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Bava Metzia, 6

1) PROVING THAT ONE WHO IS "CHASHID A'MAMONA" IS ALSO "CHASHID A'SHEVU'ASA"

QUESTIONS: The Gemara proves that one who is "Chashid a'Mamona" (suspected of stealing) is not "Chashid a'Shevu'asa" (suspected of swearing falsely) from the fact that we make a person swear a Shevu'as Heses, even when he is Kofer ha'Kol and there is suspicion that he might be lying and trying to steal. The Gemara proves this again from the ruling of Ben Nanas in the case of "Chenvani Al Pinkaso," in which the storekeeper and the workers must both swear and collect from the employer, and from the Halachah of Shevu'as ha'Shomrim.

(a) How can we prove from Shevu'as Heses that one who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa?" The Gemara taught earlier that when a person is Kofer ha'Kol in the case of a Milveh, he is still valid as a witness (and certainly he is valid for making a Shevu'ah), since we assume that he is merely stalling for time ("Mishtamet"); he is not "Chashid a'Mamona!" (TOSFOS DH Ela)

(b) Why does the Gemara not prove that "Chashid a'Mamona" is not "Chashid a'Shevu'asa" from the Shevu'ah d'Oraisa of Ed Echad, which a person must swear when he is Kofer ha'Kol (and suspected of stealing, similar to a case of Shevu'as Heses)? (MAHARAM SHIF, MEROMEI SADEH)

(c) The Gemara's second proof is from the Shevu'ah that the Rabanan instituted in the case of "Chenvani Al Pinkaso," in which the storekeeper and the workers both collect money on the basis of their Shevu'os. Since the Shevu'os in that case are not simply to retain money but rather to collect money from someone else, we consider the claimants to be "Chashid a'Mamona," since the logic of "Mishtamet" applies only when one is trying to refrain from paying, and not when one attempts to take someone else's money.

Why does the Gemara prove that one who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa" from this specific case of Shevu'ah? The Mishnah in Shevu'os (44b) provides an entire list of Shevu'os that a person swears in order to collect money from someone else. The Gemara should prove from all of those Shevu'os that a person makes a Shevu'ah even though he is "Chashid a'Mamona!" (TZELACH, TUMIM 91:3)

ANSWERS:

(a) The Rishonim provide a number of answers to this question.

1. The RASHBA writes that the proof from Shevu'as Heses is not a strong proof, and indeed the Gemara could have refuted it in this manner. However, the Gemara knew that there were better proofs, such as the one from Shevu'as ha'Shomrim, and therefore it did not bother to argue on this one.

2. TOSFOS and the RAMBAN explain that the Gemara had a tradition that Rav Nachman requires a Shevu'as Heses even in a case where a person denies owing a Pikadon that is in his hands. (Tosfos points out that this seems to contradict the Gemara in Shevu'os 40b).

3. The RAMBAN answers further that perhaps even though a person does not become Pasul l'Edus when he denies owing a Milveh, he should become Pasul for making a Shevu'ah on the money that he denies owing. The reason for this is as follows. When a person is prepared to lie in order to stall for time ("Mishtamet"), he will also be willing to swear falsely or testify falsely regarding the payment of that loan. Even if a person who is Kofer ha'Kol is trying to be "Mishtamet," we cannot trust him to make a Shevu'ah that he does not owe that money, since he might swear falsely in order to delay the payment. Nevertheless, we do allow a person who is Kofer b'Milveh to testify that somebody else owes money, because we do not suspect him of lying in order to cause money to be taken away from its rightful owner. The logic of "Mishtamet" only gives a person a reason to refuse payment of something, but not to cause a person who does not owe money to pay money (as we mentioned in the third question above).

4. RASHI (DH Neima Migu) does not seem to follow any of the above approaches. He simply writes that a person who is Kofer ha'Kol is not being "Mishtamet," and is therefore "Chashid a'Mamona."

How can this be reconciled with the Halachah that one who is Kofer b'Milveh is a valid witness? The RA'AVAD explains that according to Rashi, when two witnesses testify that a person owes money and he pays the money based on their testimony, he is not considered "Chashid a'Mamona." It is only when a person denies money and there are no witnesses to prove him guilty that we consider him to be "Chashid a'Mamona" if he is lying. (The RAMBAN also mentions this logic in the name of "Yesh Mefarshim.")

