possession in a legal sense. Even so, one is called in possession, because he was the previous owner. The cow-owner at one time was definitely the owner of the calf when it was a fetus. Our question is whether that status quo changed or not. The status quo is equal to being in possession. There are those whose text is “there, in the case of the ox goring a cow and we are in doubt about whether the calf dies as a result of the goring or not, the money in question clearly belongs to only one of them”, whereas in our Mishna where two litigants are each holding a garment they may both be owners of the garment.According to this text, the difference between Sumchus’ case and our Mishna has nothing to do with who is in possession of the disputed funds. Rather, the reason the Rabanan rule in favor of the defendant and do not suggest division of the article is because the article or money in dispute definitely belongs to only one of the litigants. In our Mishna, where there is at least a possibility that they are equal owners, dividing the garment is the more logical choice. 
  
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  [Sumchus said that money in doubt is divided without an oath] where there is a <i>derara demamona</i>. The Gemara is saying that Sumchus’ ruling that money whose ownership is in doubt is to be divided without the litigants taking an oath, is in effect only when there is a derara demamona, but not in the case of our Mishna, where the litigants are each holding the disputed garment. The case of our Mishna is not one of derara demamona. But what does derara demamona mean?Rashi explains that the word ‘derara’ means a monetary loss. Since the rightful owner of the disputed funds will suffer a loss, we do not suspect his opponent of intentionally inflicting the loss upon him and there is no reason to require an oath. There is no conceivable rationalization for taking away that which is legitimately his. Whereas, in our Mishna, be it in the case of a found object or a sold object, there are possible rationalizations as the Gemara said earlier. Therefore, an oath is required before dividing the garment.Tosfos disagrees with Rashi about the meaning of this term. Tosfos here and in Bav Basra 35b, does not mention Rashi’s explanation and does not say why he rejects it. This is open for speculation. See אוצר מפרשי התלמוד who offers the following reasons for disagreeing with Rashi’s explanation:A) It would seem that if one party will definitely suffer a loss, it is all the more reason to require an oath before dividing, in order to prevent this loss from occurring.B) The categorization of our Mishna as one where there is no loss is difficult. Certainly, according to the letter of the law, when one picks up a found object, it becomes his legal property and when one takes it from him, the finder is suffering a loss. Even though the Gemara earlier said that the thief might say “my associate is losing nothing”, that is merely the rationalization of the thief, but it is certainly not the truth. Why does the Gemara refer to this case as one where there is no loss?Tosfos therefore offers a different explanation of the term derara demamona. The meaning of derara demamona is: that even without their claims, the court would be in doubt about who the rightful owner of the disputed property is. The situation per se compels us to ask: who is the owner of this property? For example: in the case of an ox that gored a cow (Bava Kama 46a) where we are in doubt about whether the fetus died as a result of the goring or not. Any observer of the story realizes that there is a legitimate doubt about whether the ox-owner is liable or not.So too, in regard to one who exchanges a cow for a donkey and the cow calved. Any observer has a legitimate doubt about when the cow calved, thus, the ownership of the calf is in question. Since the doubt arose of itself, not as a result of their claims, logic dictates that they should divide the disputed property even without taking an oath, as opposed to our Mishna where the facts of the case do not point to a dispute at all. We would simply assume that the garment is jointly owned. Since it is because of their claims of individual ownership that we know there is a dispute, we require an oath so that the dishonest litigant will retract his claim. This is not needed in the cases where Sumchus rules that the disputed property is divided without anyone taking an oath, because the circumstances indicate the need for division of the property that is in doubt.
  
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  If there, where there is a financial association -- and we can assume it [belongs] entirely to one [of them]. The Gemara compares the cases of Sumchus to our Mishna and argues that if in Sumchus’ cases1<i class="footnote">A) Bava Kama 46a, where we are in doubt whether the fetus dies as a result of being gored by the ox or not.B) Bava Metzia 100a, where we are in doubt if the cow calved before the donkey owner took possession or afterwards.</i> no oath is required, then certainly in our Mishna an oath should not be required. The Gemara offers two characteristics in which Sumchus’ cases differ from our Mishna:A) In Sumchus’ cases there is a derara demamona, whereas in our Mishna there is no derara demamona. (See previous Tosfos for explanation of derara demamona.)B) In Sumchus’ cases the disputed funds definitely belong to only one of the litigants, whereas in our Mishna the disputed property may be jointly owned.These two characteristics are offered as reasons why it is more likely that one should not have to swear in our Mishna. Tosfos here is focusing on the second characteristic B), that in Sumchus’ cases the money belongs to only one of the litigants and even so no oath is required. Hence, in our Mishna where the disputed funds may actually belong to both, there should be no need for an oath.We can garner from the Gemara that when the property definitely belongs to only one of the litigants, it is all the more reason to require an oath. Tosfos must explain that this view is not shared by all. In terms of protecting the rights of the one owner who is definitely absorbing a loss, it is true that it is more logical to require an oath in Sumchus’ cases than in our Mishna, where it is conceivable that neither is suffering a loss. However, if avoiding a false oath is of utmost importance, then in Sumchus’ cases there is a greater reason not to swear, because one of the litigants will definitely be swearing falsely. However, as the Gemara concluded earlier, in our Mishna there will not definitely be a false oath, which is more reason to require an oath.<u>Protecting a loss</u>Sumchus’ cases:*<i class="footnote">The property definitely belongs to only one of the litigants.</i> more reason to swear Our Mishna:**<i class="footnote">The property may be jointly owned.</i> less reason to swear<u>Avoiding false oath</u>Sumchus’ cases:*<i class="footnote">The property definitely belongs to only one of the litigants.</i> less reason to swear Our Mishna:**<i class="footnote">The property may be jointly owned.</i> more reason to swear[The Gemara’s] question that there is a greater reason to exempt one from swearing in our Mishna is only if Sumchus subscribes to the opinion of the Rabanan who disagree with Ben Nanas, who are not concerned about the possibility of a false oath. If so, in Sumchus’ cases where one of the litigants is definitely suffering a loss, there is more reason to require an oath to protect the interest of the losing litigant, than in our Mishna where it is possible that neither of the litigants is suffering a loss.But according to Ben Nanas who is concerned about the possibility of a false oath, to the contrary, when it can be said that the disputed property belong entirely to one of the litigants, they would divide the disputed property without an oath, because if both litigants swore there would definitely be a false oath. This is an important reason to avoid an oath in Sumchus’ cases, whereas in our Mishna where there is a possibility that there is no false oath, there is greater reason to require an oath.
  If there, where there is a financial association. Our Gemara can be divided into two steps:Step 1) The Gemara first distinguishes between Sumchus’ cases and our Mishna by saying that in each of Sumchus’ cases there is a derara demamona, whereas in our Mishna there is not.Step 2) The Gemara then asks that it is more logical that in a case where there is no derara demamona such as in our Mishna, there should be no need for an oath.This is the simplest way of understanding our Gemara. Tosfos will now introduce a Gemara in Bava Basra 35a, where we will see that this simple understanding of our Gemara is untenable. Bava Basra 34b &amp; 356a: That ship that two litigants were arguing about. This one said it is mine and that one said it is mine. Rav Nachman said: Whoever is stronger will overpower his opponent.On 35a the Gemara asks: Why is this different than what we learned in a Mishna: Concerning one who exchanged a cow for a donkey and the cow calved. So too, one who sold his maidservant and she gave birth. [The seller] says she gave birth before I sold her and the calf or newborn slave is mine. [The buyer] says: She gave birth after I purchased [the cow or mother], and the calf or newborn slave is mine - they are to divide the calf or the newborn slave.The Gemara answers: There in the case of exchanging a cow for a donkey, [the seller] has some connection to the money in question and [the buyer] has some connection to the money in question. We therefore rule that it is to be divided. Here, in the case of the ship, if it is this one’s it is not that one’s. If it is that one’s it is not this one’s.Ultimately the Gemara is saying that in the case of exchanging the cow for the donkey, there is a derara demamona and in the case of the disputed ship there is no derara demamona.In Bava Basra 35a the Gemara rules in the case of a ship whose ownership was in dispute that the litigants struggle with each other and the stronger party wins. There as well the Gemara asks: Why is this different than the case of one who exchanged a donkey for a cow and it is not known when the cow calved, where Sumchus ruled that the disputed money is divided between the litigants? The Gemara answers there as it does here (step 1): In Sumchus’ case there is a derara demamona, whereas in the case of the disputed ship there is no derara demamona.The Gemara there does not proceed to step 2 of our Gemara to ask that in the case of the ship we should also apply Sumchus’ ruling. Tosfos needs to explain why step 2 is not pursued in Bava Basra 35a. We are compelled to say that the question our Gemara asked in step 2 is irrelevant to the Gemara in Bava Basra 35a. Why?In Perek Chezkas HaBatim (Bava Basra 35a) in regard to a ship whose ownership was disputed, where Rav Nachman said: The litigants will battle over it and whoever is stronger will overpower his opponent. The Gemara asks: Why is this different than one who exchanges a cow for a donkey where we rule that the calf is divided between the litigants? The same should be true of those disputing the ownership of the boat. [The Gemara] answers: There when one exchanges a cow for a donkey or sells his maidservant, there is a derara demamona. Whereas, in the case of the disputed ship, there is no derara demamona. This of course is step 1 of our Gemara. The Gemara accepts this answer as a logical difference between Sumchus’ case of exchanging a cow for a donkey and the case of the ship. [The Gemara] there does not ask as it does here in step 2: How come there in the case of exchanging a cow etc. where there is a derara demamona and it can be said that it definitely belongs entirely to only one of [the litigants] and even so, they divide the calf or the newborn slave, whereas, in regard to the ship where it can be said that it truly belongs to both [litigants] and even so, they do not divide it, rather, we rule that whoever is stronger will overpower his opponent, and will take all, as the Gemara asks here on 3a in step 2. Our Gemara argues that Sumchus’ ruling should also apply to the case of our Mishna where two litigants are holding a garment, and we should divide the garment without the litigants taking an oath, but the Gemara in Bava Basra 35b does not ask that Sumchus’ ruling should be in effect in the case of the disputed ship. Why?We must examine the thrust of the Gemara’s question in step 2 of our Gemara. Our Gemara feels that just as in Sumchus’ case the disputed property should be divided without anyone swearing, so too in our Mishna the garment should be divided without anyone taking an oath. It is in reference to the obligation of taking an oath that the Gemara argued: if in Sumchus’ case an oath is uncalled for, it certainly should not be needed in our Mishna of two who are holding a garment.The Gemara there in Bava Basra 35a is discussing not whether one should swear in the case of the disputed ship, but whether it should be divided or settled through the decision of allowing the litigants to do battle and the stronger party overpowering the weaker party. The answer to that question is that when exchanging a cow for a donkey, a division is in order because there is a derara demamona. In the case of the disputed ship there is no derarra demamona and a division is uncalled for.Tosfos explains that the derara demamona is only relevant to ruling that the object in question should be divided, but not to exempting the litigants from swearing. This is because as far as dividing the disputed property as in the case of the calf or the maidservant is concerned, the logic of derara demamona is an excellent reason to divide the disputed property, since it is an absolute doubt even without their claims, therefore logic dictates that the disputed property should be divided, but concerning the disputed ship, even though it is possible that it belongs to both litigants, since there is no derara demamona, and they are not in possession of the ship, the rule is - whoever is stronger will overpower his opponent - and he wins the ship.The logic of derara demamona is used in Bava Basra to explain why the calf or the newborn slave is divided as opposed to the ship which is not divided because there is no derara demamona.However, insofar as taking an oath is concerned, the logic of derara demamona does not dictate that the division be without an oath, since [the disputed property] definitely belongs to only one of [the litigants], logic dictates that it should be divided with the litigants swearing, so perhaps one of [the litigants] might confess that the disputed property is not his.In step 2 our Gemara needs to explain why an oath is uncalled for in Sumchus’ cases, but is in order in our Mishna. The Gemara’s question is not based1<i class="footnote">See מהרש"א and מהר"ם who raise a very obvious difficulty with Tosfos’ explanation that the strength of the Gemara’s question is not from the derara demamona aspect, but from the difference between the two cases that in our Mishna it is possible that the division is true justice, whereas, in Sumchus’ case it is definitely untrue, since the calf or newborn slave belongs to only one of the litigants. However, the Gemara when introducing its question does point out that in Sumchus’ case there is a derara demamona and in our Mishna there is not. On face value it seems that the Gemara’s question is based on this difference between the two cases. See מהרש"א who explains that the Gemara is not asking its question because of the derara demamona difference between the two cases. The question is based on the aspect of our Mishna being a situation where the division can be true justice and Sumchus’ cases where the division is definitely not true justice. The Gemara simply mentions the derara demamona aspect because the Gemara previously used this as an explanation of the difference between Sumchus’ cases and our Mishna.</i> on the fact that there is a derara demamona in Sumchus’ case, but not in our Mishna. The derara demamona does not in any way say that there should be no oath. It is only a reason for division per se, but that division may be with or without an oath. The Gemara’s question that if an oath is not required in Sumchus’ case, it should certainly not be required in our Mishna, is based of the distinction between Sumchus’ cases versus our Mishna in that in Sumchus’ cases the disputed property definitely belongs to only one of the litigants and even so an oath is not needed. If so, certainly in our Mishna, where it is possible that the disputed property is jointly owned, there should be no need for an oath.The Gemara in Bava Basra is not discussing the requirement an oath. It is only discussing division of the disputed property versus battling over it. The answer to that question is that where there is a derara demamona division is in order and where there is no derara demamona a division is uncalled for and we settle the matter by having the litigants battle over the ship.According to Tosfos’ conclusion the point we made in our introduction about Step 2) must be modified. The Gemara’s argument that it is more logical that in our Mishna there should be no need for an oath because there is no derara demamona is untrue. The Gemara’s argument is that there is less need for an oath in our Mishna because of the possibility that the division may be true as opposed to Sumchus’ case where one party is definitely losing. 
  
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  There, [in the case of the third hundred-zuz], there definitely is a cheater. The Gemara seeks to reconcile our Mishna with R’ Yose of the Mishna on 37a, where he says that when one of the two litigants gave a custodian two hundred zuz and the other gave him one hundred zuz and they are now disputing ownership of the third hundred-zuz. R’ Yose rules that the court impounds all the money and holds it in abeyance until Eliyahu comes and tells us which loitigant is telling the truth.The Gemara differentiates between our Mishna of 2a, where two are holding a garment and each claims that the garment is his and the Mishna about the third hundred-zuz on 37a. In the case of the third hundred-zuz, one of the litigants is definitely cheating, therefore, [the Rabanan] fined him by taking from him even that one hundred zuz which is definitely his. It is only the third hundred-zuz whose ownership is in doubt. We are certain that each of the litigants owns one hundred zuz and even so we take away one hundred zuz from each of the litigants.But here in 2a when the two litigants are holding a garment and each is claiming that he is the sole owner, I can say that both lifted it up together and the garment actually belongs to both, but there is no definite cheater, for each one believes that he lifted it up first.
  
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  Alternatively, there [in R’ Yose’s case on 37a], he fines [the cheater] so that he should admit [that the third hundred-zuz is not his.] In that case we have leverage that will force the cheater to admit that the third hundred-zuz is not his. We are impounding not only the hundred zuz whose ownership is in doubt, but even the hundred zuz, which definitely belongs to the cheater. The cheater will ultimately realize that his attempt to cheat is costing him the one hundred zuz that is legitimately his and admit that he is wrong in order to retrieve his one hundred zuz, but here in our Mishna, even if there definitely is a cheater, for example when this one says I found it today and his opponent says, I found it yesterday. One of the two is definitely lying, but R’ Yose concedes that they should divide the garment, and we do not say that [the garment] should be held in abeyance until Eliyahu comes and tells us who the rightful owner is, because this will not cause the cheater to withdraw his claim, for he is not losing anything by the courts impounding the garment. It is not his and he is losing nothing. There is no point in holding the garment in abeyance.
  
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  Rather, it is clear that our original answer [is correct]. We find in the Mishna on 37a that R’ Yose holds that when there is a dispute about the third hundred-zuz, we confiscate all the money, even the two hundred zuz that definitely belongs to each of the litigants and it is held in abeyance until Eliyahu comes and identifies the true owner. The Gemara argues that since R’ Yose holds that we must confiscate one hundred zuz that definitely belongs to the cheater, by kal v’chomer in our Mishna we should definitely not allow him to take even half of the disputed garment, since it might belong to his opponent. If we confiscate that which is definitely his, we certainly should not award him that which may belong to his opponent.The Gemara offers two possible answers to this question. There are two inherent differences between R’ Yose’s case and our Mishna that might result in a different ruling.A) In R’ Yose’s case we confiscate all the money, because one of the two litigants is definitely cheating and attempting to steal, but in our Mishna, it is not definite that either of the litigants is attempting to steal. It is conceivable that they both lifted up the garment simultaneously and that each one believes that he was first. Therefore, in our Mishna R’ Yose might agree that division of the garment is a valid solution.B) In R’ Yose’s case when we confiscate one hundred zuz that definitely belongs to the cheater, we are using it as leverage to force him to admit that he is the cheater. However, in our Mishna, there is no portion of the disputed funds that belongs exclusively to the cheater. We have no leverage that would compel him to confess. Even if we should leave the money in abeyance forever, the cheater is losing nothing. Therefore it is best to divide the garment between the two litigants. According to this answer, whenever we have the option of pressuring the cheater to confess by impounding the disputed property, there should be no division.Eventually, the Gemara shows that in one of the cases of our Mishna we do have leverage that would force the cheater to confess. That is in the case where they are disputing who purchased the garment, and each one paid the money for the garment to the seller. The seller actually has twice the price of the garment in his possession. The court can confiscate all the money with the garment and use it as leverage to persuade the cheater to confess. Since the Mishna rules that even in the case of a purchase, the garment is to be divided, obviously the Mishna does not hold that when one can pressure the cheater to confess, we do not divide the disputed property. If we take the approach of answer B), the Mishna cannot be reconciled with R’ Yose. The Gemara retracts from answer B) and holds that the first answer A) that R’ Yose rules in favor of confiscation only when one of the litigants is definitely cheating, is correct.Upon analysis of R’ Yose’s original statement on 37a, it appears that R’ Yose does hold that we should use available money to pressure the cheater into confessing. R’ Yose uses the phrase “if so, what will the cheater lose?”. This phrase seems to say that R’ Yose holds that confiscation is called for only when it can be used to pressure the cheater into confessing. When the Gemara says that we must reject answer B) in favor of answer A), we must ask - to what degree are we rejecting answer B)? Is it a total rejection or only a modified rejection? Do we say that pressuring the cheater to confess is not a factor at all, or do we say that it is not the only factor? Tosfos will explain how we might live with answer B) despite the Gemara’s refutation of this answer.We can say that [the Gemara] retracts from [answer B)] and it is insufficient to say that the reason for confiscation is dependent <u>only</u> on whether the cheater will lose because we have demonstrated that even when there is a way of pressuring the cheater to confess, such as when they are disputing who purchased the garment, our Mishna rules that the garment is to be divided. It is evident that our Mishna holds that when the litigants are not definitely attempting to cheat, we do not impound the disputed property. Even so, it is still possible to say, that R’ Yose does not penalize the litigants by impounding the disputed property only when both criteria are met:a) there is definitely a cheater, andb) the cheater will lose unless he confesses;but when there definitely is a cheater, but he will not incur a loss, such as when they are arguing about certain funds or property where there is no room for legitimate error, and there is nothing other than the disputed funds to confiscate, [R’ Yose] will not penalize the cheater by impounding the disputed property.A critical reading of the text seems to support this modified position: As it can be understood from the wording of R’ Yose’s statement “if so, that you confiscate only the third hundred-zuz, what will the cheater lose?”1<i class="footnote">Ultimately, Tosfos concludes that even when we cannot exert pressure on the cheater, the disputed property or money is to be impounded and held in abeyance until Eliyahu comes and identifies the true owner. If so, how do we explain the expression “If so, what will the cheater lose?”, which seems to be saying that we impound the funds only when this will exert pressure on the cheater to confess. See the digest at the end of our Maseches who quotes an answer from חכמת מנוח. He explains that R’ Yose is arguing that even though we might impound disputed funds even when there is no loss for the cheater, we certainly should take advantage of the opportunity to expound disputed funds when this can be used to exert pressure on the cheater. His argument to his opponents is that by returning one hundred zuz to each of the litigants, you are throwing away the advantage of using the one hundred zuz to coerce the cheater to confess. This does not mean that we impound money only when this condition exists, it merely means that we should take advantage of the opportunity when we have it.</i> This expression indicates that R’ Yose’s ruling is only in effect when we can penalize the cheater by impounding something that is definitely his. This expression leans in favor of Tosfos’ position that when our Gemara rejects answer B) it is only saying that it is not the sole criteria for R’ Yose’s ruling, but this does not mean that it is not a criteria at all.A close look at the text of our Gemara indicates otherwise. However, the expression ‘אלא-rather’ in the heading of our Tosfos, indicates a total retraction of answer B). The word אלא says that we are rejecting approach B) entirely and that pressuring the cheater is not a criteria at all.Tosfos offers further proof that answer B) is totally rejected:The Gemara immediately following the words of our Tosfos: Both according to the Rabanan and R’ Yose, there in the case of a storekeeper who swears about the information in his records, where he claims he paid the worker as per the instructions of the householder and the worker claims he never received payment, where the Mishna taught - this one, the employee, swears and collects and that one, the storekeeper, swears and collects. The Gemara asks: How come we do not exact the disputed funds from the householder and they should be held in abeyance until Eliyahu comes and informs us who the true owner is?In this case thereA) is a definite cheater.B) However, there are no funds to be used to pressure the cheater into confessing.Even so, the Gemara asks that we should confiscate the disputed funds.So too, in the adjoining passage, [the Gemara] asks: Both according to the Rabanan who favor impounding only the third hundred-zuz whose ownership is disputed, and according to R’ Yose2<i class="footnote">On the surface, this seems to be an extremely strong question on Tosfos proposal that both elements are required - A) a definitye cheater, and B) the ability to pressure the cheater. See 41 אילת השחר by Moreinu R’ Aharon Leib Shteinman שליט"א who explains how this may not be such a strong question.</i> who rules that all three hundred zuz must be impounded, we should say in the case of the storekeeper whose records show that he was asked by the householder to pay his employee and that he did as instructed, we should impound the payment from the householder and it should be held in abeyance until Eliyahu comes and informs us who the rightful owner is, even though there would be no loss for the cheater. It is evident that the Gemara’s conclusion was that causing the cheater a loss is not a factor at all. We rule that disputed funds are impounded based on one criterion - is there a definite cheater or not?
  
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  Regarding the shopkeeper concerning his ledger, let us take the money from the householder and hold it in abeyance until Eliyahu comes.The Gemara seems to be searching for cases where we do not apply the ruling - it should be held in abeyance. Tosfos holds that there is another case where this ruling could be applied. The Gemara should have placed it on the table as well.The Mishna in Yevamos 118b speaks of a person who stole from one of five people. Each of the five claims that he was the victim and is entitled to be paid. R’ Akiva holds that the thief must pay each of the five possible victims in order to be definitely free from sin. Within the text of the Gemara there, it is evident that some hold that R’ Akiva’s ruling is in effect even for one who purchased from one of five people and they are each claiming that they were the seller. In order to be free of sin, one must pay to all of the possible sellers.Tosfos is referring to this opinion in the Gemara in Yevamos 118b. According to R’ Akiva who says (Yevamos 118b): When one purchased from one of five people and he does not know from which one of them he purchased, and each one of them claims that he was the seller, he must pay to each and every one of them, [the Gemara] does not ask: Why must he pay to each and every one who claims that he was the seller? We should rule that [the payment] should be taken from the buyer and held in abeyance until Eliyahu comes and identifies the true seller, as the Gemara says here in regard to the case of the storekeeper?Because there the buyer was negligent, he should have remembered from whom he purchased the article. By his negligence he damaged himself and must pay each of those who claims to be the buyer. At this point in the dialogue of our Gemara, the Gemara does not believe that the householder was negligent and therefore suggests that the money be taken from him and held in abeyance.
  
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  You did not instruct me to give him [his wages] with witnesses. It is because of your negligence in not telling me to pay your employee in the presence of witnesses that we now have this problem. I, the storekeeper, need not suffer for your negligence by the court impounding your money.The Gemara seems to accept this argument that it was incumbent upon the householder to instruct the storekeeper to pay only in the presence of witnesses. We do not expect the storekeeper to suspect that the employee might attempt to cheat and the storekeeper should have thought of using witnesses on his own. Tosfos will now present a Gemara in Kesubos 85a, where it seems that an agent, even if not specifically instructed, is expected to use his good sense to assure that his payment will free the principal from having to pay again.This is bewildering! Let the householder say to the storekeeper, I made you an agent to pay my employee for my benefit, so that I would no longer be liable to pay, but not for my detriment, to pay the employee without documentation of the payment. Even though [the householder] did not specifically tell [the storekeeper]: Pay him in the presence of witnesses, on his own [the storekeeper] should have exercised caution and should not have paid unless witnesses were present.Where do we see that it is incumbent on the agent to consider the possibility that the recipient might deny that he was paid? As [the Gemara] says in Perek Hakosev (Kesubos 85a) in regard to Avimi who owed money to the people of Bei Chozai. He sent [payment] in the hands of Chama son of Rabah bar Abuhu and he paid [the people of Bei Chozai]. [Chama] said to them: Give me the document so that you will not be able to collect again. They said to [Chama]: The money that you paid was for another debt. Avimi still owes us money to satisfy the debt of this document. We will not return it to you. Chama had obviously been deceived into paying the debt without destroying the document and the people of Bei Chozai would again collect the debt of the document. Who must assume the loss, Avimi the principal or Chama the agent?The Gemara there concludes that no matter whether [Avimi] told [Chama]: Take the document and then pay, or whether he said: Pay the money and take the document, the agent Chama, is liable, because [Avimi] can say to [Chama] I sent you for my benefit not for my detriment. You were obliged to use common sense and make sure to take back the document so that I would not have to pay again. So too, in the case of the storekeeper who paid the employee for the benefit of the householder, it should be incumbent on the storekeeper to pay the employee his wages in a way that would not subject the householder to pay a second time.We can answer: That there in Kesubos 85a, since [Avimi] mentioned that Chama should take back the document, it is as if he said: Do this in a way that the document will come into your possession and I will not have to pay again, but here [the householder] did not mention witnesses at all. In the absence of even a mention that there might be a problem with the employee’s honesty, the storekeeper did not have to anticipate that he might eventually deny that he was paid. In Avimi’s case, it was brought o Chama’s attention that the people of Chozai might be dishonest and attempt to secure payment a second time. It was incumbent upon Chama to exercise caution and be sure that he had the document in his hands before paying the cash.
  
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  Why did the Torah say etc. [that one who admits to partial liability must swear]? As we learn this Gemara together we will see that if a defendant totally denies the plaintiff’s claim, for example: Reuven claims that Shimon owes him one hundred zuz. Shimon says it is untrue: I owe you nothing. Shimon is not liable to pay nor to swear to defend his denial by Torah law.This scenario is referred to as כופר הכל - the defendant totally denies the claim.If however, Shimon admits partial liability, for example: He says - I owe you only fifty zuz, he must pay the fifty that he admits to owing and must also swear that he does not owe Reuven the other fifty.This is called מודה במקצת - partial admission.In our Gemara, Rabah is attempting to explain this phenomena. The Gemara begins with a general question: Why did the Torah say that one who admits to partial liability must swear? The implication of this question is that that there is reason to say that this oath is not necessary. What is that logic?[Tosfos] explains the underlying logic of the Gemara’s question: [The defendant] should be believed when he admits to partial liability with a migo,1<i class="footnote">See 2Ac Tosfos ד'ה זה נוטל רביע for a general explanation of the concept of migo.</i> since if he had wanted to lie, he could have totally denied the plaintiff’s claim. As we will soon learn, he would not have to swear if he did totally deny the claim. We should therefore believe his partial admission and he should not have to swear to defend his denial of a portion of the debt.It is fairly obvious that a partial admission requires an oath despite the migo that the defendant has. How do we deal with Rabah’s question if we do not have the option of saying that one who partially admits liability does not have to swear?Or, we should learn from this ruling that partial admission requires an oath that we do not use a migo elsewhere. As Tosfos has pointed out, the oath required of one who partially admits to the claim against him is an inherent contradiction to the concept of migo. We should conclude that migo is not a viable method of proving the truthfulness of one’s claim.[The Gemara] answers: Ordinarily a migo is acceptable proof of one’s truthfulness, however,this is not a viable migo, because a person does not have the audacity to totally deny a claim against him, since his neighbor, the plaintiff, is aware of his lie. It is psychologically easier for him to admit to partial liability than to totally deny that claim. Migo says: believe my first claim because if I was a liar I have a better claim. In the case of partial admission this is not true. Totally denying the claim is extremely difficult for him, because it requires a level of audacity of which he is not capable.Tosfos proves his point by showing that when one can easily totally deny the claim against him, he actually does not need to swear since he has a migo.However, in a situation where one does have the audacity to totally deny the claim against him, for example: when his opponent is the son2<i class="footnote">The father who lent the money to the borrower is well aware of the borrower’s lying. The borrower does not have the audacity to lie in his face. The son of the lender who is attempting to recover money that he believes belongs to him, does not really know the truth and it is easier to lie in his face.</i> of the lender as opposed to the lender himself, and [the borrower] says: Your father left a hundred zuz in my possession, i.e. I owed him a hundred zuz, but I paid half, he is believed because he has a migo that he could have totally denied the claim against him, as it is stated in the second Perek of Kesubos (18a) and in Perek Shavuos HaDayanim (Shavuos 42a). It is evident that when the defendant does have an acceptable migo, he is in fact exempt from swearing. In the classic case of a partial admission, he must swear because he does not have a viable migo. He cannot muster the audacity to totally deny the claim on the plaintiff.The migo we are discussing is based on the ability to totally deny the plaintiff’s claim. This brings us to Tosfos’ next question.If you ask: How do we know that one who entirely denies the plaintiff’s claim is exempt from swearing?Tosfos first rejects two possible sources for this ruling.We should not say that this is because of a chazakah3<i class="footnote">An assumption of fact.</i> that a person does not have the audacity to totally deny his debt. Since he is denying it, he is obviously being truthful. For even in a situation where one can be brazen, such as when the plaintiff is the son of the lender, the borrower who totally denies the claim against him is believed. Furthermore, even one who admits to partial liability is exempt [when it is the lender’s son who is the plaintiff] since if he wanted to lie, he would have denied the claim entirely. It is clear that a total denial is accepted even when there is no chazakah that he would not have the audacity to brazenly deny the claim against him. So much so, that in such a situation we say that the partial admitter is also exempt from swearing because of a migo.The second possible solution that Tosfos rejects: We should not say that we derive that one who totally denies the claim is exempt from swearing, from that which the Torah needed to write that a single witness against a plaintiff, obligates him to swear in defense of his denial. Now, if one who totally denies the claim against him is obligated to swear, what difference is the testimony of the single witness, he is obligated to swear without this testimony? It must be that he is exempt from swearing when he totally denies the plaintiff’s claim and is obligated to swear when there is a single witness against him. Tosfos explains that this argument is also incorrect. Even if one who totally denies the plaintiff’s claim is obligated to swear, there is still a need for the Torah to tell us of the oath generated by a single witness.For it is necessary to tell us that a single witness obligates the defendant to swear in a situation where [the plaintiff] is not making any claim at all and he does not know that the defendant owes him money, but the witness is testifying that [the defendant] stole from the plaintiff, or that the plaintiff’s father lent [the defendant] money. The plaintiff has no idea that the defendant owes him money. There is no claim by the plaintiff and no denial of such claim by the defendant. It is only the testimony of the single witness that obligates the defendant to swear. It is therefore possible to say that even when one is in total denial of the plaintiff’s claim he is obligated to swear and the Torah found it necessary to write about an oath generated by a single witness’ testimony, for a situation where there is no claim and counterclaim at all.In order to understand Tosfos’ answer, we must have some background information about the source of the obligation of a defendant to swear. In Shemos 22, 8, the Torah speaks of the obligation to defend one’s claim by taking an oath. The exact wording of the verse is: אשר יאמר כי הוא זה - That [the defendant] will say in response to the claim against him but this is it.The Gemara in Bava Kama 106b comments about the meaning of this verse: He is not obligated to swear until he denies some of the claim and admits some of the claim. What is the reason for this requirement? The verse says: That he will say, but only this is it.The Gemara understands that the words “but this is it” mean that he is agreeing to some of the claim against him, but not to all of it a partial admission. It is for such partial admission that an oath is called for. We can answer: That from the verse “כי הוא שה - but this is it”, it is understood that it is a decree of the Torah, that only one who admits to part of the claim against him is obligated to swear, but not one who totally denies the claim. [See at length about this in Tosfos Bava Kama 107a [ד'ה עירוב - We see from the verse that the Torah required an oath only in the case of partial admission and not when the claim is totally denied.
  
