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Bava Metzia, 35

1) MAKING THE LENDER SWEAR THROUGH "GILGUL SHEVU'AH"

QUESTION: Rav Huna (34b) rules that whenever a Shomer does not return the Pikadon itself (but he either claims that he is exempt, or he claims that he is Chayav and he returns money in its place), he must swear that the object is not in his possession. Rav Huna bar Tachlifa in the name of Rava challenges Rav Huna's ruling from one of the cases mentioned in the Mishnah in Shevu'os (43a). The Mishnah there presents several scenarios of a lender who lent a Sela to a borrower. The lender received -- and lost -- an item of collateral from the borrower. The lender and borrower now dispute how much the item of collateral was worth. In one of the scenarios there, the borrower lender says that it was worth two Selas, and thus the lender owes *him* one Sela. The lender says that it was worth one Sela, and thus he owes nothing. The Mishnah says that the lender is Patur and does not make a Shevu'ah (since he denies owing anything -- "Kofer ha'Kol"). The Gemara asks that if Rav Huna's ruling is correct, and the lender -- who was a Shomer for the collateral of the borrower -- must swear that the object is not in his possession, then he should also be obligated to swear as to the value of the collateral through the principle of "Gilgul Shevu'ah."

What is the Gemara's question on Rav Huna? The principle of "Gilgul Shevu'ah" should not obligate the lender to make a Shevu'ah how much the object was worth, because he has a "Migu:" if he were lying, he would have said a more effective lie and claimed that the borrower never gave him a collateral in the first place! It is true that the "Migu" does not exempt him from the primary Shevu'ah that he must make (that the object is not in his possession), because it would be a "Migu d'Ha'azah" (that is, he would not have said the more effective lie, because he would have had to be overly brazen to do so). Nevertheless, the "Migu" should exempt him from the Shevu'ah of the "Gilgul Shevu'ah," because he, anyway, is denying that he owes anything when he claims that the collateral was worth a Sela (and thus it seems to require the same degree of brazenness as the claim of the "Migu")! (REBBI AKIVA EIGER, CHASAM SOFER)

ANSWERS:

(a) REBBI AKIVA EIGER and the CHASAM SOFER answer that the "Migu" would not work because it is still a "Migu d'Ha'azah." To claim that he never received any collateral would require an extra degree of brazenness. Even though -- through the claim that he is actually making (that the collateral was worth a Sela) -- he denies owing anything, this claim does not require as much brazenness, because he assumes that the borrower will just think that he was not familiar enough with the object in order to assess its value accurately. He will not think, though, that the lender is a liar. In contrast, if he claims that he never received a collateral from the borrower, the borrower will accuse him of being a liar. Therefore, he prefers not to make that claim, and thus he has no "Migu."

(b) CHIDUSHEI REBBI MEIR SIMCHAH answers that the reason why the "Migu" does not exempt him from the "Gilgul Shevu'ah" is because the lender would not want to make the claim of the "Migu" and say that the borrower never gave him a collateral. Since it is possible that the object indeed was stolen from him, if the lender says that he never received the object, he will not be able to retrieve the object from the Ganav. (I. Alsheich)

35b

QUESTION: The Mishnah states that when someone rents an animal from its owner and then lends it to someone else and it dies in the hands of the Sho'el, the Sho'el pays the value of the animal to the Socher, and the Socher makes a Shevu'ah that the animal died a normal death, and is exempt from paying the owner. Abaye says that the Socher actually "acquires" the animal at the moment of its death, and the reason why he must make a Shevu'ah is merely "in order to appease the owner" so that he not think that the Socher was negligent (Poshe'a) in guarding his animal.

Why does the Gemara need to give a reason for this Shevu'ah? We know that the Torah requires a Shomer to make a Shevu'ah (a "Shevu'as ha'Shomrin") whenever he exempts himself from payment for the Pikadon! We do not need additional reasons such as "to appease the owner!" (Acharonim)

ANSWERS:

(a) REBBI AKIVA EIGER answers that the Shevu'ah that the Socher makes in this case is not a Shevu'ah d'Oraisa. The Shevu'ah d'Oraisa is the primary Shevu'ah of a Shomer, which is a Shevu'ah that the object is not in his possession. The other Shevu'os that a Shomer must make are all because of "Gilgul Shevu'ah." In the case of the Mishnah, the Socher is *exempt* from a Shevu'ah that the object is not in his possession, because the Sho'el himself makes a Shevu'ah (or has witnesses) that the animal died a normal death. Since the Socher has permission to lend out the animal, and since he does not have to make a Shevu'ah that the animal is not in his possession, mid'Oraisa he is exempt from making any Shevu'ah. Hence, the only reason he must make a Shevu'ah here is because he is receiving money from the Sho'el as compensation for the animal, and he is profiting from the property of someone else (i.e. the animal's owner). The Chachamim therefore instituted that he must make a Shevu'ah in order to appease the owner of the animal.

(b) The AVNEI KODESH answers that the Gemara is adding this reason in order to explain why the Socher makes a Shevu'ah according to the view of Rami bar Chama. Rami bar Chama is of the opinion (Bava Kama 107a) that a Shomer does not make any Shevu'ah until he is "Modeh b'Miktzas" and "Kofer b'Miktzas" (the Gemara there explains that the Shomer will only make a Shevu'ah in a case where he was given three animals to watch; one he returns, the other he claims to have lost (Modeh b'Miktzas), and the other he completely denies (Kofer b'Miktzas)). The Mishnah here, though, seems to be clearly discussing only one animal, and, consequently, there should be no Shevu'ah according to Rami bar Chama. Therefore, the Gemara explains that the reason for this Shevu'ah, according to Rami bar Chama, is a Takanah of the Chachamim in order to appease the owner.

(c) The OR SAME'ACH (Hilchos To'en v'Nit'an 1:12) explains that, actually, the "Shevu'as ha'Shomrin" is not like any other Shevu'os d'Oraisa. The reason why the Torah itself requires the Shomer to swear is in order to appease the owner. Hence, the Gemara is explaining the reason why the Torah requires a Shomer to swear. (I. Alsheich)