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Shevuos, 38

1) MULTIPLE "SHEVU'OS" IN ONE STATEMENT

QUESTION: Rebbi Meir and Rebbi Yehudah argue about what statement is considered to contain a single, general Shevu'ah ("Kelal"), and what statement is considered to contain multiple, separate Shevu'os ("Perat"). According to Rebbi Yehudah, the statement, "[Shevu'ah she'Ein Lecha b'Yadi,] v'Lo Lecha, v'Lo Lecha," is considered to be multiple, separate Shevu'os, while the statement, "[Shevu'ah she'Ein Lecha b'Yadi,] Lo Lecha, Lo Lecha," is considered a single Shevu'ah.

Rebbi Meir argues and says that the statement, "Lo Lecha, Lo Lecha," is considered to contain multiple Shevu'os.

Regarding the statement, "v'Lo Lecha, v'Lo Lecha," Rebbi Yochanan and Shmuel dispute what Rebbi Meir maintains. Rebbi Yochanan says that Rebbi Meir maintains that this statement also contains multiple Shevu'os. Shmuel says that Rebbi Meir maintains that this statement is considered to be a single Shevu'ah (the opposite of Rebbi Yehudah's opinion).

Rebbi Yochanan brings support to his understanding of Rebbi Meir's opinion from the Mishnah (36b), which is expressing the view of Rebbi Meir, and which lists as an example of a single Shevu'ah the statement, "Shevu'ah she'Ein Lachem b'Yadi." This implies that had the defendant mentioned each claimant separately -- whether he would have said, "v'Lo Lecha, v'Lo Lecha," or whether he would have said, "Lo Lecha, Lo Lecha" -- his statement would have been considered to be individual Shevu'os.

Shmuel refutes this proof by saying that when a person says, "v'Lo Lecha, v'Lo Lecha," it is *as if* he said, "Shevu'ah *she'Ein Lachem* b'Yadi." Therefore, when the Mishnah says that the statement, "I make a Shevu'ah that I do not owe any of you (she'Ein Lachem b'Yadi)," is considered a single Shevu'ah, the same applies when a person says, "I make a Shevu'ah that I do not owe you, and I do not owe you, and I do not owe you (v'Lo Lecha, v'Lo Lecha)."

Shmuel's rejoinder is problematic. How can Shmuel say that "v'Lo Lecha, v'Lo Lecha" is identical to "she'Ein Lachem b'Yadi," and that is why the Mishnah does not mention "v'Lo Lecha, v'Lo Lecha?" Logically, it is not identical, because Rebbi Yehudah differentiates between the two and says that "v'Lo Lecha, v'Lo Lecha" is considered to be separate Shevu'os! The Mishnah should have taught that "v'Lo Lecha, v'Lo Lecha" is considered a single Shevu'ah according to Rebbi Meir, because that Halachah is not evident from the Halachah that the statement, "she'Ein Lachem b'Yadi," is considered a single Shevu'ah! (RASHBA)

RABEINU CHANANEL explains that Shmuel does not mean that "v'Lo Lecha, v'Lo Lecha" has the same Halachah as "she'Ein Lachem b'Yadi." Rather, Shmuel means that *according to Rebbi Meir* the statement of "v'Lo Lecha, v'Lo Lecha" is equivalent to saying "she'Ein Lachem b'Yadi." That is why Rebbi Meir holds that it is not necessary to point out (in the Mishnah) that "v'Lo Lecha, v'Lo Lecha" is also considered a single Shevu'ah.

The RASHBA also considers this approach, but he rejects it, because the Gemara implies that Shmuel knew for certain that Rebbi Meir considers "v'Lo Lecha, v'Lo Lecha" to be the same as "she'Ein Lachem b'Yadi," and that is why Shmuel does not consider our Mishnah to be a question on his opinion. (If Shmuel simply means that it is *possible* to refute the proof against him from our Mishnah in such a manner, then he should have said "*perhaps* (Dilma) Rebbi Meir holds that one who says 'v'Lo Lecha...' is the same as one who says 'she'Ein Lachem b'Yadi.'" Since he has no qualifying term "perhaps," this implies that it was obvious to Shmuel that Rebbi Meir equates the two statements.)

Where does Shmuel see (besides in our Mishnah) that Rebbi Meir considers it so obvious that "v'Lo Lecha, v'Lo Lecha" is the same as "she'Ein Lachem b'Yadi" that he does not have to mention it in the Mishnah?

