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Shevuos, 33

1) THE OBLIGATION OF "SHEVU'AS HA'EDUS" IN A CASE OF "KENAS"

QUESTION: The Gemara asks whether the obligation to bring a Korban Shevu'as ha'Edus applies to witnesses who falsely deny, with a Shevu'ah, knowing testimony in a case of a "Kenas" (monetary penalty). The Gemara says that this is not a question according to the view of Rebbi Elazar bar'Rebbi Shimon. He maintains (Bava Kama 75a) that a person's admission that he is obligated to pay a Kenas absolves him ("Modeh b'Kenas Patur") only as long as witnesses do not come and testify that he is obligated. According to Rebbi Elazar bar'Rebbi Shimon, the witnesses who falsely swear that they do not know that a person owes a Kenas certainly will be Chayav to bring a Korban Shevu'as ha'Edus, because the person's obligation to pay depends upon their testimony.

The Rabanan, though, argue with Rebbi Elazar bar'Rebbi Shimon. They maintain that once a person admits that he owes a Kenas, he is exempt forever, even if witnesses later come and testify that he owes the Kenas. The Gemara is asking whether the Chiyuv of a Korban Shevu'as ha'Edus applies, according to the Rabanan, to witnesses who falsely swear that they do not know that a person owes a Kenas (before that person admits that he owes it).

Perhaps the witnesses should not be Chayav, because their testimony might be worthless: if the person admits that he owes the Kenas before they testify, then their testimony cannot obligate him. On the other hand, perhaps they *should* be Chayav, because as long as the person does not admit to the Kenas, their testimony can obligate him to pay, and thus they should still be liable for withholding testimony.

The Gemara attempts to prove from the Mishnah that denial of testimony regarding a Kenas obligates the witnesses to bring a Korban. The Mishnah says that when witnesses swear falsely that they do not know testimony in a case of Chatzi Nezek (when a person's Shor Tam gored another person's Shor), they are obligated to bring a Korban. According to the opinion that maintains that Chatzi Nezek is a Kenas, the Mishnah should be a proof that the witnesses are Chayav even in a case of Kenas. The Gemara refutes this proof, saying that the Mishnah's case of Chatzi Nezek is not referring to a Shor Tam that gored another Shor, but rather to a case of damage done through Tzeroros (damage caused by an animal's body indirectly, such as by kicking up pebbles which cause damage), which everyone agrees is not a Kenas but a normal monetary payment of Chatzi Nezek.

The MISHNEH L'MELECH (Hilchos Geneivah 3:8-9) asks a strong question on this Gemara from the Gemara in Bava Kama (75a). The Gemara there teaches that when the Rabanan state that a person's admission exempts him from paying a Kenas even if witnesses later testify that he owes the Kenas, this exemption applies only when his admission also *obligates* him to pay something. For example, when a person admits that he stole an item, he exempts himself from the Kenas of Kefel (paying back double the value of what he stole), but he obligates himself to pay back the object that he stole. Without any admission that obligates him, even the Rabanan agree that his admission that he owes a Kenas exempts him only as long as no witnesses come to testify. If witnesses come to testify that he owes the Kenas, his exemption is no longer binding and he must pay.

According to the Gemara there, how does the Gemara here prove that, according to the Rabanan, witnesses must bring a Korban Shevu'as ha'Edus in a case of Kenas? If they deny testimony in a case in which their testimony would have obligated the defendant to pay both a Kenas and an ordinary monetary payment, then they should be obligated to bring a Korban Shevu'as ha'Edus for withholding testimony about the monetary payment! If, on the other hand, they deny testimony in a case in which their testimony would have obligated the defendant to pay *only* a Kenas, then they should be obligated to bring a Korban Shevu'as ha'Edus because their testimony would have obligated the defendant to pay the Kenas, since his admission would *not* have exempted him after they testify!

Furthermore, why does the Gemara refute the proof by saying that the Mishnah is discussing a case of Tzeroros? Even if it is referring to a case of a Shor Tam that gored (the Chatzi Nezek of which is a Kenas), the Rabanan would still say that he will be obligated to pay when witnesses come, because his admission did not include any obligation to pay ordinary monetary compensation!