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  He wants to admit all. The Gemara is presently explaining the psychology of one who partially admits to the plaintiff’s claim against him. Rashi explains that this explanation is needed to answer an underlying question that is not spelled out in the Gemara. Tosfos agrees that this is indeed the intent of the Gemara. However, Tosfos disagrees with Rashi about the underlying question.That which Rashi explained that the words in the Gemara בכוליה בעי דלודי ליה - he wants to admit that he owes the entire claim’ is a response to the following underlying question: Since [the defendant] is suspected of stealing money, by denying the claim against him, how can we allow him to swear? We should say: Since he is suspected of stealing money, he should also be suspected of swearing falsely. Stealing money and swearing falsely are equally forbidden by the Torah. If we suspect someone of stealing money and thus violating the Torah, we should also suspect him of swearing falsely. How can we allow and even demand of him that he swear?[The Gemara] answers: That [the defendant] by denying half is evading the creditor and he is not actually suspected of attempting to steal money. We may therefore expect that he will not swear falsely.The Gemara later on 6a concludes after a lengthy discussion of this topic: Rather, we do not say that since one is suspected of stealing money, he is also suspected of swearing falsely!But this explanation of the underlying question by Rashi is bewildering! For [the Gemara] concludes later (6a) that one who is suspected of stealing money, is not suspected of swearing falsely. Even when we are certain that a litigant is attempting to violate the Torah by stealing from his opponent, we allow and demand of him that he take an oath to prove his claim, because we believe that he would not swear falsely. The commandment against swearing falsely is more stringent than others and people who might violate other commandments of the Torah would not violate the commandment against swearing falsely. If so, how can Rashi say that the underlying question of the Gemara here is: How we can allow the partial denier to swear, we should be concerned that he might swear falsely, the Gemara later clearly holds that there is no such concern?There is a conceivable way of reconciling Rashi’s explanation here with the Gemara of 6a. They are speaking about two different time periods:A) The Torah period.B) The Rabbinic period.Our Gemara may be speaking of A) the Torah period, when it was expected that people be equally fearful of all commandments of the Torah. The Gemara here is wondering why the Torah would not suspect one who is attempting to steal of swearing falsely.The Gemara on 6a may be speaking of the reality of life in B) the Rabbinic period and saying that it was known that at that time people feared violating the commandment against swearing falsely, but not the prohibition against stealing. Tosfos rejects this approach.We cannot say that the Gemara on 6a that concludes that one who is suspected of cheating is not suspected of swearing falsely, is speaking about the reality of life in B) the Rabbinic period, and holds that because [the Rabbis] saw that swearing falsely was more stringent in their eyes than the prohibition against stealing, they might steal but would still be unwilling to swear falsely.But, our Gemara on 3b is speaking of how society behaved inA) the Torah (period) when stealing and swearing falsely were equally abhorrent and then, one who was suspected of [stealing] was also suspected of [swearing falsely]. For this solution to be viable, we must concede that during A) the Torah period, we would not all allow or demand one who is suspected of stealing to swear. However, a close study of the discussion on 6a, reveals that many of the proofs cited are from Torah law. But according to Tosfos hypothesis according to Torah law, one who is suspected of stealing would be suspected of swearing falsely as well.The Gemara later on 6a quotes this ruling of Rav Sheishes. Tosfos refers to it as Rav Nachman’s ruling. Indeed, in Bava Kama 107b, it is stated in the name of Rav Nachman. The Gemara is discussing the oath required of an unpaid custodian, when the deposited item is lost or stolen. He must verify that the loss or theft was not a result of his negligence. In addition there are two more oaths that he must take.We obligate [the unpaid custodian] to swear three oaths: I swear that I was not negligent. I swear that I did not misappropriate it.1<i class="footnote">A custodian who uses or takes possession of the deposited item is a thief. Once a person is considered a thief, the stolen article is in his domain until he legally returns it to its owner. In effect this means that even if the misappropriated item is lost, stolen or destroyed by accident, it is the responsibility of the custodian, who is now a thief. Had he not taken possession of the deposited item, he would be exempt from payment, because an unpaid custodian is not responsible for loss, theft or accidents. However, as a thief he is responsible for all of these. He must therefore swear that he did not ‘steal’ the deposited item and he is only liable as a custodian.</i> I swear that it is not in my possession. By requiring to swear that he did not misappropriate the deposited item, we are clearly stating that we suspect him of stealing the deposited item.2<i class="footnote">By requiring that he swears that he did not misappropriate the deposited item, we are clearly suspecting him of stealing the item. Even so, we require that he swears. Obviously, we do not suspect him of swearing falsely. See Rashi 6a ד'ה נימא who explains that the proof of the Gemara there is from the third oath - I swear that the deposited item is not in my possession. This definitely is proof of a suspicion that he is presently in possession of the deposited item and that he is attempting to steal it. Even so, we allow and demand that he swears.</i> Even so, we allow and demand of him that he must swear to defend his claim. Obviously, even though we suspect him of stealing the item, we we accept his oath as true.For later [the Gemara] cites Rav Nachman’s ruling that we obligate [a custodian] to swear three oaths. One of these is that I did not misappropriate [the deposited item]. If we suspect him of misappropriating the deposited item, we are suspecting him of stealing, because he definitely has no right to misappropriate the deposited item. Even so, we obligate him to swear that he is innocent of such misappropriation. Obviously, we do not suspect him of swearing falsely, even though we do suspect him of misappropriating the deposited item. It is evident in the latter HaGozel (Bava Kama 107b) that this oath that he did not misappropriate the deposited item is required by Torah law. If it is Torah law, we see that even in the Torah period, one who is suspected of stealing is not suspected of swearing falsely.Let us learn the Gemara in Shavuos 32b together.There was a man Ruvain, who seized an block of silver from his neighbor, Shimon. [Shimon] came before R’ Ami to judge this case. R’ Aba was sitting in front of [R’ Ami]. [Shimon] went and brought one witness that [Ruvain] seized [the block] from him. [Ruvain] said to him: It is true that I seized the block, but what I seized is mine. You Shimon had previously stolen the blockt from me. R’ Ami said: How can we rule in this case? Should we rule that [Ruvain] must pay? But there are not two witnesses who testify that he is liable. Should we rule that[Ruvain] is exempt? But there is one witness who testifies that he seized the ingot from Shimon. This is tantamount to testimony that he stole it from Shimon, because we assume that whatever is in Shimon’s possession belongs to him. Should we rule that [Ruvain] must swear? Since he said: It is true that I seized the block from Shimon, but what I seized is mine, he is comparable to a thief3<i class="footnote">See Rashi there (12) ד'ה כיון דאמר אין חטפי who explains that he is not truly a thief. Rather, the Gemara means that just as a thief cannot swear, so too, in this case the defendant cannot swear. The defendant must sear that what the single witness is untrue. Once he admits that he did in fact seize the block, he cannot swear that this is untrue. He is therefore comparable to a thief. Just as a thief may not swear, so too, the defendant who admitted that he seized the block of silver cannot swear, albeit for different reasons.</i> and a thief cannot swear. What can we possibly rule?R’ Aba said to [R’ Ami]: [Ruvain] is obligated to swear to deny the testimony of the single witness, and he cannot swear because he admitted that he did seize the block. One who is obligated to swear and cannot swear, must pay.So too, in the case of the ingot of R’ Aba (Shavuos 32b) it is understood that if the defendant said: I did not grab the block, he would swear to deny the testimony of the single witness by Torah law. Once again suspecting him of seizing the block is the equivalent of suspecting him of stealing. Even so, we obligate him to swear. Obviously, we are not concerned that he might swear falsely just as he is suspected of stealing. That the obligation to swear is Torah law can be seen from [the Gemara’s] statement that since he cannot swear to deny the witness’ testimony, because he admitted that he did grab the ingot, he must pay. This is proof that the oath he must swear is Torah law, for if the oath is only required by the Rabanan, we do not say that since he cannot swear he must pay. Since we do apply that ruling for R’ Aba’s block, it is conclusive proof that an oath would have been required by Torah law. We see that in Torah law, one who is suspected of stealing is not suspected of swearing falsely.Once we conclude that Rashi’s explanation of the words בכוליה בעי דלודי ליה is incorrect, we must have an alternative explanation. What issue is the Gemara addressing with these words?Therefore, it can be said that the words “and he wants to admit to the entire claim” are in response to this underlying question: Since we have just said that one does not have the audacity to lie in the face of his opponent who knows the truth, then when he says he only owes fifty zuz, we should assume that it is true that he does not owe him more. Why must he swear to defend his claim? He should be believed with a migo that he could have denied the entire claim of the plaintiff? Tosfos is assuming at this point that even a partial denial is essentially audacious. We should therefore rule that since he does have the audacity to deny part of the claim, we should believe him because he has a migo that he could have denied the entire claim. We cannot say that he does not have the audacity to do so, because he is presently exhibiting audacity in his denial of half the claim.[The Gemara] answers: That this partial denial is not a demonstration of his inherent ability to make an audacious counter-claim, because the partial admission is his way of evading the creditor till he will have sufficient funds to pay. It is not at all a demonstration of audacity.At this point Tosfos has concluded that a total denial of liability requires audacity. A partial denial does not demonstrate audacity, rather it is a way of stalling for time. We cannot say: believe the partial denier, because he could have denied all, since a total denial requires audacity which the average person does not have. The partial denier is stalling and not at all showing his audacity. His present counter-claim is a method of stalling, but not a demonstration of audacity.Tosfos will now show that a total denial of a claim is also thought of as a method of stalling. If so, we should believe the partial denier without requiring that he swear, because he could have totally denied the claim. Just as he is stalling with his partial denial, he could have stalled with a total denial.If you ask: a total denial is also a method of stalling for time and not a demonstration of audacity, as [the Gemara] says in Perek Shavuos HaDayanim (Shavuos 40b): Rav Nachman said: One who totally denies a claim against himself is obligated to swear an oath of incitement which will encourage him to desist from his false counter claim. We cannot allow the claim of his plaintiff to go unanswered, because we assume that a person does not claim that his opponent owes him money unless he does owe him something. The defendant must therefore swear to deny the claim against him to dispel the assumption that he does truly owe the plaintiff.[The Gemara] there asks: On the contrary his total denial should be viewed as proof that he does not owe the plaintiff any money, because a person does not have the audacity to deny a true claim in the face of his creditor? Why should we require an oath of him?[The Gemara] answers: His denial should not be construed as proof of his innocence, because he would not have the audacity to lie in the face of his creditor. Rather, his denial should be viewed as his way of evading his creditor and stalling for time, until he will be able to gather the money with which he will pay his debts. We see that the total denier is also stalling for time and not totally audacious. As we have seen earlier, the partial denier is also viewed as stalling for time. If so, the partial denier should be believed with a migo that he could have totally denied the claim against himself.We can answer: In any case greater audacity is needed to totally deny the plaintiff’s claim than to partially deny his claim. Thus, there is no migo. A migo is viable when one could just as easily claimed the second claim as he claimed the first claim. If it is easier to make the first claim than the second claim, the migo is not viable. Since it is easier to only partially deny the plaintiff’s claim than to totally deny it, there is no migo.
  
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  But [when dealing with] the testimony of witnesses, where this cannot be said, [perhaps there is no oath required]. We must remind ourselves that the Gemara is in the process of learning that when a defendant who claims that he owes nothing of the hundred zuz claimed by the plaintiff, is partially contradicted by witnesses who testify that he owes at least fifty zuz, he must swear about the other fifty, just as he would have to swear about the other fifty zuz, if he admitted that he owed fifty. We are saying that it is no difference between whether he is liable for the first fifty a) by his own admission or b) via the testimony of witnesses. In either case he must swear to defend his denial of the second fifty.a)Plaintiff: 100 zuz Defendant: 50 zuz Witnesses: N.A.Ruling: Torah oath b)Plaintiff: 100 zuz Defendant: Nothing Witnesses: 50 zuzRuling: Torah oathThe Gemara has explained the psychology of requiring an oath when a) he admits fifty and denies fifty. The Gemara is now saying that the same psychology cannot be applied when he is liable for the first fifty zuz b) via witnesses. The Gemara uses an elusive phrase - the same cannot be said for whena) the liability for the first fifty zuz was established by witnesses as for whenb) the first fifty zuz established by his own admission.But what is truly the difference. Let us remember that in the previous Tosfos we learned that when a person denies half, it is not viewed as an attempt to steal. Rather, he is evading the creditor and stalling for time. This stands to reason when there was at least a partial admission of debt, but when there is a total denial, it is a bit more difficult to view the defendant’s denial as evading the creditor and stalling for time and not as an attempt to steal.Tosfos says that this is what the Gemara means when it uses the phrase that when his liability of the first fifty zuz is established b) by witnesses, it cannot be said so readily,1<i class="footnote">As we will soon see, Tosfos is not saying that it is impossible to view a total denial as an attempt to evade the creditor. He is merely saying that we cannot view him as evading the creditor so readily, as we can view a partial denial.</i> that he is evading the creditor and stalling for time, since he denied the claim entirely. I should therefore say, since he is suspected of stealing, he is also suspected of swearing falsely.The Baraisa of R’ Chiya informs us of the kal v’chomer which teaches us that [the defendant] is not a thief2<i class="footnote">See חידושי הר"ן who asks a very obvious question: If we have a legitimate point when we say that one who totally denies is viewed as attempting to steal and not as evading the creditor, how can the kal v’chomer teach us otherwise? Our logical argument cannot be refuted by a kal v’chomer. See חידושי הר"ן for a different explanation of the Gemara. Also see בית הלוי חלק ג' לז ו' for an answer to this question according to Rashi’s explanation of the Gemara.</i> [by denying liability] because he too is evading the creditor and stalling for time, but his intention is not to steal.Tosfos proves that even a defendant who denies everything is not considered a thief: For one who falsely denies owing a loan is qualified to be a witness. If he was suspected of thievery, we could not accept his testimony in bais din. Since his testimony is acceped, it is evident that we do not think of him as a thief.Was it necessary for the Tanna to teach us that we do not say that since one is suspected of stealing, he is also suspected of swearing falsely? Even though [the Gemara] later (6a) says that we do not say ‘since he is suspected etc. [of stealing, he is also suspected of swearing falsely]’. If so, why does the Baraisa of R’ Chiya need to teach us this, there is already adequate proof of this concept?Even so, the Tanna informs us that we do not say: Since he is suspected of stealing, he is also suspected of swearing falsely. This he derives from a kal v’chomer from two sources, the oath that he must take when he admits partial liability with his own mouth, and the oath that he must take when a single witness testifies against him.The Gemara on 4a is attempting to understand the kal v’chomer that teaches us that b) when witnesses testify that the defendant owes at least fifty of the hundred zuz claimed by the plaintiff, the defendant must swear about the fifty zuz that the witnesses are not testifying about.The Gemara has shown that if the source of the kal v’chomer is the oath of partial admission or the oath of a single witness, the kal v’chomer is not functional. This process if known as a ‘פירכא - challenge’ to the logic of the kal v’chomer. The kal v’chomer is constructed on the logic that if “A” which is lenient requires an oath, then “B” which is more stringent certainly requires an oath. The ‘פירכא - challenge’ shows that in a certain way “A” is actually more stringent, thus undoing the basis of the kal v’chomer.The Gemara on 4a summarizes the information discussed about the kal v’chomer: One’s own mouth is proof a) that when we know that he is liable for half the claim, that he must swear about the other half. So too, b) when his partial liability is established by the testimony of witnesses, he must swear about the other fifty zuz. What can you prove from the oath that one must take by a) the admission of his own mouth which cannot be contradicted. An admission is extremely powerful. Even if witnesses contradict an admission, the defendant remains liable. If so, we cannot derive that b) when witnesses testify that the defendant owes half, he should be obligated to swear from the oath that he must take when he admits owing half, because his own admission that he owes half is more potent than the testimony of witnesses that he owes half. Perhaps it is because of this potency that the Torah requires an oath when one admits half, but not when it is the testimony of witnesses that causes him to pay half.The oath obligated by a single witness will prove that even if the testimony can be contradicted it can obligate an oath, for the testimony of a single witness can be contradicted and even so, it obligates the defendant to swear.What can you prove from the oath obligated by a single witness, where the oath will be for the money that the witness testified about? He denied owing any money and the witness testifies that he owes a hundred zuz. He must swear to contradict the witness' testimony which supports the claim of the plaintiff. Can we derive from this that when two witnesses testify that the defendant owe fifty zuz, the defendant is obligated to swear about the other fifty zuz, which he denied owing - a claim which is not supported by the testimony of witnesses?The oath he is obligated to take when he admits owing half by his own mouth, proves that one can be liable to swear about the second fifty zuz, even though the claim of the plaintiff is is not supported by the testimony of any witness.At this point we can prove fromA) the oath obligated by a single witness, that one can be obligated to swear by testimony that can be contradicted. We can prove from the oath obligated by one’s admission that one can be required to swearB) even on the portion of a claim that is unsubstantiated by either one’s own admission or by a single witness.From the combination of A) and B), we can prove that b) when witnesses testify that the defendant owes half the money claimed by the plaintiff, he is required to swear about the other half.Tosfos refers to learning from this combined source as deriving this ruling from the oath obligated by פיו - the admission of his own mouth and from the oath obligated by an עד אחד - the testimony of a single witness.What emerges from our Gemara is that there are two reasons why we might not be able to derive that b) when partial liability is established by witnesses an oath is required, from when partial liability is established by his own admission:A) When he admits partial liability, we view the partial denial as an attempt to evade the creditor and as a method of stalling for time. Whereas, when one has already totally denied liability, it seems as if he is attempting to steal. The Gemara uses this reason to prove that it is necessary to have a kal v’chomer, otherwise we could not compare the testimony of witnesses to his own admission.B) One’s a) own admission in a sense is stronger than b) witness’ testimony. His admission cannot be contradicted by witnesses, nor can they invalidate his admission by saying that he was not in the place where the supposed loan took place. For example: He admits that he borrowed money from the plaintiff in New York City on January 1st. Witnesses say that they were with the defendant on January 1st in Los Angeles. The loan that the defendant admits to could never have happened according to the witnesses. Even so the admission stands. The Gemara uses this reason as a challenge to the kal v’chomer.The Gemara initially said that there is an inherent difference between a) when one’s partial guilt is established by admission and b) when it is established by witnesses.The Gemara says that we cannot derive liability b) when the admission is established by witnesses from a) when it is established by one’s own admission, because of reason A), when partial liability is established by witnesses, he has already denied owing money and is viewed as having attempted to steal.It seems that the Gemara could have used reason B), just as easily. We would think that partial liability established by witnesses does not obligate an oath because one’s admission is stronger than the testimony of witnesses, since it cannot be contradicted or invalidated. So too, when the Gemara suggests reason B) as a challenge to the kal v’chomer, it could just as easily have used reason A).Tosfos would like to know why the Gemara initially uses reason A) to show that there is a need for the kal v’chomer and later switches to reason B) to challenge the kal v’chomer.If you ask: Why does [the Gemara] need reason A) that a) when partial liability is known from the defendant’s admission, he is not viewed as a thief because we say that he is evading the creditor and stalling for time, as opposed to b) when his partial liability is established by witnesses, where we view him as having attempted to steal. Let [the Gemara] say that if not for the kal v’chomer, I would think reason B), that one’s own admission is more potent than the testimony of witnesses, because it is not subject to contradiction or invalidation? Therefore, one’s own admission of partial liability can obligate an oath, but partial liability by witness’ testimony cannot obligate an oath.There is a similar problem with the Gemara that presents the challenge to the kal v’chomer. So too, later, [the Gemara] should have challenged the kal v’chomer from a) one’s admission by arguing - what can you prove from one’s admission where the defendant is viewed as evading the creditor and stalling for time, to b) when we know of his partial liability by witnesses, but he himself has totally denied liability and cannot be viewed as evading the creditor?We can answer: That here, where [the Gemara] is explaining the meaning of the phrase we should not think “that his own admission is greater and more likely to require an oath, than the testimony of witnesses”, [the Gemara] is more comfortable using reason A): that [the debtor] is admitting to only half because he wants to evade the creditor and stall for time, for it is logical that for this reason, one would be required to swear a) when his partial liability is established by his own admission, but not b) when his partial liability is established by the testimony of witnesses.However, [the Gemara] is more comfortable citing the potency of one’s admission, that it cannot be contradicted or invalidated, later to annul the kal v’chomer, for that is the method of the Gemara, to raise a challenge against a kal v’chomer, which shows that what is presented as ‘kal- lenient’ such as one’s own admission, is not lenient at all because it cannot be contradicted or invalidated. But [the Gemara] does not use logical arguments to reverse a kal v’chomer, therefore, it does not cite the logical difference between a) one’s admission and b) the testimony of witnesses, that in the case of one’s own admission his partial denial can be seen as an attempt to evade and stall for time from the creditor.
  
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  What [can you prove from the admission] of his [own] mouth, which [has the strength to] obligate him [to bring] a <i>karban?</i> Can the same be said for witnesses etc. [who do not have the power to obligate him to bring a <i>karban</i>]? At this point in the dialogue of the Gemara, the Gemara is using one’s mouth - his admission - as the basis of a kal v’chomer. His admission does not have the strength to obligate him to pay penalties, and even so it obligates him to swear when he admits that he owes fifty of the one hundred zuz the plaintiff is claiming. Certainly, the testimony of witnesses which is strong enough to obligate him to pay penalties, should also have the strength to require him to swear when that testimony says that he owes fifty of the hundred zuz that the plaintiff is claiming.<u>Penalties</u>His admission: No Witnesses: Yes<u>Oath</u>His admission: YesWitnesses: CertainlyAs we explained in the previous Tosfos, a kal v’chomer is subject to a ‘פירכא - challenge’. The nature of the challenge is to show that one’s mouth, which is being described as the ‘קל - lenient’ is actually more powerful in certain cases. Presently, the Gemara argues that one’s mouth is more powerful than the testimony of witnesses, because his admission can obligate him to bring a karban. Presumably, the logical conclusion of this sentence is, but witnesses cannot obligate him to offer a karban.Tosfos will explain the exact conditions where one’s admission is more powerful than the testimony of witnesses in regard to offering a karban. When the Gemara says that one’s admission obligates him to offer a karban, the meaning is: That his admission obligates him to offer a karban even when witnesses contradict him and say: What you ate was not cheilev,1<i class="footnote">Cheilev refers to the fats of the animal that are prohibited by the pain of kares.</i> but shuman.2<i class="footnote">Shuman refers to other fatty parts of the animal that are permitted for consumption.</i> In this case, his admission wins and he is obligated to offer a karban, even though witnesses testify that he is not required to offer a karban.Perhaps the Gemara is speaking of one’s admission that he is liable to offer a karban when it is not contradicted by witnesses? For if the witnesses are not contradicting him, how can [the Gemara] say: Can you say the same for witnesses etc. who do not obligate him to bring a karban?]. But if we are discussing one’s admission when it is not contradicted by witnesses,it is simply not true that witness’ testimony would not obligate a karban in a comparable situation. The reality is that witnesses also obligate him to bring a karban, if he does not contradict them. For even a single witness, if not contradicted, obligates him to bring a karban. When not contradicted, an admission, testimony of witnesses and even a single witness are all equal as far as obligating him to offer a karban. The special strength of an admission must be that even if it is contradicted by witnesses, it still obligates him to offer a karban.In order to understand this Tosfos properly we must learn a Gemara in Kereisos 12a that discusses the reason why one’s own admission stands even against the testimony of witnesses. The Gemara there is discussing the Mishna in Kereisos 11b, soon to be quoted in our Gemara about a dispute between R’ Meir and the Rabanan. R’ Meir holds that if two witnesses testify that a person ate cheilev he must offer a karban. The Rabanan say the he is exempt. The Gemara there asks: What is the reason of the Rabanan? Is it because a person is believed about himself more than a hundred people, since this is something that affects only himself, he is the ultimate authority about his own obligations?Or perhaps it is because we say there is a migo, that he could have said “I ate the cheilev intentionally”. It is beyond the witnesses to know whether he ate the cheilev intentionally or inadvertently. Thus, if he would insist that he ate it intentionally, we would necessarily believe him. So too, when he says: I did not eat cheilev at all, he is believed and is exempt from bringing a karban.We see that there are two possible explanations of the Rabanan’s opinion:a) A person is believed about his own private affairs even to the exclusion of witnesses.b) We believe him because he could have exempted himself by saying: I ate the cheilev intentionally.Which of these two versions in Kereisos 12a is compatible with our Gemara in Bava Metzia 3b?This passage holds like the version in Perek Amru Lo (Kereisos 12a) that explains the reason of the Rabanan soon quoted later, that when [witnesses] said to him: You ate cheilev and he says I did not eat cheilev, that he is exempt from offering a karban, because a person is believed about himself more than a hundred people. Therefore, his mouth obligates him to offer a karban even if witnesses contradict him3<i class="footnote">See אוצר מפרשי התלמוד who quotes many commentators who explain Tosfos’ position in this issue. We must keep in mind that when a person claims that he ate cheilev and witnesses contradict him, he may be believed as far as himself is concerned. In reality however, there are other people affected by this question. Consider the Kohanim who need to offer this sacrifice. It is true that the supposed perpetrator insists that he is obligated to offer this karban, but there are a pair of kosher witnesses who say that there is no obligation to offer this karban and it is actually an ordinary animal that is not a karban at all. So too, as far as eating the flesh of this karban, the witnesses are saying that it is forbidden to do so, because this is חולין שנשחטו בעזרה - an ordinary animal that was slaughtered in the temple, which may not be eaten. It is beyond the scope of this work to deal with all these issues.</i> because a person is the ultimate authority about himself. However, by the same token witnesses do not obligate him to offer a karban, if he contradicts their testimony.Why is our Gemara not compatible with approach b) mentioned in Kereisos 12a? For according to the other version, that explains the reason of the Rabanan that we believe the person who says: I did not eat cheilev by adjusting his statement and explaining his words as follows: I did not eat cheilev inadvertently which would make me liable for a karban, rather, I did so intentionally and I am exempt from a karban.4<i class="footnote">See רמב"ם שגגות פ'א ה'א who rules in favor of this opinion.</i>This version b) of the explanation of the Rabanan must be logical. Tosfos adds something to the simple meaning of that Gemara: It must be speaking of when at the time he said “I did not eat cheilev” we did not interrogate him about what he meant. Since we do not have a clear statement that he did not eat cheilev at all, we can say that initially he meant that he did not eat cheilev inadvertently, but intentionally and he is therefore exempt from a karban. However, he is not believed to directly contradict the witnesses. If he should say that he did not eat cheilev at all and the witnesses testify that he did eat cheilev inadvertently, we would not believe him and he would have to bring a karban.If so, the testimony of witnesses is more powerful than his mouth, for they can obligate him to offer a karban even when he contradicts them, and he cannot obligate himself to offer a karban, if [witnesses] were contradicting him.According to this version in the Gemara in Kereisos, R’ Chiya’s position that the testimony of witnesses is stronger than one’s own admission comes out even according to the Rabanan. Our Gemara did not need to say that R’ Chiya follows R’ Meir who disagrees with the Rabanan.
  
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  R’ Chiya holds like R’ Meir [who says that witnesses can also obligate one to bring a karban]. Let us remind ourselves that we are discussingA) R’ Chiya’s kal v’chomer that the testimony of witnesses is stronger than one’s own admission because their testimony can obligate him to pay fines, which his own admission cannot accomplish. If his own admission can obligate him to swear upon the fifty zuz that he is denying, witnesses’ testimony that he owes fifty zuz, which is stronger than his own admission should also obligate him to swear on the other fifty zuz.<u>Penalties</u>Kal, His admission: No Chomer, Witnesses: Yes<u>Oath</u>Kal, His admission: YesChomer, Witnesses: CertainlyThe Gemara challenges this kal v’chomer by saying that in a way one’s mouth is stronger than witnesses because it can obligate him to bring a karban, which witnesses cannot do. Thus the perceived kal his admission - is not actually kal, because it has the power to accomplish what the chomer - witnesses cannot do.The Gemara responds that R’ Chiya follows the opinion of R’ Meir who says that witnesses can in fact obligate one to bring a karban. Thus his admission remains - kal - in comparison to witnesses’ testimony.R’ Meir’s ruling is also kal v’chomer based:B) If the testimony of witnesses is strong enough to execute a person, it should certainly be strong enough to obligate him to bring a karban, which is a much lighter punishment than death.Note, that this is a shortened version of the type of kal v’chomer A) mentioned earlier in the Gemara. We are not drawing a comparison from one’s admission to witnesses’ testimony. We are simply saying that since witnesses’ testimony can establish liability for capital punishment, it should certainly be capable of establishing liability for a karban.R’ Meir’s kal v’chomer: Witnesses can effect capital punishment. Therefore, witnesses should certainly effect liability for a karban.What is emerging is that R’ Chiya is teaching us kal v’chomer A) which is based on what is derived from kal v’chomer B). Since kal v’chomer B) teaches us that witnesses can obligate one to bring a karban, one’s own admission remains kal by comparison and we can now learn from A) the first longer kal v’chomer that witnesses’ testimony, which is the relative chomer, should obligate an oath.Tosfos wonders why we cannot directly apply the underlying basis of kal v’chomer B) to the issue of witnesses obligating a defendant to swear. The chomer of kal v’chomer B) is that witness’ testimony has the strength to effect capital punishment. We could also say: If the testimony of witnesses can establish liability for capital punishment, it should certainly establish an obligation to swear.Tosfos’ propsed kal v’chomer: Witnesses can effect capital punishment. Therefore, witnesses should also effect an obligation to swear. If you ask: If so, that R’ Chiya follows R’ Meir, who holds that witnesses can obligate one to bring a karban, which is based on kal v’chomer B), let us say that very same kal v’chomer of R’ Meir to learn that the testimony of witnesses can obligate an oath like so: If by their testimony [witnesses] can establish liability for capital punishment, they should certainly establish liability for an oath which is relatively lenient as compared to capital punishment? Why does R’ Chiya in his kal v’chomer draw from the comparison of one’s admission, which cannot cause him to pay fines to the testimony of witnesses, which can obligate him to pay fines? It seems that the direct kal v’chomer from witnesses establishing liability for capital punishment is more direct and to the point.We can answer: Because this kal v’chomer using the strength of witnesses’ testimony to establish liability for capital punishment as the basis for proving that their testimony should also obligate an oath, can be challenged as follows: For what can you prove from the witnesses’ strength to bring about capital punishment, where the defendant is punished for committing the crime that they are directly testifying about? Can the same be said in regard to obligating the defendant to swear, where he will swear about the fifty zuz of the claim that he denies which is not supported by the testimony of the witnesses, as the Gemara says later (at the end of this page)? It is only by comparing the testimony of witnesses to one’s own admission where we can draw a kal v’chomer which proves that the testimony of witnesses can establish an obligation to swear just as one’s own admission can establish such liability, despite the fact that he will be swearing about the unsupported portion of the claim.
  