This is consistent with the explanation of the RITVA that we cited earlier (3b, 4a). The Ritva explains that a person will only deny a loan that he borrowed in front of witnesses if he is planning on delaying the payment, and eventually paying when the witnesses come to testify against him. Therefore, if witnesses testify that he owes them money, we may assume that he was only stalling for time. However, if there are no witnesses who prove that the borrower was only stalling, then we must assume that the borrower is indeed a thief, since he was brazen enough to deny the entire loan. Therefore, it can be proven that one who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa" from the Halachah of Rav Nachman who says that one who is Kofer ha'Kol must make a Shevu'as Heses even when no witnesses are present.

(b) The MAHARAM SHIF explains that according to Tosfos, the answer is simple. We only proved from Shevu'as Heses that one who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa" because the Gemara had a tradition that a Shevu'as Heses is made even when a person denies that an object that is known to be in his possession is a Pikadon. Since the object is known to be in his possession, the person who denies it cannot be "Mishtamet," stalling for time, and nevertheless he makes a Shevu'ah. However, with regard to Shevu'as Ed Echad, the Torah never specifies that a person make such a Shevu'ah even when the witness testifies that an object that is known to be in the possession of the defendant is a Pikadon. Perhaps no Shevu'ah is made in such a case, because the defendant is "Chashid a'Mamona," and the person only makes a Shevu'ah when the Ed Echad claims that he owes money due to a loan. Since a person can be "Mishtamet" when he owes money of a loan, this will not serve as proof that one who is "Chashid a'Mamona" is also "Chashid a'Shevu'asa."

However, this answer is valid only according to the first two answers (1 and 2) of the previous question. According to the answers of the Ramban and Rashi to the previous question, even a person who denies a loan is "Chashid a'Mamona." Consequently, whether the Ed Echad makes a person swear that he does not owe money, or whether he makes him swear that an object of his is not a Pikadon, the defendant is "Chashid a'Mamona" since he was Kofer ha'Kol. We should be able to prove from Shevu'as Ed Echad that one who is "Chashid a'Mamona" is nevertheless able to make a Shevu'ah!

The answer to this seems to be that even according to Rashi, there are times at which a person who is Kofer ha'Kol is not "Chashid a'Mamona." Rashi writes that a person who is Kofer ha'Kol is "Chashid a'Mamona" only because he was brazen enough to deny the entire loan, and therefore he cannot possibly be stalling for time (see Gemara at end of 3a). However, the only reason it is considered brazen to deny a charge is because the lender did a favor for the borrower, and therefore the borrower should feel guilty denying that he ever borrowed. When a Shomer watches a Pikadon for someone, the owner did not do him a favor by giving him the Pikadon, and therefore it does not take brazenness to deny receiving the Pikadon, as Rashi writes in Bava Kama (107a, DH Aval b'Pikadon and DH Me'iz). Therefore, if an Ed Echad testifies that a person received a Pikadon and he does not testify that the Pikadon is presently in the possession of the Shomer, then the Shomer is not "Chashid a'Mamona" and might simply be trying to stall for time in order to pay back the Pikadon that was lost through his negligence (Peshi'ah). It is for this reason that one who is Kofer b'Pikadon is not Pasul l'Edus when witnesses do not testify that the Pikadon was in his possession at the time he denied it. Perhaps it is in this case that the Torah requires a Shevu'ah to counter the Ed Echad, and not in the case of Kofer b'Milveh.

(In practice, even Rashi will agree that a person must make a Shevu'ah to counter a single witness who testifies that he owes money due to a loan, because the Rabanan instituted that a Kofer ha'Kol is not "Chashid a'Mamona;" see following Insight. Perhaps such a Shevu'ah will even be given the severity of a Shevu'ah d'Oraisa, since it is "k'Ein d'Oraisa." This would answer the question of Tosfos 3b, DH b'Chulei.)

(c) The MAHARAM SHIF answers that the Gemara preferred to prove that one who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa" from the Shevu'ah of "Chenvani Al Pinkaso," rather from the other Shevu'os ha'Nishba'in v'Notlin, because in this case not only do we suspect one party of stealing, but we can even be *certain* that one of the two is stealing.