ANSWERS:

(a) The MISHNEH L'MELECH points out that when the Gemara in Bava Kama states that the exemption from paying Kenas through admission applies only when his admission also *obligates* him to pay something, it is addressing the view of Rav. (Rav argues with our Gemara and maintains that even Rebbi Elazar bar'Rebbi Shimon agrees to the Rabanan that a person who admits to a Kenas remains exempt from paying; their argument involves a different point.) According to Shmuel, though, perhaps the Rabanan exempt a person who admits to a Kenas even after witnesses come, even if the person did *not* obligate himself to pay something through his admission.

The Mishneh l'Melech himself points out, however, that this answer is not consistent with the view of the RAMBAM, who cites (in Hilchos Shevu'os 9:4) the conclusion of our Gemara (that witnesses who deny knowing testimony do not bring a Korban in a case of Kenas, since the person could admit that he owes the Kenas and thereby render their testimony useless) even though he rules in accordance with Rav.

The SHA'AR HA'MELECH (Hilchos Avadim 5:17) adds that the Mishneh l'Melech has no basis whatsoever to presume an argument between Rav and Shmuel about whether the Rabanan exempt a person after witnesses come only if he obligated himself, or even if he did not obligate himself at all. Their argument pertains to an unrelated matter (that is, whether or not Rebbi Elazar bar'Rebbi Shimon agrees that when a person admits to a Kenas he remains exempt after witnesses come). Why should we assume that they also argue about when the Rabanan exempt a person after witnesses come?

(b) The MEROMEI SADEH offers a different explanation for the Gemara in Bava Kama. When the Gemara there says that the Rabanan agree that one is *obligated* to pay the Kenas when witnesses come after his admission in a case where his admission did not obligate him to pay anything, it is referring to a case in which there *is* another monetary obligation. In a case where there is *only* a Kenas and *no* other obligation (such as Chatzi Nezek), the person's admission *will* exempt him even after witnesses come. This answers why witnesses who deny knowing testimony about a Kenas in a case where their testimony would obligate the defendant to pay *only* a Kenas (and nothing else) would not have to bring a Korban. This also explains why our Gemara says that the case of Chatzi Nezek in the Mishnah is a case of Tzeroros. (See Insights to Makos 5a, where we cited a similar opinion of the YAM SHEL SHLOMO to explain the words of Rashi there.)

33b

QUESTION: The Mishnah states that when witnesses deny knowing testimony regarding matters involving one's personal status (such as whether he is a Kohen, Levi, Ben Gerushah, or Ben Chalutzah), they are not obligated to bring a Korban Shevu'as ha'Edus. The Gemara says that the reason they are not obligated is because testimony about a person's status does not involve a monetary issue, and the laws of Shevu'as ha'Edus apply only to testimony about monetary matters. This implies that denying testimony that even indirectly involves a monetary obligation *would* obligate the witnesses to bring a Korban Shevu'as ha'Edus. For example, when an uninvolved party makes witnesses swear that they do not know testimony about a loan that took place between two other people, those witnesses can be obligated to bring a Korban Shevu'as ha'Edus.

The Gemara asks that this contradicts the Mishnah later (35a). The Mishnah later states that when witnesses are told by a Shali'ach of the plaintiff to come and testify on his behalf and they swear that they do not know testimony, they are *not* Chayav to bring a Korban. In order to be Chayav to bring a Korban, the witnesses must deny knowing testimony *to the plaintiff himself*. According to the Mishnah here, though, the witnesses *should* be Chayav, because the testimony that they are denying involves a monetary matter! According to the Mishnah later, denial of testimony to a third party, even about a monetary matter, does not obligate the witnesses to bring a Korban!

Shmuel resolves this contradiction by saying that when the witnesses deny knowing testimony to a third party who has a "Harsha'ah" (see Insights to 31:1), they are obligated to bring a Korban. The Mishnah later is referring to a third party who has no Harsha'ah.

