Commentary for Bava Metzia 6:21
Tosafot on Bava Metzia
He wants to admit all. The Gemara is presently explaining the psychology of one who partially admits to the plaintiff’s claim against him. Rashi explains that this explanation is needed to answer an underlying question that is not spelled out in the Gemara. Tosfos agrees that this is indeed the intent of the Gemara. However, Tosfos disagrees with Rashi about the underlying question.
That which Rashi explained that the words in the Gemara בכוליה בעי דלודי ליה - he wants to admit that he owes the entire claim’ is a response to the following underlying question: Since [the defendant] is suspected of stealing money, by denying the claim against him, how can we allow him to swear? We should say: Since he is suspected of stealing money, he should also be suspected of swearing falsely. Stealing money and swearing falsely are equally forbidden by the Torah. If we suspect someone of stealing money and thus violating the Torah, we should also suspect him of swearing falsely. How can we allow and even demand of him that he swear?
[The Gemara] answers: That [the defendant] by denying half is evading the creditor and he is not actually suspected of attempting to steal money. We may therefore expect that he will not swear falsely.
The Gemara later on 6a concludes after a lengthy discussion of this topic: Rather, we do not say that since one is suspected of stealing money, he is also suspected of swearing falsely!
But this explanation of the underlying question by Rashi is bewildering! For [the Gemara] concludes later (6a) that one who is suspected of stealing money, is not suspected of swearing falsely. Even when we are certain that a litigant is attempting to violate the Torah by stealing from his opponent, we allow and demand of him that he take an oath to prove his claim, because we believe that he would not swear falsely. The commandment against swearing falsely is more stringent than others and people who might violate other commandments of the Torah would not violate the commandment against swearing falsely. If so, how can Rashi say that the underlying question of the Gemara here is: How we can allow the partial denier to swear, we should be concerned that he might swear falsely, the Gemara later clearly holds that there is no such concern?
There is a conceivable way of reconciling Rashi’s explanation here with the Gemara of 6a. They are speaking about two different time periods:
A) The Torah period.
B) The Rabbinic period.
Our Gemara may be speaking of A) the Torah period, when it was expected that people be equally fearful of all commandments of the Torah. The Gemara here is wondering why the Torah would not suspect one who is attempting to steal of swearing falsely.
The Gemara on 6a may be speaking of the reality of life in B) the Rabbinic period and saying that it was known that at that time people feared violating the commandment against swearing falsely, but not the prohibition against stealing. Tosfos rejects this approach.
We cannot say that the Gemara on 6a that concludes that one who is suspected of cheating is not suspected of swearing falsely, is speaking about the reality of life in B) the Rabbinic period, and holds that because [the Rabbis] saw that swearing falsely was more stringent in their eyes than the prohibition against stealing, they might steal but would still be unwilling to swear falsely.
But, our Gemara on 3b is speaking of how society behaved in
A) the Torah (period) when stealing and swearing falsely were equally abhorrent and then, one who was suspected of [stealing] was also suspected of [swearing falsely].
For this solution to be viable, we must concede that during A) the Torah period, we would not all allow or demand one who is suspected of stealing to swear. However, a close study of the discussion on 6a, reveals that many of the proofs cited are from Torah law. But according to Tosfos hypothesis according to Torah law, one who is suspected of stealing would be suspected of swearing falsely as well.
The Gemara later on 6a quotes this ruling of Rav Sheishes. Tosfos refers to it as Rav Nachman’s ruling. Indeed, in Bava Kama 107b, it is stated in the name of Rav Nachman. The Gemara is discussing the oath required of an unpaid custodian, when the deposited item is lost or stolen. He must verify that the loss or theft was not a result of his negligence. In addition there are two more oaths that he must take.
We obligate [the unpaid custodian] to swear three oaths: I swear that I was not negligent. I swear that I did not misappropriate it.1A custodian who uses or takes possession of the deposited item is a thief. Once a person is considered a thief, the stolen article is in his domain until he legally returns it to its owner. In effect this means that even if the misappropriated item is lost, stolen or destroyed by accident, it is the responsibility of the custodian, who is now a thief. Had he not taken possession of the deposited item, he would be exempt from payment, because an unpaid custodian is not responsible for loss, theft or accidents. However, as a thief he is responsible for all of these. He must therefore swear that he did not ‘steal’ the deposited item and he is only liable as a custodian. I swear that it is not in my possession. By requiring to swear that he did not misappropriate the deposited item, we are clearly stating that we suspect him of stealing the deposited item.2By requiring that he swears that he did not misappropriate the deposited item, we are clearly suspecting him of stealing the item. Even so, we require that he swears. Obviously, we do not suspect him of swearing falsely. See Rashi 6a ד'ה נימא who explains that the proof of the Gemara there is from the third oath - I swear that the deposited item is not in my possession. This definitely is proof of a suspicion that he is presently in possession of the deposited item and that he is attempting to steal it. Even so, we allow and demand that he swears. Even so, we allow and demand of him that he must swear to defend his claim. Obviously, even though we suspect him of stealing the item, we we accept his oath as true.
For later [the Gemara] cites Rav Nachman’s ruling that we obligate [a custodian] to swear three oaths. One of these is that I did not misappropriate [the deposited item]. If we suspect him of misappropriating the deposited item, we are suspecting him of stealing, because he definitely has no right to misappropriate the deposited item. Even so, we obligate him to swear that he is innocent of such misappropriation. Obviously, we do not suspect him of swearing falsely, even though we do suspect him of misappropriating the deposited item. It is evident in the latter HaGozel (Bava Kama 107b) that this oath that he did not misappropriate the deposited item is required by Torah law. If it is Torah law, we see that even in the Torah period, one who is suspected of stealing is not suspected of swearing falsely.
Let us learn the Gemara in Shavuos 32b together.
There was a man Ruvain, who seized an block of silver from his neighbor, Shimon. [Shimon] came before R’ Ami to judge this case. R’ Aba was sitting in front of [R’ Ami]. [Shimon] went and brought one witness that [Ruvain] seized [the block] from him. [Ruvain] said to him: It is true that I seized the block, but what I seized is mine. You Shimon had previously stolen the blockt from me. R’ Ami said: How can we rule in this case? Should we rule that [Ruvain] must pay? But there are not two witnesses who testify that he is liable. Should we rule that[Ruvain] is exempt? But there is one witness who testifies that he seized the ingot from Shimon. This is tantamount to testimony that he stole it from Shimon, because we assume that whatever is in Shimon’s possession belongs to him. Should we rule that [Ruvain] must swear? Since he said: It is true that I seized the block from Shimon, but what I seized is mine, he is comparable to a thief3See Rashi there (12) ד'ה כיון דאמר אין חטפי who explains that he is not truly a thief. Rather, the Gemara means that just as a thief cannot swear, so too, in this case the defendant cannot swear. The defendant must sear that what the single witness is untrue. Once he admits that he did in fact seize the block, he cannot swear that this is untrue. He is therefore comparable to a thief. Just as a thief may not swear, so too, the defendant who admitted that he seized the block of silver cannot swear, albeit for different reasons. and a thief cannot swear. What can we possibly rule?
R’ Aba said to [R’ Ami]: [Ruvain] is obligated to swear to deny the testimony of the single witness, and he cannot swear because he admitted that he did seize the block. One who is obligated to swear and cannot swear, must pay.