The TORAS CHAIM offers a similar answer and adds that this is the reason why Rashi (DH Neima) points out that in this case one of the defendants is *certainly* ("Vadai") "Chashid a'Mamona."

QUESTIONS: Rebbi Yochanan (5b) maintains that one who is "Chashid a'Mamona" (suspected of stealing) is not "Chashid a'Shevu'asa" (suspected of swearing falsely). The Gemara here provides support for this view from the fact that we make a person swear a Shevu'as Heses, even when he is Kofer ha'Kol and there is suspicion that he might be lying and trying to steal. Abaye argues with Rebbi Yochanan and says that even if one who is "Chashid a'Mamona" is "Chashid a'Shevu'asa," the Shevu'ah of our Mishnah is still appropriate since we suspect that the person who grabbed the Talis was collecting it as payment for an old loan that he thinks the other person might have owed him ("Safek Milveh Yeshanah"), but he is not intending to steal it (and therefore he will not swear falsely).

(a) How does the Gemara prove that one who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa" from Shevu'as Heses any more than this can be proven from our Mishnah itself? The Mishnah itself states that a person must swear that the Talis belongs to him, which shows that a person suspected of taking a Talis that is not his is trusted to make a Shevu'ah!

One might suggest that the Gemara prefers to prove that he is not "Chashid a'Shevu'asa" from the case of Shevu'as Heses, since the Shevu'ah of our Mishnah might be because of a Safek Milveh Yeshanah, as Abaye suggests, and not because he is "Chashid a'Mamona" that he might be intending to steal. However, this does not suffice, because Abaye's reasoning can also explain why we administer a Shevu'as Heses without suspecting that the person is trying to steal! The person who denied the claim might have taken the object that he took as payment for an old loan, as TOSFOS (DH Safek) explains. What, then, does the Gemara prove from Shevu'as Heses that it could not prove from our Mishnah?

(b) According to both Rebbi Yochanan and Abaye, it is clear that a person may make a Shevu'ah that he did not take unjustly what is not his. Rebbi Yochanan allows a Shevu'ah because one who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa," and Abaye allows a Shevu'ah because the defendant might be taking the object as payment for a Safek Milveh Yeshanah, and he is not "Chashid a'Mamona." (Abaye's logic would seem to apply to any case in which a person takes money from someone else.)

Why, then, does RASHI write in a number of places (3b, DH v'Hai; Gitin 51b, DH uv'Chulei) that a person cannot make a Shevu'ah to deny a claim of someone else that he is taking money unlawfully, since one who is "Chashid a'Mamona" is "Chashid a'Shevu'asa?" Rashi writes this not only as the Havah Amina of the Gemara (see Tosfos 3b, DH Aval), but even according to the Gemara's conclusion and the Halachah! (TOSFOS 3b, DH b'Chulei)

ANSWERS:

(a) We cannot prove conclusively from our Mishnah that one who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa" since the Gemara earlier (2b) explains that in both cases of the Mishnah -- the case of Metzi'ah and the case of a sale (Mekach u'Memkar) -- it is possible that the defendant is taking what is not his because he is Moreh Heter. Since he is not doing an outright act of stealing, we do not suspect him of swearing falsely.

Rashi alludes to this (5b, DH v'Neima) when he writes that the Gemara infers that one who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa" from the wording of Rebbi Yochanan and not from the words of our Mishnah. From our Mishnah itself, we cannot prove this rule, since, in the case of the Mishnah, they might not be "Chashid a'Mamona." (See SHITAH MEKUBETZES in the name of MAHARI ABUHAV and MORI HA'RAV; see also RAN and RAMBAN on 2b.)

(b) As Tosfos implies there (3b, DH b'Chulei), Rashi maintains that although, mid'Oraisa, when a person is "Chashid a'Mamona" he is not trusted to swear, nevertheless the Chachamim did allow him to swear a Shevu'ah d'Rabanan. The reason for this is either because the Rabanan saw that in later days people recognized the severity of swearing falsely more than they recognized the severity of stealing, and therefore they can be trusted to swear. Alternatively, according to Abaye, it is because the Rabanan took into account the minute possibility that the thief is not really a thief but is merely attempting to reclaim a Safek Milveh Yeshanah.