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  [The oath obligated by] a single witness which is subject to contradiction and <i>hazamah</i>1<i class="footnote">See Artscroll 3B3 note 23 for a definition of hazamah.</i> demonstrates [that an oath can be obligated by testimony which is subject to nullification by contradiction and <i>hazamah</i>]. For proper understanding of this Tosfos we must keep in mind:Hazamah has a double function. It causes a) nullification of the testimony and also b) obligates the zomemim witnesses to pay their intended victim what their testimony would have cost him.For the sake of clarity, we will mark each reference to witnesses’ testimony with:z) for the zomemin witness who testify falsely about an intended victim.m) for the second set of witnesses who are מזים - discredit the zomemim witnesses.The word hazamah does not appear in our text of the Gemara. Tosfos will defend the text that does have this word in this sentence. The word hazamah usually conjures the punishment meted out to zomemim z) witnesses whose testimony is discredited by other m) witnesses who testify that we were with the zomemim witnesses elsewhere at the time of the purported event and they could not possibly have seen the event about which they are testifying.Usually, zomemim witnesses are subject to the punishment for the crime that they are testifying about. This is not true when there is only one witness. This is of course the reason for not having the word hazamah in the text of our Gemara, since a single witness is not subject to this penalty. Tosfos explains that even though one witness is not subject to the standard b) punishment of zomemim witnesses, the word can appear in our Gemara.The word hazamah can rightfully appear here in this sentence, since by the process of hazamah [the single witness’] testimony is nullified. Even though the usual punishment for hazamah b) is inapplicable, the process does a) nullify his testimony. This is an inherent weakness of a single witness’ testimony as compared to a defendant’s admission. At this point in the dialogue, where the Gemara is demonstrating the relative strengths and weaknesses of various sources of information, it is justified in mentioning that the single witness’ testimony is subject to a) nullification by the process of hazamah.At this point the Gemara is attempting to disprove the kal v’chomer that witnesses’ testimony on half the plaintiff’s claim can obligate an oath by the defendant. The objective of such analysis is to show that one’s admission is inherently stronger than the testimony of witnesses and that is why one’s own admission generates an obligation to swear, whereas witnesses’ testimony which is inherently weaker cannot generate such an obligation.Proof that one’s admission is more powerful &gt; than witnesses’ testimony:One’s own admission cannot be nullified by the hazamah process, whereas:Witnesses’ testimony can be nullified by the hazamah process.Tosfos now entertains the notion that there is an extremely powerful aspect of one’s own admission as compared to witnesses’ testimony that seems to have been overlooked by our Gemara. That is the fact that zomemim witnesses must pay the amount that they planned to obligate their victim to pay. For example: When z) witnesses testify that Ruvain owes Shimon one hundred zuz and it turns out that they are zomemim, the z) witnesses must pay Ruvain one hundred zuz.This is totally untrue of one’s own admission. For example: If Ruvain admits that he borrowed a hundred zuz from Shimom on Sunday the first of Nissan at twelve noon in New York City. m) Witnesses testify that Ruvain was with them in Los Angeles on Sunday the first of Nissan at nine a.m. Pacific time. Ruvain is not obligated to pay even though m) witnesses say that he falsely admitted that he owes Shimon one hundred zuz.2<i class="footnote">Tosfos seems to understand that it is because one’s own admission is so powerful that he is not required to pay even when discredited by m) witnesses. Some of the latter commentators raise the following question: Perhaps the reason Ruvain is not required to pay is because there is nobody to whom he must pay. After all, he himself was the intended victim of his false admission. To whom should he pay the hazamah penalty? See אמרי בנימין and נחלת משה who discuss this question. Perhaps, we are speaking of a situation where others will be hurt by his own admission, even though he is not directly testifying about them. For example: his debtors sold his loans to other people. If his debts are minimal they are worth significantly more than if he is heavily in debt. By falsely admitting that he owes much more money than he actually does, he is reducing the value of his paper and would be harming the holders of such loans. Tosfos assumes that he does not have to pay those loan holders the difference in value between when he had not yet admitted his greater liability and when he did falsely admit his greater liability.</i>Perhaps the Gemara should have used this strength of one’s admission as compared to witnesses’ testimony to undermine the basis of the kal v’chomer. We should not ask this question to undermine the kal v’chomer by proving that one’s admission is stronger than witnesses’ testimony, as follows: What can you prove from one’s own admission, which is so powerful that he does not need to pay even when his admission is nullified by the process of hazamah? Can you say the same for witnesses who do need to pay their intended victim when their testimony is nullified by the process of hazamah?Proof that one’s admission is more powerful &gt; than witnesses’ testimony:Witnesses must pay when their testimony is discredited by hazamah, whereas,One does not need to pay when his admission is discredited by hazamah.This challenge to the kal v’chomer is much more potent than the Gemara’s present challenge, which is demonstrating that one’s own admission stands even when assailed by hazamah as compared to the testimony of witnesses which is nullified by the process of hazamah. This is countered by introducing a solitary witness, whose testimony can also be nullified by hazamah and even so his testimony generates an oath obligation.Proof that even testimony that can be nullified by hazamah generates an oath obligation:The testimony of a single witness can be nullified by hazamah and even so it generates an oath obligation.But if the Gemara is demonstrating the power of an admission that he cannot be obligated to pay by the process of hazamah, we cannot use the single witness to prove that even when testimony is from a source that needs to pay when nullified by hazamah as proof that even testimony that is subject to the penalty of hazamah can generate an oath obligation, because the single witness also does not pay when his testimony is nullified by hazamah.Then had the Gemara focused on aspect b), the admission not being subject to paying when nullified by hazamah, [the Gemara] could not have said - a single witness proves that even testimony that is b) subject to pay when nullified by hazamah generates an oath obligation, because a single witness also does not pay when his testimony is nullified by hazamah. If so, both source of the common characteristic system would be instances where they cannot be obligated to pay via the process of hazamah. How can we learn from either of these two sources that witnesses’ testimony, which is subject to pay via the process of hazama can also generate an oath obligation?Tosfos explains that this argument that both sources of the kal v’chomer are beyond paying via hazamah is simply not true. It is definitely true that one’s admission is more powerful than witnesses’ testimony and that is why he does not pay when his admission is discredited by hazamah, but the same cannot be said for the single witness who does not pay when his testimony is nullified by two witnesses.For the reason that a single witness does not pay when his testimony is nullified by hazamah, is not because it is more stringent or more powerful than the testimony of two witnesses, as is one’s admission, rather, the reason for his not needing to pay is the inherent impotence of his testimony, because with his testimony he cannot obligate his intended victim to pay money. Therefore, since his statement is a) nullified4<i class="footnote">See Rashi חולין קטז. ד'ה אבל: We challenge common characteristic derivation with even an insignificant challenge. So are the systems of expounding the written law handed to us from Sinai.</i> via the hazamah process, it is considered that his testimony is subject to hazamah.In the case of a single witness, the b) punishment aspect cannot be invoked, because of the inherent impotence of a single witness’ testimony, but the a) nullification aspect can be applied. Thus his testimony is viewed as subject to hazamah. Even so, he can generate an oath obligation, so too, two witnesses whose testimony is subject to hazamah can also generate an oath obligation.The Gemara will soon say: How can you learn from the common characteristic of an admission and a single witness, but in both those cases the punishment of hazamah is not applied? We see that the Gemara does consider aspect b) a proper challenge to the derivation.But shortly the Gemara does use this aspect b) to challenge the common characteristic derivation? That is because when dealing with a common characteristic derivation we may challenge it even with an insignificant challenge. There is a definite weakness in this challenge as Tosfos pointed out earlier. That a single witness does not pay when nullified by hazamah is not because of the strength of his testimony, but rather because of its weakness. The Rabanan consider this challenge as too weak to disprove a healthy kal v’chomer, but since ultimately both a single witness and one’s own admission are not subject to the penalty of hazamah, this can be used to negate a common characteristic derivation, even though it cannot be used to overturn a kal v’chomer.3<i class="footnote">See אוצר מפרשי התלמוד who quotes קצות החשן who discusses whether there is hazamah liability in an instance wherea solitary witness does cause a victim to pay. For example: In a situation where the defendant would have to swear, but cannot do so, he must pay. Would the zomem single witness be required to pay or not? See there for more discussion of this subject.</i>R’ Chiya who does hold that we can learn from the common characteristic derivation that witnesses’ testimony can generate an oath obligation holds that even a common characteristic derivation, cannot be challenged with this insignificant challenge, because the reason that a single witness does not pay when nullified by hazamah, is because of his inherent weakness, because he did not have the power to generate a payment of money with his testimony.
  
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  “The Tanna [of our Mishna] taught this”, [refers to] another [rule taught] by R’ Chiya.A review of our Gemara is in place:On 3a R’ Chiya teaches thatA) if a plaintiff claims one hundred zuz and the defendant denies the claim entirely and two witnesses testify that the defendant owes fifty zuz, the defendant must swear that he does not owe the second fifty zuz, just as the defendant would need to swear if he had admitted owing fifty zuz.This ruling is referred to as the earlier teaching of R’ Chiya. Initially the Gemara said that ‘our Tanna taught’ this ruling in our Mishna. The Gemara on 4a then showed how this ruling cannot be deduced from our Mishna.The Gemara continues saying that there is a second ruling of R’ Chiya that our Tanna taught in the Mishna. That is the rule ofB) ‘הילך - here, it is yours’. For example: Ruvain says to Shimon you owe me one hundred zuz. Shimon responds: I owe you only fifty and here, it is yours.Shimon offers immediate payment for the fifty zuz that he admits owing. R’ Chiya says that even in this case Shimon needs to swear. Rav Sheishes disagrees. He holds that one swears only when he does not immediately offer to pay the portion he owes.The Gemara is now saying that when R’ Chiya said ‘the Tanna taught’ my ruling in the Mishna, he was referring to B) this latter ruling and not to A) his earlier ruling. In order to view this ruling and how it can be deduced from our Mishna from the proper perspective, we must understand that the case of the Mishna is one where there is an oath obligation similar to a) one who partially admits the claim of the plaintiff and b) he is obligated to swear even though he is offering immediate payment for the portion he owes.We must first see how in our Mishnaa) there is an oath obligation similar to when one admits partial liability and then we can perhaps see R’ Chiya’s second ruling:b) that even when the defendant offers immediate payment, he is obligated to swear.For greater clarity let us review Rashi together: The Gemara initially thought that according to R’ Chiya, the reason for our Mishna’s ruling is because, we [the court] testify that the portion of the garment that each of the litigants is holding is his. This is similar to when one claims: you owe me one hundred zuz and the other responds: I owe you nothing. While witnesses testify that [the defendant] owes fifty zuz, as in the other [earlier ruling] of R’ Chiya, where [R’ Chiya] obligates [the defendant] to take a Torah oath.We will look at this case first from Ruvain’s and then from Shimon’s perspective: Ruvain claims that the garment is entirely mine. This is the equivalent of saying that you Shimon, owe me one hundred zuz. Shimon claims: it is entirely mine. This is the equivalent of Shimon saying: I owe you nothing! The court sees that half is definitely Ruvain’s, because he is holding the garment. This the equivalent of witnesses testifying that half of Ruvain’s claim is true.The Mishna rules that Shimon must swear to defend the half of the garment that he does receive. This is similar to R’ Chiya’s first ruling that the testimony of witnesses accomplishes the same as one’s own admission.Now, if we just reverse the roles of Ruvain and Shimon, we will have the same exact ruling for Shimon as we do for Ruvain. The Gemara sees this ruling of the Mishna in this light. Thus we have in our Mishna the basis for an oath obligation a) R’ Chiya’s first ruling. The Gemara also sees this case as one of ‘הילך - Here, it is yours!’, since delivery of half the garment to each of the litigants is immediate.Thus we have demonstrated R’ Chiya’s second rulingb) that even in a case of ‘הילך - Here, it is yours!’, there is an oath obligation. We, the court, testify that which this etc. [litigant is holding is his, and as if the other litigant said , “Here, it is yours.”1<i class="footnote">The words אנן סהדי in the Gemara are in brackets. It appears that at some point they were added to the text. They do appear in Rashi’s explanation of the Gemara. It is unclear whether Rashi had those words in his text of the Gemara. It is interesting to note that Tosfos wrestles with the meaning of these words as they pertain to our Gemara. He does not mention that there is an alternative text. See Artscroll’s translation of the text and note 28.</i> Rashi explains that since our perception of what we see, is that Ruvain and Shimon each own at least half of the garment, this is equivalent to the testimony of witnesses who testify that Shimon owes Ruvain half of Ruvain’s claim. Shimon must swear that at least half is his because of R’ Chiya’s earlier ruling, that the testimony of witnesses (in this case, the court’s perception that Ruvain owns at least half of the garment) can generate an oath obligation on the other half of the garment.As explained earlier, we must first have an oath obligation and then we can apply R’ Chiya’s second ruling that even when immediate payment is offered the defendant is also obligated to take an oath. According to Rashi’s explanation, the basis for the oath obligation in our Mishna is R’ Chiya’s earlier ruling. Thus, by demonstrating that the Mishna is teaching R’ Chiya’s second ruling, we automatically have proof of his first ruling. If not for the first ruling, there would be no oath obligation at all.This is difficult, for since we cannot prove this latter2<i class="footnote">We have corrected the text to conform with רש"ש.</i> ruling b) about when the defendant says, הילך - Here, it is yours!’, only because of the earlier ruling of R’ Chiya a) that one is obligated to swear upon the testimony of witnesses who say that the defendant is partially liable, we should also say ‘the Tanna taught’ about the earlier ruling of R’ Chiya. Since we can prove ruling b) only if ruling a) is true, any proof of ruling b) is automatically proof of ruling a).3<i class="footnote">See ריטב"א רמב"ן, and ר"ן who offer a defense of Rashi. In general their explanation is that when the Gemara said “our Tanna taught it” in reference to the latter ruling of R’ Chiya, the Gemara was referring to the conclusion of the Gemara later where R’ Chiya admits that the oath in our Mishna is of Rabbinic origin. Thus, we have no proof of R’ Chiya’s earlier ruling. However, when the Gemara initially begins its conversation about proving R’ Chiya’s second ruling from our Mishna because the oath in our Mishna is required by Torah law, the Gemara could have in fact used the very same proof to prove R’ Chiya’s earlier ruling. R’ Chiya ultimately admits that the oath in our Mishna must be of Rabbinic origin and at that point we no longer have proof of R’ Chiya’s earlier ruling, but we can prove his latter ruling, for if ‘Here, it is yours!’ is exempt from an oath by Torah law, it would also be exempt in Rabbinic law. בעל המאור quoted in ,שיטה מקובצת offers a different approach.</i>We are compelled to say that it is possible that ruling b) can exist without ruling a), and that our Mishna need not be understood specifically as a case of b) R’ Chiya’s latter ruling being imposed on an oath obligation established by his a) earlier ruling. There must be a way of explaining the initial oath obligation other then as a result of R’ Chiya’s earlier ruling.We already know thata) one’s partial admission generates a Torah oath obligation. We are considering thatb) the testimony of witnesses about part of the plaintiff’s claim might also generate a Torah oath obligation.R’ Chiya’s latter ruling that even when the defendant says, “Here, it is yours!”, he must swear by Torah law is applicable in both instances, when the original claim is a) partially admitted by the defendant or b) when we hear from witnesses that he owes part of the claim.Our Gemara seems to be saying4<i class="footnote">See note 1. In Shulchan Aruch C.M. 75, 4, we do in fact rule like the earlier ruling of R’ Chiya that when liability of fifty zuz is established by witnesses, the defendant must swear by Torah law.</i> that the basis for the oath in our Mishna is that the court who sees that half of the garment belongs to Ruvain is the equivalent of b) the ' testimony. But must we say that the court’s view of this situation is equivalent to b) witnesses’ testimony? Perhaps it is equivalent to hearing an admission from Shimon that half the garment belongs to Ruvain?For this reason we can say, that the words in brackets in our text ‘we, the court, are witnesses’ used to describe our perception that Shimon owes Ruvain half the garment is imprecise, rather, now we consider that which [Ruvain] is holding [the garment] even more than the testimony of witnesses. It is considered as if [Shimon] admits to [Ruvain] that [half] is [Ruvain’s]. Thus the Mishna is an example of when R’ Chiya’s latter ruling is imposed on a) one’s own partial admission. There is no evidence at all that witnesses’ testimony that Ruvain owns half the garment would generate a Torah oath.Tosfos will now show that his explanation of the Gemara’s phrase ‘אנן סהדי - we are witnesses’ as meaning ‘we perceive an admission’ is not problem free. As usual, we will need to review the Gemara’s rejection of R’ Chiya’s earlier ruling.The Gemara is discussing whether R’ Chiya’s earlier ruling was ‘taught by the Tanna’ of our Mishna: But that which [R’ Chiya] said “and our Tanna taught this” in our Mishna, is it comparable? There, in R’ Chiya’s case, the lender has witnesses that the borrower borrowed fifty zuz, but the borrower has no witnesses that he does not owe the lender more than the fifty zuz that the witnesses testified about. For if the borrower had witnesses that he does not owe the lender anymore, R’ Chiya would not require an oath for the balance, since the borrower has witnesses who testify that he owes no more than fifty zuz.Here, in the case of our Mishna, just as we are witnesses that [Ruvain] owns half, we are also witnesses that [Shimon] owns half, and even so an oath is required! It seems that the Gemara’s rejection of R’ Chiya’s earlier ruling is because whatever evidence we have on behalf of Ruvain, we also have that very same evidence on behalf of Shimon. Just as we have the equivalent of witnesses testifying that Ruvain owns half, we have witnesses who testify that Shimon owns half. When discussing R’ Chiya’s latter ruling, the Gemara neglects to cite the very same difficulty. Tosfos will now re-examine the basis for the oath in our Mishna, before we reach the issue of ‘Here, it is yours! But this remains difficult! For in any case we can challenge R’ Chiya’s deduction of his latter ruling from our Mishna by arguing that in our Mishna, just as [Shimon] admits to [Ruvain] that half is his, so too, [Ruvain] is admitting to [Shimon] that half is his and even so an oath is required, as [the Gemara] asks this very question about R’ Chiya’s earlier ruling. If so, how is this attempt to say that R’ Chiya was not discussing his first ruling but his latter ruling an improvement over the previous discussion about the earlier ruling of R’ Chiya? The same problem we have with the earlier ruling re-emerges with the latter ruling.Eventually, our Gemara says that even if the oath obligation in our Mishna is inherently Rabbinic, the Rabanan would not institute an oath that is not at all similar to an oath required by Torah law. Thus, if in a case of ‘הילך - Here, it is yours!’ there would be no obligation to swear by Torah law, the Rabanan would not institute a Rabbinic oath in a similar situation. Tosfos suggest that even at this earlier point in the dialogue, the Gemara was utilizing this approach, even though it is first articulated later in the Gemara. We can answer: That now in this earlier point in the dialogue as well [the Gemara] is proving that in a case of ‘הילך - Here, it is yours!’ there is an oath obligation because of the reason that will soon be mentioned in the Gemara:If when a defendant who has admitted half says ‘Here, it is yours!’, he is exempt from an oath by Torah law, the Rabanan would not have instituted a Rabbinic oath that is not comparable to any oath prescribed by the Torah. Thus, the fact that in our Mishna an oath is required, even if this happens to be a situation where the oath is only Rabbinic, because the evidence on both sides is equal,it still proves that by Torah law in a situation of ‘Here, it is yours!’, there is an obligation to swear.We cannot say the same for R’ Chiya’s earlier ruling. It is possible that even if the testimony of witnesses cannot generate an oath obligation, the litigants in our Mishna would still be obligated to swear. However, according to the earlier ruling of R’ Chiya, even if witnesses’ testimony cannot generate an oath obligation and when witnesses testify that the defendant owes half the plaintiff’s claim he is exempt from an oath, the Rabanan would institute an oath in the case of our Mishna, because the fact that the litigants are each holding the garment is tantamount to an admission, which certainly generates an oath obligation.When we consider the source of information in our Mishna, which is that we see the two litigants each holding the garment, we may view this either as witnesses’ testimony or as an admission that half the garment belongs to each of the litigants. Even if we reject R’ Chiya’s earlier ruling that the testimony of witnesses generates an oath obligation, the case of two litigants holding a garment requires an oath because the fact that they are holding the garment is tantamount to an admission. Thus, the Gemara is correct in its rejection of R’ Chiya’s earlier ruling. However, if when a litigant says, “Here, it is yours!,’ he is exempt from taking an oath, there could be no requirement for an oath in our Mishna, because our Mishna is clearly a case of ‘Here, it is yours!’.Although Tosfos is satisfied with the logic of his explanation of the Gemara, he is unhappy with how it conforms to the text of our Gemara.This explanation is awkward! For according to this explanation, the reason that [the Gemara] could not say “and the Tanna taught it” in reference to the earlier ruling of R’ Chiya is because we can view [the litigants’] holding the garment as an admission and not as witnesses’ testimony, but that was not the gist of[the Gemara’s] challenge earlier. Rather, the reason for saying that R’ Chiya’s earlier ruling is not taught by the Tanna of our Mishna was articulated as: because just as we are witnesses for [Ruvain], we are also witnesses for [Shimon] etc., but according to Tosfos’ explanation that is not the reason at all, it is because each litigant’s holding the garment can be viewed as an admission by his opponent.
  
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  And Rav Sheshet says: [One who says]: Here you are [is] exempt. Our Gemara fails to rule in this dispute. Tosfos tells us that elsewhere the Gemara does demonstrate its halachic preference in this issue.It appears that the halacha is in accordance with Rav Sheishes, for in Perek Hashoel (below 100a) in regard to a dispute about whether a large slave or a small slave was sold,1<i class="footnote">A seller sold one of two slaves: a smaller or a larger slave. They are now disputing which of the two slaves was sold. The Mishna there rules that the seller must swear that he sold a small slave. The Gemara challenges this ruling for three reasons: a) The claim is not about the same item that he admitted. b) It is a case of “Here, it is yours!, and c) one does not swear about slaves. Since the Gemara uses the argument that it is b) a case of “Here, it is yours!” it is proof that the Gemara assumes that the halacha follows Rav Sheishes.</i> [the Gemara] argues that there should be no oath obligation because it is a case of “Here, it is yours!”.2<i class="footnote">Shulchan Aruch Choshen Mishpat 75, 6, also rules that in a case of “Here, it is yours!” the defendant is exempt from a Torah oath. He is however required to take a Rabbinic oath, called שבועת היסת, which will be discussed later.</i> The Gemara there is a clear indication that it assumes that one is exempt from swearing in a case oh “Here, it is yours!”.However, in Sefer Chaifetz it is to be understood that he rules that in a case of “Here, it is yours” the defendant is obligated to swear.3<i class="footnote">See רא"ש who presents some difficulties with the ruling that in a case of “Here, it is yours!” one is exempt from a Torah oath. The רא"ש manage to find differences betyween the cases that he quotes and the Gemara in Hashoel 100a. Perhaps Sefer Hacheifets feels that those Gemaros are in fact proof that the halacha should follow R’ Chiya.</i> See Tosfos Bava Basra 128b: ד'ה הלכתא. Tosfos there quotes Rabbeinu Chananel4<i class="footnote">See – מהר"ץ חיות quoted in the digest of ש"ס נהרדעא who explains that there are those who held that Sefer Hacheifetz was written by Rabbeinu Chananel. The autyhor of this gloss is disproving thios theory by showing that Rabbeinu Chananel rules that ‘הילך’ is exempt from a Torah oath in opposition to Sefer Hacheifetz.</i> as also ruling in accordance with Rav Sheishes that in a case of “Here, it is yours!” the defendant is exempt from swearing.
  
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  Thus, we can learn from here that [in a case of] “Here, it is yours! [the defendant] is exempt [from taking an oath]. The Gemara is discussing a plaintiff who has a document that says the defendant owes him selaim or dinarim, which are the plural of sela or dinar. At this point in the dialogue the Gemara is deducing that if the defendant admitted that he owes only two selaim or dinarim, he would not need to take a Torah oath. It is only because he admitted owing a third sela or dinar that is not mentioned in the document that he is liable for the oath of one who partially admits the claim against him.The Gemara assumes that the reason one is exempt if he admits to owing only two selaim or dinarim is because that admission is the equivalent of “Here, it is yours!”, since the plaintiff has a document that the defendant owes him two dinarim or selaim. Any debt recorded in a document has an automatic lien on the defendant’s real property. The property is always available and an admission is therefore the equivalent of saying, “Here, it is yours!”.According to the present analysis of the Baraisa, R’ Shimon ben Elazar holds that one is obligated to swear by Torah law when he admits that he owes three dinarim or selaim, but exempt from swearing if he admits owing only two dinarim or selaim. But why?If you ask: [The defendant] should be believed without taking an oath when he admits that he owes three selaim or dinarim, because he has a migo that he could have said he owes only two selaim or dinarim? Since the Gemara deduced that if he would admit owing only two selaim or dinarim, he would be exempt from taking an oath, the rule of migo says that the same should be true when he admits owing three selaim or dinarim?We must find a reason why the defendant could not have as easily claimed b) “I owe two selaim or dinarim”, instead of claim a) “I owe three selaim or dinarim”. We have already learned that a migo is effective only when the defendant is as comfortable with claim b) as he is with claim a).Why is a claim of “Here, it is yours!”, exempt from swearing? The Gemara explained on 4a, that we view the portion that the defendant admitted as if it is already paid. The remainder of the claim is viewed as being independent of the portion the defendant admitted. We are noe dealing bwith ba claim of three selaim or dinarim. This claim is being totally denied by the defendant and in a case of total denial one is exempt from swearing.See Tosfos earlier 3Af, who says that admitting partial liability is not believed without an oath even though he has a migo that he could have denied the claim entirely. This is because one is not brazen enough to totally dent the claim of the plaintiff. The same principle applies in this case as well.We can answer: Since a case of “Here, it is yours!”, is exempt because we view the portion that he admits as if it is has been paid and in regard to the balance of the claim the defendant is denying everything. Therefore, if [the defendant] would admit that he owes only two dinarim or selaim, he would be in total denial of the balance of the claim, and one cannot be so brazen to deny the complete claim of the plaintiff. Claim b) is therefore not as comfortable as claim a) and there is no migo.But R’ Akiva does hold that one who admits owing three selaim or dinarim is exempt because he could have claimed he owes only two, why doesn’t he hold that the defendant is not as comfortable with claim b) as he is with claim a)?But according to R’ Akiva, claim b) is not considered to be brazen, because the document which does not mention a specific number supports [his counter-claim] that he owes only two dinarim or selaim. The minimum of any plural is two. Since the document did not record the number of selaim or dinarim, it is a fair assumption that the amount was two selaim or dinarim. 
  
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  Actually, I can tell you [that if the defendant admitted that he owes] two [selaim or dinarim he is] obligated [to swear]. Initially, the Gemara held that we may deduce from the Baraisa that if the defendant admitted owing only two selaim or dinarim he would not need to take an oath. The Gemara suggested that the reason that there is no obligation, is because it is a case of “Here, it is yours!”. The Gemara now counters that it is entirely possible to interpret the Baraisa as holding that an admission of two would also necessitate an oath even though it is a case of “Here, it is yours!”.If so, why did the Baraisa discuss an admission of three selaim or dinarim? That is because R’ Akiva argues only when he admits a third sela or dinar. It is only then that R’ Akiva views the defendant as one who is returning a lost item. When the defendant admits that he owes only two selaim or dinarim, R’ Akiva agrees that there is an oath obligation.But we must now re-examine our understanding of R’ Akiva’s argument that one who admits that he owes three is similar to one who is returning a lost object. Initially, when we believed that an admission of two selaim or dinarim would be free of an oath obligation, it is understandable that one who is admitting a third sela or dinar might be viewed as returning a lost object. After all, he could simply have admitted owing two and he would be free of an oath obligation. Why penalize him for being honest and admitting that he owes a third?However, now that we hold that an admission of two selaim or dinarim obligates an oath, how can we think of an admission of a third sela or dinar as grounds for freeing him from an oath obligation? Had he admitted to owing two selaim or dinarim, he would also be required to swear? Why should he be free from swearing for the admission of one more sela or dinar? Even though when the defendant admits that he owes two, he is obligated to take an oath, R’ Akiva thinks of [the defendant] as one who is returning a lost object and he is exempt from the obligation to swear.For when he says that he owes two selaim or dinarim, he appears to be more reliable than when he admits owing three, since the document supports him. The document, as we have explained, is assumed to mean that the loan was for two selaim or dinarim. When he admits that he owes two, even though he is obligated to swear, he is completely comfortable with his admission, because he is saying exactly what is indicated by the document. Admitting a third sela or dinar is a bit treacherous, since he no longer has the raw interpretation of the document to support him. His only motivation to admit owing the third sela or dinar is his honesty and desire to return a lost object. He should not be penalized for such honesty.
  
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  Actually, [I will tell you that if the defendant admits that he owes] two [selaim or dinarim] he is exempt [from taking an oath for reasons soon to be mentioned, and even so, when a defendant says]: “Here, it is yours!”, he is obligated [to take an oath]. We will soon learn in the Gemara that there are two possible reasons to exempt one who admits owing two selaim or dinarim besides the fact that it is a case of “Here, it is your!”. Those are:a) The document supports his admission of two selaim or dinarim.b) It is an admission to owing a debt that is backed up by a lien on land. Such an admission cannot generate an oath obligation as will be explained later in the Gemara and Tosfos.Our Gemara is now saying that it is true that if the defendant admits owing two selaim or dinarim, he is exempt from an oath obligation, but not because it is a case of “Here, it is yours!”. If that was the only factor, he might be obligated to swear. The reason he is exempt is for one of the other reasons mentioned later.We must now review Tosfos 4Ae, where Tosfos asked that if one is exempt from swearing when he admits owing two, the rule of migo says that he should also be exempt when he admits owing three, because he could have admitted owing only two. Tosfos explained that if the reason for his exemption is because his claim is “Here, it is yours!”, the concept of migo does not apply.The Gemara on 4a says, “Here, it is yours!” separates the portion that he admits from the rest of the plaintiff’s claim. The portion that the defendant admitted is no longer part of the original claim of five selaim or dinarim. Once he admits that he owes two and says “Here, it is yours!”, we now view the plaintiff’s claim as demanding that the defendant owes him only three selaim or dinarim. He is in total denial of that claim of three. Thus, the argument that the defendant has a migo is untenable. His migo is that he might have admitted only two. But if he admitted that, he would be in total denial of the plaintiff’s claim of three, and one is not brazen enough to deny a claim entirely.This rationale is acceptable if the reason for exempting the defendant from swearing is because it is a case of “Here, it is yours!”. However, if the reason the defendant is exempt when admitting that he owes two is one of the above mentioned reasons,a) because the document supports his admission, orb) because his admission is backed by a lien on real property we must have a new explanation of why the defendant should not be free of swearing when he admits owing three selaim or dinarim, since he has a migo that he could have admitted owing only two.If you ask: Since when one says “Here, it is yours!”, he is obligated to swear, because we view the plaintiff’s original claim of five as one claim, when [the defendant] says he owes only two, he is not in total denial of the claim against him, thus, when he says “I owe three” he should be believed with a migo that if he wanted to lie, he would have said that he owes only two. If so, what is the reason of R’ Shimon ben Elazar who says that he is obligated to swear? He should be exempt by the rule of migo.Once again, we must find a reason why the defendant is more comfortable with admitting that he owes three selaim and dinarim than with admitting that he owes only two.We can answer: That [R’ Shimon ben Elazar] holds that he would not willingly claim that he owes only two, which is supported by the document, because it appears that his admission is only because of the document and if there was no document he would deny everything. In order to avoid this appearance, he prefers to admit another sela or dinar. Thus, he has no migo. Migo is viable only when the defendant is as comfortable with the second claim as he is with his first claim.
  