So too, in the case of the ingot of R’ Aba (Shavuos 32b) it is understood that if the defendant said: I did not grab the block, he would swear to deny the testimony of the single witness by Torah law. Once again suspecting him of seizing the block is the equivalent of suspecting him of stealing. Even so, we obligate him to swear. Obviously, we are not concerned that he might swear falsely just as he is suspected of stealing. That the obligation to swear is Torah law can be seen from [the Gemara’s] statement that since he cannot swear to deny the witness’ testimony, because he admitted that he did grab the ingot, he must pay. This is proof that the oath he must swear is Torah law, for if the oath is only required by the Rabanan, we do not say that since he cannot swear he must pay. Since we do apply that ruling for R’ Aba’s block, it is conclusive proof that an oath would have been required by Torah law. We see that in Torah law, one who is suspected of stealing is not suspected of swearing falsely.
Once we conclude that Rashi’s explanation of the words בכוליה בעי דלודי ליה is incorrect, we must have an alternative explanation. What issue is the Gemara addressing with these words?
Therefore, it can be said that the words “and he wants to admit to the entire claim” are in response to this underlying question: Since we have just said that one does not have the audacity to lie in the face of his opponent who knows the truth, then when he says he only owes fifty zuz, we should assume that it is true that he does not owe him more. Why must he swear to defend his claim? He should be believed with a migo that he could have denied the entire claim of the plaintiff? Tosfos is assuming at this point that even a partial denial is essentially audacious. We should therefore rule that since he does have the audacity to deny part of the claim, we should believe him because he has a migo that he could have denied the entire claim. We cannot say that he does not have the audacity to do so, because he is presently exhibiting audacity in his denial of half the claim.
[The Gemara] answers: That this partial denial is not a demonstration of his inherent ability to make an audacious counter-claim, because the partial admission is his way of evading the creditor till he will have sufficient funds to pay. It is not at all a demonstration of audacity.
At this point Tosfos has concluded that a total denial of liability requires audacity. A partial denial does not demonstrate audacity, rather it is a way of stalling for time. We cannot say: believe the partial denier, because he could have denied all, since a total denial requires audacity which the average person does not have. The partial denier is stalling and not at all showing his audacity. His present counter-claim is a method of stalling, but not a demonstration of audacity.
Tosfos will now show that a total denial of a claim is also thought of as a method of stalling. If so, we should believe the partial denier without requiring that he swear, because he could have totally denied the claim. Just as he is stalling with his partial denial, he could have stalled with a total denial.
If you ask: a total denial is also a method of stalling for time and not a demonstration of audacity, as [the Gemara] says in Perek Shavuos HaDayanim (Shavuos 40b): Rav Nachman said: One who totally denies a claim against himself is obligated to swear an oath of incitement which will encourage him to desist from his false counter claim. We cannot allow the claim of his plaintiff to go unanswered, because we assume that a person does not claim that his opponent owes him money unless he does owe him something. The defendant must therefore swear to deny the claim against him to dispel the assumption that he does truly owe the plaintiff.
[The Gemara] there asks: On the contrary his total denial should be viewed as proof that he does not owe the plaintiff any money, because a person does not have the audacity to deny a true claim in the face of his creditor? Why should we require an oath of him?
[The Gemara] answers: His denial should not be construed as proof of his innocence, because he would not have the audacity to lie in the face of his creditor. Rather, his denial should be viewed as his way of evading his creditor and stalling for time, until he will be able to gather the money with which he will pay his debts. We see that the total denier is also stalling for time and not totally audacious. As we have seen earlier, the partial denier is also viewed as stalling for time. If so, the partial denier should be believed with a migo that he could have totally denied the claim against himself.
We can answer: In any case greater audacity is needed to totally deny the plaintiff’s claim than to partially deny his claim. Thus, there is no migo. A migo is viable when one could just as easily claimed the second claim as he claimed the first claim. If it is easier to make the first claim than the second claim, the migo is not viable. Since it is easier to only partially deny the plaintiff’s claim than to totally deny it, there is no migo.
That which Rashi explained that the words in the Gemara בכוליה בעי דלודי ליה - he wants to admit that he owes the entire claim’ is a response to the following underlying question: Since [the defendant] is suspected of stealing money, by denying the claim against him, how can we allow him to swear? We should say: Since he is suspected of stealing money, he should also be suspected of swearing falsely. Stealing money and swearing falsely are equally forbidden by the Torah. If we suspect someone of stealing money and thus violating the Torah, we should also suspect him of swearing falsely. How can we allow and even demand of him that he swear?
[The Gemara] answers: That [the defendant] by denying half is evading the creditor and he is not actually suspected of attempting to steal money. We may therefore expect that he will not swear falsely.
The Gemara later on 6a concludes after a lengthy discussion of this topic: Rather, we do not say that since one is suspected of stealing money, he is also suspected of swearing falsely!
But this explanation of the underlying question by Rashi is bewildering! For [the Gemara] concludes later (6a) that one who is suspected of stealing money, is not suspected of swearing falsely. Even when we are certain that a litigant is attempting to violate the Torah by stealing from his opponent, we allow and demand of him that he take an oath to prove his claim, because we believe that he would not swear falsely. The commandment against swearing falsely is more stringent than others and people who might violate other commandments of the Torah would not violate the commandment against swearing falsely. If so, how can Rashi say that the underlying question of the Gemara here is: How we can allow the partial denier to swear, we should be concerned that he might swear falsely, the Gemara later clearly holds that there is no such concern?
There is a conceivable way of reconciling Rashi’s explanation here with the Gemara of 6a. They are speaking about two different time periods:
A) The Torah period.
B) The Rabbinic period.
Our Gemara may be speaking of A) the Torah period, when it was expected that people be equally fearful of all commandments of the Torah. The Gemara here is wondering why the Torah would not suspect one who is attempting to steal of swearing falsely.
The Gemara on 6a may be speaking of the reality of life in B) the Rabbinic period and saying that it was known that at that time people feared violating the commandment against swearing falsely, but not the prohibition against stealing. Tosfos rejects this approach.
We cannot say that the Gemara on 6a that concludes that one who is suspected of cheating is not suspected of swearing falsely, is speaking about the reality of life in B) the Rabbinic period, and holds that because [the Rabbis] saw that swearing falsely was more stringent in their eyes than the prohibition against stealing, they might steal but would still be unwilling to swear falsely.
But, our Gemara on 3b is speaking of how society behaved in
A) the Torah (period) when stealing and swearing falsely were equally abhorrent and then, one who was suspected of [stealing] was also suspected of [swearing falsely].
For this solution to be viable, we must concede that during A) the Torah period, we would not all allow or demand one who is suspected of stealing to swear. However, a close study of the discussion on 6a, reveals that many of the proofs cited are from Torah law. But according to Tosfos hypothesis according to Torah law, one who is suspected of stealing would be suspected of swearing falsely as well.
The Gemara later on 6a quotes this ruling of Rav Sheishes. Tosfos refers to it as Rav Nachman’s ruling. Indeed, in Bava Kama 107b, it is stated in the name of Rav Nachman. The Gemara is discussing the oath required of an unpaid custodian, when the deposited item is lost or stolen. He must verify that the loss or theft was not a result of his negligence. In addition there are two more oaths that he must take.
We obligate [the unpaid custodian] to swear three oaths: I swear that I was not negligent. I swear that I did not misappropriate it.1A custodian who uses or takes possession of the deposited item is a thief. Once a person is considered a thief, the stolen article is in his domain until he legally returns it to its owner. In effect this means that even if the misappropriated item is lost, stolen or destroyed by accident, it is the responsibility of the custodian, who is now a thief. Had he not taken possession of the deposited item, he would be exempt from payment, because an unpaid custodian is not responsible for loss, theft or accidents. However, as a thief he is responsible for all of these. He must therefore swear that he did not ‘steal’ the deposited item and he is only liable as a custodian. I swear that it is not in my possession. By requiring to swear that he did not misappropriate the deposited item, we are clearly stating that we suspect him of stealing the deposited item.2By requiring that he swears that he did not misappropriate the deposited item, we are clearly suspecting him of stealing the item. Even so, we require that he swears. Obviously, we do not suspect him of swearing falsely. See Rashi 6a ד'ה נימא who explains that the proof of the Gemara there is from the third oath - I swear that the deposited item is not in my possession. This definitely is proof of a suspicion that he is presently in possession of the deposited item and that he is attempting to steal it. Even so, we allow and demand that he swears. Even so, we allow and demand of him that he must swear to defend his claim. Obviously, even though we suspect him of stealing the item, we we accept his oath as true.