All of the proofs cited by the Gemara to show that a person may swear even when he is "Chashid a'Mamona" are from Shevu'os that the Rabanan instituted, and that the Torah does not require: the Shevu'ah of our Mishnah, a Shevu'as Heses, Shevu'os of Nishba'in v'Notlin, and the Shevu'ah of a Shomer who swears that the item is not in his possession.

Tosfos there rejects Rashi's approach for two reasons. He proves from the Gemara in Shevu'os that we can apply Halachos that normally apply only to Shevu'os d'Oraisa when an Ed Echad testifies that the object that a person is holding belongs to someone else. (We answered this question earlier, on 5b.)

Tosfos also questions Rashi's approach from the Shevu'ah that a Shomer must make that he was not "Shole'ach Yad b'Pikadon," which is a Shevu'ah d'Oraisa. Rashi (here DH she'Lo Shalachti, and on 5a, DH v'ha'Gazlan) answers this question by pointing out that "she'Lo Shalachti Bo Yad" does not mean that "I did not take the Pikadon for myself" (or that "I did not eat it," as Rabeinu Tam explains in Tosfos DH Shevu'ah). Rather, it means that "I did not use the Pikadon without permission." If the Shomer uses the Pikadon without permission, then even if he returns it to its former place, he becomes obligated from that point on to pay for any damage even when the object becomes damaged by an Ones. Therefore, the only practical difference between when a Shomer is Shole'ach Yad and when he is not exists when the object is destroyed by an Ones. If he was Shole'ach Yad, he must compensate the owner even though he is a Shomer Chinam (or Shomer Sachar). However, if the Shomer denies owing compensation to the owner for an Ones, he might be attempting to stall for time ("Mishtamet"), since the payment that he owes is like a debt, and not a specific object, and thus he is considered to be denying a debt and not a specific object.

What about the moment at which he used the Pikadon and was Shole'ach Yad? At that moment he certainly was stealing! Why does that not make him "Chashid a'Mamona?"

The RAMBAN here answers that using a Pikadon would not make a Shomer become "Chashid a'Mamona" since he is Moreh Heter and says that he will return it to its place as soon as he is finished using it.

6b

QUESTION: The Gemara asks what the Halachah would be if one of two people holding on to a Talis was Makdish the Talis. If we say that in a case where one person grabs it away from the other we allow him to keep the Talis (because the silence of his opponent is considered admission that the Talis is not his), then what will be the Halachah if one of the contestants is Makdish the Talis? Is that like grabbing it or not (such that the silence of the other one is considered admission that it is not his)?

The Gemara (7a) asks a similar question regarding a bathhouse over which two people were quarreling, and one of them was Makdish it. Do we say that it is Kadosh or not? Rav Hamnuna attempts to prove that it *is* Kadosh from a Mishnah that states that a Safek Bechor is Kadosh and is therefore Asur b'Gizah v'Avodah, because if a Kohen would seize it, we would allow him to keep it. (The Gemara assumes at this point that the Kedushah of a Bechor stems from the fact that it belongs to the Kohen and is his property.) The Gemara rejects this and says that the Kedushah of a Bechor is not related to the Kohen, but is independent of the Kohen.

When the Gemara says that if one of the two people grab the Talis from the other (and the other is silent at first and then later protests) then we let him keep it, the Gemara explains that we view the silence of the opponent who did not react to the Talis being grabbed away from him as an admission to the fact that the Talis is not his. (Some Rishonim learn that it is not an admission that the other person owns it, but it is a sign of agreement to give it to him *from now on*.)

Presumably, when the Gemara says that making it Hekdesh is comparable to physically grabbing the Talis, we are also dealing with the question of whether or not the silence of the opponent -- when he hears the other person making it Hekdesh -- is considered an admission, and it is discussing a situation where he was first silent and then protested. How, then, can we prove that silence to one who makes it Hekdesh is considered an admission that the Talis does not belong to him from the case of a Safek Bechor? The case of a Safek Bechor is a case in which neither the Kohen nor the Yisrael can know whether the animal is Kadosh or not (see Rashi, DH Echad Bechor Adam)! In such a case, how can the silence of the Yisrael be an admission that it does not belong to him? In addition, in the case of a Safek Bechor, the animal is Kadosh even if the Kohen never says a word, and even if the Yisrael protests the Kedushah! How, then, can the Yisrael's silence be considered an admission?

