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1) OATHS, BOTH MID'ORAISA AND MID'RABANAN

(a) Question: What is the difference between mid'Oraisa and mid'Rabanan oaths?
(b) Answer: Regarding mid'Oraisa oaths, the defendant cannot reverse the oath (refuse to swear, and demand that the claimant swear if he wants to collect); regarding mid'Rabanan oaths (of Heses), he can reverse the oath.
(c) Question: Mar bar Rav Ashi holds that even by mid'Oraisa oaths, he can reverse the oath;

1. What will he say is the difference between mid'Oraisa and mid'Rabanan oaths?

(d) Answer: Regarding mid'Oraisa oaths, if the defendant refuses to swear, Beis Din sells his property to pay the claimant; regarding mid'Rabanan oaths Beis Din does not do so.
(e) Question: What is the difference according to R. Yosi, who holds that Beis Din collects from his property even for mid'Rabanan (laws, including) oaths?

1. (Mishnah): It was instituted in order to maintain the peace that if a child, fool or deaf person takes an object of Hefker, it is considered theft if someone takes it from him;
2. R. Yosi says, it is absolute theft.

i. (Rav Chisda): He means, it is absolute theft mid'Rabanan.
ii. Question: What do the Tana'im argue about?
iii. Answer: R. Yosi holds that Beis Din returns it to the child, fool or deaf person, Chachamim say they do not.

(f) Answer: Regarding mid'Oraisa oaths, if the defendant is disqualified from swearing, we reverse the oath onto the claimant, and then the defendant must pay;

1. Mid'Rabanan oaths are enactments, we do not make an enactment (to reverse the oath when he is disqualified from swearing) for an enactment (rather, he is exempt).

(g) Question: According to Chachamim (of R. Yosi), if the defendant refuses to swear a mid'Rabanan oath, Beis Din does not sell his property to pay the claimant - how do we encourage him to pay?
(h) Answer #1: We excommunicate him (until he pays).
(i) Objection (Ravina): That is the ultimate coercion to pay!
(j) Answer #2 (Rav Ashi): We excommunicate him until the time to lash him (i.e. after he endures 30 days), then the Niduy is lifted.
(k) (Rav Papa): If Reuven showed a document saying that Shimon owes him and Shimon claimed he paid, he is not believed, we tell him to pay;

1. If Shimon asked Reuven to swear that he was not paid, Reuven must swear.

(l) Question (Rav Acha brei d'Rava): If a document was partially paid, the claimant must swear to collect - Rav Papa says this regarding every document!
(m) Answer (Rav Ashi): If a document was partially paid, *we* (Beis Din) insist that the claimant swear to collect;

1. If it was not paid at all, we tell the defendant to pay; if he asks the claimant to swear, he must swear.
2. A Chacham need not swear.
3. Objection: May a Chacham freely take others' money?!
4. Version #1 (Rashi) Answer: Rather, we do not allow a Chacham to swear (therefore, he does not collect).
5. Version #2 (Tosfos ha'Rosh?) Answer: Rather, we do not tell a Chacham to swear. (If he seizes the money, he keeps it; if he wants to swear and collect, he may.)

(a) (Mishnah): Reuven claimed a Maneh from Shimon...
(b) Version #1 (Rav Yehudah citing Rav Asi): If Levi lent Yehudah in front of witnesses, Yehudah must repay in front of witnesses (if he cannot bring witnesses that he repaid, he must pay (again));
(c) (Rav Yehudah citing Shmuel): Yehudah can say, I paid in front of Ploni and Almoni, they went abroad. (Tosfos - he is even believed to say 'I paid you without witnesses, Migo he could have said 'I paid in front of Ploni and Almoni, they went abroad'; Rashba - he is not believed to say that he paid without witnesses.)
(d) Question (Mishnah): Reuven claimed a Maneh from Shimon in front of witnesses, Shimon admitted that he owes it; the next day, Reuven claimed it again.

1. If Shimon answers 'I paid you', he is exempt.
2. Claiming money in front of witnesses is like lending in front of witnesses, yet Shimon need not bring witnesses that he repaid - this refutes Rav Asi!

(e) Answer: (Claiming money in front of witnesses is *not* like lending in front of witnesses.) In the Mishnah, the loan was given without witnesses, Reuven showed that he trusted Shimon (so Shimon need not repay with witnesses);

1. Rav Asi's law is only when the loan was in front of witnesses.

(f) Version #2 - Rav Yosef - (Rav Yehudah citing Rav Asi): If Levi lent Yehudah in front of witnesses, Yehudah need not repay in front of witnesses, unless Levi stipulated that he must do so;
(g) (Rav Yehudah citing Shmuel): (Even if Levi stipulated) Yehudah can say, I paid in front of Ploni and Almoni, they went abroad.
(h) Question (Mishnah): Reuven claimed a Maneh from Shimon in front of witnesses, Shimon admitted that he owes it; Reuven told him 'you must repay it in front of witnesses'. The next day, Reuven claimed it again; Shimon answers 'I paid you' - he is liable, for he must repay it in front of witnesses;

1. This refutes Shmuel!

(i) Answer: Tana'im argue about this law.

1. (Beraisa): Levi told Yehudah 'I (just) lent you in front of witnesses, repay me in front of witnesses' - if Yehudah cannot prove that he paid, he must pay (again);
2. (R. Yehudah ben Beseira): Yehudah can say, I paid in front of Ploni and Almoni, they went abroad.

(j) Objection (Rav Acha): Perhaps (in the Beraisa) Levi does not speak at the time of the loan, rather later!

1. Levi told Yehudah 'Since I lent you in front of witnesses, you should have repaid me in front of witnesses';
2. The Tana'im argue in this case - but if Levi stipulated at the time of the loan, all agree that Yehudah must prove that he paid! (Neither Tana holds like Shmuel.)

(k) (Rav Papi citing Rava): The Halachah is, if Levi lent Yehudah in front of witnesses, Yehudah must repay in front of witnesses.
(l) (Rav Papa citing Rava): The Halachah is, if Levi lent Yehudah in front of witnesses, Yehudah need not repay in front of witnesses, unless Levi stipulated that he must do so;

1. Yehudah is (Rif's text - not) believed to say, I paid in front of Ploni and Almoni, they went abroad.

(m) (Abaye): Reuven lent Shimon and told him 'Repay me in front of Ploni and Almoni'; Shimon paid in front of other witnesses - this is all that Reuven wanted (Shimon is exempt);
(n) (Rava): No, he specified Ploni and Almoni, in order that Shimon cannot push him off (Rashi - with lying witnesses; Tosfos - by naming witnesses that went abroad).
(o) Levi lent Yehudah and told him 'Repay me in front of two witnesses that learn Halachah; Yehudah paid without witnesses, and the money was lost through Ones. They came in front of Rav Nachman.

1. Levi: I stipulated that the repayment must be in front of witnesses that learn Halachah; I took the money as a deposit until we would find such witnesses.
2. Rav Nachman: He gave the money as payment, and you accepted it without objection (this shows that you pardoned your stipulation);

i. If you want, fulfill your stipulation now in front of Rav Sheshes and myself, we learn Halachah (this was a joke).

(p) Reuven claimed a Maneh from Shimon; Shimon denied that he ever owed him. Reuven brought witnesses that Shimon borrowed and paid.
(q) (Abaye): We cannot obligate him to pay, for the witnesses that he borrowed say that he paid!
(r) (Rava): Since he says that he did not borrow, this is an admission that he did not pay (and a person is believed to obligate himself even if witnesses contradict him).