For later [the Gemara] cites Rav Nachman’s ruling that we obligate [a custodian] to swear three oaths. One of these is that I did not misappropriate [the deposited item]. If we suspect him of misappropriating the deposited item, we are suspecting him of stealing, because he definitely has no right to misappropriate the deposited item. Even so, we obligate him to swear that he is innocent of such misappropriation. Obviously, we do not suspect him of swearing falsely, even though we do suspect him of misappropriating the deposited item. It is evident in the latter HaGozel (Bava Kama 107b) that this oath that he did not misappropriate the deposited item is required by Torah law. If it is Torah law, we see that even in the Torah period, one who is suspected of stealing is not suspected of swearing falsely.
Let us learn the Gemara in Shavuos 32b together.
There was a man Ruvain, who seized an block of silver from his neighbor, Shimon. [Shimon] came before R’ Ami to judge this case. R’ Aba was sitting in front of [R’ Ami]. [Shimon] went and brought one witness that [Ruvain] seized [the block] from him. [Ruvain] said to him: It is true that I seized the block, but what I seized is mine. You Shimon had previously stolen the blockt from me. R’ Ami said: How can we rule in this case? Should we rule that [Ruvain] must pay? But there are not two witnesses who testify that he is liable. Should we rule that[Ruvain] is exempt? But there is one witness who testifies that he seized the ingot from Shimon. This is tantamount to testimony that he stole it from Shimon, because we assume that whatever is in Shimon’s possession belongs to him. Should we rule that [Ruvain] must swear? Since he said: It is true that I seized the block from Shimon, but what I seized is mine, he is comparable to a thief3See Rashi there (12) ד'ה כיון דאמר אין חטפי who explains that he is not truly a thief. Rather, the Gemara means that just as a thief cannot swear, so too, in this case the defendant cannot swear. The defendant must sear that what the single witness is untrue. Once he admits that he did in fact seize the block, he cannot swear that this is untrue. He is therefore comparable to a thief. Just as a thief may not swear, so too, the defendant who admitted that he seized the block of silver cannot swear, albeit for different reasons. and a thief cannot swear. What can we possibly rule?
R’ Aba said to [R’ Ami]: [Ruvain] is obligated to swear to deny the testimony of the single witness, and he cannot swear because he admitted that he did seize the block. One who is obligated to swear and cannot swear, must pay.
So too, in the case of the ingot of R’ Aba (Shavuos 32b) it is understood that if the defendant said: I did not grab the block, he would swear to deny the testimony of the single witness by Torah law. Once again suspecting him of seizing the block is the equivalent of suspecting him of stealing. Even so, we obligate him to swear. Obviously, we are not concerned that he might swear falsely just as he is suspected of stealing. That the obligation to swear is Torah law can be seen from [the Gemara’s] statement that since he cannot swear to deny the witness’ testimony, because he admitted that he did grab the ingot, he must pay. This is proof that the oath he must swear is Torah law, for if the oath is only required by the Rabanan, we do not say that since he cannot swear he must pay. Since we do apply that ruling for R’ Aba’s block, it is conclusive proof that an oath would have been required by Torah law. We see that in Torah law, one who is suspected of stealing is not suspected of swearing falsely.
Once we conclude that Rashi’s explanation of the words בכוליה בעי דלודי ליה is incorrect, we must have an alternative explanation. What issue is the Gemara addressing with these words?
Therefore, it can be said that the words “and he wants to admit to the entire claim” are in response to this underlying question: Since we have just said that one does not have the audacity to lie in the face of his opponent who knows the truth, then when he says he only owes fifty zuz, we should assume that it is true that he does not owe him more. Why must he swear to defend his claim? He should be believed with a migo that he could have denied the entire claim of the plaintiff? Tosfos is assuming at this point that even a partial denial is essentially audacious. We should therefore rule that since he does have the audacity to deny part of the claim, we should believe him because he has a migo that he could have denied the entire claim. We cannot say that he does not have the audacity to do so, because he is presently exhibiting audacity in his denial of half the claim.
[The Gemara] answers: That this partial denial is not a demonstration of his inherent ability to make an audacious counter-claim, because the partial admission is his way of evading the creditor till he will have sufficient funds to pay. It is not at all a demonstration of audacity.
At this point Tosfos has concluded that a total denial of liability requires audacity. A partial denial does not demonstrate audacity, rather it is a way of stalling for time. We cannot say: believe the partial denier, because he could have denied all, since a total denial requires audacity which the average person does not have. The partial denier is stalling and not at all showing his audacity. His present counter-claim is a method of stalling, but not a demonstration of audacity.
Tosfos will now show that a total denial of a claim is also thought of as a method of stalling. If so, we should believe the partial denier without requiring that he swear, because he could have totally denied the claim. Just as he is stalling with his partial denial, he could have stalled with a total denial.
If you ask: a total denial is also a method of stalling for time and not a demonstration of audacity, as [the Gemara] says in Perek Shavuos HaDayanim (Shavuos 40b): Rav Nachman said: One who totally denies a claim against himself is obligated to swear an oath of incitement which will encourage him to desist from his false counter claim. We cannot allow the claim of his plaintiff to go unanswered, because we assume that a person does not claim that his opponent owes him money unless he does owe him something. The defendant must therefore swear to deny the claim against him to dispel the assumption that he does truly owe the plaintiff.
[The Gemara] there asks: On the contrary his total denial should be viewed as proof that he does not owe the plaintiff any money, because a person does not have the audacity to deny a true claim in the face of his creditor? Why should we require an oath of him?
[The Gemara] answers: His denial should not be construed as proof of his innocence, because he would not have the audacity to lie in the face of his creditor. Rather, his denial should be viewed as his way of evading his creditor and stalling for time, until he will be able to gather the money with which he will pay his debts. We see that the total denier is also stalling for time and not totally audacious. As we have seen earlier, the partial denier is also viewed as stalling for time. If so, the partial denier should be believed with a migo that he could have totally denied the claim against himself.
We can answer: In any case greater audacity is needed to totally deny the plaintiff’s claim than to partially deny his claim. Thus, there is no migo. A migo is viable when one could just as easily claimed the second claim as he claimed the first claim. If it is easier to make the first claim than the second claim, the migo is not viable. Since it is easier to only partially deny the plaintiff’s claim than to totally deny it, there is no migo.
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Tosafot on Bava Metzia
But [when dealing with] the testimony of witnesses, where this cannot be said, [perhaps there is no oath required]. We must remind ourselves that the Gemara is in the process of learning that when a defendant who claims that he owes nothing of the hundred zuz claimed by the plaintiff, is partially contradicted by witnesses who testify that he owes at least fifty zuz, he must swear about the other fifty, just as he would have to swear about the other fifty zuz, if he admitted that he owed fifty. We are saying that it is no difference between whether he is liable for the first fifty a) by his own admission or b) via the testimony of witnesses. In either case he must swear to defend his denial of the second fifty.
a)
Plaintiff: 100 zuz
Defendant: 50 zuz
Witnesses: N.A.