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  We do not swear [when a] denial [is about a loan that] is secured by land. The counterclaim of one who partially admits the claim against him consists of two sections:Section a) The portion of the loan that the defendant admits owing.Section b) The portion of the loan that he denies owing.When b ) the denied portion is secured by land there is no Torah oath obligation as indicated in the heading of this Tosfos: We do not swear for a denial of a loan that is secured by land. Our Gemara is adding that the same is true if a) the portion of the claim he admitted is secured by land.In the Baraisa, where the document testifies to a loan of an unspecified amount of selaim or dinarim, and the plaintiff claims that the loan was for five selaim or dinarim, if the defendant admits that he owes two, he is admitting to a loan that is secured by land, since the amount he admits owing is stated in the document and any documented loan is secured by the real property of the borrower. Thus, our Gemara says that since the section a) is secured by land there is no oath obligation.Why is a loan that is secured by land not subject to an oath? The Mishna in Shavuos 42b tells us that one does not swear when the claim and/or denial is about land. The Gemara elaborates on this: An unpaid custodian need not swear if the property lost or stolen due to his negligence was land. How do we know this? The Rabanan taught in a Baraisa that explains a verse in Shemos 22, 6, which deals with an oath obligation. If a man will give anything to his neighbor, this is a generalization. Cash or vessels, this is a specific item. To guard anything, this is a repeat of the generalization.How is this configuration interpreted? A generalization, a specific and a generalization - we include only that which is very similar to the specific: Just as the specific, cash or vessels, is clearly something that is movable and has inherent value, so too any object that is movable and has inherent value is subject to the laws of swearing. This excludes land, which is not movable. Slaves are excluded because they are comparable to land. Documents are excluded, because they have no inherent value. They only represent the money owed by the borrower, but have no inherent value. See רש"י ד'ה אי נמי to our Gemara, who says that the source for the rule that when a loan is secured by a lien on land, it is not subject to an oath, is derived from the very same source that excludes land from an oath obligation.Now that we have learned that any loan secured by land is not subject to an oath obligation, we must ask some important questions: Isn’t every loan secured by the land of the borrower? If one is unable to pay his debts, the creditor can collect from the real property of the borrower. If so, how can there ever be an oath obligation?Perhaps not every loan is secured by one’s property? This is actually the subject of a dispute in Bava Basra 175b.The Mishna says in Bava Basra 175a: One who lends money to his neighbor and the loan is recorded in a document, may collect the debt from encumbered properties. Even if the property was sold after the loan, there is a lien on the property and the lender may collect the property from the purchaser.If the loan took place before witnesses, but was never recorded in a document, one can collect only from unencumbered property which have not yet been sold by the borrower. If the property was sold, even after the loan, the lender cannot collect that property.The Gemara on 175b explains: Ula said: By Torah law both a loan that was documented and an undocumented loan, can collect from encumbered property. What is the reason? A lien is automatically established on the property by Torah law. Thus when a person borrows money, his property is security for the loan. There is no difference between a written loan or an oral loan. But then for what reason did they say: an oral loan can be collected only from unencumbered property? Because of the loss that would be incurred by the purchasers of real estate, who have no way of knowing that the seller of the property they are buying is heavily in debt. When the loan is recorded in a document, the fanfare surrounding the writing of a document generates publicity that the borrower is in debt and people can be careful about not purchasing encumbered property from the debtor.According to this opinion, by Torah law all debts are automatically secured by one’s land. If you ask: According to the one who says in Perek Get Pashut (Bava Basra 175b) that all loans automatically establish a lien on the debtor’s land by Torah law, why does one swear when he partially admits a plaintiff’s claim, his denial of the balance is a denial about a loan that is secured by land and is not subject to the law of swearing. There should never be an oath for partial admission, yet we know that such an oath is mandated by Torah law.We can answer: That the Torah mandated this oath only when [the creditor] waived the lien, subsequently, he cannot collect from the real property of the debtor. The loan is no longer secured by land. Or, when [the borrower] has no land at all, even encumbered land. It is only in these cases that one would be obligated to swear according to the opinion that all loans automatically establish a lien on the debtor’s property.Tosfos now introduces another Gemara where there is a similar difficulty, but where we cannot say that it is speaking of when the creditor waived the lien.1<i class="footnote">מהר"ם explains that if the creditor waived the lien, there cannot be a difference between a documented and an oral loan. Even if the loan was documented, there is no lien on the land and the debtor would be required to swear by Torah law. See Tosfos Shavuos 37b ד'ה ואין מביאין who asks the same question as Tosfos does here and does answer that R’ Yochanan as well is speaking of when the lender waived the lien. This seems to contradict our Tosfos who holds that if the lien is waived, even a documented loan would generate an oath obligation, since the loan will ultimately not be collected from land. See אוצר מפרשי התלמוד, here, who explains that this issue is a dispute between Tosfos. See not 4 where we quote the opinions of the ש"ך and סמ"ע about this issue.</i> However, according to R’ Yochanan who says in Perek Shavuos Hapikadon (Shavuos 37b) concerning one who denies owing money which is verifiable only by witnesses, but not by a document, and he swore falsely, when it is discovered that he lied, he is liable to bring a karban. There was an obligation for a Torah oath and when one swears falsely when obligated to do so by the Torah, he must offer a karban. If the money he denied owing was verifiable by a document, he is exempt from bringing a karban, because he denied money that was secured by land. Even though he swore falsely that he does not owe the money, since there was no Torah obligation to swear because the loan is secured by land, there is no karban obligation.We see that when there are only witnesses to verify the loan, but no document, he is not considered as denying money secured by land, even though R’ Yochanan holds that a lien is established on one’s property by Torah law. Thus, even a non-documented loan establishes a lien on the debtor’s property. Why should the debtor be obligated to swear and be liable for a karban when he swears falsely while denying a non-documented loan, that too, is secured by land?That is because once the Rabanan removed the lien for an oral loan, because of losses2<i class="footnote">See Gemara Bava Basra 175a quoted on pages 3 &amp;4, of this Tosfos.</i> that might be incurred by purchasers of the debtor’s property who have no way of knowing that the borrower is in debt, it is considered as if the creditor waived the lien and the debt is not secured by the borrower’s land.R’ Yochanan is speaking of when [the debtor]3<i class="footnote">The phrase “he has encumbered land” is a bit difficult to translate. Tosfos is referring to land that the debtor owned at the time of the loan, which was subsequently sold. The borrower doesn’t actually have the land, he already sold it to the purchaser. The phrase “he has encumbered land” means that the land which the borrower owned at the time of the loan and was then sold can be collected from the purchaser by the creditor.</i> has encumbered land, which has already been sold, but he does not have unencumbered land that has not yet been sold. For if he has unencumbered property, even if there are only witnesses on the loan, and he swore falsely, he is exempt from a karban, because the loan was secured by the land that he presently owns. If [the debtor]doesn’t even have encumbered property that was sold, even if there was a document4<i class="footnote">Tosfos holds that we must always take into account the reality of the situation. If the borrower does not own any land whatsoever, we may not view the loan as secured by land because in reality the borrower does not own any land. See חושן משפט פ"ח, ש"ך ס"ק מ"ח who quotes this Tosfos to prove this point. סמ"ע ס"ק נ"א disagrees. He holds that since the document is inherently capable of collecting from encumbered properties if there were such properties, it is considered as if this loan is secured by land, even though the reality is that there is no land from which to collect.</i> to verify the loan [the debtor] is liable to bring a karban when he swears falsely, since the loan is not secured by land. 
  We do not swear for a denial [of funds that are secured by land]. In the Baraisa at the beginning of this page the Gemara quotes the opinions of two Tanaim, R’ Shimon ben Elazar and R’ Akiva. There are texts of our Gemara that quote R’ Yaakov as the second Tana. We will see in the course of learning this Tosfos that there are two valid reasons to believe that the other texts are correct that the second Tana is not R’ Akiva:a) The Gemara will employ the ruling that we do not swear in cases involving funds that are secured by land. Tosfos will present the case to show that R’ Akiva might not concur with this ruling.b) In this Baraisa R’ Akiva is quoted after R’ Shimon ben Elazar who was his disciple. It seems a bit strange that the author of the Baraisa would quote them out of chronological order.The first issue that must be clarified is where R’ Akiva stands on the ruling that we do not swear when the funds in question are secured by land. Can R’ Akliva hold of this ruling? Why not?See previous Tosfos 4Bc page 1, 2 &amp; 3, where we quoted the Gemara in Shavuous 42b, where we derive that one does not swear for an admission and denial of funds that are secured by land. The system used by the Baraisa there for this derivation is called כלל פרט וכלל loosely translated, this means that we view the verse as speaking of a generalization, a specific item and repeating a generalization. Since the specific items that are mentioned in the verse, vessels and cash, have the characteristics that they are movable and have inherent value, we say that the oath obligation is only for similar items, but not for land which is immovable or for documents that do not have any inherent value.There is another way of interpreting the Torah. Instead of viewing the more expansive word as a generalization meant to expand somewhat on the specific item, but only in a limited fashion, there is a system called ריבויי, מיעוט וריבויי - an expansive term, a restrictive term and finally another expansive term. The very same words quoted in the Baraisa on Shavuos 42b can be expounded differently:<u>כלל פרט וכלל</u>כי יתן -- generalizationכסף או כלים -- specificלשמור -- generalization<u>ריבויי מיעוט וריבויי</u>כי יתן -- expansiveכסף או כלים -- restrictiveלשמור -- expansiveThe net result is that in the generalization etc. system, only such items that are very similar to the specific items are included in the ruling. In the expansive etc. system, all items that share some similarity with the restricting item are included. Thus the same verse when explained with the expansive system will include many more items than if expounded by the generalization system.So too, in the explanation of the verse under discussion, those who usually follow the expansive etc. system, will include land in the list of items for which one is obligated to swear. It is only in the generalization etc. system, that land is excluded.Tosfos will demonstrate from other sources that R’ Akiva holds we generally expound the Torah with the expansive etc. system. Accordingly, he should hold that an oath is required for matters pertaining to land. But our Gemara has used the rule of not swearing for an admission or denial for loans that are secured by land to explain R’ Akiva’s position. R’ Akiva should however hold that one does swear even when the loans are secured by land. It would be logical to say that the second Tana is R’ Yaakov and this problem would be solved.The Gemara in Shavuos 4b is discussing R’ Akiva’s opinion in regard to liability for swearing falsely about something that happened in the past. The Gemara explains: What is the reason that R’ Akiva holds one liable for swearing falsely about something that happened in the past? Because he expounds the Torah with the system of expansive and restrictive etc.The Gemara in Bava Kama 117b quotes a dispute between R’ Eliezer and the Rabanan in regard to items that are subject to various laws of theft: R’ Eliezer expounds the Torah with the expansive restrictive system. What is included? All items are included and subject to the rules of theft. What is excluded? Documents are excluded. The Rabanan expound the Torah with the generalization and specific system. Land is excluded because it is immovable. Slaves are excluded because they are equated to land. Documents are excluded, for even though they are movable, they are not inherently valuable. They only represent a debt, but are intrinsically worthless.It is clear that if we use the expansive restrictive system, we include land and exclude only documents. It is only if we use the generalization system that land is excluded. According to the manuscripts whose text in our Baraisa is R’ Akiva as it is in our text, instead of R’ Yaakov as others suggest, we cannot ask: But R’ Akiva expounds the Torah with the expansive restrictive system in the first Perek of Shavuous (4b) and in Perek Shelosha Minim (Nazir 35a), and one who expounds the Torah with the expansive restrictive etc. system, does not exclude land from an oath obligation, but only documents, as it is evident in Perek Hagozel the latter, (Bava Kama 117b), and if so, how can [the Gemara] here say that according to R’ Akiva we do not swear for denial of funds secured by land? It seems that the author of this position is not R’ Akiva.Tosfos will suggest that there is some missing information that the Gemara knows about, but is unidentified. Obviously, an explanation such as this requires support, which Tosfos needs to present. We can answer: That [R’ Akiva] has some exclusion in some verse to exclude land from an oath obligation. It is true that the expansive restrictive system excludes only swearing about documents, but there is some other source to exclude swearing about land. Even though, we are not presently aware of what that exclusion is, Tosfos will now demonstrate that this unidentified exclusion must exist according to R’ Meir. If we know that such an unidentified exclusion exists according to R’ Meir, we can assume that R’ Akiva also uses that exclusion to exclude land. There is no need to conclude that our Baraisa is not the opinion of R’ Akiva.Generally speaking slaves are governed by the same rules as land. In regard to swearing according to R’ Meir there is a difference, one swears on matters involving slaves, but not on matters involving land. Why are the laws of swearing different than all other areas of Torah law? Tosfos suggests that R’ Meir holds like R’ Akiva who expounds the Torah with the expansive restrictive system, thus onlya) documents are excluded from this verse. There must be a special exclusionb) to exclude land from an oath obligation, which cannot be applied to slaves. Thus, there is an oath obligation for slaves, but not for land. That special (unknown) exclusion can also be used to exclude land according to R’ Akiva, who also expounds the Torah with the expansive restrictive system.So too, we are compelled to say later in Perek Hashoel (100b) according to R’ Meir, who holds that we do swear about claims involving slaves, but not about claims involving land, even though slaves are usually equated to land according to all opinions and it should follow that just as we do not swear about land, we should also not swear about slaves.Where do we see that slaves are equated to land? For it is for this reason, that slaves are equated to land, that ownership of a slave can be transferred by using a coin to effect the transfer, according to all opinions, in the first Perek of Kidushin (22b).The Gemara in Kidushin 22b is discussing the acts of acquisition that are effective for acquiring slaves: Mishna: A Canaanite slave is acquired by coin, document and proprietary acts. Gemara: How do we know this? It is written in Vayikra 25, 46, And you shall hold them as a heritage for your children after you to inherit as a possession. The Torah equates [slaves] to an inherited field, just as an inherited field is acquired by coin, document and proprietary acts, so to a Canaanite slave is acquired by coin, document and proprietary acts.If so, why does R’ Meir hold that we do swear about slaves and not about land? Rather, it must be that R’ Meir expounds the Torah with the system of expansive and exclusive a) to exclude swearing about cases involving documents, and he has some other exclusion, unknown to us,b) to exclude swearing in cases involving land, and with that unknown exclusion we cannot exclude slaves even though they are usually equated with land, The Gemara in Bava Kama 63a is discussing the verse in Shemos 22, and concludes that this verse must be interpreted with the expansive restrictive system. The Gemara then informs us that special exclusions are needed for documents, land and slaves. The exclusion for land does not automatically exclude slaves as well.Now that you say that in this verse the word ‘כל - all’, is an expansive, why do we need all these specific items? What is their function in the expounding of the verse?The Gemara answers: One is to exclude land. One is to exclude slaves, and one is to exclude documents.We see that in this system one exclusion cannot exclude both land and slaves, despite the verse that equates them insofar as Kidushin is concerned. as is evident in Merubah (Bava Kama 63a), that the one who expounds the Torah with the system of expansive and exclusive needs two exclusions to exclude both land and slaves from an oath obligation.Tosfos has reconciled our Gemara which says that according to R’ Akiva, one does not swear about funds that are secured by land and the Gemara that says R’ Akiva expounds the Torah with the expansive restrictive system. In our introduction we mentioned that there is also a chronoligical question which indicates that the second opinion in the Baraisa is not R’ Akiva. Tosfos will now address this second issue. Even though R’ Shimon ben Elazar was a disciple of R’ Akiva, we need not be concerned with the fact that [R’ Shimon ben Elazar] argues with [R’ Akiva] and is mentioned in the Baraisa before [R’ Akiva]. For we find a similar situation below (7a) in regard to two litigants who are holding a document, where Rebbe is mentioned first in the Baraisa and he argues with Raban Shimon ben Gamliel who was his father. Tosfos acknowledges that there are those who find all his explanation somewhat awkward and follow a different text. There are manuscripts that have ion their text here R’ Yaakov instead of R’ Akiva. This of course solves both problems that we have with our text.
  
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  But [if the defendant admits owing] vessels and [denies owing other vessels], he is obligated [to swear]. Our Gemara is attempting to prove that when a defendant admits part of the claim against him, and says ‘Here, it is yours!’ he is obligated to swear.The Gemara analyzes a statement of a Mishna in Maseches Shavuos 38b, where the Mishna says: If the defendant admitted owing land but denied owing vessels, he is exempt from swearing. The reason is because the admission and denial must both be about movable objects and not about land. When the admission is about land, even though the denial is about vessels there is no oath obligation.Our Gemara suggests that the reason the defendant is exempt from swearing even though he admitted owing land is strictly because land is excluded from an oath obligation as we have already learned. However, in a situation where both the admission and denial are vessels, even though the vessels the defendant admitted owing have the same characteristics as land, there would be an oath obligation.Now when one admits that he owes land, it is inherently an admission of ‘Here, it is yours!’, because the land is always available. It need not be collected as cash or vessels need to be collected. If our analysis is correct, we may conclude that even when the vessels one admits owing are a situation of ‘Here, it is yours!’, there is also an oath obligation. For the reason one is exempt when his admission is for land is because of the special exemption of land, but vessels that have the very same characteristics as land do generate an oath obligation.In short we may conclude that vessels which are = to land do generate an oath obligation. But which vessels are equal to land? When the defendant says: ‘Here, it is yours!’. Our Gemara eventually rejects this understanding of the Mishna in Shavuos 38b.Tosfos however, suggests that there is a simpler way to deflect the Gemara’s question. Our Gemara assumes that an admission about land is always by definition one of ‘Here, it is yours!’. This argues Tosfos is not necessarily true. There are situations where one may admit that he owes land, but it is not a case of ‘Here, it is yours!’.[The Gemara] could have answered, that the Mishna in Shavuos 38b is speaking of when [the defendant] dug pits, ditches and caverns, as the Gemara soon says on 5a. Although the defendant is admitting that he owes the plaintiff land, since the land has been damaged and must be restored to its original condition, this is not a case of ‘Here, it is yours!’ Similarly, if the admission was about vessels in a non-‘Here, it is yours!’ situation there would be an oath obligation.
  
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  [If] he admitted [owing] some [of the] vessels he is obligated [to swear]. The Mishna in Shavuos 38b is teaching us that when both the denial and the admission are about movable objects, there is an oath obligation.If you ask: [The defendant] should be believed without an oath, because he has a migo, that if he wanted to lie he could have denied owing vessels entirely and he would have admitted owing some of the land? Assuming that the defendant does not have the audacity to deny everything as we learned earlier on 3a and 3b, he did not have to admit that he owes some of the vessels, which generates an oath obligation, he could have just as easily admitted owing some of the land. This too, would satisfy his need to admit something and not deny the claim against him entirely and he would be exempt from swearing.We can answer: Perhaps he wants the land more than the vessels. Even though the value is the same, he would rather admit owing some of the vessels, so that he can retain the land. Since, the second claim does not accomplish his needs as does the first claim, he has no migo. 
  
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  But according to [Rav Sheshet], the one who says that [where the debtor says]: Here you are, [he is] exempt; why was [it] necessary [for the] verse [to exclude]. The Gemara earlier on 4a assumed that whenever a defendant admits that he owes the plaintiff land, it is by definition a case of ‘הילך - Here, it is yours!’, since the land is available to be returned to the plaintiff. Based on this assumption, the Gemara now asks: If when a defendant says ‘הילך - Here, it is yours!’ he is exempt from swearing, why must the Torah teach us that land cannot generate an oath obligation, when a defendant admits owing land, he would be exempt from swearing because it is a case of ‘הילך - Here, it is yours!’?It seems from the Gemara’s question that we have this difficulty understanding the need for an exclusion of land from an oath obligation only if we hold that when the defendant says, ‘Here, it is yours!, he is exempt. However, if we hold that in cases of ‘Here, it is yours!’, the defendant is obligated to swear, there is no difficulty. Tosfos will demonstrate that even if we hold that one is liable in cases of ‘Here, it is yours!, there would still be a difficulty with the need for an exclusion for land from an oath obligation.Earlier on 3b we learned in Tosfos ד'ה בכוליה בעי דלודי ליה, that the reason one who admits partially to the plaintiff’s claim is obligated to swear and we do not exempt him from the oath because he would not have the audacity to deny his debt in the face of his creditor, is because we do not view his partial denial as audacity, rather, he is merely evading his creditor and stalling for time. We may summarize this as follows:A) A counterclaim is not a demonstration of audacity if it can be explained as a means of ‘evading the creditor’. It also follows that the reverse is also true:B) If a counterclaim cannot be dismissed as a means of ‘evading the creditor’, it is viewed as a demonstration of audacity and we rule that a person does not have the audacity to deny a creditor’s claim in his face. He must therefore be believed that he is telling the truth.Tosfos earlier on 3b: Therefore, it can be said that the words “and he wants to admit to the entire claim” are in response to this underlying question: Since we have just said that one does not have the audacity to lie in the face of his opponent who knows the truth, then when he says he only owes fifty zuz, we should assume that it is true that he does not owe him more. Why must he swear to defend his claim? He should be believed with a migo that he could have denied the entire claim of the plaintiff? Tosfos is assuming at this point that even a partial denial is essentially audacious. We should therefore rule that since he does have the audacity to deny part of the claim, we should believe him because he has a migo that he could have denied the entire claim. We cannot say that he does not have the audacity to do so, because he is presently exhibiting audacity in his denial of half the claim.[The Gemara] answers: That this partial denial is not a demonstration of his inherent ability to make an audacious counter-claim, because the partial admission is his way of ‘evading the creditor’ till he will have sufficient funds to pay. It is not at all a demonstration of audacity.When a defendant denies that he owes the plaintiff land, the idea that he might be ‘evading the creditor’ to stall for time is inapplicable, because the land is always here and available. We should therefore rule that when one denied a claim against himself, we believe him because he would not have the audacity to deny his debt in the face of his creditor.This is bewildering! For even according to the one who says: In a case of ‘Here, it is yours!’ the defendant is obligated to swear, why is a verse needed to exclude land from generating an oath obligation, for when dealing with land the possibility of ‘evading the creditor’ is inapplicable? The portion of the land that he is denying is always here and available and can be returned immediately.The Gemara on 6a is discussing שבועת היסת - the ‘oath of incitement’ instituted by Rav Nachman. The Gemara is attempting to prove that even when ‘evading the creditor’ is inapplicable, there is an obligation to swear. Tosfos asks: But even in the case of one who denies the claim entirely, there is a possibility that he is attempting to evade the creditor? Tosfos concludes that Rav Nachman requires an oath even when ‘evading the creditor’ is totally inapplicable. For example: When the plaintiff claims that the item the defendant has in his hands is mine and the defendant denies it, Rav Nachman also requires an oath by the defendant. Certainly, there is no possibility of ‘evading the creditor’ when the disputed item is available in our presence.Tosfos there ד'ה אלא הא argues that Rav Hai Gaon also holds that Rav Nachman’s oath is required even when ‘evading the creditor’ is not a factor. His example is that one is required to swear even when the issue is about land. We see that in regard to land ‘evading the creditor’ is inapplicable because the land is always here.So too, Rav Hai Gaon explains that we do swear שבועת היסת - the ‘oath of incitement’ when the claim is about land, even though ‘evading the creditor’ is inapplicable.So does [the Gemara]1<i class="footnote">See מהרש"א who offers the following amendment of the text, which is what we followed in our explanation of Tosfos: וכן פריך לקמן וכי כופר.</i> ask later according to Rav Hai as explained by Tosfos (See 6a תוס' ד'ה אלא): That the Gemara on 6a is referring to a ruling that one must swear according to Rav Nachman even when the dispute is about land. We therefore see from Rav Nachman that even when there is no possibility of ‘evading the creditor’ an oath of incitement is required by Rabbinic law. Based on this conclusion Tosfos now continues his question: When [a defendant] denies owing some of the land that the plaintiff is claiming, he should be exempt from paying and swearing, for we should believe him, since one does not have the audacity to lie in the face of his creditor. As explained, evading the creditor cannot be used as an explanation for his ability to lie in this instance, since the land he denies is always here.Perhaps, even in regard to land ‘evading the creditor’ is somewhat applicable, for perhaps [the defendant] pledged [the land] to a third party as security for a debt and he cannot presently return it to its true owner. He thinks that he will deny the plaintiff’s claim until he will accumulate cash and will pay the debt to the third party and then return the land to the plaintiff.
  Why is it necessary to have a [special] verse to exclude land [from an oath obligation]? As explained in the introduction to the previous Tosfos, the Gemara holds that if the rule in cases of ‘הילך - Here, it is yours!’ is that one is exempt from swearing, cases involving land should always be exempt from an oath obligation, because one’s admission that he owes land is tantamount to ‘הילך - Here, it is yours!’ since the land is always here and available. If so, why is a special verse needed to exclude cases of ‘הילך - Here, it is yours!’ from an oath obligation?The assumption of this Gemara’s question is that there is in fact a superfluous verse to exclude land from an oath obligation. Tosfos re-examines this assumption! This is bewildering! But there is no superfluous verse to exclude land from an oath obligation? Rather, it is excluded from a generalization, specific and generalization. Perhaps the Gemara’s question is that this system is not needed? Tosfos explains that this is not so. The generalization, specific and generalization, is needed to exclude documents from an oath obligation. The same generalization etc. can be used to exclude land if needed, but it is certainly not superfluous?Tosfos is convinced of the strength of his challenge and must resort to a different explanation of the Gemara’s question. We can answer: That the Gemara’s question is not about a superfluous verse, rather, [the Gemara’s] question is why did the Tanna need to derive that land is exempt from an oath from the generalization and specific etc. system, since disputes involving land are inherently cases of ‘הילך - Here, it is yours!’, which are automatically exempt from an oath obligation.A short review of the Gemara on 3a about the exemption of ‘הילך - Here, it is yours!’: Rav Sheishes says: A defendant who says: ‘הילך - Here, it is yours!’ is exempt from an oath obligation. What is the reason?Since the defendant says: ‘הילך - Here, it is yours!’, the money that he admitted owing, are as if the lender is holding them. In regard to the other fifty, the borrower denies owing them entirely. Therefore, this is not a case of one who admits part of the claim against him. It is obvious that the rationale for exempting one from an oath in a situation of ‘הילך - Here, it is yours!’, is not one that is applicable to all oath obligations. Its logic is exclusively relevant to the oath of one who partially admits the claim against him.If you ask: Let us say that [the Tanna] who discusses an exemption for land needed to exclude land from the oath generated by a single witness? Why is the Gemara convinced that he spoke of this exclusion for the oath of one who partially admits the claim against him? However, we can answer: Because the Mishna’s discussion of not swearing about land is speaking about the oath of one who partially admits the claim against him. It is therefore reasonable to assume that the exclusion he discusses is for this oath. Thus proving that even in case of ‘הילך - Here, it is yours!’ one is obligated to take an oath.
  
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  Alternatively, [the Baraisa is speaking of when the plaintiff] claimed utensils and land. The defendant’s admission that he owes utensils is not a situation of ‘הילך - Here, it is yours!’. Even so, since the denial is about land, there is no oath obligation.There is an assumption that if a plaintiff claimed two types of movable objects such as wheat and barley and the defendant admitted owing barley, he would be liable for an oath. We do not look at each item as an independent claim. Rather, we view them as one aggregate claim and a denial or admission of one of the items is a partial admission or denial of the claim against him.From this [Gemara] it appears that when [the plaintiff] claims wheat and barley and [the defendant] admits owing one of them, he is obligated to take an oath. We consider both species as one claim and the admission of one as partial admission of that one claim.We can see from our Gemara that only when the combined claim was land and utensils, [the defendant] who admits owing utensils is exempt because his denial of land does not generate an oath obligation, but if the combined claim was wheat and barley and he admitted owing one of these species, [the defendant] would be obligated to take an oath.The Gemara in Shavuos 40a: Rav Nachman said in the name of Shmuel: if [the plaintiff] claimed wheat and barley and [the defendant] admitted owing one of them, he is obligated to take an oath. R’ Yitzchak said to [Rav Nachman]: … and so too did R’ Yochanan say.On 40b the Gemara says: R’ Chiya bar Abba said in the name of R’ Yochanan: If [the plaintiff] claimed wheat and barley and [the defendant] admitted owing one of them, he is exempt from swearing. Since these are two separate species, each one is viewed as an independent claim. This is not a case of partial admission of the claim by the defendant.We see that Shmuel definitely holds that we view the combined claim of wheat and barley as one. According to R’ Yitzchak, R’ Yochanan agrees with Shmuel. According to R’ Chiya bar Avin, R’ Yochanan disagrees with Shmuel. So too, do Shmuel and R’ Yochanan , according to one version, the opinion of R’ Yitzchak, hold in Perek Shavuos Hadayanim (Shavuos 40a).
  
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  An unpaid custodian. The Gemara now introduces a Baraisa as proof that in a case of ‘הילך - Here, it is yours!’, one is obligated to swear. The Baraisa discusses the conditions of oath liability and a superficial reading of the Baraisa seems to indicate that even in cases of ‘הילך - Here, it is yours!’ one is obligated to swear.Tosfos first turns his attention to the structure of the Baraisa, which follows a different order than the way the custodians appear in the Torah. In Parshas Mishpatim (Shemos 22, 6) we have the passage dealing witha) an unpaid custodian. This is followed by the rules governingb) a paid custodian,c) a borrower andd) a renter.Our Baraisa follows a different order when listing the four custodians:1) an unpaid custodian,2) a borrower,3) a paid custodian and4) a renter.Tosfos explains why: An unpaid custodian is exempt from all liability. This includes unavoidable accidents, theft and loss, except for negligence.A borrower is liable for everything, except when an animal dies as a result of its regular work. This applies to any object that breaks as a result of normal usage.A paid custodian and a renter are liable for some losses such as negligence, loss or theft and exempt for some losses such as unavoidable accidents. The rules governing an unpaid custodian and a renter are the same.That is why [the Tanna] taught them in this order, and did not teach them in the order in which they are written in the Torah, where the borrower appears between the unpaid custodian and the renter.The Gemara’s initial assumption when asking its question is that in the case of the four custodians when an item is deposited in their possession, the partial admission will always be one of ‘הילך - Here, it is yours!’, because unlike one who borrows money, the item was never meant to leave their domain. When they admit that they owe the item it is always immediately available. If so, there are many other Mishnayos where we see that there is liability for the custodians and presumably those too are speaking of when the items are intact and immediately available.If you ask: Why doesn’t [the Gemara] ask from many Mishnayos, where it is also evident that in cases of ‘הילך - Here, it is yours!’ that one is liable? For example: The Mishna about [the plaintiff] who says that the produce he entrusted with the custodian filled the storage room till the projecting ceiling beam and [the defendant] responds: the produce reached only till the window. In the very same Mishna: The plaintiff says I gave you ten vines to guard and the defendant claims there were only five vines. These cases are found in Shavuos (42b). Presumably, in both of these cases the defendant is ready to give the plaintiff the portion that he admits owing, which is of course a case of הילך.So too, in the Mishna in HaShoel (Below 97b) where the Mishna is discussing a case where both agree that two cows were deposited with the custodian. One was borrowed and the other rented. One of the two cows died as a result of an unavoidable accident. [The plaintiff] says: The borrowed one died and you are liable for unavoidable accidents. [The defendant] says: The rented one died and I am exempt for unavoidable accidents.In all these cases the Mishnayos are speaking of deposited items, which are cases of ‘הילך - Here, it is yours!’. These too could be presented as proof that even in cases of ‘הילך - Here, it is yours!’, one is liable.We can answer: [The Gemara] is more comfortable with asking a question from a Baraisa that speaks about all of the custodians, as opposed to the quoted Mishnayos that all speak of only one of the custodians.
  
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  R’ Chiya is a Tanna and argues [with the Baraisa presented by the father of Rav Aftoriki]. There seems to be two versions of the text in the Gemara earlier on 3a, where R’ Chiya presents his opinion that the testimony of witnesses of partial liability generates an oath obligation.A) It is a personal statement of R’ Chiya.B) R’ Chiya is quoting a Baraisa.If the second text is correct, there is no need for our Gemara to defend R’ Chiya by saying that he is a Tanna and can argue with a Baraisa. He was also quoting a Baraisa that can certainly disagree with the Baraisa of R’ Aftoriki’s father.If our text earlier is “R’ Chiya said”, which implies that the ruling was R’ Chiya’s personal ruling and not of a Baraisa, our Gemara which defends R’ Chiya’s ruling by saying that R’ Chiya has the right to argue with the Baraisa comes out well. Initially, the Gemara did not know that R’ Chiya ranks as a Tanna and presented this Baraisa as a contradiction to R’ Chiya. The Gemara defends R’ Chiya by saying that he does rank as a Tanna and can disagree with the ruling of the Baraisa.But if R’ Chiya was quoting a Baraisa, there should be no need to say that R’ Chiya has the right to argue with a Baraisa?And even if our original text was “R’ Chiya taught a Baraisa” there should be no need to defend R’ Chiya by saying that he was a Tanna, since he was teaching a Baraisa? We can answer: That the Gemara means as follows: Even if this ruling of R’ Chiya would not be a Baraisa there would be no problem, because [R’ Chiya] is a Tanna and has the right to argue with any Baraisa.
  
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  [If the plaintiff claimed wheat] and [the defendant] admitted [owing] barley, he is exempt. The Gemara can easily be understood as exempting the defendant from swearing. We might believe that he is liable to return the barley that he admits owing. Tosfos tells us that this is not so.When we say that if the plaintiff claimed the defendant owes him wheat and he admits that he owes barley, he is exempt -this means that he is exempt not only from the wheat but also from the barley that he admitted owing, because we construe the plaintiff’s claim of wheat as an admission that the defendant does not owe him any barley, as is evident from the end of HaManee’ach (Bava Kama 35b, and Tosfos ד'ה לימא there.)1<i class="footnote">The Gemara there clearly says that the defendant is exempt from barley as well.</i>If [the plaintiff] claimed that the subject owes him wheat and [the defendant] admitted that he owes [the plaintiff] barley, he is exempt. What is Rabah bar Nassan teaching us? We have learned this in a Baraisa: If [the plaintiff] claimed wheat and [the defendant] admitted that he owes barley - [the defendant] is exempt. The Gemara explains: If our source was only the Baraisa I would say - what is meant by that Baraisa - that [the defendant] is exempt from the value of wheat and liable for the value of barley. Rabah bar Nassan teaches us that he is entirely exempt, even from the equivalent amount of wheat.
  