ANSWER: Perhaps the answer to the Rashba's question is that Shmuel learned this from the way Rebbi Meir expresses his view in the Beraisa. In the Beraisa, Rebbi Meir states simply that "if a person includes all the denials in a single Shevu'ah (Kalal), then he is liable for only one Shevu'ah, but if he specifies each claimant (Parat), then he is liable for each one separately." Rebbi Meir does not even find it necessary to explain what is considered "Kalal," a Shevu'ah in which multiple claimants are "grouped together," and what is not considered "Kalal.". Why does he not mention that when a person says, "v'Lo Lecha, v'Lo Lecha," he is considered to be grouping the claimants together (just as Rebbi Yehudah in the Beraisa specifies that "v'Lo Lecha, v'Lo Lecha" is considered individual Shevu'os)? From this Shmuel infers that, according to Rebbi Meir, the status of "v'Lo Lecha, v'Lo Lecha" is so obvious that it did not have to be mentioned (in the Beraisa) explicitly. For the same reason, Rebbi Meir does not write the Halachah of "v'Lo Lecha" in our Mishnah. (M. Kornfeld)

38b

QUESTION: The Mishnah teaches that if a person approaches another person and says, "I think that you owe my father money and did not yet pay him back," and the defendant admits to owing half of the amount claimed, the defendant is exempt from a Shevu'as Modeh b'Miktzas, because he is simply "returning a lost object" (Meshiv Aveidah). Since he was not challenged with a claim based on definite knowledge of the facts, it is considered as though he is volunteering the information that he owes a certain amount of money; he is simply doing a favor to the claimant by returning the money, and it is not viewed as though he is denying the part that he does not return.

RASHI explains that we know that the source for not swearing when a person is "Meshiv Aveidah" is the Mishnah in Gitin (48b) which teaches that when one finds an object and returns it to the original owner who then claims that there was another object that he lost together with the first one, the finder is exempt from making a Shevu'as Modeh b'Miktzas because of "Tikun ha'Olam." If we required him to swear, then no one would return lost objects out of fear that they will be forced to swear. Similarly, if we require the defendant to swear in the case of our Mishnah, he would not admit that he owes half (in order to avoid making a Shevu'ah).

The exemption from a Shevu'ah in a case of Meshiv Aveidah is mid'Rabanan, as the words of the Mishnah in Gitin imply ("Mipnei Tikun ha'Olam"), and as Rashi writes in Kesuvos (18a, DH b'Rebbi Eliezer).

Why does Rashi say that the defendant is exempt from a Shevu'ah only mid'Rabanan? He should be exempt mid'Oraisa because of a Migu that he could have denied everything! Normally, one who is Modeh b'Miktzas does not have such a Migu, because he is embarrassed to openly lie to his opponent and deny everything (as the Gemara says in Bava Metzia 3a, and here in Shevuos 42b). However, when his opponent does not know for certain that anything is owed, the defendant will not be embarrassed to deny the entire loan, and thus he should be exempt from a Shevu'ah because of the Migu!

The same question may be asked on Rashi in Bava Metzia (3a, DH Mipnei Mah), who writes that when the Gemara says that the defendant is embarrassed to openly lie to his opponent, it says that in order to explain why Modeh b'Miktzas is not exempt from a Shevu'ah due to the principle of Meshiv Aveidah. There, too, Rashi should have explained that the Gemara is explaining why Modeh b'Miktzas is not exempt from a Shevu'ah because of a Migu. After all, the Gemara there is explaining "why the Torah obligates one who is Modeh b'Miktzas to make a Shevu'ah." The logic by which we would think to exempt the person from a Shevu'ah must be an exemption that is mid'Oraisa, and not just Meshiv Aveidah which is mid'Rabanan. (TOSFOS Shevuos 42a, DH v'Rebbi Eliezer, and Bava Metzia 3a, DH Mipnei, and Kesuvos 18a, DH v'Rebbi Eliezer.)

The same question might be asked about the Mishnah in Gitin itself that teaches that one who is Meshiv Aveidah is exempt from a Shevu'as Modeh b'Miktzas because of a Takanah d'Rabanan.