Ruling: Torah oath
b)
Plaintiff: 100 zuz
Defendant: Nothing
Witnesses: 50 zuz
Ruling: Torah oath
The Gemara has explained the psychology of requiring an oath when a) he admits fifty and denies fifty. The Gemara is now saying that the same psychology cannot be applied when he is liable for the first fifty zuz b) via witnesses. The Gemara uses an elusive phrase - the same cannot be said for when
a) the liability for the first fifty zuz was established by witnesses as for when
b) the first fifty zuz established by his own admission.
But what is truly the difference. Let us remember that in the previous Tosfos we learned that when a person denies half, it is not viewed as an attempt to steal. Rather, he is evading the creditor and stalling for time. This stands to reason when there was at least a partial admission of debt, but when there is a total denial, it is a bit more difficult to view the defendant’s denial as evading the creditor and stalling for time and not as an attempt to steal.
Tosfos says that this is what the Gemara means when it uses the phrase that when his liability of the first fifty zuz is established b) by witnesses, it cannot be said so readily,1As we will soon see, Tosfos is not saying that it is impossible to view a total denial as an attempt to evade the creditor. He is merely saying that we cannot view him as evading the creditor so readily, as we can view a partial denial. that he is evading the creditor and stalling for time, since he denied the claim entirely. I should therefore say, since he is suspected of stealing, he is also suspected of swearing falsely.
The Baraisa of R’ Chiya informs us of the kal v’chomer which teaches us that [the defendant] is not a thief2See חידושי הר"ן who asks a very obvious question: If we have a legitimate point when we say that one who totally denies is viewed as attempting to steal and not as evading the creditor, how can the kal v’chomer teach us otherwise? Our logical argument cannot be refuted by a kal v’chomer. See חידושי הר"ן for a different explanation of the Gemara. Also see בית הלוי חלק ג' לז ו' for an answer to this question according to Rashi’s explanation of the Gemara. [by denying liability] because he too is evading the creditor and stalling for time, but his intention is not to steal.
Tosfos proves that even a defendant who denies everything is not considered a thief: For one who falsely denies owing a loan is qualified to be a witness. If he was suspected of thievery, we could not accept his testimony in bais din. Since his testimony is acceped, it is evident that we do not think of him as a thief.
Was it necessary for the Tanna to teach us that we do not say that since one is suspected of stealing, he is also suspected of swearing falsely? Even though [the Gemara] later (6a) says that we do not say ‘since he is suspected etc. [of stealing, he is also suspected of swearing falsely]’. If so, why does the Baraisa of R’ Chiya need to teach us this, there is already adequate proof of this concept?
Even so, the Tanna informs us that we do not say: Since he is suspected of stealing, he is also suspected of swearing falsely. This he derives from a kal v’chomer from two sources, the oath that he must take when he admits partial liability with his own mouth, and the oath that he must take when a single witness testifies against him.
The Gemara on 4a is attempting to understand the kal v’chomer that teaches us that b) when witnesses testify that the defendant owes at least fifty of the hundred zuz claimed by the plaintiff, the defendant must swear about the fifty zuz that the witnesses are not testifying about.
The Gemara has shown that if the source of the kal v’chomer is the oath of partial admission or the oath of a single witness, the kal v’chomer is not functional. This process if known as a ‘פירכא - challenge’ to the logic of the kal v’chomer. The kal v’chomer is constructed on the logic that if “A” which is lenient requires an oath, then “B” which is more stringent certainly requires an oath. The ‘פירכא - challenge’ shows that in a certain way “A” is actually more stringent, thus undoing the basis of the kal v’chomer.
The Gemara on 4a summarizes the information discussed about the kal v’chomer: One’s own mouth is proof a) that when we know that he is liable for half the claim, that he must swear about the other half. So too, b) when his partial liability is established by the testimony of witnesses, he must swear about the other fifty zuz. What can you prove from the oath that one must take by a) the admission of his own mouth which cannot be contradicted. An admission is extremely powerful. Even if witnesses contradict an admission, the defendant remains liable. If so, we cannot derive that b) when witnesses testify that the defendant owes half, he should be obligated to swear from the oath that he must take when he admits owing half, because his own admission that he owes half is more potent than the testimony of witnesses that he owes half. Perhaps it is because of this potency that the Torah requires an oath when one admits half, but not when it is the testimony of witnesses that causes him to pay half.
The oath obligated by a single witness will prove that even if the testimony can be contradicted it can obligate an oath, for the testimony of a single witness can be contradicted and even so, it obligates the defendant to swear.
What can you prove from the oath obligated by a single witness, where the oath will be for the money that the witness testified about? He denied owing any money and the witness testifies that he owes a hundred zuz. He must swear to contradict the witness' testimony which supports the claim of the plaintiff. Can we derive from this that when two witnesses testify that the defendant owe fifty zuz, the defendant is obligated to swear about the other fifty zuz, which he denied owing - a claim which is not supported by the testimony of witnesses?
The oath he is obligated to take when he admits owing half by his own mouth, proves that one can be liable to swear about the second fifty zuz, even though the claim of the plaintiff is is not supported by the testimony of any witness.
At this point we can prove from
A) the oath obligated by a single witness, that one can be obligated to swear by testimony that can be contradicted. We can prove from the oath obligated by one’s admission that one can be required to swear
B) even on the portion of a claim that is unsubstantiated by either one’s own admission or by a single witness.
From the combination of A) and B), we can prove that b) when witnesses testify that the defendant owes half the money claimed by the plaintiff, he is required to swear about the other half.
Tosfos refers to learning from this combined source as deriving this ruling from the oath obligated by פיו - the admission of his own mouth and from the oath obligated by an עד אחד - the testimony of a single witness.
What emerges from our Gemara is that there are two reasons why we might not be able to derive that b) when partial liability is established by witnesses an oath is required, from when partial liability is established by his own admission:
A) When he admits partial liability, we view the partial denial as an attempt to evade the creditor and as a method of stalling for time. Whereas, when one has already totally denied liability, it seems as if he is attempting to steal. The Gemara uses this reason to prove that it is necessary to have a kal v’chomer, otherwise we could not compare the testimony of witnesses to his own admission.
B) One’s a) own admission in a sense is stronger than b) witness’ testimony. His admission cannot be contradicted by witnesses, nor can they invalidate his admission by saying that he was not in the place where the supposed loan took place. For example: He admits that he borrowed money from the plaintiff in New York City on January 1st. Witnesses say that they were with the defendant on January 1st in Los Angeles. The loan that the defendant admits to could never have happened according to the witnesses. Even so the admission stands. The Gemara uses this reason as a challenge to the kal v’chomer.
The Gemara initially said that there is an inherent difference between a) when one’s partial guilt is established by admission and b) when it is established by witnesses.
The Gemara says that we cannot derive liability b) when the admission is established by witnesses from a) when it is established by one’s own admission, because of reason A), when partial liability is established by witnesses, he has already denied owing money and is viewed as having attempted to steal.
It seems that the Gemara could have used reason B), just as easily. We would think that partial liability established by witnesses does not obligate an oath because one’s admission is stronger than the testimony of witnesses, since it cannot be contradicted or invalidated. So too, when the Gemara suggests reason B) as a challenge to the kal v’chomer, it could just as easily have used reason A).Tosfos would like to know why the Gemara initially uses reason A) to show that there is a need for the kal v’chomer and later switches to reason B) to challenge the kal v’chomer.
If you ask: Why does [the Gemara] need reason A) that a) when partial liability is known from the defendant’s admission, he is not viewed as a thief because we say that he is evading the creditor and stalling for time, as opposed to b) when his partial liability is established by witnesses, where we view him as having attempted to steal. Let [the Gemara] say that if not for the kal v’chomer, I would think reason B), that one’s own admission is more potent than the testimony of witnesses, because it is not subject to contradiction or invalidation? Therefore, one’s own admission of partial liability can obligate an oath, but partial liability by witness’ testimony cannot obligate an oath.