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  They gave [the sheep] to [the shepherd in the presence of] witnesses. As is evident from the Gemara, their intention was to be able to verify that he had indeed received the sheep from them. Otherwise, the shepherd could deny ever receiving the sheep, as he eventually did. Tosfos points out that merely having witnesses is insufficient to avoid a legally valid denial.It is speaking of when they also told him “do not return the sheep without witnesses” to verify that you did indeed return them. For if they did not do so, we have established (Kesubos 18a): Concerning one who lends his neighbor in the presence of witnesses, the borrower does not need to pay him in the presence of witnesses in order to prove that he has already paid the debt. The borrower may claim that he has paid the debt and the burden of proof is on the lender, even though the lender lent the money in the presence of witnesses. It is only when the lender says at the time of the loan that it must be paid only in the presence of witnesses, that the borrower cannot later claim, I have already paid. 
  If R’ Chiya’s [first law] is [accepted as halacha]. The Gemara’s use of the word “if” seems to suggest that R’ Chiya’s first law may not necessarily be accepted as halacha. Tosfos will prove that it is indeed accepted as halacha and demonstrates that the word “if” is also used elsewhere where the ruling is halacha.Earlier the Gemara introduced a Baraisa that contradicts R’ Chiya’s first ruling. The Gemara countered: R’ Chiya has the rank of a Tanna and can disagree with the author of that Baraisa. The Gemara asks: But that Tanna of the contradictory Baraisa quoted a verse? The words אשר יאמר כי הוא זה which are the source for the oath of partial admission teach us that it is in effect only for one’s own admission but not when partial guilt is established by witnesses.R’ Chiya will answer: That verse comes to teach us that we are dealing with a partial admission. The defendant is saying that my liability is only this amount and not your entire claim. The father of R’ Aftoriki will answer you: There are two exclusions in the verse. The word “this” is written and the word “it” is written in the verse. Both are exclusions, one comes to teach us that the defendant must swear only for partial admission and one comes to teach that when partial liability is known by the testimony of witnesses, the defendant is exempt from swearing. The other disputant (R’ Chiya) will tell you: one exclusion teaches us that liability is only for partial admission and one exclusion teaches us that the admission must be about the same species as the claim. The Gemara will soon give us an example of this case. The other disputant (R’ Aftoriki’s father) will answer: He does not hold that the admission must be of the same species as the claim. He holds like Raban Gamliel, as we learned in a Mishna: If [the plaintiff] claimed that [the defendant] owes him wheat and [the defendant] admits that he owes barley, he is exempt. Raban Gamliel holds that he is liable.We see that R’ Chiya’s ruling is dependent on his position that the second exclusion comes to exclude an admission of barley to a claim of wheat, which is the position of the Rabanan. If so, there is no verse to exclude when the partial liability is known from witnesses. The kal v’chomer of R’ Chiya tells us that in this case we are to obligate the defendant to swear.It appears that the halacha is in accordance with R’ Chiya. For earlier [the Gemara] explains that [this first ruling] of R’ Chiya follows the Rabanan who disagree with Raban Gamliel and the halacha is in accordance with them.1<i class="footnote">See שיטה מקובצת and מהר"ם who deflect Tosfos’ proof from the ruling that the denial must be of the same species. It is possible to agree with that ruling and still disagree with R’ Chiya. R’ Chiya’s ruling is dependent on deriving the case of witnesses’ testimony of partial liability from a combination of one’s own admission and the single witness. The Gemara protested that they both share a common characteristic, that they are not subject to paying if they are nullified by the hazamah process. The Gemara answered that R’ Chiya does not consider this a challenge to his combined source. See Tosfos 4a –ד'ה עד אחד . This is an adequate defense of R’ Chiya’s position, but it is certainly not so convincing that all others must agree with him. It is possible that others hold that even though we hold like the Rabanan of Raban Gamliel insofar as the denial being from the same species as the claim, we may still disagree with R’ Chiya because of the challenge to his combined source.</i> It follows that since R’ Chiya’s way of expounding the verse is the same as the Rabanan, just as the halacha follows the Rabanan, it is also follows R’ Chiya.Tosfos now presents three Gemaros where it is evident that we rule in favor of the Rabanan who disagree with Raban Gamliel and that it is required that the admission be of the same species as the claim. As the [Gemara] asks in the end of HaMeinee’ach (Bava Kama 35b) when the Gemara discusses Rabah bar Rav Nassan’s ruling that if one claimed wheat and the other admitted barley, he is exempt, what is he teaching us, we have already learned this in a Baraisa? The Gemara then quotes our Baraisa as proof of this ruling. It is obvious that despite Raban Gamliel’s dissenting opinion, we follow the Rabanan.The Mishna in HaShoel rules that if the purchaser claimed that he bought a large slave and the seller insists that he sold him a small slave, the seller must swear that he sold him a small slave. The Gemara asks: Why should he swear? What [the plaintiff] claimed, i.e. a large slave, [the defendant] did not admit. What [the defendant] admitted, i.e. a small slave, [the plaintiff] did not claim.Tosfos understands that the Gemara means that this claim and admission do not satisfy the requirement of the admission being the same type as the claim. (See Rashi there ד'ה ועוד.)So too, in Perek HaShoel (Below 100a) [the Gemara] asks: Why should the seller swear? This is a case of [the plaintiff]claiming wheat and [the defendant] admitting barley.2<i class="footnote">These exact words do not appear in the Gemara there. This is Tosfos’ interpretation of the Gemara that says מה שטענו לא הודה לו, what the plaintiff claimed (a large slave) which the defendant did not admit. He admitted owing a small slave, which is not the same species as the claim.</i>The Gemara in Shavuos 40a: Rav And Shmuel are disputing whether the amount of the claim for the oath of partial admission must be two silver ma’ah and the denial and admission are from within that amount or whether the denial must be two silver ma’ah and the original claim was more. Their discussion eventually turns to the verse כי הוא זה, which we already know is the source for the oath obligation.How does Rav deal with the two exclusions? One teaches us that there must be a partial admission. One teaches us that he admission must be of the same species as the claim.How does Shmuel explain the verse? Granted that Rav’s interpretation is correct but we still must understand from the verse that since the original claim was two silver ma’ah, after admitting some of the original claim the denial must perforce be less than two silver ma’ah.It is evident that both Rav and Shmuel agree that the admission must be of the same species as the claim. So too, do Rav and Shmuel hold in Perek Shavuos HaDayanim (Shavuos 40a). Tosfos quoted three sources to prove that the halacha follows the Rabanan who disagree with Raban Gamliel who hold that the admission must be of the same species as the claim. Since R’ Chiya’s first ruling is aligned with this understanding of the verse, the halacha follows R’ Chiya as well. But our Gemara seems to indicate otherwise, by using the phrase “if” R’ Chiya’s ruling is halacha, it seems that it is not at all certain that the halacha is in accordance with R’ Chiya. Tosfos will now show us that we find other places in Shas where “if” is used even though the halacha definitely is in accordance with that position.Even though [the Gemara] here says “if R’ Chiya’s first ruling is halacha”, which implies that in reality it is not, so too, we find in Perek Hamadir (Kesubos 70a)3<i class="footnote">This Gemara is actually in Perek HaMadir Kesbos 70a.</i> [the Gemara] says: If it is so, that Rav Huna’s ruling that a wife can say to her husband “I do not want your sustenance etc. and I will not work for you” is halacha, which is the same phrase employed by our Gemara, and even so in Perek Shenai Dayanei Gezeiros (Kesubos 107b) [the Gemara] rules like Rav Huna. We see that despite the Gemara’ use of the introductory phrase “if it is so” the halacha does follow that opinion. In the case of R’ Chiya’s ruling as well, even though the Gemara uses the introductory phrase “if it is so” the halacha can be in accordance with R’ Chiya. Tosfos has shown that the halacha does in fact follow R’ Chiya and witnesses’ testimony can generate an oath obligation. Tosfos will now discuss an entirely different aspect of the particular case under discussion. In the previous cases we learned that the oath is required because we are not concerned that the defendant is an outright liar. Even when we know that he lied when he said “I owe nothing”, we say that he is a basically honest individual who would truly like to pay his debts, but has no funds available at this time. In the case of the shepherd who ate two of the sheep that were deposited with him, this is simply not true. Eating the sheep is an outright theft that cannot be excused by saying that he is ‘evading the creditor’.Tosfos will now return us to the source of R’ Chiya’s ruling, which is the combination of one’s own admission and the testimony of a single witness, each of which generate an oath obligation. So too, the testimony of witnesses must also generate an oath obligation. Earlier on 4a the Gemara asked: but upon one’s own admission and the testimony of a single witness, the defendant is not an established denier, whereas in R’ Chiya’s case when one denies owing anything and witnesses testify that he owes half, he is an established denier. The Gemara answered that in R’ Chiya’s case as well, the defendant is not an established denier, because he is ‘evading the creditor’. We must conclude that when one’s denial cannot be attributed to ‘evading the creditor’, he would not swear.This is bewildering! Even if R’ Chiya’s fist ruling is halacha, there cannot be an oath obligation here in the case of the shepherd who denied receiving the sheep, for the witnesses testified that he ate two of the sheep. They are thus contradicting his claim that he never received the sheep from their owners. He is now an ‘established denier’ and we have no source from which to establish that an established denier takes an oath.For the cases of one’s own admission and a single witness share a common characteristic that [the defendant] is not an established denier. Can you say the same here where the shepherd is an established denier by denying that he received the sheep?4<i class="footnote">There are those who ask that Tosfos’ question seems to be the same as the Gemara, which asks: But he is a thief? We have followed מהר"ם who stresses that Tosfos’ question is about the shepherd’s initial denial of receiving any sheep. We now know that when the shepherd denied receiving the sheep, he was lying. He is therefore an established denier. Tosfos is focusing not on the fact that the shepherd stole the sheep by eating them, but on his denial of receiving them. The Gemara will ask: “But he is a thief?”. This question assumes that there is inherently an oath obligation, but how can we allow the thief to swear? Tosfos’ question is that there should not even be an oath obligation at all, since we have no source for a derivation when the situation is one of an established denier.</i> There is no rationalization for his behavior.5<i class="footnote">Some argue that this too is a case where there is no established denier. We do not have any testimony that the shepherd in fact received the sheep from his regular clients. All we have is testimony that he ate two sheep. The shepherd had the option of saying that he purchased those sheep. When he does not say so, he is admitting that they belonged to his regular clients. His guilt is known to us only by this admission and he is therefore not to be considered an established denier.</i>Perhaps we can answer: Once we learn that there is an oath obligation generated by the testimony of witnesses for denial of a loan, then we should not differentiate between a loan and a deposit.6<i class="footnote">See מהר"ם שי"ף who explains Tosfos’ thinking as follows: R’ Chiya derives that witnesses’ testimony generates an oath obligation from one’s admission and a single witness. If we should limit the derivation to when there is a possibility of ‘evading the creditor’, we will be faced with a grave difficulty. One’s own admission and a single witness obligate an oath for a deposited item even when there is no possibility of ‘evading the creditor’. If the testimony of witnesses is limited only to such cases where there is a possibility of ‘evading the creditor’, we can challenge the derivation by arguing that even if witnesses testimony is effective in establishing an oath obligation, it will remain inherently weaker than one’s admission and a single witness, because they can obligate an oath even when there is no possibility of ‘evading the creditor’ and the testimony of witnesses would only be effective when there is a possibility of ‘evading the creditor’. It must therefore be that once we derive that the testimony of witnesses can generate an oath obligation, it must be effective even when the subject is no possibility of ‘evading the creditor’. מהר"ם שי"ף’s explanation proves that in fact it must be that the testimony of witnesses is acceptable even in cases where there is an established denier. It does not inform us of how we arrive at this. See משנת הלוי אות נ"ב by הרב הגאון רפאל שארד שליט"א son of ,מו"ר הרב גדלי' שארד זצ"ל who explains that if there was no possibility that witnesses could actually cause a defendant to swear we would necessarily conclude that the testimony of witnesses does not generate an oath obligation, because the defendant would never be able to swear since he is an established denier. However, once we find a situation where the defendant can swear because he is ‘evading the creditor’ and not an established denier, we see that inherently witnesses can generate an oath obligation. In those instances where the defendant is an established denier, he will not be allowed to swear even though there is an oath obligation and his opponent will have the right to swear and collect.</i> Since a deposit is usually a case where the defendant cannot be assumed to be ‘evading the creditor’ we conclude that in all cases there is inherently an oath obligation. As the Gemara will soon illustrate, we cannot always enact the oath obligation, i.e. when the defendant is a thief or an established denier. We then reverse the oath to the plaintiff, who swears and collects.
  
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  I was saying[ that the party] opposing him [takes an oath]. See Tosfos 3Ba ד'ה בכוליה where we discussed R’ Abba’s ruling that when one has an oath obligation and cannot swear, he is obligated to pay. Tosfos wonders why the same does not apply when the defendant cannot swear because he is suspected of swearing falsely.If you ask: Why is there a difference? For one who is suspected of swearing falsely, we rule that his opponent must swear in order to collect. Why don’t we say that since he cannot swear, because we suspect that he might swear falsely, he must pay, as [the Gemara] says in regard to a defendant who responds to a plaintiff’s claim of one hundred zuz, by saying fifty I know that I owe you, so we have a partial admission, and the other fifty that you claim, I do not know if I am liable or not (Below 98a). The Gemara rules that since the defendant cannot swear that he does not owe the “second” fifty zuz, he must pay. We do not say that his opponent must swear that the defendant owes him the fifty zuz in order to collect.Also in the case of the ingot of R’ Abba (Shavuos 32b), where the plaintiff accused the defendant of seizing an ingot of silver from him. The defendant answered: it is true that I seized the ingot from you, but the ingot was truly mine. There was a single witness who testified in favor of the plaintiff. The Gemara rules that the defendant needs to swear to contradict the witness. Since he cannot take such an oath because he has already admitted that he did seize the ingot, he is in the position of one who needs to swear and cannot do so and must therefore pay.In both these cases we rule that when there in an oath obligation on the defendant, which he cannot fulfill, he must pay. Why do we not say that the plaintiff must swear in order to collect?Superficially, it seems that the case of our Gemara is very similar to the cases Tosfos quoted from Bava Metzia 98a and Shavuos 32b. We must search for a distinction between these cases in order to answer Tosfos question. If we examine these cases correctly, we will see that the cases of Bava Metzia 98a and Shavuos 32b are isolated happenings. It is not every day where we have a defendant saying “I know that I owe fifty zuz, but I do not know about the other fifty”. So too, the ingot of R’ Abba where we have a person saying “It is true that I seized the ingot, but it is mine”, is an uncommon story. If we rule in these uncommon cases that the defendant must pay, we are not endangering his financial future. The particular story may never happen again.However, if we rule that any person suspected of swearing falsely must pay because he cannot swear, we are endangering his financial future, because any dishonest person can take advantage of his inability to swear. We can answer: Here, in the case of one who is suspected of swearing falsely, if we say that he must always pay, we are not allowing him to live, because all people will bring him to an oath obligation and they will collect all his assets. For example: If he borrows one hundred zuz from Ruvain, Ruvain will claim that he owes him two hundred zuz, when he admits that he owes one hundred zuz, he will be obligated to swear the oath of partial admission. Since he cannot swear because he is suspected of swearing falsely, he will have to pay. This situation can repeat itself forever and ever. Even though he is suspected of swearing falsely, we cannot allow him to be in a position where he is so susceptible to financial ruin by unscrupulous people. We therefore require that his opponent swears before he is allowed to collect. As explained earlier, in the two cases of Bava Metzia 98a and Shavuos 32b, a one time ruling that the defendant who cannot swear must pay, will not ruin him financially, because these situations are rather uncommon.Upon further analysis we can see that there is another major difference between one who is suspected of swearing falsely and Bava Metzia 98a and Shavuos 32b.In Bava Metzia 98a, where the plaintiff claims one hundred zuz and the defendant responds with “fifty I owe and the other fifty I am uncertain”, there is an oath obligation because the defendant admitted partial liability. Because of the nature of his counterclaim he cannot take the oath required of him, which is to swear that he does not owe the second fifty zuz. He has admitted that he might owe the fifty zuz and he obviously cannot now swear that he does not owe them. He has backed himself into a corner, from which he cannot extricate himself.So too, in Shavuos 32b, in the case of the ingot of R’ Abba, where the defendant admits that he did in fact seize the ingot from the plaintiff and the plaintiff has a single witness who testifies in his behalf. The oath required of the defendant is to contradict the witness. This he cannot do, because he has admitted that he did seize the ingot from the plaintiff. Here too, he has backed himself in to a corner. He must swear but he cannot do so, because his own counterclaim precludes him from taking the necessary oath.The case of one who is suspected of swearing falsely is entirely different. He is perfectly agreeable to taking the needed oath. It is the court who cannot allow him to do so, because they suspect that he might swear falsely. Furthermore, there is the following distinction between these cases, for there, in Bava Metzia 98a and Shavuos 32b, [the plaintiff] says to [the defendant]: I have the right to demand a Torah oath from you. Either you swear or pay. You cannot swear because of your counterclaim, therefore you must pay. However, here in the case of the defendant suspected of swearing falsely, he would willingly swear, if we would allow him to. Therefore, he need not pay unless the plaintiff first swears that his claim is honestly true.
  
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  [If the defendant says]: Nothing of yours is in my possession he is exempt; Rav Nachman says [he must swear an oath of incitement]. In order to understand this Tosfos properly, we need to review a Gemara in Shavuos 41a, where the Gemara first quotes a Mishna of 38b: The plaintiff claimed: A maneh of mine is in your possession, i.e. you owe me a maneh. The defendant responds: You have nothing in my possession. The ruling is: [the defendant] is exempt. He need not pay or swear by Torah law. Rav Nachman says: We require him to swear an oath of incitement, by Rabbinic law.The Gemara explains that this first version of Rav Nachman holds that even when there is nothing other than the claim of the plaintiff indicating that the defendant may be liable, an oath of incitement is required. Rav Chaviva taught this ruling of [Rav Nachman] in regard to the latter portion of the Mishna: If the plaintiff claimed: A maneh of mine is in in your possession. [The defendant] responded: Yes! The next day [the plaintiff] said: Give me [the maneh] that you admitted. The defendant responds: I gave it to you. The ruling is: he is exempt, i.e. the defendant need not pay or swear. It is in regard to this latter ruling that Rav Nachman says: We require him to swear an oath of incitement. The Gemara explains the difference between the earlier and latter versions of Rav Nachman. The one who taught [Rav Nachman’s ruling] in regard to the earlier part of the Mishna when there is no indication of guilt other than the plaintiff’s claim, will certainly hold that Rav Nachman’s ruling applies to the latter part of the Mishna, where there is some indication that the defendant may owe money, since he admitted receiving a maneh from the plaintiff. However, the one who taught [Rav Nachman’s] ruling in regard to the end of the Mishna, holds that here in the latter part of the Mishna there is a suggestion of monetary liability, but [in the earlier part of the Mishna] where there is no suggestion of monetary liability, no oath of incitement is needed.We now know that there are two opinions about Rav Nachman’s requirement of a Rabbinic oath of incitement:a) Even when there is no suggestion of liability, it is required.b) Only when there is a suggestion of liability, such as when the defendant admitted that there once was a liability, is an oath of incitement required.Our Gemara quotes the earlier part of the Mishna in Shavuos 38b and then immediately introduces Rav Nachman’s ruling. It seems that our Gemara holds that Rav Nachman’s oath of incitement is relevant even for the earlier part of the Mishna. From [this Gemara] it seems that the halacha follows the first version in Perek Shavuos HaDayanim (Shavuos 41a), which does not require a suggestion of monetary liability for Rav Nachman’s oath of incitement, rather, even one who totally denies a claim against him is obligated to take an oath of incitement. This is evident from the fact that [the Gemara] does not cite the end of the Mishna in Shavuos where the Mishna says: after the defendant admitted owing a maneh, the next day he claims: I gave it to you, he is exempt. According to the second version in Shavuos, Rav Nachman’s ruling was said only in reference to this second statement of the Mishna where there is a suggestion of liability. Since our Gemara does not quote this second ruling of the Mishna 38b, but only the earl;ier part of the Mishna, where there is no suggestion of liability, it seems that our Gemara holds like the first version in Shavuos that Rav Nachman’s ruling is relevant even when there is no suggestion of liability.We also find this explanation in the Shearim of Rav Hai. And if the defendant] claims: I do not know whether I am liable or not, he must swear that he does not know.
  
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  But that which Rav Nachman said, [that when one denies all, he is obligated to swear an oath of incitement, etc.] Rav Nachman’s ‘oath of incitement’ is presented as proof that even when one is suspected of stealing, he is not suspected of swearing falsely. This is bewildering! For here as well, one who entirely denies owing a loan, may be ‘evading the creditor’ and stalling for time, as the Gemara said earlier (4a,5b), when one completely denies the plaintiff’s claim and is found to be lying, he is still eligible to testify as a witness, because we do not view him as a confirmed liar, but rather as ‘evading his creditor’.We can answer: That Rav Nachman obligates [the defendant] to take an ‘oath of incitement’, even when [the plaintiff] claims that the object in your hand is mine, where if he is lying it is not possible to say that he is ‘evading the creditor’.1<i class="footnote">Tosfos’ answer that Rav Nachman requires an ‘oath of incitement’ even when the plaintiff claims that the object in your hands is mine, is somewhat difficult. It appears that the Gemara knew this to be true, even though there is no specific mention of this fact in the Gemara. In fact, Tosfos proceeds to question why this should be true as we will soon see. Perhaps Tosfos views the ruling in the Mishna in Shavuos which says “You owe me a hundred zuz, and the defendant answers: I owe you nothing”, as being equally applicable to a deposit as it is to a loan. If so, when Rav Nachman adds that we impose an ‘oath of incitement’, it is referring to a deposit as well as a loan. Thus, the source of Tosfos’ reasoning is that Rav Nachman’s original ruling includes even a situation where justifying the defendant because he is ‘evading the creditor’ is inapplicable. Tosfos then proceeds to ask: Why is this so? He never questions the truth of his conclusion.</i>2<i class="footnote">It is noteworthy that Tosfos does not even mention how Rashi ד'ה נימא deals with this problem. For a better understanding of Rashi’s explanation see שיטה מקובצת, רמב"ן and נחלת דוד.</i> When the object he must return is immediately accessible, we cannot argue that he is denying the charges because he wants to ‘evade the creditor’. All he needs to do, is simply return the object to the plaintiff. His refusal to do so, can be construed only as an attempt to steal the item. Even so, Rav Nachman obligates him to swear. This is conclusive proof that even though one is suspected of stealing, he is not suspected of swearing falsely. So too, Rav Hai Gaon explains that we impose an ‘oath of incitement’ upon a denial of land, even though ‘evading the creditor’ is inapplicable to land. One merely needs to return the land to its owner, since it is always here and accessible. We see that Rav Nachman’s oath is required even when there is no possibility of ‘evading the creditor’.The Gemara in Shavuos 40b is discussing Rav Nachman’s oath: Rav Nachman said: We impose an ‘oath of incitement’ upon [one who denies all]. What is the reason that we suspect that he might be lying? It is assumed that [the plaintiff] would not lay claim, if [the defendant] did not owe him. The Gemara counters: On the contrary, we may assume that a person does not have the audacity to deny his debt in the face of his creditor. If he is denying the debt, he is most probably telling the truth.The Gemara answers: He is not exhibiting audacity, rather, he is ‘evading the creditor’, he thinks, I will deny the debt till I will have funds with which to pay.We see that Rav Nachman’s original oath was imposed only because of the possibility of ‘evading the creditor’. It follows that when ‘evading the creditor’ is inapplicable, there should be no ‘oath of incitement’. Tosfos has concluded that Rav Nachman does impose an ‘oath of incitement’ even when there is no possibility of justifying his claim as ‘evading the creditor’, such as when the plaintiff claims the object in your hands is mine or when the dispute is about land as Rav Hai ruled.And this conclusion that Rav Nachman’s oath was instituted even when ‘evading the creditor’ is not an option, is difficult! For in Perek Shavuos HaDayanim (Shavuos 40b) it appears that [Rav Nachman] obligates an ‘oath of incitement’ only because of the possibility of ‘evading the creditor’? For [the Gemara] asks about the ruling that an ‘oath of incitement’ is required because the creditor would not claim something if the debtor did not owe him: On the contrary, a person does not have the audacity to deny his debt in the face of his creditor, and [the Gemara] answers: that [the defendant] is not exhibiting audacity, rather he is ‘evading the creditor’. It is evident that an ‘oath of incitement’ is required only because of the possibility that the debtor might be lying in order to ‘evade the creditor’.We can answer: Since when the loaned money or deposited item is not accessible, [the defendant] must swear because he might be ‘evading the creditor’, even when the disputed item or funds are accessible, the Rabanan did not differentiate between different types of disputes and required an oath in all cases. Initially the oath was instituted for such cases where there is the possibility of ‘evading the creditor’. However, once it was instituted, it was expanded to include all types of disputes, even those where there is no likelihood of ‘evading the creditor’, as in the cases that Tosfos speaks of. However, we do see that there is an oath requirement even where the defendant is suspected of stealing the disputed item or land and he is not suspected of swearing falsely.There is an inherent weakness in Tosfos’ previous explanation. We must concede that Rav Nachman initially instituted his ‘oath of incitement’ for disputes where there is a possibility of ‘evading the creditor’. We must then say that the Gemara knows that the initial ruling was expanded to include all types of disputes even though the Gemara presents no evidence of this. Tosfos searches for a better solution to his question.In the second approach Tosfos will concede that his question is better than his answer and the proof offered by the Gemara from Rav Nachman’s ruling is in fact inconclusive. However, at this point in the dialogue, the Gemara simply chose not to pursue this weakness, even though it certainly could have deflected the proof offered from Rav Nachman’s ruling. Alternatively, the Gemara is aware of the flaw of the proof from Rav Nachman’s ruling, however [the Gemara] chooses to ignore this, because it is relying on the question it raises from R’ Chiya’s ruling, which definitely does prove that even when one is suspected of stealing money, he is not suspected of swearing falsely. Since the Gemara knew that ultimately there is proof that even in this situation one is required to swear, it ignores the fact that Rav Nachman’s ruling does not in fact prove this at all.
  
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  As R’ Chiya taught in a Baraisa. See Rashi ד'ה שניהם who raises a question: Why is the Gemara quoting a Baraisa of R’ Chiya, when this ruling is clearly mentioned in a Mishna (Shavuos 44b)? Rashi asked: Why didn’t [the Gemara] cite the Mishna of Shavuos (44b), instead of R’ Chiya’s Baraisa? A Mishna is usually recognized as more authoritative than a Baraisa. We can answer: That Rebbe Yehudah the Prince, author of the Mishna, taught this Mishna as a result of his conversation with R’ Chiya, as is evident there (Shavuos 47b).The Gemara in Shavuos 47b: We learned in a Baraisa: Rebbe said: The trouble of this oath is for what purpose? R’ Chiya said to [Rebbe]: We learned in a Baraisa: Both swear and collect from the householder. It seems that Rebbe had his doubts about this oath and was convinced by R’ Chiya to incorporate this ruling into the Mishna.
  
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  [An unpaid custodian who claims that the deposit was stolen must] swear that he did not1<i class="footnote">Literally the words – לא שלח ידו - mean that he did not stretch his hand to the deposited item. This of course cannot be understood literally. What difference would it make if he stretched his hand to the deposited item? Rashi therefore explains that the intent of the verse is that he did not “stretch his hand to the item” in a way that would make him liable for the accident that eventually occurred to the animal. This would happen if he used the animal for his personal use. He is a thief and becomes liable even for accidents. We have translated the words according to the meaning and not literally for the sake of clarity.</i> use it for his personal needs. Why is this oath required? What will change if the custodian did use the deposited item for his own needs?We must first be aware that custodians have different levels of liability.a) An unpaid custodian is liable only for negligence. He is exempt for loss, theft and unavoidable accidents.b) A paid custodian is liable for loss and theft, but exempt for unavoidable accidents.c) A borrower is liable even for unavoidable accidents.Rashi explained: That if he did 1 use it for his personal needs, he is a thief and even if it was destroyed by an unavoidable accident he is liable. As an a) unpaid custodian he is liable only for negligence. However, a thief is comparable to a borrower2<i class="footnote">See Rashi below (41b) ד'ה תיתי משואל.</i> and liable even for unavoidable accidents. When an unpaid custodian uses the deposited item for his own needs, he is legally a thief and is consequently liable even for unavoidable accidents.Even though when [the custodian/thief] returns [the deposit] to its designated place after he used it for his personal needs, he has effectively returned the stolen object and is exempt from future liability for unavoidable accidents, as we learned in HaMafkid (Below 40b), and if so, what difference does it make that he used the deposit for his personal needs, since at this point he is no longer a thief? Even so, perhaps it was damaged by accident before he returned the deposit to its place and he is liable for damages at that time. The custodian must therefore swear that he carries no additional liability as a result of misappropriating the deposited item. But there is a difficulty with [the Gemara] at the end of Ha’umnim (below 83a), where [the Gemara] says in explanation of a verse in the passage dealing with a paid custodian (Shemos 22, 9) “if it was broken or captured, and nobody saw” he must swear in order to clear himself, the Gemara deduces, but if witnesses did see, the custodian may bring witnesses to testify in his behalf and [the custodian] is exempt from swearing. But how can the Gemara say that the custodian is unequivocally exempt, perhaps he used it for his personal needs and is liable even for unavoidable accidents because he is a thief? The witnesses testify only that the deposit was destroyed by an accident, they does not tell us that the custodian never used the deposit for his personal needs and is not liable for accidents.We can answer: That the Gemara is saying only that [the custodian] is exempt from swearing that it was destroyed by an accident, but he must still swear that he did not use it for his personal needs.This explanation limits the exemption in the Gemara (83a). Although the Gemara says that the custodian is exempt, we are compelled to say that he is only exempt from an oath that it was destroyed by accident, because he has witnesses who testify to that. However, he is still obligated to swear that he did not use the deposit for his personal needs. Thus, he is not completely exempt from swearing. The simple reading of the Gemara leads us to believe that the exemption is complete. Tosfos will now offer an approach to the Gemara (83a) that concurs with the simple reading. Alternatively, one swears that he did not use the deposit for his personal needs only via the process of devolving3<i class="footnote">See הרמב"ם הל' שאלה ופקדון פ"ד ה"א who also uses the term ,מגלגלין when describing the oaths of a custodian.</i> from the original mandatory oath wherein he states, “I was not negligent”. It is only when the custodian must swear that he was not negligent that another oath - stating that “I did not use the deposited item for my personal needs” devolves upon him. However, when there are witnesses who testify that [the deposit] was destroyed by accident, [the custodian] is completely exempt from swearing. There is no need to swear that it was destroyed by accident, since there are witnesses, and he need not swear that he did not pick it up to use it for his personal needs, because he is obligated to take that oath only when he must swear that it was destroyed by accident.Until this point, Tosfos follows Rashi’s explanation that the oath - “I did not stretch my hand to it” means that I did not take it to use as my own and I am therefore not subject to the liabilities of a thief. Tosfos will now cite Rabbeinu Tam’s explanation of the oath “I did not stretch my hand to it”,4<i class="footnote">See note 1.</i> which differs radically with Rashi’s explanation.Rabbeinu Tam explains that even via the process of devolving a non-mandatory oath via a mandatory oath, one need not swear that he did not misappropriate the animal when [the animal] is dead before us.5<i class="footnote">Tosfos stresses that the animal before us is dead, because there is no need to swear that he did not consume the animal. We see that it is in front of us. We will only require an oath that he did not eat the animal when the custodian claims that it was eaten by another animal and there is no carcass to prove that it was not eaten by the custodian.</i> For devolving a second oath is only required when the secondary oath is for something likely to have happened. The original oath proves that the animal did not die as a result of negligence. The secondary oath that he did not use the animal for his personal needs is unlikely and unrelated. For what might cause us to think that the custodian may have used [the deposit] for his personal needs when nothing is pointing in that direction?Therefore, Rabbeinu Tam concludes that “I did not stretch my hand to it” means something entirely different, as we will soon see. First Tosfos wants to dispel the idea that one can require an oath by devolving even when the second oath is for something unlikely. The Mishna teaches that partners may demand an oath from each other at anytime. However, if partners or the sharecroppers split up, [their former partner or employer] cannot impose an oath upon him concerning their past relationship. If an oath devolved upon [a former partner or sharecropper] from somewhere else, an oath for all claims devolves upon [the former partner or sharecropper].We do see that when one is obligated to swear to his litigant about a financial matter, he may be asked to swear about additional matters that are unrelated to the present claim. Rabbeinu Tam maintains that even when one is liable to swear that he was not negligent there is no reason to ask him to swear that he did not use the deposit for his personal needs. How does Rabbeinu Tam deal with the Mishna in Shavuous (45a)?For it is only in the case of partners who divided their assets and one was obligated to swear from somewhere else that he must also swear about matters other than the original oath, via the process of devolving a non-mandatory oath via a mandatory oath, because it is the nature of partners that one rationalizes when dealing with partnership property. Since there is reason to believe that a partner might have stepped beyond the strict letter of the law when dealing with partnership assets, when we have a primary oath obligation on one of the former partners, a secondary oath devolves upon that partner to swear that he did not misappropriate any of the partnership assets. This does not contradict Rabbeinu Tam at all. When an animal is killed, the custodian must swear that it did not happen as a result of his negligence, but there is no reason to suspect him of using it for his personal needs.If so, what is the oath “that I did not stretch my hand to it”2<i class="footnote">See Rashi below (41b) ד'ה תיתי משואל.</i> about? The oath that “I did not stretch my hand to it”, Rabbeinu Tam explains, means that I did not eat it which is not included6<i class="footnote">For the sake of clarity, we will paint the scenery of the custodian’s oath as it happens in בית דין according to Tosfos.A) The court: What happened to the deposited sheep.B) Custodian: It was eaten by a lion.C) Court: Perhaps it was a result of your negligence? Do you have witnesses to prove that it was truly an accident?D) Custodian: No.E) Court: You must take an oath that you were not negligent. In addition to that oath, you must also swear that you did not eat the animal and that it is not presently in your possession.Tosfos understands that the text of the oaths cited by the Gemara are to be taken literally. When the custodian swears that “he was not negligent”, it is understood that a lion did not eat it as a result of his negligence. This does not preclude that it may still be in his possession or that he might have eaten the sheep himself. When he swears that he did not eat the animal, this too, does not preclude the possibility that the animal is presently in his possession. So too, when swearing that the animal is not in his possession, he does not preclude that he did not eat the animal himself. Rambam’s understanding of the practicality of these oaths is substantially different. See רמב"ם ibid.</i> in the oaths that he was not negligent and that it is not presently in his domain. If the custodian ate the animal, he could swear that he was not negligent and it is not in his possession at this point in time. The oath “I did not stretch my hand to it” is needed to verify that he did not consume the animal.
  
