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Shevuos, 34

1) GIVING "HASRA'AH" WITHOUT SEEING THE CRIME

QUESTION: A Beraisa relates that Rebbi Shimon ben Shetach saw a person chasing someone else into a ruined building. He ran after them, and when he reached them he saw the pursuer holding a sword with blood dripping from it, and he saw the victim convulsing. He declared, "Rasha! Who killed him? Either I did, or you did! But what can I do [to you], as your blood is not given over to my hand, because the Torah says, 'Al Pi Shenayim Edim O Sheloshah Edim Yumas ha'Mes' -- 'By the testimony of two witnesses or three witnesses, shall he who deserves death be put to death; but by the testimony (lit. mouth) of one witness he shall not be put to death' (Devarim 17:6). Rather, Hashem shall collect from you!" Immediately, a snake came and bit the murderer, and he died.

Why did Rebbi Shimon ben Shetach state that the only impediment to bringing the murderer to justice was that there were not two witnesses? Even if Rebbi Shimon ben Shetach had witnessed the murder with another person, Beis Din would not have been able to punish the murderer, since the murder was given no Hasra'ah (warning)! Why is the lack of Hasra'ah not mentioned?

ANSWERS:

(a) The RASHBA and RAMBAN answer (in their second explanation) that the murderer was a learned person who already knew the Halachah. Rebbi Shimon ben Shetach followed the opinion of Rebbi Yosi (Makos 6b) who ruled that a learned person does not need Hasra'ah in order to be punished for a wrongdoing. This is also the answer of TOSFOS here (DH Al Pi Shenayim Edim).

(b) The Rashba and Ramban answer (in their first explanation) that Rebbi Shimon ben Shetach *did* warn the murderer not to kill while he was running after him. The Beraisa simply does not mention that detail of the incident.

TOSFOS in Sanhedrin (37b) questions this answer. The Gemara here is trying to show that according to Rebbi Yosi ha'Glili, a person should be able to testify as a in court about an event hat he *knows* happened, even though he did not actually see the event happen (as was the case in the incident involving Rebbi Shimon ben Shetach). This testimony should suffice to incriminate a murderer and have him put to death. However, according to this answer of these Rishonim, this should not be true. The Halachah states that the Hasra'ah given to a sinner must be within "Toch Kedei Dibur" of the sin. How could witnesses who do not actually see the event know whether or not a warning was given within that amount of time before the sin? Tosfos therefore concludes that the correct answer is the first one, that the situation (of testifying based on knowledge of the event) must involve a learned person who does not need a warning.

The AYELES HA'SHACHAR explains that the Rishonim here are arguing about a basic element of Hasra'ah. Tosfos maintains that when the Torah requires that Hasra'ah be given immediately before the Aveirah, it means that the Hasra'ah must be given immediately before the actual sin is committed. The Rashba and Ramban argue that as long as the person is running towards doing the Aveirah, warning immediately before the *running* is also considered immediately before the Aveirah and constitutes a proper Hasra'ah. This is why Tosfos' difficulty does not bother them; they maintain that the Hasra'ah is valid even when the witnesses warn the potential sinner when he starts to run towards his sin. (We are not concerned that the potential sinner will decide to desist, and then change his mind again and commit the sin without Hasra'ah in such a short period of time.) (Y. Montrose)

34b

QUESTION: Rav Yehudah asked (34a) what the Halachah is when a person gave money to someone else in front of witnesses, and the recipient of the money was unaware that there were witnesses watching the transaction. Likewise, the witnesses themselves were unaware of the nature of the transaction; they only saw money pass from one person to the other.

Rav Hamnuna answered that the Halachah depends on the response of the recipient of the money to the claimant's claim. If he says, "I never had such a transaction with you," then he is disqualified from taking an oath and he must pay, because we know he is lying. If he responds, "I took from you money that rightfully belonged to me," the witnesses do not help the claimant's case, and the recipient may keep the money. Does this imply that we assume that when a person gives someone else money, it is a given as a gift unless he specifies otherwise?

ANSWERS:

(a) The RAN in Kidushin (page 3a of the pages of the Rif, DH Ten Manah l'Ploni (A)) says that giving money without specifying a reason constitutes a gift. The Gemara in Kidushin discusses a case in which a man gave money of Kidushin to a woman, and the woman said that she was accepting Kidushin from him. The Gemara discusses whether or not this is a valid act of Kidushin. The Ran asserts that the woman's statement must be made before the money of Kidushin is given. If witnesses see the man give something to the woman before anything is said, they must assume that the money or item is merely a gift. Even if the woman proclaims afterwards that she intended to receive the money as Kidushin, the money cannot have the status of anything more than a gift, as we see from our Gemara.

(b) The RASHBA argues that when such an unspecified transaction occurs it is considered a *loan* and not a gift.

The KETZOS HA'CHOSHEN (363:9) refutes the Ran's proof from our Gemara that an unspecified transaction is considered a gift. Our Gemara is discussing an argument regarding the purpose of the giving of the money. The witnesses have no testimony to give in response to the recipient's claim that he received the money as a gift. This does not prove that an act of giving is considered a gift even in a case in which the parties involved do not argue about the purpose of the giving. (Y. Montrose)

QUESTION: Rav Yehudah asked (34a) what the Halachah is when a person gave money to someone else in front of witnesses, and the recipient of the money was unaware that there were witnesses watching the transaction. Likewise, the witnesses themselves were unaware of the nature of the transaction; they only saw money pass from one person to the other.

RASHI and TOSFOS give different reasons for why Rav Yehudah specifically asked about a case in which the witnesses were standing outside. According to Rashi, Rav Yehudah wanted the case to be one in which the *recipient* did not realize that there were witnesses. According to Tosfos, Rav Yehudah wanted the case to be one in which the *witnesses* were unaware of the nature of the transaction.

Are Rashi and Tosfos arguing, and if they are, what is the basis of their argument?

ANSWER: The CHESHEK SHLOMO understands that Rashi and Tosfos are arguing, and their respective opinions here are based on another argument. The SEFER HA'TERUMAH (Sha'ar 11) says that if the witnesses in this case heard the recipient say during the transaction that he is taking the money as a loan, the recipient can still claim that he received it as a gift. The recipient can claim that when he said he was taking the money as a loan, he merely wanted to appease the giver and persuade him to hand over money that rightfully belonged to him.

Why, though, is every borrower not entitled to make this claim? When there are witnesses present, a person knows that what he says will be understood at face value, and he knows that he will not be believed later to claim that what he said was not true. Once a loan is discussed and money passes hands in front of witnesses, the transaction is considered a loan. In contrast, in a case in which the recipient was not aware that witnesses were watching, he is believed to say that he was merely trying to persuade the giver to give him money that he was owed.

Rashi rules like the Sefer ha'Terumah. Thus, in Rav Yehudah's case, in order for the recipient to be believed to say that the money belongs to him even when he stated at the time of the transaction that he was borrowing the money, the witnesses must be outside so that the *recipient* not be aware of them. Tosfos, on the other hand, does not agree with the Sefer ha'Terumah (and he holds that the recipient is *never* believed to say that he did not mean that he was borrowing the money even though he said so at the time of the transaction), and, therefore, he gives a more basic reason for why the witnesses had to be outside -- so that they would not know whether the transaction was a loan or a gift. (Y. Montrose)