There is a similar problem with the Gemara that presents the challenge to the kal v’chomer. So too, later, [the Gemara] should have challenged the kal v’chomer from a) one’s admission by arguing - what can you prove from one’s admission where the defendant is viewed as evading the creditor and stalling for time, to b) when we know of his partial liability by witnesses, but he himself has totally denied liability and cannot be viewed as evading the creditor?
We can answer: That here, where [the Gemara] is explaining the meaning of the phrase we should not think “that his own admission is greater and more likely to require an oath, than the testimony of witnesses”, [the Gemara] is more comfortable using reason A): that [the debtor] is admitting to only half because he wants to evade the creditor and stall for time, for it is logical that for this reason, one would be required to swear a) when his partial liability is established by his own admission, but not b) when his partial liability is established by the testimony of witnesses.
However, [the Gemara] is more comfortable citing the potency of one’s admission, that it cannot be contradicted or invalidated, later to annul the kal v’chomer, for that is the method of the Gemara, to raise a challenge against a kal v’chomer, which shows that what is presented as ‘kal- lenient’ such as one’s own admission, is not lenient at all because it cannot be contradicted or invalidated. But [the Gemara] does not use logical arguments to reverse a kal v’chomer, therefore, it does not cite the logical difference between a) one’s admission and b) the testimony of witnesses, that in the case of one’s own admission his partial denial can be seen as an attempt to evade and stall for time from the creditor.
a)
Plaintiff: 100 zuz
Defendant: 50 zuz
Witnesses: N.A.
Ruling: Torah oath
b)
Plaintiff: 100 zuz
Defendant: Nothing
Witnesses: 50 zuz
Ruling: Torah oath
The Gemara has explained the psychology of requiring an oath when a) he admits fifty and denies fifty. The Gemara is now saying that the same psychology cannot be applied when he is liable for the first fifty zuz b) via witnesses. The Gemara uses an elusive phrase - the same cannot be said for when
a) the liability for the first fifty zuz was established by witnesses as for when
b) the first fifty zuz established by his own admission.
But what is truly the difference. Let us remember that in the previous Tosfos we learned that when a person denies half, it is not viewed as an attempt to steal. Rather, he is evading the creditor and stalling for time. This stands to reason when there was at least a partial admission of debt, but when there is a total denial, it is a bit more difficult to view the defendant’s denial as evading the creditor and stalling for time and not as an attempt to steal.
Tosfos says that this is what the Gemara means when it uses the phrase that when his liability of the first fifty zuz is established b) by witnesses, it cannot be said so readily,1As we will soon see, Tosfos is not saying that it is impossible to view a total denial as an attempt to evade the creditor. He is merely saying that we cannot view him as evading the creditor so readily, as we can view a partial denial. that he is evading the creditor and stalling for time, since he denied the claim entirely. I should therefore say, since he is suspected of stealing, he is also suspected of swearing falsely.
The Baraisa of R’ Chiya informs us of the kal v’chomer which teaches us that [the defendant] is not a thief2See חידושי הר"ן who asks a very obvious question: If we have a legitimate point when we say that one who totally denies is viewed as attempting to steal and not as evading the creditor, how can the kal v’chomer teach us otherwise? Our logical argument cannot be refuted by a kal v’chomer. See חידושי הר"ן for a different explanation of the Gemara. Also see בית הלוי חלק ג' לז ו' for an answer to this question according to Rashi’s explanation of the Gemara. [by denying liability] because he too is evading the creditor and stalling for time, but his intention is not to steal.
Tosfos proves that even a defendant who denies everything is not considered a thief: For one who falsely denies owing a loan is qualified to be a witness. If he was suspected of thievery, we could not accept his testimony in bais din. Since his testimony is acceped, it is evident that we do not think of him as a thief.
Was it necessary for the Tanna to teach us that we do not say that since one is suspected of stealing, he is also suspected of swearing falsely? Even though [the Gemara] later (6a) says that we do not say ‘since he is suspected etc. [of stealing, he is also suspected of swearing falsely]’. If so, why does the Baraisa of R’ Chiya need to teach us this, there is already adequate proof of this concept?
Even so, the Tanna informs us that we do not say: Since he is suspected of stealing, he is also suspected of swearing falsely. This he derives from a kal v’chomer from two sources, the oath that he must take when he admits partial liability with his own mouth, and the oath that he must take when a single witness testifies against him.
The Gemara on 4a is attempting to understand the kal v’chomer that teaches us that b) when witnesses testify that the defendant owes at least fifty of the hundred zuz claimed by the plaintiff, the defendant must swear about the fifty zuz that the witnesses are not testifying about.
The Gemara has shown that if the source of the kal v’chomer is the oath of partial admission or the oath of a single witness, the kal v’chomer is not functional. This process if known as a ‘פירכא - challenge’ to the logic of the kal v’chomer. The kal v’chomer is constructed on the logic that if “A” which is lenient requires an oath, then “B” which is more stringent certainly requires an oath. The ‘פירכא - challenge’ shows that in a certain way “A” is actually more stringent, thus undoing the basis of the kal v’chomer.
The Gemara on 4a summarizes the information discussed about the kal v’chomer: One’s own mouth is proof a) that when we know that he is liable for half the claim, that he must swear about the other half. So too, b) when his partial liability is established by the testimony of witnesses, he must swear about the other fifty zuz. What can you prove from the oath that one must take by a) the admission of his own mouth which cannot be contradicted. An admission is extremely powerful. Even if witnesses contradict an admission, the defendant remains liable. If so, we cannot derive that b) when witnesses testify that the defendant owes half, he should be obligated to swear from the oath that he must take when he admits owing half, because his own admission that he owes half is more potent than the testimony of witnesses that he owes half. Perhaps it is because of this potency that the Torah requires an oath when one admits half, but not when it is the testimony of witnesses that causes him to pay half.
The oath obligated by a single witness will prove that even if the testimony can be contradicted it can obligate an oath, for the testimony of a single witness can be contradicted and even so, it obligates the defendant to swear.
What can you prove from the oath obligated by a single witness, where the oath will be for the money that the witness testified about? He denied owing any money and the witness testifies that he owes a hundred zuz. He must swear to contradict the witness' testimony which supports the claim of the plaintiff. Can we derive from this that when two witnesses testify that the defendant owe fifty zuz, the defendant is obligated to swear about the other fifty zuz, which he denied owing - a claim which is not supported by the testimony of witnesses?
The oath he is obligated to take when he admits owing half by his own mouth, proves that one can be liable to swear about the second fifty zuz, even though the claim of the plaintiff is is not supported by the testimony of any witness.
At this point we can prove from
A) the oath obligated by a single witness, that one can be obligated to swear by testimony that can be contradicted. We can prove from the oath obligated by one’s admission that one can be required to swear
B) even on the portion of a claim that is unsubstantiated by either one’s own admission or by a single witness.
From the combination of A) and B), we can prove that b) when witnesses testify that the defendant owes half the money claimed by the plaintiff, he is required to swear about the other half.
Tosfos refers to learning from this combined source as deriving this ruling from the oath obligated by פיו - the admission of his own mouth and from the oath obligated by an עד אחד - the testimony of a single witness.
What emerges from our Gemara is that there are two reasons why we might not be able to derive that b) when partial liability is established by witnesses an oath is required, from when partial liability is established by his own admission:
A) When he admits partial liability, we view the partial denial as an attempt to evade the creditor and as a method of stalling for time. Whereas, when one has already totally denied liability, it seems as if he is attempting to steal. The Gemara uses this reason to prove that it is necessary to have a kal v’chomer, otherwise we could not compare the testimony of witnesses to his own admission.
