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Shevuos, 47

1) A DEFENDANT WHO CLAIMS THAT HE DOES NOT KNOW

OPINIONS: Rebbi Aba rules that in a case in which a person is obligated to take an oath but he is unable to, he must pay the money that is claimed from him. Rava proves Rebbi Aba's opinion from Rebbi Ami's understanding of the verse, "An oath of Hashem shall be between the two of them" (Shemos 22:10). Rebbi Ami explains that the verse is saying that the Shevu'ah applies only when the dispute takes place between the litigants themselves, and not when it takes place between the heirs of the litigants. Rava explains that the verse is referring to a case in which one person claims from another, "Your father owed my father one hundred," and the other person says, "I know that he owed your father fifty, but I do not know about the other fifty." Even though the son of the defendant is "Modeh b'Miktzas" -- he admits to half of the claim -- he is not obligated to make a Shevu'ah of Modeh b'Miktzas, and nor is he obligated to pay, because the verse teaches that a Shevu'ah applies only when the dispute is between the litigants themselves, and not when it is between their heirs. Rava points out that it must be that when the defendant himself (the father) makes the same claim -- admitting to half and saying that he does not know about the other half -- then he must pay, since he is obligated to make a Shevu'ah of Modeh b'Miktzas but he cannot make a Shevu'ah (since he claims that he does not know about the other half). If he were exempt in such a case, then the verse would not need to tell us that his son is exempt. This is the proof for Rebbi Aba.

There is a clear difference between a dispute involving the father and a dispute involving his heirs. The father presumably knew the amount and forgot (or so he claims), while it is likely that the heirs never knew about the transaction. What is the Halachah, though, in a case in which the defendant himself claims that he never knew the amount of the transaction? Is he like a father (and he must pay, according to Rebbi Aba) or is he like an heir (and he is exempt from swearing and from paying, based on the verse, "An oath of Hashem shall be between the two of them")?

(a) The RA'AVAD (Hilchos She'eilah 5:6, Malveh v'Loveh 13:4), BA'AL HA'ITUR, and TOSFOS HA'ROSH say that the verse, "An oath of Hashem shall be between the two of them," is telling us the difference between someone who ought to have known what was in his hands, and someone who was not expected to know what was in his hands. The most common case where someone is not expected to know what was in his hands is a case in which the dispute involves heirs. However, if the defendant himself claims that he received fifty coins plus a sealed bag to watch, all of which was lost, and the defendant claims that he is unsure what was in the bag, the defendant is exempt from paying or swearing, just like an heir is exempt. Rather, if the claimant wants to receive his money, then *he* must make an oath attesting to the value of the contents of the sealed bag.

The Ra'avad explains that the reason why, in a normal case, we make the defendant pay if he claims that he does not remember how much he received, is because he seems to us like someone who is lying, for he certainly should remember how much he borrowed. In contrast, where we have a good reason why he does not remember, we do not suspect him of lying when he says that he does not know, and it is unfair to require him to pay without the claimant at least taking an oath.

(b) The RAMBAM (ibid.) and the RI MI'GASH maintain that the only case in which the rule of "Mitoch she'Eino Yachol li'Shava, Meshalem" applies is when the dispute involves heirs. Even if the defendant himself accepted responsibility for an unknown sum of money (which is then lost), he is *Chayav* to pay (since he cannot swear). They prove this from the Gemara itself. The Gemara says that the case in which the verse is teaching that the heirs are exempt, the father is obligated. We know that the case in which the heirs are exempt is a case in which they say that they do not know (and were not able to know) about the other fifty being claimed. The identical case, involving the father, is when the father claims that he does not know (and was not able to know) about the other fifty being claimed. Hence, even in such a case the defendant is Chayav.

The RITVA brings another proof to the opinion of the Rambam. According to the Ra'avad's view, the verse should teach us this lesson without discussing heirs! It should state simply that a Shevu'ah applies only when a person was able to know about the amount he received, while when he was unable to know about the amount he received, he is exempt. Since the verse teaches only that heirs are exempt, it must be that the defendant himself would be Chayav in such a case.

The ruling of the TUR in such a case is not clear. In one place (see Tur Choshen Mishpat 298), he codifies the opinion of the Ra'avad. In another (see Tur Choshen Mishpat 72), he agrees with the opinion of the Rambam! How are we to understand the ruling of the Tur?