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  Perhaps [one of the litigants] has a questionable loan against [the garment’s owner]. Let us review the mathematics of the Gemara:a) R’ Yochanan said that the need for the oath in this Mishna is because Shimon may have seen Ruvain lifting up the garment and decided that since Ruvain did not invest time or effort to find or purchase this garment, he too wants to have a share in it and he therefore grasps the garment. Although, this is indeed an act of stealing, Shimon rationalizes his behavior. We therefore require an oath, which will discourage Shimon from doing so.b) The Gemara asks: If you are concerned that Shimon might steal, you should also be concerned that he might swear falsely. Stealing and swearing falsely are equally prohibited by the Torah.c) The Gemara answers: Even when Shimon is suspected of stealing, he is not suspected of swearing falsely. The Gemara proceeds at length to prove that one who is suspected of stealing is not suspected of swearing falsely. The Gemara presents three rulings to prove that even one who is suspected of stealing is not suspected of swearing falsely: 1) Rav Nachman’s ruling that a total denier swears an ‘oath of incitement’. See Tosfos 6Aa. 2) R’ Chiya’s Baraisa which rules that both the worker and storekeeper swear and collect from the householder. In this case one of the parties is definitely attempting to steal and even so we require and allow him to swear. 3) Rav Sheishes’ ruling that a custodian must swear that the deposit is not in his domain. If the custodian did have the deposited item in his domain and denied receiving it, this would be an outright attempt to steal the item, even so we require and allow him to swear and are not concerned that he might swear falsely.d) Abaye says that the reason each of the litigants must swear is not because we are concerned that Shimon may steal from the true owner. Rather, we are concerned that Shimon might feel that Ruvain may owe him money from a questionable old debt, which Ruvain has long forgotten. Shimon knows that if he would claim payment for that questionable loan, Ruvain would most probably deny owing the money. When the opportunity presents itself Shimon grabs Ruvain’s garment in an attempt to collect the questionable loan. In order to discourage Shimon from attempting to recoup this questionablel loan, we require that both Ruvain and Shimon swear. It is expected that in the face of taking an oath Shimon will back down.Abaye’s explanation is valid as a second way of explaining this Mishna. Does Abaye disagree with the principle of ‘one who is suspected of stealing is not suspected of swearing falsely?1<i class="footnote">See שיטה מקובצת who quotes other Rishonim who do not view Abaye as arguing with R’ Yochanan’s rationale ‘one suspected of stealing is not suspected of swearing falsely’. It is noteworthy that Tosfos does not tell us how to deal with the first proof of the Gemara from Rav Nachman’s ruling requiring an ‘oath of incitement’ from a total denier. See Tosfos 6Aa who questions the proof from Rav Nachman’s ruling. Perhaps Tosfos held that Abaye has the option of holding that there truly is no proof from Rav Nachman’s ruling. See תוספות הרא"ש who clearly says that Abaye’s rationale that he might have an old questionable loan on himself can be used to disprove Rav Nachman’s proof as well.</i> The Gemara cited other sources as well, where it is evident that one who is suspected of stealing is not suspected of swearing falsely. If those are truly absolute proof that one who is suspected of stealing is not suspected of swearing falsely, Abaye must certainly agree with that principle.If so, what did Abaye gain by introducing a second explanation of our Mishna? Ultimately Abaye must agree with the principle of ‘one who is suspected of stealing is not suspected of swearing falsely’, because we have proof of this from the sources quoted in the Gemara. Tosfos feels compelled to show us that the other sources quoted by the Gemara are also not definite proof that ‘even one who is suspected of stealing is not suspected of swearing falsely’. Thus, Abaye is free to reject that principle and explain our Mishna according to his own opinion that the oath in our Mishna is required because of the possibility that Shimon may believe that Ruvain owes him money from a long forgotten debt.Tosfos will now demonstrate that proofs 2 &amp; 32<i class="footnote">See Artscroll note 13. Also see שיטה מקובצת who cites רמב"ן, who explains that when it is unknown to us whether a person has stolen and we are considering his status in regard to taking an oath, we may say that this is not an attempt to steal, rather, he is trying to recover an old questionable loan. We therefore allow him to swear. However, when one has already stolen or denied receiving a deposit, our assumption must be that he is a thief. We cannot disregard the fact that he is a thief, because he might have been recovering an old questionable loan when we do not know this to be true. הר"ש די ויד"ש argues that our initial assumption that the person is a thief or is denying receiving a deposit is based upon our choice not to judge him favorably by assuming that he was attempting to recover a loan. If so, how can we differentiate between before the fact or after the fact? הרב יוסף הלוי also known as R’I Migash says that even if one stole or denied a deposit in order to recover an old loan, it is inherently an act of theft and the perpetrator is disqualified from swearing and testifying as a witness. The item that he is stealing is definitely not his and he has no right to take this particular item to satisfy the debt. Therefore, after the fact we say that the thief or denier of a deposit is disqualified from swearing. It is only before the fact, when he might be attempting to use the garment as leverage for payment of the debt, that we would allow him to swear, because he does have the right to seize the garment as collateral for the debt.</i> quoted by the Gemara earlier are not absolute proofs that ‘one who is suspected of stealing is not suspected of swearing falsely. That (proof 3), quoted from Rav Sheishes’ ruling that we impose upon [the custodian] three oaths including an oath that the deposited item is not presently in the custodian’s domain, and also (proof 2) R’ Chiya’s Baraisa which says: Both the storekeeper and the employee swear and collect from the householder, which are offered as proof that one who is suspected of stealing etc., can be explained as follows: There as well we require and allow the defendant to swear, because we are concerned that perhaps the custodian, employee or storekeeper believes that the defendant may owe them money from a dubious stale debt. Thus, from these cases as well, there is no proof that one who is ‘suspected etc.’, rather, we are concerned that the employee, storekeeper or custodian may believe that the householder owes him money, which they could not otherwise claim. When they have the opportunity to take advantage of a misstep of the householder, they enters a false claim in order to recoup money, that may be legitimately theirs.Therefore, we cannot exempt [the custodian] without an oath, and [the employee or storekeeper] also cannot collect from the householder without swearing. If we always consider the possibility that a defendant is not attempting to steal, but is only trying to collect funds that he legitimately believes are his, shouldn’t we extend this excuse to one who has definitely stolen or denied having a deposited item. In those cases as well we could say that the reason he stole or denied possession of a deposit is because he believed that the depositor or their victim owed them money from an old questionable debt. Tosfos will now inform us that the rationale of the victim possibly owing them money is applicable only about events that are in the process of happening, but not to events that have already occurred. However, a known thief and [a custodian] who denied receiving a deposit and was discovered to be lying, cannot be permitted to swear because perhaps the thief stole the money or the custodian denied receiving the deposit, because he thought that there was a questionable old debt that their victims owed.
  
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  Money can be returned, [as opposed to an oath, which once uttered can never be retracted]. The Gemara says that money can be returned. In the context of our discussion there are two possible ways of interpreting this satement;a) Shimon might seize the money or garment with the intention of investigating whether Ruvain truly owes him or not. When Shimon realizes that there is no way that he can reach a decision he will return the money, because he truly does not want to keep any money he is not sure belongs to him.b) Shimon might seize the money with the intent of investigating whether it is truly his or not, but will not return it to Ruvain unless he is certain that it belongs to Ruvain. If Shimon will remain in doubt, he will keep the money in question.We must keep in mind that Tosfos maintains that Abaye disagrees with R’ Yochanan. He maintains that if Shimon is suspected of stealing, he is also suspected of swearing falsely. We may assume that whatever level of violation Shimon would perpetrate when stealing money, he would also perpetrate that same level of violation when swearing falsely, i.e. if he would definitely steal, he would definitely swear falsely, if he would steal when in doubt, he would also swear falsely when in doubt.If possibility b) is true, Shimon would keep the money even if there was a legitimate doubt whether he was allowed to do so or not. So too, when faced with the possible violation of swearing falsely Shimon would do the same. In this case, since Shimon is ready to steal when in doubt, he would also swear falsely when in doubt. Abaye could not suggest that we would allow a person to take an oath, when we know that he would swear falsely even if he was in doubt.In possibility a) we said that Shimon would not keep the money if he was in doubt whether it belonged to him. In a parallel situation regarding an oath, Shimon would certainly not swear falsely if there was any doubt whether the money belonged to him. Therefore, Tosfos says we must explain the Gemara as discussing possibility a). Shimon may be seizing the garment with the intention of searching for information about the questionable loan in order to remind himself of its status, and if eventually he will not recall that Ruvain definitely owes him the debt, he will return it. He will not keep it if in doubt whether it truly belongs to him. So too, he will not swear falsely if there was any doubt in his mind whether he was truly entitled to keep it. Shimon can seize the money with the intention of returning if he does not recall that Ruvain owes him the money. Returning the money will correct the injustice of taking it illegally, but he cannot swear that the money is his even if he intends to return if he cannot determine that Ruvain owes him because the oath is not retractable.However, we should not explain that the Gemara means possibility b), that if [Shimon] reminds himself that [Ruvain] is not liable, he will return it, but if he does not remind himself that the opponent is not liable he will keep it even though he knows that he will never remind himself, for if so, since this person treats the prohibition against swearing falsely exactly the same as the prohibition against stealing, he will not desist from swearing falsely, when there is a doubt that the money might be his. Just as he is willing to make peace with the prohibition against stealing when there is a legitimate doubt, so too, he will make peace with the prohibition against swearing falsely when in doubt.
  
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  You rented it to him without witnesses? Let us study the Gemara together:Ruvain and Shimon come to Bais Din, each of them holding the same garment and each claiming it is entirely mine. The court rules that the cloak is to be divided. The litigants leave the room with the intention of dividing the garment. A few moments later they return to Bais Din. Now Ruvain is holding the garment himself. He claims that Shimon admitted to him outside that the garment was Ruvain’s. Shimon claims I never admitted that Ruvain owns the garment, but the reason Ruvain has possession is because I rented my half to Ruvain.The Gemara tells us that the Baraisa rules in favor of Ruvain, because Shimon’s claim is very difficult to believe. A few moments ago you claimed that Ruvain was a thief, attempting to steal your garment and now you rented it to him without witnesses? That really doesn’t make sense.Tosfos points out that although Shimon’s present claim is weak, he does however, have a migo to prove that he is telling the truth. Had he claimed that Ruvain has possession because he snatched it from me, we would believe him. If so, why not believe him when he says that he rented his half to Ruvain? Tosfos explains: [Shimon] is not believed with a migo that if he wanted he could have said [Ruvain] snatched it from me1<i class="footnote">See רמב"ם פ'ט הלכות טוען ונטען הי'ג who clearly says that we would not believe Shimon even if he claimed that Ruvain snatched it from him outside the Bais Din. Perhaps רמב"ם holds that since our Gemara obviously does not consider the possibility of a migo, it is proof that he has no migo, and would not be believed had he claimed Ruvain snatched it from him. רמב"ם does not believe that this would be the equivalent of a migo against witnesses. Perhaps he maintains that a migo against witnesses is not believed only when there are actual witnesses. In our discussion Tosfos is arguing that Shimon’s claim is the equivalent of witnesses testifying that he is not telling the truth, but there are no actual witnesses.</i> and we would have believed him and returned half the garment to Shimon. For this is the equivalent of a migo against the testimony of witnesses. When a defendant has a migo that contradicts witnesses, we rule in favor of the testimony of witnesses. Nothing can overpower the testimony of witnesses. In this case Shimon’s counterclaim is so weak that it is as if witnesses are testifying that he is lying. His claim is so improbable that we are convinced he is lying as if witnesses had told us so. Therefore, we consider his migo as contradicting the testimony of witnesses and we rule in favor of the ‘witnesses’ who tell us Shimon is lying.
  
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  [If Ruvain] consecrated [the garment] without snatching it, what is [the law]? Since the Gemara depends the second question about consecrating without snatching on the first question, we must conclude that the second question is speaking about the same circumstances as the first question.[The second question] about Ruvain consecrating the garment is also speaking of a situation where [Shimon] was silent when [Ruvain] consecrated the garment and ultimately when the Temple treasurer asked Shimon to give his half to the Temple treasury he exclaimed in protest that Ruvain had no legal right to consecrate Shimon’s half of the garment.What is the basis of the Gemara’s question? [The Gemara] is asking as follows: Since one’s statement consecrating an object to the holy domain of the Temple treasury etc. [is as effective as handing an object to a private person],1<i class="footnote">When Ruvain says to Shimon “I will give you this car”, the car does not become Shimon’s and Shimon has no legal claim to the car. It will become Shimon’s only after a legal act of acquisition takes place. Insofar as giving that car to the Temple treasury is concerned, when Ruvain says that he is giving it to the Temple treasury, the car automatically belongs to the Temple treasury. Thus his word to the Temple treasury is as effective as handing the car (or performing any other act of acquisition) to a private person.</i> the act of consecration is the equivalent of snatching, for since [Shimon] was silent in the face of Ruvain displaying his ownership by consecrating the garment, he is admitting to [Ruvain] that the garment is Ruvain’s and it is effectively consecrated and now becomes the property of the Temple treasury.Tosfos will continue with the other side of this question a bit later beginning with the words או דלמא. At this point Tosfos is interjecting a difficulty even if we should assume that Ruvain’s declaration is the equivalent of snatching the garment and we can establish Ruvain’s ownership of the garment by Shimon’s initial silence. Nevertheless, ownership alone is insufficient for consecrating an object. In addition to belonging to Ruvain, the garment must be in his domain and under his control. In the case of our Gemara, even if we are convinced that Ruvain owns the garment, half is still in Shimon’s domain and under his control. This should effectively prevent Ruvain from consecrating the half that is presently in Shimon’s hands. Tosfos needs to explain how Ruvain can consecrate the garment even though half is presently in Shimon’s domain and under his control.During this discussion Tosfos will also show us the source of the ruling that consecration can only be effective if one is the owner of the article and it is also in his domain.This case when Ruvain consecrates the half garment that is in Shimon’s hands is not similar to when one stole an object and the owner did not give up hope of retrieving it, where both the owner and the thief cannot consecrate the stolen object. [The thief] cannot consecrate the object because it is not his and [the owner] cannot consecrate it because it is not in his domain. If so, in our case even if the consecration is tantamount to snatching the garment and it is viewed as Shimon’s admission of Ruvain’s ownership, the garment does remain in Shimon’s hands and Ruvain should not be able to consecrate it? Tosfos explains why this is not so.For since [Shimon] admitted to [Ruvain] that the garment is Ruvain’s, it is tantamount to a deposit that one has in another’s possession, that he can consecrate even though the object is not physically in his possession. A custodian is an agent of the depositor and as such his holding the article is the equivalent the depositor holding the article. It is only when a thief is holding the article and he is doing so specifically because he does not want to return the object to its rightful owner that we say it is not in the domain of the owner. However, when a custodian is holding the article it is considered in the domain of the owner. If we view Shimon’s silence as an admission that the garment belongs to Ruvain, Shimon is a custodian who is holding half for Ruvain and Ruvain may consecrate it.Tosfos will now quote a Gemara (Bava Basra 88a) to prove that there is a difference between one who is holding the object for the owner and one who is not. There was a certain person who brought gourds to Pum Nahara. Everybody came and took some of the gourds with the intention of purchasing them. He said to them: Behold, they are consecrated to heaven. The question arises as to whether he has the authority to consecrate the gourds, since they were for sale. Perhaps the purchasers already acquired the gourds and the previous owner could no longer consecrate them?They came before Rav Kahana to inquire about the status of the gourds. He said to them: A person cannot consecrate that which is not his. The buyers had already acquired the gourds and they no longer belonged to the previous owner. He could not consecrate them.The Gemara adds a stipulation to this ruling: This ruling is so, when the price was fixed and whoever picked up the gourds intended to acquire them at the fixed price. But if the price was not fixed, [the gourds] are in the domain of their original owner and he rightfully consecrated the gourds. They were still his when he consecrated them, since no price had yet been established the customers could not acquire them. Now the gourds were in the hands of the customers, even so the Gemara ruled that the original owner could consecrate them, because they were not intending to steal them. Their intention was to return the gourds to the owner if they could not negotiate a price that was agreeable to both parties. Since they were holding the gourds with the intention of giving them back to the owner if need be, the owner was able to consecrate them.As is evident in HaMocher es HaSefinah (Bava Basra 88a) in regard to that certain person who brought gourds etc. [to Pum Nahara], where the Gemara concludes that if the price was not fixed the buyers did not acquire the gourds and they are consecrated even though they were in the hands of the customers when the owner consecrated them. It is evident that even though the gourds were in the hands of the customers, since their intention was to return them to the owner, it is as if they were in his possession and he is able to consecrate them.Tosfos now explains the second side of the question raised earlier: Or, perhaps consecrating is not tantamount to snatching, for why should [Shimon] protest because of [Ruvain’s] words? [The Gemara] cites the case of that pool where one of the litigants consecrated and the other litigant was silent.2<i class="footnote">The simple reading of these words tends to lead us to the conclusion that the legal question in the case of the disputed bath was also about Shimon’s initial silence followed by his protest. The Gemara eventually rules that the bath was not consecrated, so we have proof that initial silence during consecration is not tantamount to an admission. See מהר"ם ,מהרש"א and מהר"ם שי"ף who all discuss a very pertinent problem in understanding this Tosfos. In the very next Tosfos, there is a lengthy discussion about the legal question in the case of the bathhouse. Tosfos does not even mention that the issue was whether Shimon’s initial silence is considered an admission. If so, how can Tosfos just a few lines earlier tell us that the question there was also about whether Shimon’s initial silence is construed as an admission? מהר"ם שי"ף explains that Tosfos here certainly agrees with his own analysis of the legalities of that case as he himself says in the very next Tosfos. However, the Gemara that resolves the question of initial silence from Rav Huna’s ruling must have known that this was in fact part of the story of the pool. Although the legalities of that case were different as Tosfos will explain, the story was the same. As Rav Huna deals with that question and rules that the bath did not become consecrated, he is simultaneously ruling that it also did not become consecrated due to the initial silence. Thus the Gemara’s resolution of the issue of initial silence is correct. In the next Tosfos we will discuss why Tosfos could not say that the issue of the bath was not the initial silence.</i> The conclusion is that [the bath] was not consecrated. Rav Huna ruled that since Ruvain could not win the bath via legal proceedings in Bais Din, it is not considered his and he does not have the authority to consecrate it. It is obvious that Rav Huna does not hold that Shimon’s silence is an admission, for if it was an admission, Ruvain could win the bath in court with testimony that Shimon was silent when he consecrated it and effectively admitted that it was Ruvain’s. Since Rav Huna ruled that the bath was not consecrated, he obviously maintains that Shimon’s silence if the face of Ruvain’s consecration is not an admission. Thus we see that [the litigant’s] silence is not tantamount to an admission.
  
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  Daf 6b
  
  
  
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  Daf 7a
  
  
  
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  [The tithe must be a definite tithe] and not a dubious tithe. The verse is teaching us that the mitzvah of tithing is in effect only when the counting process will yield a definite ‘tenth’. If the status of the ‘tenth’ will be dubious, there is no requirement to go through the tithing procedure.We see that the Torah addresses the possibility of a doubt. Elsewhere, (Yoma 74a and Chulin 22b) when the Gemara discusses a verse that deals with a doubt, the Gemara asks: Do we need a verse to deal with a doubt? The presumption of this question is that Hashem knows the reality and has no doubts. Why then would the Torah address a situation of doubts? But our Gemara is telling us that we have a verse to deal with a doubt. Shouldn’t the Gemara here also ask: Do we need a verse to deal with a doubt? Tosfos tells us: We should not ask: Do we need a verse to exclude a tithing obligation when the outcome is in doubt? As we explained in Maseches Chulin (22b. Tosfos איצטריך.) Tosfos there explains that there are two different types of doubts:a) A doubt that is the result of varying circumstances. For example: In our case of the “counted” sheep that jumped back into the corral, there are two possibilities. As we count any group of ten that exits the corral, it is possible that the previously counted one is among them and the tenth is not truly a tenth. It is also possible that the previously counted one is not among the group and the designated tenth is truly a tenth. The truth will vary from situation to situation. The answer is not always the same.b) The circumstances are always the same, but our doubt is about the rule that governs this situation. Such as in the Gemara (Chulin 22b), where the Gemara is dealing with the maturity of pigeons. Pigeons are usable as a sacrifice only while young. Doves are usable only when they are older. There is a doubt about when the feathers start changing colors. The Gemara rules that for the pigeons that period is too old and for the doves it is too young. The Gemara cites a verse to prove this point, but then asks: Do we need a verse to deal with a doubt?Tosfos there (Chulin 22b) explains: In situation a) where there is no standard solution because the facts of the case vary, the Torah must tell us how to deal with a doubt. That is why the Gemara here does not ask: Do we need a verse to instruct us about doubts? Indeed, we do need a verse to tell us how we must deal with a situation when doubts arise.However, in situation b), the status of the birds whose color is changing does not vary from bird to bird, the reality is always the same. The Torah has no doubts and knows whether it is an older or younger bird. It is we, who are unaware of the proper Torah ruling in this matter who have a doubt. We cannot say that the Torah wrote a specific verse to address this situation. The Gemara in (Chulin 22b) therefore asks: Do we need a verse to deal with a doubt?
  
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  [One who has ten questionable firstborn donkeys] designates ten sheep to exempt them. [He then tithes the ten sheep and keeps them]. In order to understand this Tosfos we must study a small portion of a Mishna in Bechoros 9a: After discussing all the types of sheep that may be used for the redemption of a firstborn donkey, the Mishna concludes: One may redeem a firstborn donkey with a single sheep many times.A simple reading of this sentence seems to be saying that even if one has many firstborn donkeys to redeem, he may use the same sheep and he need not use one sheep per firstborn donkey. This, however, is simply not true. A bit earlier the very same Mishna teaches us: A Yisrael who has two female donkeys that have not yet calved, and they had two males, he must give two sheep to a Kohen. It is obvious that one cannot fulfill his obligation by redeeming two donkeys with one sheep. If so, how are we to understand the Mishna that tells us: One can redeem with [a sheep] many times.There is a difference of opinion about this:a) Rashi Bechoros 9a ד'ה ופודה בו פעמים הרבה says: If the Kohen returned the sheep to the Yisrael after he redeemed the firstborn donkey with that sheep, the Yisrael may use that very same sheep to redeem another firstborn donkey. A single sheep may not be used as a redemption for many firstborn donkeys at one time. The Mishna is only saying that it may be used for a second redemption when it is returned to the Yisrael’s possession.b) Rabbeinu Tam says: When the Mishna says that one can use the same sheep for many redemptions, the Mishna is speaking of when the sheep was used to redeem a questionable firstborn donkey. In such cases the redemption is done by designating a sheep in place of the questionable firstborn donkey, but it need not be given to the Kohen, since there is a doubt as to whether the Kohen is entitled to receive the sheep. The sheep designated as the redemption can be designated again and again, since it need not be actually given to the Kohen. A proper analysis of this material will yield that Tosfos’ upcoming question is valid only according to Rabbeinu Tam, but not according to Rashi. (See Tosfos Bechoros 11a, ד'ה שהיו לו, who states this clearly. Also see Artscroll Bechoros 4b3, note 21.)Tosfos asks three questions that he cannot resolve. The first: This is bewildering! For in the first perek of Bechoros (11a) [the Gemara] says that one sheep exempts many firstborn donkeys. If so, so why are ten sheep needed? We can exempt all of the questionable firstborn donkeys with only one sheep!The second: Furthermore, what is [Rav Nachman in the name of Rabah bar Avuha] teaching us? Ultimately, this is the lesson of the Mishna: The dubious [firstborn donkeys] are gathered into the corral to be tithed. When the Gemara searches for an explanation of this Mishna in Bechoros 9a: “The questionable sheep are gathered into a corral to be tithed”, it concludes that the Mishna is teaching us Rabah bar Avuha’s rule. If this is in fact the only viable explanation of the Mishna, it emerges that this is in fact the lesson of the Mishna. If so, why did Rabah bar Avuha need to teach it, we already know this from the Mishna?The third question: Furthermore, since [Rabah bar Avuha] said that [the Yisrael] must tithe them, why does he also need to inform us that they are his property? It is abundantly clear that since [the Yisrael owner] is obligated to tithe them, they must be his property. For if they were the property of the Kohen,1<i class="footnote">Tosfos seems to be entertaining the possibility that there is truly a doubt as to whether the redemption sheep belong to the Yisrael or the Kohen. However, since we do rule that the Yisrael may keep the sheep because he is in possession, he might be considered the true owner and would be liable to tithe the questionable sheep. Tosfos rejects this understanding because even if we were to say that because of his questionable ownership, he is obligated to tithe the questionable redemption sheep, there would still not be an obligation to tithe this group. The fact that the Yisrael is allowed to retain ownership of the sheep, despite the fact that they may belong to the Kohen, must be viewed as if the sheep were sold to him, since the sheep are not inherently his. It is only because of the ruling that he who is in possession of such items may continue to maintain possession that the Yisrael is permitted to keep the sheep. The right to maintain ownership of these sheep must be viewed as if the sheep were taken from their possibly rightful owner - the Kohen, and given to the Yisrael to keep. This is the equivalent of purchased sheep, which are not subject to the tithing obligation. See משנת הלוי by Harav Raphael Schorr, שליט"א, who discusses this issue.</i> [the Yisrael] would not be required to tithe them, for they would be equivalent to sheep that were purchased. For we have learned in a Mishna in Bechoros (55b): sheep that were purchased or given to [the Yisrael owner] as a gift are exempt from tithing. Thus, there is no need to inform us that the tithed sheep are the property of the Yisrael owner.And if he is informing us that even though he tithed [the group], [the tithe itself] still belongs to the owner, that too is apparent, for the tithe of animals always belongs to the [Yisrael] owner. The Yisrael owner offers it as a sacrifice in the Temple and the flesh is eaten by his family. If the tithe was blemished, the Yisrael owner eats it as regular non-sacrificial meat. [See also Tosfos Bechoros (4b) ד'ה ופודה, and also Bechoros (11a) ד'ה שהיו.] 
  
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  If [the husband] can pull [the bill of divorce and bring it back to himself, she is not divorced]. The Gemara differentiates between acquiring a piece of garment for the purposes of effecting an acquisition and what is needed to effect a divorce. In regard to acquisition Scripture (Ruth 4, 7) uses the verb ונתן and he will give’. Even if a major portion of a garment remains in the hands of the giver, as long as the recipient has three fingers worth in his hands, the three finger section has been given to the recipient. The acquisition is valid.However, in regard to divorcing the Torah uses a much stronger term ‘כריתות - severance’. This requires a greater degree of separation between husband and wife in the act of divorcing. If the husband controls the bill of divorce to any degree, the divorce is invalid. The divorce document must be delivered to the wife in a manner which we will describe as irrevocable. If the husband can bring the bill of divorce back to himself, the divorce is invalid. The term used in our Gemara, ‘if he can pull the string and bring [the divorce document] back to himself’ is somewhat vague. Tosfos attempts to clarify the issue to some degree.מהר"ם explains that initially Tosfos assumes that one can pull the bill of divorce via the string when her hand is open. He cannot pull the string and bring it back when her hand is clenched. But this explanation generates a difficulty, as we will soon see. It appears that if her hand was open when he placed the bill of divorce into her hand, and the string remained attached so that at that point in time he could pull the string and bring the bill of divorce back, and she then clenched her hand tightly, so that if he pulls the string he will not be able to bring the bill of divorce to himself, she is not divorced even though she is presently in total control of the bill of divorce. Why not?For when he placed the bill of divorce in her hand before she clenched her hand, he was able to bring [the bill of divorce] to himself. But now after she clenched her hand, he cannot bring the bill of divorce to himself? The divorce should be valid since he no longer controls the bill of divorce. The clenching of her hand which prevents him from pulling the string and bringing the bill of divorce back to himself, is not the result of his action, rather, it is a result of her action. We cannot view this ultimate result as the husband delivering the divorce document to his wife in a way that is irrevocable. His action did leave the bill of divorce susceptible to being pulled back. It is her clenching of her hand that prevents him from pulling the bill of divorce back.[This case] is comparable to a husband who tells his wife pick up your bill of divorce from the ground, where we rule that she is not divorced, because we cannot say that this method of giving the divorce document that fulfills the requirement of the verse - and he will give the bill of divorce into her hand. When he places the bill of divorce on the ground and she picks it up, he did not give her the bill of divorce, rather she lifted it herself. So too, when the husband places it into her hand, but remains in control because the string is attached, when his wife then takes control by clenching her hand, she has taken the bill of divorce. It was not given to her and the divorce is invalid.If when she clenches her hand the divorce is invalid, when is the divorce effective? Remember מהר"ם says Tosfos that assumes if her hand remained unclenched, it would always be possible to pull the bill of divorce back. Here, where [Rav Chisda] says: if he cannot bring [the bill of divorce] back to himself, she is divorced, he is speaking of a situation where her hand was clenched tightly and he pushed [the bill of divorce] into her clenched hand with such force, that if he would pull the string, he could not bring it back to himself. In this case the irrevocable act of delivery is accomplished completely by the husband who placed it into her tightly clenched hand. She contributed nothing and therefore the divorce is effective.But is this really true? She definitely did not actively contribute to the irrevocable delivery of the divorce. But the status of the delivery as irrevocable is very much dependent upon her continuing to clench her hand. Can we attribute the irrevocable delivery of the bill of divorce exclusively to her husband? This question is the subject of much debate. Rabbeinu Tam may disagree with Tosfos’ conclusion. It seems that he maintains that even when she continues to keep her hand clenched, it is as if she is contributing to the irrevocable delivery of the bill of divorce and that too is ineffective. After all, she must continue to clench her hand in order to prevent her husband from bringing it back to himself. There are those who argue that Rabbeinu Tan does not necessarily disagree with Tosfos, he simply offers a different explanation of the Gemara’s condition, ‘if he can pull the string and bring the bill of divorce back’. This depends on the text of the sentence in Tosfos we are about to learn.Rabbeinu Tam (also)1<i class="footnote">If we have the word ‘also’ in the text of Tosfos, Rabbeinu Tam is in agreement with the first explanation of Tosfos, that placing the bill of divorce into a clenched hand satisfies the requirement that she must only act as a recipient of the divorce. If we delete the word ‘also’, Rabbeinu Tam is disagreeing with the previous explanation. He is saying that even her passive act of maintaining her hand clenched is considered as - taking her divorce, and the divorce would be invalid. A case of not being able to pull the divorce with a string is possible only when the bill of divorce is so heavy that it cannot be pulled by a puny string. See Gittin 78a Tosfos אם יכול לנתקו ולהביאו כו for further clarification.</i> explained: if the bill of divorce is so heavy that if he wants to pull the divorce document to himself, the puny string will break, she is divorced because his delivery of the divorce document is irrevocable. [Rav Chisda] is speaking of when her hand is open, not clenched and she did absolutely nothing to keep the document in her hand. 
  