B) One’s a) own admission in a sense is stronger than b) witness’ testimony. His admission cannot be contradicted by witnesses, nor can they invalidate his admission by saying that he was not in the place where the supposed loan took place. For example: He admits that he borrowed money from the plaintiff in New York City on January 1st. Witnesses say that they were with the defendant on January 1st in Los Angeles. The loan that the defendant admits to could never have happened according to the witnesses. Even so the admission stands. The Gemara uses this reason as a challenge to the kal v’chomer.
The Gemara initially said that there is an inherent difference between a) when one’s partial guilt is established by admission and b) when it is established by witnesses.
The Gemara says that we cannot derive liability b) when the admission is established by witnesses from a) when it is established by one’s own admission, because of reason A), when partial liability is established by witnesses, he has already denied owing money and is viewed as having attempted to steal.
It seems that the Gemara could have used reason B), just as easily. We would think that partial liability established by witnesses does not obligate an oath because one’s admission is stronger than the testimony of witnesses, since it cannot be contradicted or invalidated. So too, when the Gemara suggests reason B) as a challenge to the kal v’chomer, it could just as easily have used reason A).Tosfos would like to know why the Gemara initially uses reason A) to show that there is a need for the kal v’chomer and later switches to reason B) to challenge the kal v’chomer.
If you ask: Why does [the Gemara] need reason A) that a) when partial liability is known from the defendant’s admission, he is not viewed as a thief because we say that he is evading the creditor and stalling for time, as opposed to b) when his partial liability is established by witnesses, where we view him as having attempted to steal. Let [the Gemara] say that if not for the kal v’chomer, I would think reason B), that one’s own admission is more potent than the testimony of witnesses, because it is not subject to contradiction or invalidation? Therefore, one’s own admission of partial liability can obligate an oath, but partial liability by witness’ testimony cannot obligate an oath.
There is a similar problem with the Gemara that presents the challenge to the kal v’chomer. So too, later, [the Gemara] should have challenged the kal v’chomer from a) one’s admission by arguing - what can you prove from one’s admission where the defendant is viewed as evading the creditor and stalling for time, to b) when we know of his partial liability by witnesses, but he himself has totally denied liability and cannot be viewed as evading the creditor?
We can answer: That here, where [the Gemara] is explaining the meaning of the phrase we should not think “that his own admission is greater and more likely to require an oath, than the testimony of witnesses”, [the Gemara] is more comfortable using reason A): that [the debtor] is admitting to only half because he wants to evade the creditor and stall for time, for it is logical that for this reason, one would be required to swear a) when his partial liability is established by his own admission, but not b) when his partial liability is established by the testimony of witnesses.
However, [the Gemara] is more comfortable citing the potency of one’s admission, that it cannot be contradicted or invalidated, later to annul the kal v’chomer, for that is the method of the Gemara, to raise a challenge against a kal v’chomer, which shows that what is presented as ‘kal- lenient’ such as one’s own admission, is not lenient at all because it cannot be contradicted or invalidated. But [the Gemara] does not use logical arguments to reverse a kal v’chomer, therefore, it does not cite the logical difference between a) one’s admission and b) the testimony of witnesses, that in the case of one’s own admission his partial denial can be seen as an attempt to evade and stall for time from the creditor.
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Tosafot on Bava Metzia
What [can you prove from the admission] of his [own] mouth, which [has the strength to] obligate him [to bring] a karban? Can the same be said for witnesses etc. [who do not have the power to obligate him to bring a karban]? At this point in the dialogue of the Gemara, the Gemara is using one’s mouth - his admission - as the basis of a kal v’chomer. His admission does not have the strength to obligate him to pay penalties, and even so it obligates him to swear when he admits that he owes fifty of the one hundred zuz the plaintiff is claiming. Certainly, the testimony of witnesses which is strong enough to obligate him to pay penalties, should also have the strength to require him to swear when that testimony says that he owes fifty of the hundred zuz that the plaintiff is claiming.
Penalties
His admission: No
Witnesses: Yes
Oath
His admission: Yes
Witnesses: Certainly
As we explained in the previous Tosfos, a kal v’chomer is subject to a ‘פירכא - challenge’. The nature of the challenge is to show that one’s mouth, which is being described as the ‘קל - lenient’ is actually more powerful in certain cases. Presently, the Gemara argues that one’s mouth is more powerful than the testimony of witnesses, because his admission can obligate him to bring a karban. Presumably, the logical conclusion of this sentence is, but witnesses cannot obligate him to offer a karban.
Tosfos will explain the exact conditions where one’s admission is more powerful than the testimony of witnesses in regard to offering a karban. When the Gemara says that one’s admission obligates him to offer a karban, the meaning is: That his admission obligates him to offer a karban even when witnesses contradict him and say: What you ate was not cheilev,1Cheilev refers to the fats of the animal that are prohibited by the pain of kares. but shuman.2Shuman refers to other fatty parts of the animal that are permitted for consumption. In this case, his admission wins and he is obligated to offer a karban, even though witnesses testify that he is not required to offer a karban.
Perhaps the Gemara is speaking of one’s admission that he is liable to offer a karban when it is not contradicted by witnesses? For if the witnesses are not contradicting him, how can [the Gemara] say: Can you say the same for witnesses etc. who do not obligate him to bring a karban?]. But if we are discussing one’s admission when it is not contradicted by witnesses,it is simply not true that witness’ testimony would not obligate a karban in a comparable situation. The reality is that witnesses also obligate him to bring a karban, if he does not contradict them.
For even a single witness, if not contradicted, obligates him to bring a karban. When not contradicted, an admission, testimony of witnesses and even a single witness are all equal as far as obligating him to offer a karban. The special strength of an admission must be that even if it is contradicted by witnesses, it still obligates him to offer a karban.
In order to understand this Tosfos properly we must learn a Gemara in Kereisos 12a that discusses the reason why one’s own admission stands even against the testimony of witnesses. The Gemara there is discussing the Mishna in Kereisos 11b, soon to be quoted in our Gemara about a dispute between R’ Meir and the Rabanan. R’ Meir holds that if two witnesses testify that a person ate cheilev he must offer a karban. The Rabanan say the he is exempt. The Gemara there asks: What is the reason of the Rabanan? Is it because a person is believed about himself more than a hundred people, since this is something that affects only himself, he is the ultimate authority about his own obligations?
Or perhaps it is because we say there is a migo, that he could have said “I ate the cheilev intentionally”. It is beyond the witnesses to know whether he ate the cheilev intentionally or inadvertently. Thus, if he would insist that he ate it intentionally, we would necessarily believe him. So too, when he says: I did not eat cheilev at all, he is believed and is exempt from bringing a karban.
We see that there are two possible explanations of the Rabanan’s opinion:
a) A person is believed about his own private affairs even to the exclusion of witnesses.
b) We believe him because he could have exempted himself by saying: I ate the cheilev intentionally.
Which of these two versions in Kereisos 12a is compatible with our Gemara in Bava Metzia 3b?
This passage holds like the version in Perek Amru Lo (Kereisos 12a) that explains the reason of the Rabanan soon quoted later, that when [witnesses] said to him: You ate cheilev and he says I did not eat cheilev, that he is exempt from offering a karban, because a person is believed about himself more than a hundred people. Therefore, his mouth obligates him to offer a karban even if witnesses contradict him3See אוצר מפרשי התלמוד who quotes many commentators who explain Tosfos’ position in this issue. We must keep in mind that when a person claims that he ate cheilev and witnesses contradict him, he may be believed as far as himself is concerned. In reality however, there are other people affected by this question. Consider the Kohanim who need to offer this sacrifice. It is true that the supposed perpetrator insists that he is obligated to offer this karban, but there are a pair of kosher witnesses who say that there is no obligation to offer this karban and it is actually an ordinary animal that is not a karban at all. So too, as far as eating the flesh of this karban, the witnesses are saying that it is forbidden to do so, because this is חולין שנשחטו בעזרה - an ordinary animal that was slaughtered in the temple, which may not be eaten. It is beyond the scope of this work to deal with all these issues. because a person is the ultimate authority about himself. However, by the same token witnesses do not obligate him to offer a karban, if he contradicts their testimony.