The SHACH (CM 72:51) proposes that the Tur compromises between the two opinions. The Ra'avad's opinion is definitely understandable in the case of a deposit. While it is true that the person watching the sealed bag was negligent in losing it, he was not supposed to use the deposit for himself and, therefore, it is understandable that he did not open it to check its contents. However, in a case of a loan (or a security given for a loan), we can assume that the recipient knows the value of what he receives. One does not usually borrow money or take a security without knowing its value! In such cases, the Ra'avad's opinion is less logical than the Rambam's, and, therefore, the Tur rules like the Rambam. The Shach states that this is also the explanation of the MABIT (Teshuvos, vol.1, She'elos Sheniyos, ch. 133). (Y. Montrose)

47b

QUESTION: The Gemara discusses a case in which one set of witnesses contradict another set of witnesses. Rav Huna says that each set of witnesses may return separately to Beis Din and testify in a different case, even though one set was definitely lying (and, if the identity of the lying set of witnesses was known, they would be invalidated from testifying in all cases). Since we cannot prove which set is lying, each witness retains his status of being a valid witness. Rav Chisda argues and rules that we do not accept the testimony of either set of witnesses in any future cases, because one of them is certainly lying, and, thus, out of doubt, we cannot accept the testimony of either set.

RASHI explains that Rav Huna specifically says that each *set* can come and testify. Rav Huna agrees, though, that one witness from one set cannot join with a witness from the other set to testify, because one of them is certainly guilty of testifying falsely in the earlier case.

The SHACH (CM 31) records a question in the name of the CHOCHMEI BRISK regarding the case mentioned by Rashi. What is the Halachah in a case in which a single witness testifies and is contradicted by a single witness? Is each one treated like a separate set of witnesses, such that each one may testify in future cases?

What is the meaning of their question? Why should it make a difference whether a set of two witnesses contradicts another set of two witnesses, or whether a single witness contradicts another single witness?

ANSWERS:

(a) The SHACH explains the question as follows. Do we say that one of the two witnesses is definitely lying and thus they may not testify *together*, or do we say that since neither of these single witnesses was shown to be lying by *two* witnesses (since each one was contradicted by only a single witness), we do *not* consider one of them to be invalidated from testifying, and they may even join together and testify?

(b) The KEHILOS YAKOV says that the Shach's explanation cannot be the logic behind the question of the Chochmei Brisk. We know that one of the single witnesses testified falsely. How, then, can we permit them to testify together, knowing that one of them has lied in the past before Beis Din?

The Kehilos Yakov therefore explains that the question of the Chochmei Brisk was a query into what invalidates a person from being a witness according to the Torah. If a single witness testifies about a subject that, mid'Oraisa, requires two witnesses, it could be that his account is not considered testimony at all, and thus his falsification of the facts is not considered to have been false *testimony*. Only someone offering what the Torah considers testimony can transgress the prohibition of testifying falsely. Perhaps the single witness, therefore, may return with the other single witness and testify together in a different case.

(c) The VILNA GA'ON and other Acharonim explain that the question of the Chochmei Brisk can be understood based on the Gemara later. The Gemara (48a) questions the opinion of Rav Chisda from a Beraisa that discusses the testimony of witnesses concerning the siting of the new moon. When asked how high the moon was when they saw it, one witness replied, "Three Merda'os," while the other replied, "Five Merda'os." This is not the type of error in judgement that people would normally make, and thus we must assume that one of the witnesses is lying. The Beraisa continues and says that although they may no longer testify together, they may testify, separately, in other cases (see RITVA and RI MI'GASH there). The Gemara answers that this is not a proof against Rav Chisda, and it explains why. It is apparent from the Gemara there that in a case in which two witnesses contradict each other, they may no longer testify together! What, then, was the question of the Chochmei Brisk?

The Kehilos Yakov suggests a way to answer this question. He says that we must ask why Rav Chisda holds that we no longer accept the testimony of any of the witnesses. We know that a Rasha is not allowed to testify. These witnesses, however, cannot be categorized as Resha'im, since none of them has not been indicted for any definite wrongdoing. It must be that Rav Chisda understands that we cannot accept their testimony because we *suspect* that they are lying, even though they are not Resha'im. This is similar to the Halachah that we do not accept testimony from people who eat in the marketplace, as we suspect they have nothing to lose by lying, since they are lowly people who conduct themselves uncivilly.

The Gemara attempted to disprove the view of Rav Chisda from the Beraisa (48a). Since Rav Chisda disqualifies any suspected liar from testifying, he should also disqualify these two witnesses (who contradicted each other regarding the new moon) from ever testifying again. According to Rav Huna, though, who maintains that the witnesses remain valid witnesses for other cases, perhaps we might interpret the Beraisa as saying that these two witnesses *may join together* to testify in another case. This might be the question of the Chochmei Brisk -- how to understand the Beraisa according to Rav Huna. (Although this is a possible explanation to understand the question of the Chochmei Brisk, it must be noted that the Ritva explicitly states that Rav Huna would agree that the two witnesses may not join together and testify in future cases.) (Y. Montrose)