This answer is difficult to understand. What difference does having a Harsha'ah make? The Gemara in Bava Kama (70a) says that a Harsha'ah works because the recipient of the Harsha'ah becomes a Shali'ach of the plaintiff. If this is the power of a Harsha'ah, then what is the difference between having a Harsha'ah and being a normal Shali'ach?

ANSWERS:

(a) The RA'AVAD answers that there are different forms of Harsha'ah. The form of Harsha'ah that Shmuel refers to is a Harsha'ah which makes the agent an actual partner of the plaintiff in the monies being sought. Consequently, the agent is in fact the plaintiff. The Gemara itself in Bava Kama mentions this power of Harsha'ah.

(b) Alternatively, the Ra'avad answers that when the Mishnah later says that a witness' denial of testimony to a Shali'ach cannot obligate him to bring a Korban, it is referring to a Shali'ach who is appointed *only* to administer an oath to the witness. Such a Shali'ach is not considered the representative of the plaintiff; rather, he is the plaintiff's vehicle for administering the oath. Such a Shali'ach cannot obligate the witness to bring a Korban. If, however, a person represents the plaintiff in the case, then when the witness denies testimony to that person, he would be obligated to bring a Korban Shevu'as ha'Edus. A Harsha'ah, which works like a Shali'ach, is also capable of obligating the witness.

The RITVA rejects the Ra'avad's answers. If the first answer was Shmuel's intention, then he should have said that the Mishnah which implies that the witnesses *are* Chayav is referring to case in which the plaintiff made the person his partner, instead of saying that the person comes with a Harsha'ah. (Although one form of Harsha'ah makes him a partner, this is not the normal form of Harsha'ah and thus it is unlikely that Shmuel would have used the word in this way.)

The Ritva also rejects the Ra'avad's second answer, that when the Mishnah later mentions a Shali'ach, it is referring only to one who was appointed to administer a Shevu'ah and not to a full representative of the plaintiff. Here, too, the word "Shali'ach" is not being used in its usual way; the simple meaning of "Shali'ach" is a full representative of the sender. If Shmuel meant to say what the Ra'avad says, then he should have differentiated between a Shali'ach appointed merely to administer a Shevu'ah, and a full Shali'ach. Furthermore, the Gemara asks a question from the statement of Neharda'i, who rule that we do not write a Harsha'ah in monetary matters. According to the Ra'avad, Shmuel could have answered that the agent (in the case of our Mishnah) is a full Shali'ach, without mentioning a "Harsha'ah!"

(c) The RITVA answers that when the Gemara in Bava Kama (70a) says that a Harsha'ah works because the person becomes a Shali'ach of the plaintiff, it is not referring to all aspects of a Harsha'ah. The Gemara there is discussing a specific case in which the person holding the Harsha'ah seized money or goods from the defendant. The plaintiff wrote in his Harsha'ah (according to the Ritva's text; see RASHI in Bava Kama there for other opinions) that "anything that comes from this case should be given back to me." This means that the agent does not keep any of the money he retrieves; he is not a partner, but a Shali'ach. The Ritva explains, in the name of the RAMAH, that the Harsha'ah allows the Shali'ach only to use the money as a loan for thirty days, before returning it to the owner (see also RAMBAN in Milchamos, page 27b of the pages of the Rif). The Gemara in Bava Kama is discussing only the rights of the Shali'ach to the money that he retrieved. The Gemara does *not* mean to say that a person who comes with the power of a Harsha'ah is considered like a mere Shali'ach. Rather, he is considered like the plaintiff himself. Shmuel's answer emphasizes that difference.

(d) TOSFOS answers that in the context of our Mishnah, a Harsha'ah refers to a Shali'ach who was given the power to extricate money from the defendant, as opposed to a normal Shali'ach who is merely a representative of the plaintiff.

According to Tosfos, the normal meaning of "Shali'ach" refers to an agent who does *not* have the power to extricate money, while an agent with the power of a Hashra'ah *does* have that power. (This explains why the Gemara asks on Shmuel's answer that we do not write a Harsha'ah for monetary matters.) (Y. Montrose)