Why is our Gemara not compatible with approach b) mentioned in Kereisos 12a? For according to the other version, that explains the reason of the Rabanan that we believe the person who says: I did not eat cheilev by adjusting his statement and explaining his words as follows: I did not eat cheilev inadvertently which would make me liable for a karban, rather, I did so intentionally and I am exempt from a karban.4See רמב"ם שגגות פ'א ה'א who rules in favor of this opinion.
This version b) of the explanation of the Rabanan must be logical. Tosfos adds something to the simple meaning of that Gemara: It must be speaking of when at the time he said “I did not eat cheilev” we did not interrogate him about what he meant. Since we do not have a clear statement that he did not eat cheilev at all, we can say that initially he meant that he did not eat cheilev inadvertently, but intentionally and he is therefore exempt from a karban. However, he is not believed to directly contradict the witnesses. If he should say that he did not eat cheilev at all and the witnesses testify that he did eat cheilev inadvertently, we would not believe him and he would have to bring a karban.
If so, the testimony of witnesses is more powerful than his mouth, for they can obligate him to offer a karban even when he contradicts them, and he cannot obligate himself to offer a karban, if [witnesses] were contradicting him.
According to this version in the Gemara in Kereisos, R’ Chiya’s position that the testimony of witnesses is stronger than one’s own admission comes out even according to the Rabanan. Our Gemara did not need to say that R’ Chiya follows R’ Meir who disagrees with the Rabanan.
Penalties
His admission: No
Witnesses: Yes
Oath
His admission: Yes
Witnesses: Certainly
As we explained in the previous Tosfos, a kal v’chomer is subject to a ‘פירכא - challenge’. The nature of the challenge is to show that one’s mouth, which is being described as the ‘קל - lenient’ is actually more powerful in certain cases. Presently, the Gemara argues that one’s mouth is more powerful than the testimony of witnesses, because his admission can obligate him to bring a karban. Presumably, the logical conclusion of this sentence is, but witnesses cannot obligate him to offer a karban.
Tosfos will explain the exact conditions where one’s admission is more powerful than the testimony of witnesses in regard to offering a karban. When the Gemara says that one’s admission obligates him to offer a karban, the meaning is: That his admission obligates him to offer a karban even when witnesses contradict him and say: What you ate was not cheilev,1Cheilev refers to the fats of the animal that are prohibited by the pain of kares. but shuman.2Shuman refers to other fatty parts of the animal that are permitted for consumption. In this case, his admission wins and he is obligated to offer a karban, even though witnesses testify that he is not required to offer a karban.
Perhaps the Gemara is speaking of one’s admission that he is liable to offer a karban when it is not contradicted by witnesses? For if the witnesses are not contradicting him, how can [the Gemara] say: Can you say the same for witnesses etc. who do not obligate him to bring a karban?]. But if we are discussing one’s admission when it is not contradicted by witnesses,it is simply not true that witness’ testimony would not obligate a karban in a comparable situation. The reality is that witnesses also obligate him to bring a karban, if he does not contradict them.
For even a single witness, if not contradicted, obligates him to bring a karban. When not contradicted, an admission, testimony of witnesses and even a single witness are all equal as far as obligating him to offer a karban. The special strength of an admission must be that even if it is contradicted by witnesses, it still obligates him to offer a karban.
In order to understand this Tosfos properly we must learn a Gemara in Kereisos 12a that discusses the reason why one’s own admission stands even against the testimony of witnesses. The Gemara there is discussing the Mishna in Kereisos 11b, soon to be quoted in our Gemara about a dispute between R’ Meir and the Rabanan. R’ Meir holds that if two witnesses testify that a person ate cheilev he must offer a karban. The Rabanan say the he is exempt. The Gemara there asks: What is the reason of the Rabanan? Is it because a person is believed about himself more than a hundred people, since this is something that affects only himself, he is the ultimate authority about his own obligations?
Or perhaps it is because we say there is a migo, that he could have said “I ate the cheilev intentionally”. It is beyond the witnesses to know whether he ate the cheilev intentionally or inadvertently. Thus, if he would insist that he ate it intentionally, we would necessarily believe him. So too, when he says: I did not eat cheilev at all, he is believed and is exempt from bringing a karban.
We see that there are two possible explanations of the Rabanan’s opinion:
a) A person is believed about his own private affairs even to the exclusion of witnesses.
b) We believe him because he could have exempted himself by saying: I ate the cheilev intentionally.
Which of these two versions in Kereisos 12a is compatible with our Gemara in Bava Metzia 3b?
This passage holds like the version in Perek Amru Lo (Kereisos 12a) that explains the reason of the Rabanan soon quoted later, that when [witnesses] said to him: You ate cheilev and he says I did not eat cheilev, that he is exempt from offering a karban, because a person is believed about himself more than a hundred people. Therefore, his mouth obligates him to offer a karban even if witnesses contradict him3See אוצר מפרשי התלמוד who quotes many commentators who explain Tosfos’ position in this issue. We must keep in mind that when a person claims that he ate cheilev and witnesses contradict him, he may be believed as far as himself is concerned. In reality however, there are other people affected by this question. Consider the Kohanim who need to offer this sacrifice. It is true that the supposed perpetrator insists that he is obligated to offer this karban, but there are a pair of kosher witnesses who say that there is no obligation to offer this karban and it is actually an ordinary animal that is not a karban at all. So too, as far as eating the flesh of this karban, the witnesses are saying that it is forbidden to do so, because this is חולין שנשחטו בעזרה - an ordinary animal that was slaughtered in the temple, which may not be eaten. It is beyond the scope of this work to deal with all these issues. because a person is the ultimate authority about himself. However, by the same token witnesses do not obligate him to offer a karban, if he contradicts their testimony.
Why is our Gemara not compatible with approach b) mentioned in Kereisos 12a? For according to the other version, that explains the reason of the Rabanan that we believe the person who says: I did not eat cheilev by adjusting his statement and explaining his words as follows: I did not eat cheilev inadvertently which would make me liable for a karban, rather, I did so intentionally and I am exempt from a karban.4See רמב"ם שגגות פ'א ה'א who rules in favor of this opinion.
This version b) of the explanation of the Rabanan must be logical. Tosfos adds something to the simple meaning of that Gemara: It must be speaking of when at the time he said “I did not eat cheilev” we did not interrogate him about what he meant. Since we do not have a clear statement that he did not eat cheilev at all, we can say that initially he meant that he did not eat cheilev inadvertently, but intentionally and he is therefore exempt from a karban. However, he is not believed to directly contradict the witnesses. If he should say that he did not eat cheilev at all and the witnesses testify that he did eat cheilev inadvertently, we would not believe him and he would have to bring a karban.
If so, the testimony of witnesses is more powerful than his mouth, for they can obligate him to offer a karban even when he contradicts them, and he cannot obligate himself to offer a karban, if [witnesses] were contradicting him.
According to this version in the Gemara in Kereisos, R’ Chiya’s position that the testimony of witnesses is stronger than one’s own admission comes out even according to the Rabanan. Our Gemara did not need to say that R’ Chiya follows R’ Meir who disagrees with the Rabanan.