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  Daf 7b
  
  
  
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  Why is [the law] different [if it fell into] the hands of a judge? Tosfos is unclear about the meaning of the Gemara’s question and wishes to clarify it for us. Sometimes we can understand the questioner’s intent from the response of the responder. The true meaning of what the question meant to ask depends very much on whether a certain phrase appears in the Gemara’s answer. In some versions of the Gemara’s answer we find an explanatory phrase “והיכי דמי - What does this mean? דכתב ביה הנפק - The document had been notarized.” In other versions of the answer we do not find this phrase. Tosfos offers two explanations of the Gemara’s question, which depend on whether this phrase appears in the answer or not.According to the manuscripts that have in the Gemara’s response the text: “and what does the phrase [it fell into the hands of a judge] mean? That a notarization was written [on the document].” We can now understand that when the questioner asked his question, he did not know that the phrase “it fell into the hands of a judge” means that there was a notarization. Obviously, since the Gemara needed to clarify this point, the questioner must have been unaware of this meaning when he asked the question. Rather, he thought that the meaning of this phrase is that a judge found [the loan document], and that is why he asks: Why is a judge who finds a document different than any other person who might have found the document?But according to the manuscripts that do not have the text after [the question]: “and what does [it fell into the hands of a judge] mean? That there was a notarization written [on the document]”, since the Gemara did not need to explain the meaning of the phrase, [the questioner] correctly knew at this point in the dialogue that the phrase “it fell into the hands of a judge” means that there was notarization written [on the document].If so what was his question? His question was: Why is a document that has been notarized different that the principals can never retrieve it from the finder as opposed to a document that has not been notarized? Certainly, it follows that if there was no notarization written [in the document], the principals should certainly not ever be allowed to retrieve it from the finder because there is a concern that although [the borrower] wrote it with the intent of borrowing, perhaps the loan never happened? The emphasis of the Gemara’s question is on the implication that the document cannot be retrieved from the finder because it has been notarized. If anything, notarization makes the document healthier and gives us all the more reason to return the document to the principals. [The Gemara’s] answer is that the Baraisa statement is in the context of - it need not be said. In other words: It need not be said that if there was no notarization the document should never be returned to the principals, but even if it was already notarized, it may never be returned to them. 
  
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  If the husband concedes [that he has not yet paid the Kesubah, the finder] should return [the Kesubah document] to the wife. Why is it necessary for the Baraisa to teach us that when the husband admits that he has not yet paid the Kesubah, the Kesubah document is returned to his wife? It seems unnecessary, since he is telling us he is still obligated to pay the Kesubah. Tosfos will explain the possible concerns that we may have about the validity of the document even when the husband admits that he still owes the Kesubah.We must keep in mind that we should be very concerned about the loss of a document. It raises questions in our minds.1<i class="footnote">See Rashi (12b) ד'ה הנה ריעי.</i> If in fact it was a valid document, how did it happen that the wife lost it? Most people are extremely careful about caring for their documents, especially those that represent a considerable sum. The loss causes us to think of possible reasons for the careless treatment of the document. Tosfos will examine each possible reason that would render the document invalid and thus explain why the wife was not as careful with it as she should have been.a) קנוניא - conspiracy. There is a possibility that the husband already paid the Kesubah. After paying the Kesubah, the husband then conspired with his wife and returned the document to her so that she would attempt to collect with the document a second time. The husband would then claim that he has no money with which to pay and she would then proceed to collect from properties that he sold. After collecting from the purchasers of his sold properties, the couple would then divide the illegally collected funds.b) שמא כתב בניסן ולא נשא עד תשרי - perhaps the document was written in Nissan with the intention of marrying then. However, the wedding did not take place until the following Tishrei. According to the document, any property sold between Nissan and Tishrei is collateral for the Kesubah, but actually the marriage took place the following Tishrei and those properties may not be subject to the lien.c) קודם אירוסין - Perhaps the document was written even before the betrothal. The lien on properties sold by the husband is in effect only for such property he owned at the time of the betrothal. According to the written document even such properties sold before the betrothal are illegally subject to the lien of the Kesubah.d) תוספות - the voluntary addition to the Kesubah by the husband may differ from the initial Kesubah instituted by the Rabanan.Tosfos explains: By teaching us that when the husband admits that he did not yet pay the Kesubah, the Kesubah document is returned to the wife, the Baraisa is informing us that:We are not concerned about a) conspiracy between husband and wife to defraud the purchasers of his sold properties. There is also no concern that b) perhaps he wrote the Kesubah in Nissan but did not marry until the following Tishrei, which would render the properties sold between Nissan and Tishrei illegally subject to the Kesubah lien, for the one hundred zuz of a widow’s Kesubah and the two hundred zuz of a virgin's Kesubah are actually mortgaged to the lien from the time of betrothal, even when a Kesubah document was not written, because betrothal generates publicity and the purchasers of the husband’s property are aware of the Chassan’s potential liability for the Kesubah payment even though the wedding did not take place for many months afterward. Since they are aware of his liability, the lien on his property sold between Nissan and the following Tishrei is legal and they are obligated to pay when the husband has no funds with which to pay the Kesubah.But what about possibility c) that the Kesubah may have been written even before betrothal? There is no concern that the Kesubah document may have been written before betrothal, which would then establish an illegal lien on property that the husband sold before betrothal.We have explained that the lien of a Kesubah is accomplished by the betrothal even though a Kesubah document was not written. The reason for this is quite simple. As Tosfos explained earlier, betrothal is public information. Whenever one betroths his Kallah, everyone knows that the Chassan now has a Kesubah obligation. Thus they know to be careful when purchasing property from him. When they do purchase from him they are fully aware of the possible Kesubah liability and they have chosen that it is worth their while to take the risk.This logic is quite applicable to the amount that the Chassan is required to give his Kallah by Rabbinic edict. Everyone is aware that the Chassan has an obligation to pay the one hundred or two hundred zuz the Rabanan mandated. However, very often (in today’s Kesubos this is universal) the Chassan voluntarily adds to the amount obligated by the Rabanan. This additional amount is not common knowledge, for not everybody knows if and how much the Chassan voluntarily added to the Kesubah. Thus, the lien automatically established by betrothal is effective only insofar as the required one or two hundred zuz is concerned. There is no automatic lien as far as the additional amount is concerned. If so, we are now faced with a problem: Tosfos explained earlier that we are not concerned about whether the Kesubah may have been written in Nissan and the actual wedding took place in Tishrei, for in any case the lien of Kesubah is established at the time of betrothal. But this is only true of the mandated amount, not for the additional voluntary sum. We should then be concerned that perhaps the Kesubah was written in Nissan and they first married the following Tishrei and the lien on properties sold before Tishrei is illegal?The Gemara later (12b) discusses a similar problem. But that which we learned in a Mishna: We may write a loan document for the borrower even though the lender is not present. We assume that the borrower who stands to lose if the document reaches the lender before the loan occurs will not allow this to happen.The Gemara asks: Why are we initially allowed to write [this loan document]? We should be concerned that [the borrower] wrote the document with the intention of borrowing in Nissan, but the actual loan may not happen till later in Tishrei, and [the lender] will come to collect from the purchasers of property sold between Nissan and Tishrei illegally? Since the loan did not happen till Tishrei, property sold by the lender before Tishrei should not be subject to the lien. However, the document does include those properties in the lien. This can lead to an illegal collection by the lender from the purchaser of these properties. Rav Assi said: We are speaking of documents of acquisition where the borrower specifically states that he is giving the lender a lien as of the date of the document even if there will never be a loan. This is effective in establishing a lien, for [the borrower] has accepted this obligation upon himself.Abaye disagrees: Abaye says: the witnesses of the document, by signing it, establish a lien for the benefit [of the lender]. Even if it is not a document of acquisition.Abaye maintains that the very act of witnesses signing a loan document establishes a lien on the borrower’s property even if the loan never took place. Thus according to Abaye as long as a Kesubah document is signed, a lien is established even for the voluntary additional amount added to the Kesubah by the Chassan. According to Abaye, who says that when witnesses sign a document they establish a lien for the benefit of the [lender], it comes out well that even insofar as the additional amount as well, that we need not be concerned there may be an illegal lien established by the Kesubah if it was written in Nissan and the wedding did not take place till Tishrei, because the effective date of the lien is the date it was signed, not the date when the loan or the wedding took place.Rav Assi who disagrees with Abaye and does not hold that the signing of the document automatically establishes a lien on the [property of the borrower will interpret our Baraisa as speaking of when the husband specifically wrote the Kesubah as a document of acquisition. It is only then that we would not be concerned that there is an illegal lien established for the additional amount by the document.
  
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  For we are concerned [that there may be] two kesubah [documents]. The Gemara raised a contradiction between two Baraisos:Baraisa a) on (7a), where the Rabanan say that when one finds a notarized loan document it is not to be returned to the lender, because we consider the possibility that it already had been paid as the husband claims. R’ Yose maintains that we are not concerned about payment, since the document is intact. Had the loan been paid, the document would have been destroyed.Baraisa b) on (7b) where it is evident that when the marriage has already been terminated by divorce or death of the husband, R’ Yose does consider the possibility that a lost kesubah was already paid.The Gemara first reconciled the two Baraisos by saying that the opinions in the first Baraisa are to be switched. It is R’ Yose who is concerned that the loan was paid and the Rabanan who are not concerned that the loan was paid.The Gemara then asked that this would create a problem with the opinion of the Rabanan. In Baraisa a) they say we are not concerned about the possibility that the loan document was paid and in Baraisa b) they maintain that we do not return a lost kesubah to the wife.Ravina now offers a solution to this problem. The two Baraisos are speaking of two different concerns. In Baraisa a) insofar as being concerned that a lost document has already been paid, the Rabanan rule that we need not be concerned about payment, since the document is intact. However, in Baraisa b) where we are discussing a lost kesubah document, we are concerned that a husband who claims I wrote a second substitute kesubah document might be telling the truth. We can therefore not allow the lost kesubah to be returned to his wife.Ravina introduced his resolution by saying that we must switch the opinions of the Baraisa a) as initially suggested by the Gemara. Tosfos questions why this is necessary. Perhaps we can resolve the contradiction between the two Baraisos as follows: Baraisa a) need not be switched and it is R’ Yose who rules in Baraisa a) that we are not concerned that the loan was paid and in Baraisa b) he maintains that we are not concerned the kesubah was paid, but we are concerned that there may be a second kesubah?Without switching the two opinions in Baraisa a) we cannot resolve the contradiction by saying that in Baraisa a) R’ Yose is not concerned that a loan document was paid but in Baraisa b) R’ Yose considers the husband’s claim that he wrote two kesubos, the second as a substitute for the lost first kesubah.For if so, that in Baraisa b) R’ Yose is expressing his concern that the husband truly wrote a substitute kesubah, when she is under the jurisdiction of her husband, i.e. she is still married to him, why would R’ Yose rule that the lost kesubah should be returned to the wife when the husband does not admit that it belongs to her? His claim that he wrote a second kesubah is just as credible when she is still married as it is when the marriage has ended. Insofar as a claim that I paid the kesubah is concerned, there is a huge difference between when the couple is still married, where there never was a need to pay the kesubah and when the marriage ended where the the kesubah should have been paid. However, in regard to the claim “I wrote a second substitute kesubah” there is no difference whether they are still married or divorced. In either case it is possible that she lost her first kesubah and her husband wrote a second substitute kesubah.According to the switched Baraisa a) R’ Yose maintains that he is concerned about payment. In Baraisa b) he is saying that during the marriage there is no concern that the document was paid. The Rabanan in Baraisa a) are never concerned about payment, since the document is intact. In Baraisa b) they say that they are concerned about the possibility of a second substitute kesubah. 
  
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  The division. This word is the introductory word of R’ Elazar’s statement. What does it mean in the context of his statement? The word <u>divide</u> - has many different meanings. Among the definitions offered by the World Web dictionary we find the following:a) A serious <u>disagreement</u> between two groups of people.b) <u>Separate</u> into parts or portions.The word מחלוקת used in our Gemara can also be translated these two ways. Most often this construction of the word refers to a) a disagreement. Due to the context which it is used in our Gemara, Rashi, (ד'ה מחלוקת) in the name of R’ Yitzchak ben Menachem, tells us that the intended meaning is b) separate into parts or portions. Obviously when R’ Elazar says the מחלוקת is when both are equally in possession of the document, we must be able to explain the end of his statement “but when they are not equally in possession”, in a logical manner.Tosfos agrees with Rashi and also explains why Rashi translated it as he did: In regard to the word מחלוקת in R’ Elazar’s statement, Rashi explained that this refers to Raban Shimon ben Gamliel’s ruling b) the lender and borrower are to divide the debt equally. The continuation of R’ Elazar’s statement is perfectly logical. He is saying that when one litigant is holding the form1<i class="footnote">See Artscroll (7B3, note 25).</i> and the other the essence, there will not be an equal division because the essence is more valuable than the form as the Gemara will soon explain.Tosfos shows that if we translate מחלוקת as a) a disagreement, the conclusion of R’ Elazar’s statement does not make sense. He is correct, for he did not want to translate the word מחלוקת as referring to the disagreement between Rebbe and Raban Shimon ben Gamliel and R’ Elazar would be saying that their disagreement is only when both are holding the essence of the document or both are holding the form of the document, but they do not disagree when one is holding the essence and the other the form. Because how could he then say: but when one is holding the form etc. [and the other is holding the essence], which implies that they do not argue when one is holding the essence and the other the form.But this is not so. For there as well, when one is holding the essence and the other the form, if [the document] is not notarized, according to Rebbe, [the lender] will not receive anything. Rebbe’s concern that the document cannot be used when it is not notarized does not change when one of the litigants has an advantage over the other. Ultimately, one cannot collect anything with any portion of a non-notarized document because we are concerned that it may be a forgery. Thus, if we translate מחלוקת as a) disagreement, the conclusion of R’ Elazar’s statement is illogical. We must therefore explain מחלוקת as b) a separation of parts and the conclusion of R’ Elazar’s statement makes sense. He is saying that when each of the litigants holds a different part of the document, it is not divided equally, but according to the value of each part as the Gemara will soon explain.
  
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  [When Raban Shimon ben Gamliel ruled they should] divide [the document he] also [meant] the value [of the document]. See Artscroll (7b4) who explains that the Gemara is telling us that we should not think that Raban Shimon ben Gamliel is ruling that we tear the document in two, which would of course mean that the lender loses all. Rather, he means that we divide according to the value of the document. Perhaps their explanation is based on Rishonim who do follow that approach. Tosfos rejects this explanation of the Gemara.For the sake of clarity we will label each explanation of the Gemara:1) The Gemara is rejecting the idea that the document is to be physically split in half and concluding that it is divided according to its value.2) The Gemara is rejecting the idea that we divide the face value of the document between creditor and debtor and concluding that we divide the market value of said document between creditor and debtor.Tosfos first states that explanation 2) is correct. He will then explain why he rejects explanation 1). The Gemara is saying: We do not divide the face value of the document, rather we divide the market value of the document, which is always less than the face value. From this market value [the debtor] pays half. For example: When the face value of the document is one thousand dollars, the market value of the document may be only nine hundred dollar. The debtor must pay the creditor only four hundred fifty dollars.Tosfos shows us how his understanding works with the continuation of the Gemara: For if you do not say that we divide the market value, but rather half of the actual debt, which is the face value, in regard to a cloak where our Mishna also ruled it is to be divided, do we actually divide it, that would certainly damage it. We see that the term “they divide” does not mean a physical division, rather a division of value. So too, the division of a loan document does not mean that we divide the face value of the loan, but the market value.There were manuscripts of the Gemara that differed from our text. Their text read: ויחלוקו נמי לא דפסקינן לשטרא - when we say “they divide” it does not mean that they split the document.1<i class="footnote">See ישא ברכה.</i> According to this text it is clear that the Gemara is working with explanation 1) and is rejecting physically splitting the document. Tosfos must explain why that text is incorrect.We do not have the text - not that we split the document, which clearly says that the initial explanation was that the document is split. Tosfos offers two reasons for rejecting that text and explanation 1). The first: for if so, why is [the Gemara] citing the case of dividing a cloak to prove that division means the value and not the actual cloak? The flow of the Gemara’s proof must be: Even if you insist that “they divide” in Raban Shimon ben Gamliel’s statement means physical division, that explanation is definitely untenable when discussing the cloak mentioned in our Mishna. On the contrary, if a cloak is split in two the damage will not be so great, whereas if a document is split it is worthless.2<i class="footnote">See ריטב"א for a defense of the earlier text and explanation 1).</i> If we might accept the explanation that a document can be physically split in two, we certainly could accept that a cloak is physically split in two. There is absolutely no logical proof from the case of a cloak to the case of a document. However, if the choice is between dividing the face value versus the market value, we can say that the Gemara is proving that just as in the case of the cloak, “they divide” does not mean a physical division, because that would entail a loss, but rather “they divide” refers to market value, so too, when discussing a document the term “they divide” means the market value and not the face value.The second reason for rejecting explanation 1): Furthermore, it is plain that the Gemara knows that the document is not to be physically divided in two, because, earlier (7a) we explained that the disagreement between Rebbe and Raban Shimon ben Gamliel is about whether when a borrower] admits that the document was legally written, does the lender have to notarize the signatures or not in order to collect. This dispute makes sense only if the document is going to be used for collection. If it is going to be torn in two, there is certainly no need to certify the signatures. If so, there was no need for the Gemara to prove that the document is not torn in two. However, if we say that the Gemara is proving that we divide the market value as opposed to the face value, there most certainly a need for notarization since the borrower will be collecting some money with this document.Rather, the truth is as we have explained. Explanation 2) is correct. The Gemara is rejecting a division of the face value in favor of a division of market value.
  
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  For [half a cloak] is fit for children. The Gemara attempted to prove that “they divide” does not mean physical division, from our Mishna which rules in reference to a disputed cloak “they divide it”. Certainly the Mishna does not mean that we split the cloak in half, because that would damage it. The Gemara counters: The Mishna may indeed mean that the cloak is divided in half, because half a cloak can be used by children and there would be no monetary loss when dividing it.It is evident from Tosfos that there was a variant text of our Gemara, which instead of ‘דחזיא לקטנים - it is fit for children’ read ‘דחזיא לתרוייהו- it is fit for both’. The Gemara is saying that the term “they divide” may actually be speaking of a physical division, when there is no loss, because the cloak is so large that each half is big enough for one of the litigants.Tosfos now explains why he prefers our text - “it is fit for children”. If we have this text, the Gemara’s next question makes perfect sense. [The Gemara] then asks from Rava’s ruling that a gilded cloak is also divided in half. It is a reasonable question because a gilded cloak is not made for children. We can no longer say that we are speaking of a physical division where there is no loss, because a physical division would definitely entail a loss, since half a gilded cloak is not fit for children. But we do not have the text: “for [a half cloak] is usable for both of them”.1<i class="footnote">See חכמת מנוח who suggests that the meaning of חזיא לתרוייהו might be that each of the litigants can use the garment on different days. He also explains why in fact the Gemara does not use this answer.</i> For if so, what is the Gemara asking from the case of a gilded cloak? Certainly, half a gilded cloak can be used by both litigants if the cloak is large enough for both. What was the Gemara thinking when it asked this question?
  
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  Partners who stole [are liable]. Rava is demonstrating that there are areas of halacha where one person cannot be an agent for another, such as when a principal appoints an agent to steal in his behalf. It is clear that the principal/sender is not liable for the actions of the agent.However, if the agent is acting on behalf of himself as well as for the principal, the agency is effective. For example: Ruvain appoints Shimon to steal a sheep for Ruvain and invites Shimon to be a partner in the theft. Ruvain and Shimon are equally responsible for the stolen sheep. But how do we know this to be true? Perhaps even in such a case, Shimon’s theft is effective only on behalf of himself and he alone is responsible for the sheep?Rashi points to a Baraisa in Bava Kama (78b) that clearly says “partners who stole are liable”. Rashi understands that this Baraisa is proof that when Shimon steals a sheep for himself and for Ruvain, both are liable. Tosfos will examine Rashi’s conclusion and eventually disagree with him.For a better understanding of the difference of opinions, we will learn the Gemara in Bava Kama (78b) together: The Gemara there is discussing the liability of one who first steals sheep or cattle and then slaughters or sells it. The Torah says in Mishpatim (Shemos 21, 37): He shall pay five cattle in place of the cattle and four sheep in place of the sheep. The Gemara in Bava Kama (78b) is discussing the rule that one who slaughters the sheep is liable only when his action is totally forbidden. However, if he has the legal right to slaughter half the animal, even though he does not have the right to slaughter the his partner’s share, he is not liable at all for the special payment of four times the value of the sheep. Baraisa a): So too, one who steals an animal owned by partners is liable. Partners who stole an animal and then slaughtered it are exempt.Baraisa b): But we learned in a Baraisa: Partners who stole are liable? Rav Nachman says: There is no contradiction. Here, in Baraisa a) we are speaking of when partner a) stole from his fellow partner b) and then slaughtered the animal. Since he has the legal right to slaughter his own half of the animal, he is not held liable for slaughtering his partner’s half. One is liable only when slaughtering the animal is totally prohibited. Here, in Baraisa b) we are speaking of when a partner stole1<i class="footnote">When the Baraisa speaks of a partner a) who stole from anybody else we are saying that when partner a) steals, partner b) is equally liable for the theft and its ramifications such as liability for four or five times the sheep or cattle when slaughtering or selling the stolen animal. But how does one become liable for another’s theft? Rashi here ד'ה ואילו שותפין שגנבו says that it is speaking of when partner a) stole the sheep or cattle with the intention of acquiring it for partner b) as well. Thus we see from this Baraisa that even though partner a) could not acquire the sheep or cattle for partner b) when acting exclusively for partner b) because there is no agency for a prohibited action, even so when partner a) is acquiring the animal for himself as well, we say that since he is acquiring it for himself he can also acquire it for his fellow partner b).</i> from anybody else. Since, he has no right to slaughter any part of the stolen animal, his slaughtering is totally forbidden and he is liable for the penalty of four times the sheep’s value.Rava challenged Rav Nachman’s reconciliation of the two contradicting Baraisos: Baraisa c): It might be that a partner who stole from his fellow thief or partners who stole from anyone else are liable? [The Torah] therefore states: And he will slaughter <u>it</u>, which implies that for liability it is required that slaughtering the animal must be entirely illegal. In these cases slaughtering the animal is not entirely illegal and this requirement is lacking.Rav Nachman’s resolution of the contradiction between Baraisa a) and Baraisa b) is that: Baraisa a) which says that partners who stole are exempt is speaking of when partners stole from each other. Since partner a) who slaughters the animal is permitted to slaughter his half, there is no liability even for partner b)’s half. Baraisa b) which says that partners who stole are liable is speaking of when partners stole from anybody else. Regardless of which of the partners slaughters the animal, it is totally illegal, since it belongs entirely to a third party. However, in Baraisa c) we see that in addition to an exemption for partners who stole from each other, there is another case of partners who stole from anybody else and they are exempt.We must now find a resolution for Baraisos b) and c) in which both are not speaking of partners who stole from each other, but of partner’s who stole from elsewhere, and yet in Baraisa b) they are liable and in Baraisa c) they are exempt. Rather, Rav Nachman says there is no contradiction: Here in Baraisa b) which says that partners who stole from anybody else are liable we are speaking of when partner a) to this theft slaughtered the sheep with partner b)’s consent. He is acting in behalf of both partners and they are both liable.Here in Baraisa c) which says that partners who stole are exempt we are speaking of when partner a) slaughtered the animal stolen together without the consent of partner b). Insofar as one of the stolen halves is concerned partner a) would be liable because he has stolen and slaughtered, but he is exempt because he has not slaughtered an entire animal in a way that carries liability, for in regard to the second half of the animal it is as if partner b) stole the animal and partner a) slaughtered it, since partner a) slaughtered the animal without partner b)’s consent. When a) steals and b) slaughters an animal there is no liability for four times it value on either a) or b).Rashi explains: When our Gemara speaks of partners who stole, it is speaking of when partner a) carried the animal out of the victim’s domain for himself and for his partner b), as in Bava Kama (78b), where the Baraisa speaks of partner a) stealing an animal and the animal is considered a partnership theft with both partners sharing liability for the subsequent slaughtering or selling of the animal.[Rashi’s explanation] is not appealing. For there (Bava Kama 78b), [the Baraisa] is speaking about liability for four or five times the value of the animal for slaughtering2<i class="footnote">Tosfos understood that Rashi is referring to the liability for both partners when partner a) slaughters the animal. If so, his challenge to Rashi is correct. A ruling that both are liable for partner a)’s slaughtering the animal could be a result of the fact that agency is effective for slaughtering an animal and results in liability for the principal. However, see קצות חושן (348, 3), אילת השחר, נחלת דוד and משנת הלוי who argue that Rashi’s proof is not from the slaughtering of the animal, but rather from the fact that the Gemara there speaks of ‘partners who stole’. The Baraisa is saying that there is a situation where we consider partner a) and b) as partners in the act of stealing, even before there ever was an act of slaughtering. It is in reference to this act that Rashi says, it came about because partner a) stole the animal for himself and his partner.</i> it. And in regard to slaughtering the animal, even if one said to his agent go and slaughter this animal for me, [the principal] is liable even though we usually rule there is no agency for a prohibited act, because we expound the superfluous word ‘תחת - in place of’ in the verse ‘five cattle in place of the ox’ to include an agent, who can act in behalf of the principal in this forbidden action of slaughtering a stolen animal. It is for this reason that when partner a) slaughters an animal stolen by himself and partner b) that both are liable. There is absolutely no proof from this case that when partner a) steals for himself and partner b), that both are liable. Rather, the term partners who stole is speaking of when both partner a) and partner b) lifted the stolen item together.3<i class="footnote">See קצות חושן ibid. who wonders why Tosfos insists that the Baraisa in Bava Kama (78b) is speaking of when both partners lifted the animal together. Even if so, acquiring the animal is dependent on the logic ‘since he can acquire for himself, he can also acquire for his fellow’. Otherwise, we would have to view the second half of the stolen article as if no act of acquisition was performed upon it, as is evident in our Gemara. If so, why must Tosfos insist that it is speaking only of when both partners lifted the animal, the same logic should apply even when only partner a) lifts the animal himself. He is acquiring it for himself and partner b) and they both are partners in the theft. Rashi on the other hand is saying that the Baraisa in Bava Kama (78b) is speaking of when only one partner stole the animal for the benefit of both, says so because that is a situation which parallels our Gemara which speaks about one lifting a found object for himself and his fellow. Furthermore, the Gemara there in its initial resolution of the contradiction between Baraisos a) and b), uses the expression ‘כאן בשותף שגנב מעלמא’ which literally translates as ‘one partner stealing from anybody else’. It seems that the Gemara is clearly sneaking of when ‘partner a) stole for himself and for the benefit of partner c).</i>
  
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  And what is the “since” [principle that allows the deaf-mute to acquire the found object, even when the competent person does not acquire his half of the found object?] “Since” two deaf-mutes [would both acquire this found object, we view the competent person as if he is a deaf-mute and this allows his deaf-mute partner to acquire half of the cloak.] Rami bar Chama and Rava agree that understanding our Mishna requires some special principle. For if we were to apply our previous understanding to the case of the Mishna, we would rule that neither of the litigants acquires the found object, because we would view the section of the garment in Ruvain’s hands as if it is on the ground in regard to Shimon and the section in Shimon’s hands as if it is on the ground in regard to Ruvain acquiring his half of the found object. Since neither has lifted the entire cloak from the ground, they both do not acquire it.We are compelled to say that each is lifting the cloak for himself and for his partner. Rami bar Chama concluded that our Mishna proves that one can act in behalf of his fellow when lifting a found object. Rava disagrees. He maintains that the ruling of the Mishna is limited to when Ruvain is lifting the cloak for himself and for Shimon and Shimon is also lifting the cloak for himself and for Ruvain. However, if Ruvain would lift only for Shimon, he could not acquire it for Shimon. We only say: Since Ruvain is acquiring the cloak for himself, he can also acquire it for Shimon, but he cannot acquire it solely for Shimon.Once this “since” principle has been established, Rava takes it to the next level. Concerning a situation where Ruvain was a competent person and Shimon was a deaf-mute, he says that Shimon, the deaf-mute cannot assist Ruvain in acquiring his half, but Ruvain can assist Shimon, the deaf-mute, in acquiring his half. But if Ruvain is not acquiring any of the cloak, how can he act in behalf of Shimon, the deaf-mute? Rava answers: “Since” if Shimon’s partner was also a deaf-mute, Shimon would acquire at least half, so too, even when Shimon’s partner is a competent person, Shimon acquires half the cloak. (See Artscroll note 20.)Rava in his second ruling is expanding the “since” principle to a second level. Tosfos questions the legitimacy of this approach. Let us remember that the original “since” principle is accepted only because it is manifest in the Mishna. Rava insisted that we cannot accept the principle that one who lifts a found object for his fellow acquires it for his fellow, because that is not evident from the Mishna. The Mishna only proves that Ruvain and Shimon can act for each other only when acquiring for themselves as well. If we are limited to what is evident from the Mishna, Tosfos wonders how Rava can expand the “since” principle to a second level.This is bewildering! How do we know that we can expand the “since” principle to include Ruvain, the competent person, acting in behalf of Shimon, the deaf-mute? Perhaps we do not say two “migos”?But why must we concede that we are dealing with an expanded level of the “since” principle? For the ruling that two deaf-mutes can acquire is because of the “since” principle, “since” each of the deaf-mutes is acquiring for himself, he may acquire for his fellow. If not for this first application of the “since” principle, we would rule that we view each end of the cloak as if it is on the ground. It is only because of the “since” principle that we say, each can acquire for his fellow when acquiring for himself. The next application of the “since” principle, since two deaf-mutes can acquire for each other etc. is a second level of the “since” principle and we have no proof from the Mishna that we can move to a second level.
  