However, the other Rishonim (see, for example, RASHBA and TOSFOS HA'ROSH in Gitin 51a) explain that the Mishnah is exempting one who is Meshiv Aveidah even when the owner presents a claim of certainty ("Ta'anas Bari") and when the finder does not have a "Migo" (for example, when the owner claims to have witnessed the finder finding the object in question). In contrast, Rashi there and in our Sugya explains that the Mishnah there is discussing a claim of uncertainty ("Ta'anas Shema"), in which case the finder will not be embarrassed to deny the entire claim. According to Rashi, the question arises, why does the Mishnah in Gitin exempt one from a Shevu'ah in such a case because of the Migu?

ANSWER: The PNEI YEHOSHUA (in Bava Metzia 3a) and others explain that Rashi apparently accepts the opinion of the RI MI'GASH, cited by the ROSH here (7:3). The Ri mi'Gash says that although a Migu is able to exempt a person from payment, it does not suffice to exempt a person from an obligation to make a Shevu'ah. (The case in which the Migu will not exempt him from a Shevu'ah is as follows: A person claims that he made a partnership with his friend and stipulated at the time that either partner may force the other to swear even in response to a "Ta'anas Shema." If he then tells his friend who, he claims, was his partner, that he wants him to swear that he did not take more than his share, and the friend admits that he was a partner in the venture, the friend must swear. He is not exempt from a Shevu'ah because of a Migu that he could have denied the entire partnership (as there are no witnesses to support the claim of partnership), because a Migu does not exempt him from a Shevu'ah.)

The Ri mi'Gash proves this point from the fact that one who is Modeh b'Miktzas must make a Shevu'ah even though he has a Migu (that he could have denied everything). The Rosh refutes this proof by pointing out that the Gemara itself says that one who is Modeh b'Miktzas has no Migu because he is embarrassed to deny the entire claim! Apparently, the proof of the Ri mi'Gash is from the Mishnah in Gitin, which says that one who is Meshiv Aveidah is exempt from a Shevu'ah only because of a Takanah d'Rabanan, even though in that case there *is* a Migu (since the defendant, in that case, is not embarrassed to deny the entire claim).

Accordingly, this might be the opinion of Rashi as well, and that is why Rashi exempts the defendant from a Shevu'ah in the case of our Mishnah only because of Meshiv Aveidah. (It is not clear why the Ri mi'Gash does not explain that, in the case that he gives, the partner is exempt from swearing because of the principle of Meshiv Aveidah.)

The Rosh asks further why a Migu should not suffice to exempt a person from a Shevu'ah. The whole purpose of a Shevu'ah is to prove whether or not the defendant owes money, and by refusing to swear he will have to pay. If a Migu provides enough evidence to support the claim of the defendant with regard to the money, then no Shevu'ah should be required!

Perhaps the Ri mi'Gash and Rashi understand that a Migu can exempt a person from paying money when he is not required to swear, since the defendant has no other way to prove his claim. However, when the defendant is obligated to swear, the Migu will not exempt him from a Shevu'ah since it is possible to prove his claim through the Shevu'ah. We look at the situation as a case in which the doubt can be resolved through other means ("Davar she'Efshar l'Varer") and we do not rely on the Migu.

How will we explain the words of Rashi in Bava Metzia, where he writes that the Gemara is suggesting that one who is Modeh b'Miktzas should not be obligated to make a Shevu'ah mid'Oraisa because of the principle of Meshiv Aveidah (if not for the fact that the defendant is embarrassed to deny everything)? How can Meshiv Aveidah exempt a person from a Shevu'ah d'Oraisa?

The answer might be that if the Torah has reason to require a Shevu'as Modeh b'Miktzas in a normal case (when there is no Migu or Meshiv Aveidah), then it is understandable that the Torah applies a blanket rule, obligating a person to make a Shevu'ah even when he is Meshiv Aveidah. The Torah does not take into account that the person might not admit even to half when he is Meshiv Aveidah and exempt himself from a Shevu'ah, because the Torah was applying a general rule that applies to all cases, and in most of the cases in which the rule applies there is no concern that the defendant will lie about the first half. However, if every case of Modeh b'Miktzas would be considered to be a case of Meshiv Aveidah, then the Torah would certainly not have created such a Shevu'ah, because of the concern that the person would lie about the first half in all cases of Modeh b'Miktzas.

In other words, although Meshiv Aveidah is not sufficient cause for the Torah to *exempt* a person from a Shevu'ah when he is obligated to swear, nevertheless it does provide sufficient reason for the Torah *not to obligate* a person to make a Shevu'ah in the first place. (M. Kornfeld)