ANSWERS:

(a) TOSFOS (6a, DH Hikdishah) explains that although the question of "Hikdish Talis" involves only a question of whether Hekdesh is like Hoda'ah, admission, the question regarding the case of the bathhouse which one of the contestants was Makdish involves an additional question. When two people argue over the ownership of a bathhouse, since they are not holding it, the Halachah -- according to Tosfos, is "Kol d'Alim Gavar" (the stronger one, who takes possession of it, prevails). Therefore, even if the silence of the opponent is not considered to be an admission, perhaps the act of making it Hekdesh is considered to be a way of overpowering the other party. For that reason, just as when one of the contestants takes possession of the bathhouse for himself it is considered fully his and he may be Makdish it, so, too, when he is Makdish it without grabbing it, it is considered fully his and it becomes Kadosh. (The Kedushah and the grabbing are considered to occur simultaneously, "Ba'in k'Achas;" see RITVA, end of DH Im Timtzi Lomar.)

It is this question that the Gemara is attempting to resolve from the Halachah of Safek Bechor. The Gemara thinks that the Kedushah of the Bechor stems from the ownership of the Kohen, and since if the Kohen overpowers the Yisrael and takes the Bechor it becomes his, therefore even if he does not physically overpower the Yisrael and take the Bechor, the Bechor becomes Kadosh because of the Kohen's rights to ownership.

How is this related to the question of the Gemara regarding one who was Makdish the Talis? Tosfos explains that the Gemara's proof -- that silence when the other makes the Talis Hekdesh is considered an admission -- is from the conclusion of the Gemara (7a) regarding the Halachic ruling in the case of the bathhouse. The Gemara there concludes that the bathhouse did not become Kadosh. From this we see two things. First, we see that making something Hekdesh is not considered a form of overpowering one's opponent, even where the Halachah is "Kol d'Alim Gavar." Second, we see that the silence of one of the contestants is not considered an admission when the other party is Makdish the object.

(b) The RITVA writes that the Gemara is simply proving whether Hekdesh has the same power as physically grabbing the item. Even though -- with regard to the Safek Bechor -- Hekdesh cannot prove the ownership of the Kohen the same way that it can prove the ownership of one of the contestants of the Talis, nevertheless we do see from the case of Safek Bechor that in a situation where seizing can acquire an object for someone, Hekdesh can also take effect. Similarly, with regard to an object in doubtful ownership such as the Talis, if grabbing the object can determine the ownership of the object, then so, too, Hekdesh can also take effect. (The proof is not absolute, but rather "Dumya b'Alma Nakat," as the Ritva writes.)

(c) The CHIDUSHEI HA'RAN explains that if grabbing the Talis can determine the ownership of the Talis, then we see that even an act which does not provide clear proof of ownership (since the opponent was silent and then later protested, and he was not silent the entire time) can determine the true owner of the Talis. This demonstrates that we do not assume that each of the parties definitely owns half of the Talis (as the Gemara mentions on 3a; see Insights to 2b). Rather, we assume that when two people enter Beis Din holding a Talis together, the ownership of the entire Talis is in question in the eyes of the court. Since it is possible that the entire Talis belongs to the one who later grabs it, even the questionable proof of silence in the face of seizure is sufficient to determine that the one who seized it is the true owner.

The Gemara, therefore, asks what the Halachah will be if one of the people holding the Talis is Makdish is. Do we say that Hekdesh takes effect mi'Safek because the one who was Makdish it is a Safek owner, and once it takes effect mi'Safek, we will have to remove it from the hands of the opponent since it might be Kadosh, and Hekdesh is considered to take effect in the entire Talis more than the opponent's hold on it? Or do we say that since the one who was Makdish it was not a true owner and could not prove in court that the Talis belongs to him, it is considered "Eino b'Reshuso" and the Hekdesh does not take effect at all? (This is consistent with the Girsa in our Gemara at the end of 6a which says that one can be Makdish only something that is "b'Reshuso," in his possession. Many of the Rishonim do not have this Girsa.)

According to this explanation, the proof from Safek Bechor is clear. In that case, the Kohen has a Safek ownership of the animal, and yet we see that it can become Kadosh mi'Safek by virtue of his rights of ownership (even though his ownership cannot be proven in court).

This also seems to be the approach of RASHI (see Rashi 6b, end of DH l'Olam, and DH ha'Motzi me'Chaveiro).