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Tosafot on Bava Metzia
R’ Chiya holds like R’ Meir [who says that witnesses can also obligate one to bring a karban]. Let us remind ourselves that we are discussing
A) R’ Chiya’s kal v’chomer that the testimony of witnesses is stronger than one’s own admission because their testimony can obligate him to pay fines, which his own admission cannot accomplish. If his own admission can obligate him to swear upon the fifty zuz that he is denying, witnesses’ testimony that he owes fifty zuz, which is stronger than his own admission should also obligate him to swear on the other fifty zuz.
Penalties
Kal, His admission: No
Chomer, Witnesses: Yes
Oath
Kal, His admission: Yes
Chomer, Witnesses: Certainly
The Gemara challenges this kal v’chomer by saying that in a way one’s mouth is stronger than witnesses because it can obligate him to bring a karban, which witnesses cannot do. Thus the perceived kal his admission - is not actually kal, because it has the power to accomplish what the chomer - witnesses cannot do.
The Gemara responds that R’ Chiya follows the opinion of R’ Meir who says that witnesses can in fact obligate one to bring a karban. Thus his admission remains - kal - in comparison to witnesses’ testimony.
R’ Meir’s ruling is also kal v’chomer based:
B) If the testimony of witnesses is strong enough to execute a person, it should certainly be strong enough to obligate him to bring a karban, which is a much lighter punishment than death.
Note, that this is a shortened version of the type of kal v’chomer A) mentioned earlier in the Gemara. We are not drawing a comparison from one’s admission to witnesses’ testimony. We are simply saying that since witnesses’ testimony can establish liability for capital punishment, it should certainly be capable of establishing liability for a karban.
R’ Meir’s kal v’chomer: Witnesses can effect capital punishment. Therefore, witnesses should certainly effect liability for a karban.
What is emerging is that R’ Chiya is teaching us kal v’chomer A) which is based on what is derived from kal v’chomer B). Since kal v’chomer B) teaches us that witnesses can obligate one to bring a karban, one’s own admission remains kal by comparison and we can now learn from A) the first longer kal v’chomer that witnesses’ testimony, which is the relative chomer, should obligate an oath.
Tosfos wonders why we cannot directly apply the underlying basis of kal v’chomer B) to the issue of witnesses obligating a defendant to swear. The chomer of kal v’chomer B) is that witness’ testimony has the strength to effect capital punishment. We could also say: If the testimony of witnesses can establish liability for capital punishment, it should certainly establish an obligation to swear.
Tosfos’ propsed kal v’chomer: Witnesses can effect capital punishment. Therefore, witnesses should also effect an obligation to swear. If you ask: If so, that R’ Chiya follows R’ Meir, who holds that witnesses can obligate one to bring a karban, which is based on kal v’chomer B), let us say that very same kal v’chomer of R’ Meir to learn that the testimony of witnesses can obligate an oath like so: If by their testimony [witnesses] can establish liability for capital punishment, they should certainly establish liability for an oath which is relatively lenient as compared to capital punishment? Why does R’ Chiya in his kal v’chomer draw from the comparison of one’s admission, which cannot cause him to pay fines to the testimony of witnesses, which can obligate him to pay fines? It seems that the direct kal v’chomer from witnesses establishing liability for capital punishment is more direct and to the point.
We can answer: Because this kal v’chomer using the strength of witnesses’ testimony to establish liability for capital punishment as the basis for proving that their testimony should also obligate an oath, can be challenged as follows: For what can you prove from the witnesses’ strength to bring about capital punishment, where the defendant is punished for committing the crime that they are directly testifying about? Can the same be said in regard to obligating the defendant to swear, where he will swear about the fifty zuz of the claim that he denies which is not supported by the testimony of the witnesses, as the Gemara says later (at the end of this page)? It is only by comparing the testimony of witnesses to one’s own admission where we can draw a kal v’chomer which proves that the testimony of witnesses can establish an obligation to swear just as one’s own admission can establish such liability, despite the fact that he will be swearing about the unsupported portion of the claim.
A) R’ Chiya’s kal v’chomer that the testimony of witnesses is stronger than one’s own admission because their testimony can obligate him to pay fines, which his own admission cannot accomplish. If his own admission can obligate him to swear upon the fifty zuz that he is denying, witnesses’ testimony that he owes fifty zuz, which is stronger than his own admission should also obligate him to swear on the other fifty zuz.
Penalties
Kal, His admission: No
Chomer, Witnesses: Yes
Oath
Kal, His admission: Yes
Chomer, Witnesses: Certainly
The Gemara challenges this kal v’chomer by saying that in a way one’s mouth is stronger than witnesses because it can obligate him to bring a karban, which witnesses cannot do. Thus the perceived kal his admission - is not actually kal, because it has the power to accomplish what the chomer - witnesses cannot do.
The Gemara responds that R’ Chiya follows the opinion of R’ Meir who says that witnesses can in fact obligate one to bring a karban. Thus his admission remains - kal - in comparison to witnesses’ testimony.
R’ Meir’s ruling is also kal v’chomer based:
B) If the testimony of witnesses is strong enough to execute a person, it should certainly be strong enough to obligate him to bring a karban, which is a much lighter punishment than death.
Note, that this is a shortened version of the type of kal v’chomer A) mentioned earlier in the Gemara. We are not drawing a comparison from one’s admission to witnesses’ testimony. We are simply saying that since witnesses’ testimony can establish liability for capital punishment, it should certainly be capable of establishing liability for a karban.
R’ Meir’s kal v’chomer: Witnesses can effect capital punishment. Therefore, witnesses should certainly effect liability for a karban.
What is emerging is that R’ Chiya is teaching us kal v’chomer A) which is based on what is derived from kal v’chomer B). Since kal v’chomer B) teaches us that witnesses can obligate one to bring a karban, one’s own admission remains kal by comparison and we can now learn from A) the first longer kal v’chomer that witnesses’ testimony, which is the relative chomer, should obligate an oath.
Tosfos wonders why we cannot directly apply the underlying basis of kal v’chomer B) to the issue of witnesses obligating a defendant to swear. The chomer of kal v’chomer B) is that witness’ testimony has the strength to effect capital punishment. We could also say: If the testimony of witnesses can establish liability for capital punishment, it should certainly establish an obligation to swear.
Tosfos’ propsed kal v’chomer: Witnesses can effect capital punishment. Therefore, witnesses should also effect an obligation to swear. If you ask: If so, that R’ Chiya follows R’ Meir, who holds that witnesses can obligate one to bring a karban, which is based on kal v’chomer B), let us say that very same kal v’chomer of R’ Meir to learn that the testimony of witnesses can obligate an oath like so: If by their testimony [witnesses] can establish liability for capital punishment, they should certainly establish liability for an oath which is relatively lenient as compared to capital punishment? Why does R’ Chiya in his kal v’chomer draw from the comparison of one’s admission, which cannot cause him to pay fines to the testimony of witnesses, which can obligate him to pay fines? It seems that the direct kal v’chomer from witnesses establishing liability for capital punishment is more direct and to the point.
We can answer: Because this kal v’chomer using the strength of witnesses’ testimony to establish liability for capital punishment as the basis for proving that their testimony should also obligate an oath, can be challenged as follows: For what can you prove from the witnesses’ strength to bring about capital punishment, where the defendant is punished for committing the crime that they are directly testifying about? Can the same be said in regard to obligating the defendant to swear, where he will swear about the fifty zuz of the claim that he denies which is not supported by the testimony of the witnesses, as the Gemara says later (at the end of this page)? It is only by comparing the testimony of witnesses to one’s own admission where we can draw a kal v’chomer which proves that the testimony of witnesses can establish an obligation to swear just as one’s own admission can establish such liability, despite the fact that he will be swearing about the unsupported portion of the claim.
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