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1) DO WE SWEAR ON HEILACH?

(a) (Rami bar Chama): The 4 watchmen - a free watchman, borrower, paid watchman, and renter - only swear when they partially deny and partially admit to the claim.
(b) Question: What is the case?
(c) Suggestion: He said, Heilach (here is what you deposited by me).
(d) Rejection: No - Reuven said, 'I deposited 3 cows by you, all died through your negligence'; Shimon said, 'You only deposited 2 - 1 died through Ones, the other died through negligence, I owe you for it.' -this is not Heilach.
(e) Question (against R. Chiya's first law - R. Aftoriki's father - Beraisa): Reuven told Shimon 'You owe me 100'; Shimon denied the entire claim, witnesses testify that he owes 50. One might have thought that he must swear on the rest - "That he will say, this is it" - he only swears on account of his own admission, not through witnesses.
(f) Answer: R. Chiya is a Tana, he argues on the Beraisa.
(g) Question: But a verse supports the Beraisa!
(h) Answer: The verse teaches that he only swears when he partially admits to the claim.

1. R. Aftoriki's father says we can learn both laws, for it says "this" and "is it".
2. R. Chiya says, the 2 laws we learn are (1) he only swears by partial admission, and (2) the admission must be of the same species as was claimed.
3. R. Aftoriki's father holds that the admission need not be of the same species as was claimed, as R. Gamliel.

i. (Mishnah): Reuven claimed wheat from Shimon, Shimon admitted that he owed him barley - Shimon is (totally) exempt;
ii. R. Gamliel says, he must swear.

(a) Reuven was a shepherd; every day people used to deposit animals by him with witnesses. One day they gave him without witnesses; he denied receiving the animals. Witnesses testified that he ate 2 of the animals.
(b) R. Zeira: If we hold as R. Chiya's first law, Reuven must swear about the rest.
(c) Abaye: He is a thief, we do not allow him to swear!
(d) R. Zeira: I meant, (because he cannot swear,) the claimants against him swear and receive.
(e) Question: Even if we do not hold as R. Chiya's first law, he should be obligated to swear on account of Rav Nachman's law!'

1. (Mishnah): Levi claimed 100 from Shimon, who denied it - he need not swear.
2. (Rav Nachman): We make him swear Heses (an oath that Mesis (entices) him to admit).

(f) Answer: The oath of Heses is a Rabbinic enactment - we do not make an enactment (that if the defendant cannot swear, the claimant swears and collects) on an enactment.

(g) Question: Why did Abaye say that he cannot swear because he is a thief - any shepherd does not swear!

1. (Rav Yehudah): Shepherds are assumed to be disqualified (from testimony and swearing).

(h) Answer: That is by shepherds who watch their own animals (they graze them in other people's fields); one who watches animals of others is not suspected.

1. Support: If we would not say this - how could people give animals to shepherds to watch - "Do not put a stumbling block in front of a blind person"!
2. Rather, they are not suspected - a Chazakah says that a person does not sin solely for someone else's benefit.

(a) (Mishnah): Reuven swears that he does not own less than half...
(b) Question: He should swear on what he owns, not on what he does not own!
(c) Answer (Rav Huna): He swears that he owns part of it, and that he does not own less than half.
(d) Question: He should swear that he owns all of it (as he claimed)!
(e) Answer: If so, it would seem improper that Beis Din only gives him half.
(f) Question: He should swear that he owns half!
(g) Answer: That would seem like a retraction of his claim that he owns it all.
(h) Question: The text of the oath of the Mishnah is also like a retraction!

1. Counter-question: Since each is holding half (each has a Chazakah on half) - do they swear at all?
2. Answer (R. Yochanan): The oath of our Mishnah is a Rabbinic enactment, in order that people will not grab onto others' property and claim it.

(a) Question: We should say, since he is suspected of trying to steal, he is suspected to swear falsely!
(b) Answer: We do not say that one suspected of trying to steal is suspected to swear falsely.

1. Support: If we would say this - one who partially denies a claim should not swear!
2. Rejection: There he is not suspected of trying to steal - he merely wants to stall until he can pay, as Rabah taught.

i. Support (of Rejection): Rav Idi bar Avin taught, one who denies a loan is not disqualified from testifying; one who denies a deposit is disqualified from testifying.

3. (The Gemara now assumes that one suspected of stealing is suspected to swear falsely and challenges this).

(c) (Rami bar Chama): The 4 watchmen - a free watchman, borrower, paid watchman, and renter - only swear when they partially deny and partially admit to the claim.
(d) Question: We should say, one suspected of stealing is suspected to swear falsely!
(e) Answer: There he is not suspected of stealing - he merely wants to stall until he finds the thief (if it was stolen) or finds the animal (if it was lost).
(f) Question: If so, why is one who denies a deposit disqualified from testifying - we should say, he is just stalling!
(g) Answer: We only say that he is disqualified from testifying when witnesses testified that when he denied it, he knew that it was in his house, or he was holding it.
(h) (Rav Huna): A watchman who says that the deposit was stolen and wants to pay, he must swear that it is not in his domain (we suspect that he wants to pay for it and keep it).
(i) Question: We should say, one suspected of stealing is suspected to swear falsely!
(j) Answer: There, he does not consider this theft - he justifies himself, for he pays for it.
(k) Question (Rav Acha mi'Difti): He transgressed "Do not covet" (this should disqualify him from swearing)!
(l) Answer (Ravina): People think that that is only when one tries to steal the object for free.
(m) (Rav Nachman): (One who fully denies a claim) must swear Heses.
(n) Question: We should say, one suspected of stealing is suspected to swear falsely (and also regarding the next 2 laws)!

1. (R. Chiya): Both the grocer and the workers swear and collect from the employer.
2. (Rav Sheshes): A free watchman who says that the deposit was stolen, he must make 3 oaths: that he was not negligent, that he did not taking a deposit for one's own use, and that it is not in his domain.

(o) Answer: We do not say that one suspected of stealing is suspected to swear falsely.