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  Rather, [Rami bar Chama’s principle can be derived] from the end [of the first paragraph of our Mishna, which reads]: This [litigant] says it is all mine and this [litigant] says half is mine. Tosfos will discuss two variant texts of our Gemara. We will refer to the text as it is printed in our Gemara as text a) and to the variant text as text b).Rami bar Chama says that our Mishna proves his principle: One who lifts up a found object for his fellow acquires it for him. We find two methods of deducing a legal principle from a Mishna or Baraisa.A) The simplest way is that the ruling of the Mishna makes sense only if the principle we are attempting to prove is true.B) Redundancy. The particular ruling of the Mishna may not necessarily prove that the principle is true. There may be another way of understanding the Mishna, which would not prove the principle in question. However, if the Tanna repeated an unnecessary case, we may assume that his purpose was to teach us this principle. Of course the principle must be a reasonable explanation of the ruling, even if not compelling. The Gemara refers to this method as ‘משנה יתירה - a redundant Mishna’.The major difference between text a) and text b) is whether the Gemara is attempting to prove Rami bar Chama’s principle from the redundancy of a seemingly unneeded case in the Mishna (text a) or from the ruling of the Mishna (text b). Text a) the Gemara continues to demonstrate how we can see Rami bar Chama’s principle from our Mishna: Why was it necessary for the Mishna to say more? The underlying principles governing the ruling in the second case, that each receives half of what they are arguing about can be seen from the first case. See Rashi (2a) ד'ה וזה אומר חציה שלי, also Rashi here ד'ה ממשנה יתירה. Rather, from the redundancy of this Mishna, we learn that one who lifts up a found object for his fellow, has acquired it for his fellow.The Gemara rejects this proof: Why are you certain that this case in the Mishna is speaking about a found object, perhaps it is speaking of a sale item? The ruling of the Mishna would then have nothing to do with lifting up a found object for one’s fellow. If you counter: If we are speaking of a sale item, what is the Mishna teaching us? It is needed. I might think: This [litigant] who claims half is mine should be thought of as one who is returning a lost object, since he could have just as easily claimed it is all mine, and he should be exempt from taking an oath, [the Mishna] teaches us even so he must swear.When analyzing the dialogue of the Gemara we are faced with a severe difficulty. When the Gemara deflects the proof from this case of the Mishna it suggests: Perhaps it is speaking of purchasing and selling? The Gemara then goes on to explain that the need for this case is to teach us that we do not consider the litigant who claims only half as one who is returning a lost object and he is still required to swear. But this lesson is needed even in the case of a found object? There too, we might think that the litigant who claims half is mine should be exempt from swearing. Why did the Gemara first say that the Mishna is speaking of a sale item? In the course of analyzing texts a) and b), Tosfos will show how we might deal with this difficulty.Text b):There are those who at this point in the Gemara’s dialogue do not have the text: Why was it necessary for the Mishna to say any more? This leading sentence tells us that by (method A) studying the Mishna’s ruling that the litigant who claims it is all mine receives three quarters and his opponent who claims half receives one quarter, we could not reach the conclusion that one who lifts a found object for his fellow acquires it for his fellow. It is only because the ruling is redundant (method B) that we say the Tanna intended to teach us this principle. But, Tosfos argues, in this section of the Mishna, we could derive Rami bar Chama’s principle from (method A) the very ruling that one of the litigants receives a quarter of the cloak!For it is from the very ruling of the Mishna, not its redundancy, that [the Gemara] deduces that one who lifts up a found object in behalf of his fellow, his fellow has acquired it. Because [the litigant] says: Half is mine. This implies that it was acquired in a way that half belongs to each of the litigants. How can this be accomplished? This must mean that he lifted it together with his fellow litigant, with each of them intending to acquire it for himself and for his fellow. If lifting for one’s fellow is ineffective, then according to his own claim he has acquired nothing. As explained earlier in the Gemara, when lifting the found object each of the litigants can acquire some part of it only if both are lifting the cloak for each other as well as for themselves. Since we honor his claim by awarding him a quarter of the cloak, we are ruling that lifting the found object for one’s fellow is effective. Otherwise, he would own nothing of the cloak. Rather, it is certain that one who lifts a found object acquires it for his fellow. Thus he has assisted his fellow in acquiring half the cloak, just as the fellow has assisted him in acquiring his share of the cloak.Tosfos explains how according to text b) the Gemara deflects this proof: [The Gemara] challenges this proof by arguing: How do you know the Mishna is speaking about a found object which would prove that one can lift up a found object for his fellow? Perhaps [the Mishna] is speaking about two litigants who claim that they acquired this cloak through purchasing and selling. Lifting an object for the benefit of another person is problematic only when lifting a found object. This found object can be acquired by anybody. Taking it for one’s fellow is detrimental to the interest of all other people who might want to acquire it. Perhaps one cannot act in behalf of his fellow when his action is detrimental to others? This does not apply to a sale where the seller has the right to choose to whom he wishes to sell it. Certainly, anybody may lift a sale object in behalf of the intended purchaser.There are two other possible interpretations of our Mishna that would yield no light on whether one may acquire a found object for his fellow. It is conceivable that one of the litigants could have acquired half the cloak without the assistance of his fellow. So too, [the Gemara] could have deflected the proof from this second case of the Mishna by saying that [the litigant] who claims “half is mine” is a situation where he says: I grasped half in my hand. We learned earlier (7a) that any portion of the cloak that is actually in the hand of a litigant belongs to that litigant and is not subject to division. It is only the portion suspended between the two litigants that is subject to division. Thus, if one litigant claims that he grasped half the cloak in his hands, that portion is his without the benefit of his fellow-litigant lifting the other half for him. The claim “half is mine”, does not necessarily mean that the litigants lifted it up in a way where each of them needs his fellow litigant to assist him in acquiring it. The Mishna may very well be speaking of a case where one can acquire half the cloak without the benefit of his fellow’s assistance.The second: or he might claim I lifted the entire cloak with the intention of acquiring only half. One can certainly acquire only half of the cloak, if that is his wish. It is therefore conceivable that the claim “half is mine” does not necessarily mean that I lifted the cloak in a manner that requires my fellow-litigant’s assistance to acquire it. It can also mean I lifted the entire cloak myself, which is a perfect act of acquisition, with the intention of acquiring only half.Tosfos demonstrated that there are three ways of understanding the claim “half is mine”, which would not reflect on whether one who lifts a found object for his fellow has acquired it for his fellow.a) The answer that the Gemara uses: The Mishna may be speaking not of a found object, but of a sale item.b) The Mishna may be speaking of a litigant who claims that he acquired half the cloak by grasping it in his hands.c) The Mishna may be speaking of when the litigant claims he lifted the entire cloak, but only with the intention of acquiring half.Obviously, with all these available interpretations of the Mishna, we cannot deduce from the Mishna per se, that one who lifts a found object for his fellow has acquired it for him, but even though it is not evident from (method A) the ruling of the Mishna, [the Gemara] could still have deduced Rami bar Chama’s principle from (method B) the redundancy of the Mishna. Therefore, [the Gemara] deflects [the proof from this case in our Mishna] in such a way that even from the redundancy we cannot deduce that one who lifts a found object for his fellow has acquired it for him. The Gemara says that this case is in fact needed to teach us that the litigant who claims half is mine must also take an oath. If so, there is no redundancy to teach Rami bar Chama’s principle.Tosfos now explains text a). First, Tosfos explains the strength of text a): Concerning those manuscripts who do have the text: “Why was it necessary to say any more?”, which indicates that it is only from (method B) the redundancy, that we can deduce Rami bar Chama’s principle, it can be said that this is because [the Gemara] could not have deduced this from the Mishna itself since there are three other ways to understand this case of the Mishna as we explained. Thus, an attempt to prove Rami bar Chama’s principle from the ruling of the Mishna is inherently weak. The Gemara was proving his principle from the redundancy of this case.Tosfos now explains the weakness of text a): However, there is a difficulty with text a). Why does [the Gemara] say: Perhaps [the Mishna] is speaking about purchasing and selling and there is no discussion at all about lifting a found object for one’s fellow. Since the Gemara will argue that the Mishna is needed to teach us that even one who claims half must swear, even if [the Mishna] is speaking about a found object, we can deflect the proof from the Mishna as it is deflected when speaking about buying and selling. We can say that the Mishna is teaching us that in a case of a found object, when a litigant claims half is mine he still must swear. That novelty is equally applicable to a lost object as it is to buying and selling.Tosfos is convinced that any answer is not as good as the question. We can answer even if it is a bit awkward. The dialogue of the Gemara according to text a) is as follows: The deflector is arguing: Why are you so sure that the Mishna is speaking about a found object and thus you are convinced that the Tanna’s intent must be to teach us through (method B) redundancy, that one who lifts up a found object for his fellow acquires it for him? It is most probably for this reason that you do not interpret the Mishna as speaking about buying and selling: because you cannot find any novelty in this ruling other then if it is teaching us about one who lifts a found object for his fellow. However, in reality, even if it would be speaking about buying and selling there is a novelty: that we do not say that one who claims only half is thought of as returning a lost object and is therefore exempt from taking an oath. Now that the deflector demonstrated that there is a novelty even if the Mishna is speaking about buying and selling, we can move a step further and say: The same is true if the Mishna] is speaking about a found object. The Mishna is teaching us that in the case of a found object a litigant who claims half is mine is not thought of as returning a lost object and must swear.There are three steps to the deflector’s approach.1) He first takes us all the way to the opposite end of the spectrum, buying and selling, where it seems least likely to find a novelty in the Mishna.2) He shows us that even in that extreme case there is a novelty.3) We can then adopt that same novelty and apply it to a found object. 
  
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  [Concerning one who] solely leads [the animal], is there anyone who says that he does not acquire [the animal]? The Gemara at this point is considering whether Shmuel’s question was whether leading an animal or riding it is an act of acquisition. The Gemara argues that if we are speaking of leading alone or riding alone, there can be no question that leading alone is an act of acquisition. That this is so apparently clear to the Gemara indicates that nobody can possibly argue with this. Tosfos finds that R’ Shimon (Kiddushin 25b) does in fact disagree. If so, we must understand the basis for our Gemara’s assumption that leading an animal is definitely a method of acquisition.Even though R’ Shimon in a Baraisa in the first Perek of Kiddushin (25b) maintains that [both small and large] animals can only be acquired by lifting them, which implies that leading them is not legally recognized as a method of acquisition, even so, [the Gemara’s] assertion that one must hold leading an animal is a method of acquisition, is based on our anonymous Mishna which teaches: Or if one was riding and one was leading etc. [an animal, thus demonstrating ownership, they divide the animal]. Our Mishna certainly indicates that leading an animal is a valid method of acquisition. Shmuel would definitely not issue a ruling that does not conform to Mishna (2a), an anonymous Mishna, even though R’ Shimon in Kiddushin (25b) does not agree with Mishna (2a).If the strength of the Gemara’s argument is the anonymous Mishna (2a), it follows that all other anonymous Mishnayos agree with it, but Tosfos introduces an anonymous Mishna in Kiddushin (25b) which also seems to say that leading an animal is not a proper method of acquisition?Let us study that Mishna together. A large animal can be acquired by “handing over” and a small animal by lifting it. These are the words of R’ Meir and R’ Eliezer. The Rabanan say: a small animal is acquired by leading it. An analysis of the text yields that the Rabanan hold that only a small animal is acquired by leading it. Insofar as a large animal is concerned they seem to agree that “handing over” is the method of acquisition. The opinion of the Rabanan, who are the majority, has the strength of an anonymous Mishna. Their opinion seems to contradict Mishna (2a) which says that even a large animal is acquired by leading it? If so, why does the Gemara argue that Shmuel must hold that a large animal is acquired by leading it, since anonymous Mishna (2a) is of that opinion, perhaps Shmuel rules in accordance with the Mishna in Kiddushin (25b) which says that a large animal is acquired by “handing over”? That which we learned in a Mishna in the first Perek of Kiddushin (25b): A large animal can be acquired by “handing it over” and a small animal by lifting it, these are the words of R’ Meir and R’ Eliezer?1<i class="footnote">See מהרש"א who explains that Tosfos was a bit brief, where they should have explained their question in a lengthier manner. The strict reading of Tosfos seems to indicate that Tosfos is asking his question from the opinions of R’ Meir and R’ Eliezer. This however cannot be the case, because their opinion does not have the force of an anonymous Mishna. The question Tosfos is asking is based on the majority opinion of the Rabanan, whose opinion has the force of an anonymous Mishna.</i> The Rabanan disagree about a small animal and say that leading it is the method for a small animal. They do not disagree about a large animal. It seems that the Rabanan are also of the opinion that “handing over” is a valid acquisition for acquiring a large animal. The opinion of the Rabanan, who are the majority, has the same force as an anonymous Mishna. If so, why is the Gemara so certain that Shmuel must rule that “leading” is a method of acquisition for a large animal, because Mishna (2a) says so? Perhaps Shmuel rules in accordance with the Rabanan of Kiddushin (25b), which is equal to an anonymous Mishna?Tosfos explains: when R’ Meir and R’ Eliezer speak of “handing over” they mean that it is <u>also</u> a method of acquisition, and certainly leading it is an acquisition. The Rabanan who agree with them insofar as a large animal is concerned are agreeing that “handing over” is <u>also</u> a method of acquisition. They are not saying that “leading” is not an acquisition. Thus, there is no contradiction between anonymous Mishna (2a) and the Rabanan of Kiddushin (25b).So too, when the Gemara there mentions that “handing over” is a method of acquisition, the meaning is that “handing over” is also a method of acquisition. But in such places where [the Gemara] mentions that leading is an acquisition, it means only leading and not “handing over”. In order to reconcile the Gemara’s argument that all must agree leading is an acquisition, with Mishna Kiddushin (25b), Tosfos resorts to an unorthodox interpretation of said Mishna. The Mishna which reads “handing over” is a method of acquisition, must mean that it is also a method of acquisition. Usually, one does not resort to such a novel interpretation without some proof that this is in fact the intent of that Mishna. Tosfos therefore says: Aside from this problem with the Gemara here, which indicates that all must agree that leading an animal is a valid acquisition, it is necessary to say so2<i class="footnote">See Tosfos there ד'ה בהמה גסה נקנית במסירה where Tosfos discusses at length the need for interpreting the Mishna (Kiddushin 25b) as meaning “handing over” is also an acquisition.</i> in order to understand the Gemara in Kiddushin (25b).
  [It can be said only about the] rider, that he does not acquire [the animal he is riding]. The Gemara is arguing that leading is definitely a valid method of acquisition, since our specifically mentions leading. It is only riding that might not be a method of acquisition. But our Mishna also speaks of riding, just as it speaks of leading? If leading is an acquisition, shouldn’t riding also be an acquisition?The Mishna (2a) which also speaks of one who is riding in the same context as one who is leading, seems to indicate that riding is also an acquisition. [The Gemara] later, deflects an attempt to prove from the Mishna that riding is a valid acquisition by saying that the Mishna is speaking of one who is leading the animal by causing it to move with his feet. He is not merely sitting on the animal. The Gemara’s discussion of riding is limited to one who is sitting on the animal and not causing it to move at all.
  
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  [Does the] rider [have a] superior [right to the animal] since he holds it? Tosfos searches for a definition of “he holds it”. Which specific action is called “holding it”? In the second section Tosfos will also discuss whether holding it alone is the determinant factor for acquiring the animal.We should not explain that [a rider] “holds” [an animal] with his legs wrapped around the midsection or by sitting on it, for these are not called “holding it”.1<i class="footnote">Wrapping one’s legs around the midsection of an animal or sitting on it are ways of benefiting from the animal, but they do not exhibit control. Holding the bridle is a way of exhibiting control.</i> Rather, the fact that he is holding the bridle is called “he holds it”. The proof of this contention is that [the Gemara] will presently use this expression - he is holding the bridle.Tosfos has explained the physical action of “holding it”, but we still need to know the logic behind this method of acquisition. We must say that together with the feature that he is holding [the bridle], [the animal] is also moving slightly because of him and this combination of features is why holding the bridle is a method of acquisition.But if it is an acquisition because he moves the animal slightly, why does the Gemara suggest that leading might possibly be superior because the leader moves it ? The rider also moves the animal. Tosfos explains the second side of the Gemara’s query: Or perhaps a leader is superior because the animal moves <u>much more</u> because of [a leader] as opposed to a rider. Tosfos tells us the reason why he is compelled to say that the movement of the animal is also an important factor in the acquisition of a rider and it is not only because he is holding the bridle.The Gemara will soon compare the rules of acquiring an animal to the rules governing liability for drawing a wagon with an illegal combination - an ox and a donkey. Tosfos draws his conclusion from the basis of this comparison. For if [the Gemara’s] question about whether riding is a valid method of acquisition is only because [the rider] is holding [the animal] by the bridle, and that alone is the reason that he acquires it, then how can [the Gemara] presently resolve this question by comparing holding to one who sits in a wagon which is drawn by an illegal combination and is exempt from receiving lashes because he has not caused the wagon to move, and conclude that so too, a rider who is holding the animal cannot acquire it?The comparison of the two cases is totally unfair. For in regard to the prohibition of drawing a wagon with an illegal combination of animals is concerned, violation does not all depend on whether he is holding the animals, but rather on whether they move the wagon because of him. Whereas, insofar as acquiring is concerned, the validity of the act is dependent only on whether he is holding [the animal] and not on whether it moves because of him? Since the Gemara does compare the two cases, the basis of comparison must be whether one who rides an animal or sits in a wagon is causing it to move. Thus, Tosfos has effectively demonstrated that acquiring an animal is also dependent not on the holding factor alone but on whether he is also causing it to move.
  Or perhaps a leader is superior [since it moves because of him]. The Gemara assumed that Shmuel was speaking of when one of the litigants was riding the animal and the other was leading it. Shmuel says that one of them acquires the animal and the other does not. Rav Yehudah could not remember which of the two is the superior acquisition. The Gemara is now explaining the various attributes of either acquisition. It now says: Perhaps leading is a superior acquisition since he causes the animal to move?It emerges from the very question, that we could conceivably decide that a leader is not a superior acquisition and it is ineffective when the opponent is riding the animal. Tosfos finds this bewildering! How is it possible to consider the possibility that leading is not effective when the opponent is riding the animal? Doesn’t our Mishna clearly say otherwise?Tosfos is perplexed because he assumes that when Mishna (2a) speaks of one litigant riding the animal and the other leading, the Mishna means that these were the methods of acquisition. If so, the Mishna is a clear indication that leading an animal is an effective acquisition even when one’s opponent is riding it. This is bewildering! For we should conclude from our Mishna (2a) that a leader acquires in the presence of an opponent who rides?It is certainly evident from the Mishna that a leader acquires when one is leading and the other is riding. It is not clear that a rider acquires when his opponent is leading. Even though the Mishna does say that the rider receives half, the Mishna may be speaking of when the rider is also driving the animal with his feet as riders often do. Shmuel’s query about a rider is only when he is not actively making an effort to move the animal, as we will soon see in the Gemara.Tosfos wishes to point out that even according to the Gemara that soon says the Mishna is speaking of a rider who is moving the animal with his legs, there is still proof that a leader alone acquires. For even if the rider [the Mishna] speaks of is driving with his feet as the Gemara soon says, even so, a leader is certainly superior to only riding. For if even when the rider is driving with his feet, [the leader] acquires, certainly he acquires when the rider is only riding.In order to answer this question, Tosfos must retract his original assumption that when the Mishna speaks of a rider versus a leader, it is discussing the method of acquiring the animal. We must distinguish between actually acquiring an animal and demonstrating possession of said animal. Any method of acquisition, even if not effective in a particular situation is still considered to be a demonstration of possession as we will now see. b&gt; We can answer: From the Mishna we cannot prove that a leader acquires in the presence of a rider. For even if [a leader] cannot acquire in the presence of a rider, he is considered to be demonstrating possession. For since leading alone, when not in the presence of a rider acquires, he is considered to be showing possession even in the presence of a rider. But later the Gemara attempts to prove from this very case in the Mishna that riding is an effective method of acquiring? It seems that the Mishna equates a demonstration of possession with an effective acquisition. Even so, later [the Gemara] correctly proves from our Mishna that riding alone acquires, since it is considered a demonstration of possession. For if even [riding] alone does not acquire, logic dictates that it is not a demonstration of possession in the presence of leading.Tosfos needs to show that his approach to differentiating between that which is an effective acquisition and that which is a demonstration of possession is evident from an earlier Gemara. He turns to 8a, where the Gemara discusses Rami bar Chama’s ruling that one can lift a found object for his fellow. The Gemara says: From where in Mishna (2a) did Rami bar Chama deduce that one may acquire a found object for his fellow? If we should say: From the first case: Two are grasping a cloak with each one claiming it is mine. We rule that they share the cloak. We are assuming that the ruling is based on the fact that since they are both exhibiting the way they acquired the cloak, they divide it. This shows that when they both lift it together they acquire it for each other.The Gemara rejects this proof: There, in the first case of the Mishna, this one says it is all mine and I lifted it entirely, and this one says it is all mine and I lifted it entirely. Neither claims that they lifted the cloak together, rather each of them says I lifted the cloak myself and it is all mine. Our ruling that they divide the cloak is not because we believe that they lifted the cloak simultaneously. Rather, it is because we do not know the truth and we must therefore divide it. This does not in any way prove that when they lift together they acquire it.We see from this answer that even though the way they are presently holding the cloak could not have been a way of acquiring it, even so, it is a proper demonstration of possession. So too, earlier (8a), the Gemara says: If you say that Rami bar Chama’s proof is from this case: two are grasping a cloak and we rule that they divide it. It seems that when they lifted the cloak simultaneously they both acquired it. This demonstrates that one can lift a found object for his fellow. The Gemara rejects this argument: This one says: I lifted the entire cloak and they divide because we cannot determine who the true owner is, but two who lift a cloak together would not acquire it at all. There, as well we see, that even though as they are both holding the cloak they could not acquire it, since one cannot lift a found object for his fellow, they are considered demonstrating possession, since if each of them lifted it alone, had his fellow not been lifting it on the other side, he could acquire it, he is therefore considered demonstrating possession even as he holds it together with his fellow.There is a final case in the Mishna (2a) that we might believe proves that both a leader and a rider can acquire in the presence of each other. Tosfos shows us that this is a fallacy. From the last case of the Mishna we can also not prove that a rider and a leader can acquire in each other’s presence.Why might we think that the final case of the Mishna proves this point? For [the Mishna] teaches: If both [litigants] admit, they divide the cloak and there is no need for an oath. What are they admitting? A superficial reading of the Mishna might indicate that they both acquired the animal as they are presently exhibiting ownership, one by riding the animal and the other by leading it. This seems to prove that had they acquired it in this manner, they would both be declared owners.Tosfos says that this is not so. For they are not both admitting that this is how they acquired the animal together, this one by riding and this one by leading, rather, they are admitting that both acquired the animal by leading it together or through some other method of acquisition. That one is riding the animal and the other leading it is merely their way of demonstrating possession.
  
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  Riding alone is not an acquisition. At this point in the dialogue the Gemara concludes that riding alone is not a valid method of acquisition. This seems to contradict the simple reading of the Gemara earlier.Let us review the Gemara: The Gemara relates that Shmuel said: Concerning riding and leading, one is a valid method of acquisition and the other is not. Rav Yehudah commented: I do not know which one is the valid method of acquisition.A) The Gemara wondered about Rav Yehudah’s query whether leading or riding is a valid method of acquisition. Was Shmuel possibly speaking of leading alone or riding alone? The Gemara argued that this could not have been the question, because leading alone is definitely a method of acquisition. It is certain that if only one of the two is a method of acquisition and not the other, it must be that leading is an acquisition and riding is not.B) The Gemara then says: rather, the question was whether riding is a method of acquisition in the presence of a leader? This conclusion indicates that certainly riding alone is an acquisition. Shmuel’s statement was only about riding versus leading.C) The Gemara then present a Mishna (Kilayim 8, 3) as proof that even riding alone is not an acquisition.This understanding of the Gemara, although logical creates a major problem in the flow of the Gemara. For initially the Gemara in step b) was certain that riding alone is an acquisition and then in step c) it concludes that even riding alone is not a method of acquisition. The Gemara does not usually categorically say that the halacha is one way and then reverse itself and say the halacha is the opposite.We must find a way of reading the Gemara so that the question of whether riding alone is an acquisition remained open and would then be subject to a conclusion that it is not an acquisition.Tosfos re-defines Rav Yehudah’s query about Shmuel’s statement: It appears that Rav Yehudah was in doubt if the statement he heard from Shmuel was about riding alone and leading alone, and then, it would be plain to him that Shmuel said riding was not an acquisition, because leading alone is known to be an acquisition. Or, if he heard from [Shmuel] about riding in the presence of a leader, and in that case, he is in doubt which of the two is an acquisition.According to this interpretation, the Gemara in step b) never concluded that riding is an acquisition. The Gemara simply said that if Shmuel’s statement was about riding alone and leading alone, it would be certain that leading alone was an acquisition and riding was not. The Gemara never definitively stated that this was Shmuel’s position. The question remained open.The Gemara can therefore conclude in step c) that even riding alone is not a method of acquisition. For if [Rav Yehudah] ultimately had no doubt about riding alone, as we explained in the simple reading of the Gemara, rather, he definitely heard from Shmuel that his statement was only about riding in the presence of a leader, if so, the Gemara has initially concluded in step b) that Shmuel maintains that riding alone is an acquisition, and now in step c) the Gemara resolves that even riding alone is not an acquisition. The Gemara does not change its conclusions. We must say that in step b) the question of riding alone did remain open. It is then fair to say that in step c) the Gemara concludes it is not an acquisition.
  
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  Mishnah - <i>Elu Metziot Shelo</i>: Bundles in a public area -  It is specifically with bundles that it distinguishes between a public area and a private area: As according to the one that holds (later, on Bava Metzia 22b) that an identifying mark that is prone to be trampled is [considered] an identifying mark, and that a place is an identifying mark - it is speaking here when there is no identifying mark; and the place is also not an identifying mark in a public area, because they roll around. But the place is an identifying mark in a private area - such that one would be obligated to announce [them when they are found there]. And that is speaking about when it is found in the manner of  being placed down (intentionally). But bread of a baker and round cakes of figs do not have an identifying mark, so they are [the finder's] even in a private area. And that is speaking about when he found it in the manner of [something] being dropped - hence the place is not an identifying mark. And if you will say, "Why does it mention bundles, in the manner of being placed down, more than the other [cases] - about which it is speaking in the manner of being dropped" - one can say that because the bundles are expensive, they would not have been dropped without his awareness (he would be more mindful about them). Rather, [the case would be] that when he stopped to rest, he placed them on the ground and forgot them there. However, the bread [from the kitchen] of a homeowner has an identifying mark, for homeowners are accustomed to make an identifying mark on their bread. Hence even [if they were found] in a public area, one is obligated to announce [them] - for an identifying mark that is prone to be trampled is [considered] an identifying mark. And [the reason] that the place is an identifying mark with piles of fruit or piles of money even in a public place - as it says later on - is because rolling around is not applicable to them. And if you will say, "How can [finders] take bundles in a public place when it is speaking about [them being found in] the manner of being placed down - behold, we say later that one may not take [an object when there is] a doubt that it was placed down, and all the more so [when it is] certain" - one can say that those words (that case) is when he finds [it] in a hidden and guarded place, such that he should not take it if there is no identifying mark; and if there is an identifying mark, he takes [it] and announces [it]. And according to the one that holds (later, on Bava Metzia 22b) that an identifying mark that is prone to be trampled is not [considered] an identifying mark, and that a place is also not an identifying mark - it is speaking about bundles that have an identifying mark. And hence one announces it [when it was found] in a private area. But the bread of the baker and the rest of [the cases in] our mishnah do not have an identifying mark. And hence they are his, even [if they were found] in a private area. However, he is obligated to announce the bread [from the kitchen] of a homeowner that has an identifying mark, even [when found] in a public place - as it is not something that is prone to be trampled, since we do not pass by food [without picking it up]. And our entire mishnah is speaking about whether [the object] was [found] in the manner of being dropped or whether it was in the manner of being placed down. And if you will say, "If the bundles were in the manner of being dropped, hence [the one who dropped them] does not know where they are; so why does he need to announce [them] - behold [the owner has abandoned them, since he believes that they fell in the public area" - one can say that even though he is not able to determine the place [where he dropped it], he knows whether it fell in a public area or a private area.
  
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  And how much? Rabbi Yitzchak says, "One <i>kav</i> in four [by four] cubits" - and it must be said that Rabbi Yitzchak himself inquired, "And how much?" For if the gemara inquired, "And how much," let it establish [the case as being in] the manner of  being dropped, and even more [than a <i>kav</i>] - as the gemara challenges after this. Rather [the question] is from the words of Rabbi Yitzchak. And Rabbi Yitzchak may not establish [the case to be] in the manner of being dropped and even more, because he holds - like Abbaye - that abandonment without intention is not [considered] abandonment. Rather, he establishes it to be in the gathering [of grain] on the threshing floor, such that he left them there intentionally. And likewise in this way is it found in our chapter (Bava Metzia 30b) that when it inquires, "And forever? Rav Yehuda [answers], etc." - it must be said that Rav Yehudah said, "And forever?" And likewise in the chapter [entitled] <i>Lo Yachpor</i> (Bava Batra 22b, and Tosafot there, s.v. and how much) concerning distancing from windows, such that it says, "And how much? Rav Yeiva said, 'The full width of the window.'"
  
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  A half-<i>kav</i> in an area of two cubits, what is [the law] - It is a wonder: Is a <i>kav</i> in four cubits not also a half-<i>kav</i> in two cubits (is the ratio not the same); so what is he inquiring? And one can say that since there is only a half-<i>kav</i>, he will take [them] since there is no exertion [beyond this] to finish. But [with] a <i>kav</i> in four cubits, since there is exertion to take all of it, he does not take [them] at all. Or also (another answer), a <i>kav</i> in four by four cubits is [the same as] half a <i>kav</i> in two cubits width by four cubits length, whereas here he is inquiring about two cubits by two cubits.
  
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  Because when it fell, he does not despair (abandon it) - And even though, he abandons it now, it is a general coincidence; and he was not prepared to abandon them as first.
  
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  Come and hear, one who finds coins, etc. - It is a wonder: Since it already brought a difficulty from our mishnah about scattered coins, why does it also challenge from this baraita? And also why did Rabbi Yitzhak not say his piece about our mishnah? And it can be said that it was stronger for it to raise a difficulty on the baraita, since it implies that it is the [finder's] in all cases - even in the case where there is an identifying mark, since it establishes the reason to be because the multitudes are found there. And it is also implied [that this is the case] even though the owner of the lost object was still in the study hall when [the finder] picked it up, and he didn't know that it had fallen from him. 
  
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  And exempt from tithes - In Tractate Peah 4:1, it is shown that it is only when he renders it ownerless before the end of the work [on the produce] that it is exempt from tithes. But if he renders it ownerless after the end of the work, when he was already obligated in tithes, there is nothing in this. And here too is it is speaking about after the end of the work, such that they have not yet dried - as it is shown in Beitzah 34b, the chapter [entitled] Hamevie - that the end of the work of figs that are ready to be spread out in the field and to be made into dried figs, is not until they are dried. And even if the finder claimed them before they dried, they are [still] exempt from tithes, as we say in Bava Kamma 28a, "One who renders his vineyard ownerless and arose early in the morning and harvested it [...] is exempt from tithes." But it is not like this concerning consecrated property (<i>hekdesh</i>). As if he consecrated [it] before the end of the work and it was redeemed before the end of the work, it is [still] obligated in tithes, as it is somewhat shown in the chapter [entitled] HaOmer (Kiddushin 62b). 
  
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  The fig tree, too, one knows that [the figs] fell - The explantion: Granted, [in the case of] the fig trees, [taking the figs is] permissible - since it is common that they fall, [the owner] abandons them from the beginning. For he thinks that the finder will take them, for [the latter] did not know that it fell from a tree, but rather thinks that it fell from passers-by. But with olives and carobs, it is forbidden, for they are not prone to falling. Even though if [the owner knew that it fell], he would abandon [it] - as passers-by would take [it], since they would assume that it fell from [other] passers-by. [But] now that they did not know, they would think [the olives or carobs] did not fall - [so] it would be forbidden, as it would be abandonment without awareness. But according to Rava, why would it be forbidden? And if you will say, "If it is the law to assume [the fruit came from] passers-by, and not from the tree adjacent to it, why is it forbidden with olives and carobs" - one can say that according to the law, we certainly do not assume [it was] from passers-by, but from the tree; however, the owners will abandon [the fruit nevertheless], as they think that passers-by who are not upstanding will decide upon a dispensation for the fruit that they find, and assume they were from passers-by. And if you will say, "If so, what is the challenge it presents to Rava; let us say that olives and carobs are forbidden because even after the owners know that they fell, they do not abandon [them], since they know that the finder will not take them; as he will assume that they fell from the tree, as is the truth, since one should not assume [they were] from passers-by - one can say, if they do not abandon [them in the case of] the fig tree, why would [the figs] be permitted? However there are books [of the Talmud] that have the variant, "an olive is different, since its olive tree (<i>zaito</i>) proves about it." For with this, that which we raised as a difficulty is answered. That is to say that since they are below the olive tree, the owners will think that the finder will not take them, to assume [them] from passers-by. But "a fig becomes disgusting with its fall" - the explanation is, it gets dirty and is disgusting to him, so he renders it ownerless. But in most books, we have the variant, "since its appearance (<i>chazuto</i>) proves about it; and even though the olives fall, [the finder] knows that the place of a person is that person's" - the explanation is, olives that fell are similar to olives [still] standing on the tree; and therefore even when the owners know they fell, they will not abandon [them], as they know that the ones that find them will not take them. But "a fig dissolves (<i>nimiset</i>) with its fall" - this is the variant in Arukh - <i>nimiset</i> without an aleph - so they are not similar to those on the tree. And also we can follow the variant [that has] <i>nimaeset</i> (becomes disgusting) - and because it becomes dirty, it is not similar to a fig on the tree.
  
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  The Gemara uses this particular language because of Bat Sheva was a doubtfully married woman. Rashi interpreted that it is because ever man who went to one of David’s wars signed a Gett, on the condition that if he dies, she will be expelled and she would not require יבום (divorce), and all of the days he is out at war she would be considered doubtfully married. And this is a difficulty for Rabeinu Tam that if this is so, it is not “all men”, it is only if they had brothers and did not have children. However, Rashi is not particular when he says “יבום”, rather she will not be tied down (become an Agunah).
  
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  And some say 46 - there are those who explain this because they count "because you were strangers in Egypt" and similar ones.
  
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  King Shapur -- The correct explanation appears to accord with Rashi (that King Shapur here refers to the actual King Shapur, not the sage Shemuel who is sometimes called King Shapur), for King Shapur was an expert in Jewish law, as it says at the end of Tractate Avodah Zarah (76b), that he stabbed the knife ten times into hard earth when he cut the citron with a knife for Rav Yehudah.
  
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