Commentary for Bava Metzia 8:5
אלא לעולם שתים פטור והילך חייב ושאני הכא דקא מסייע ליה שטרא
it follows that 'Here they are' does not involve an oath? — No; I could quite well maintain that when he says 'two' he also has to take an oath, and the reason why 'three' is stated is to express disagreement with R. Akiba, who maintains that the debtor [who says 'three'] is like a restorer of lost [property] and free [from taking an oath]. We are thus informed that he is like one who admits part of the claim, and that he has to take an oath.<span class="x" onmousemove="('comment',' For in the case of the debtor saying 'two', R. Akiba would not have differed, and there would have been no occasion for this comparison with the restoration of a lost object. ');"><sup>5</sup></span>
Tosafot on Bava Metzia
Actually, [I will tell you that if the defendant admits that he owes] two [selaim or dinarim] he is exempt [from taking an oath for reasons soon to be mentioned, and even so, when a defendant says]: “Here, it is yours!”, he is obligated [to take an oath]. We will soon learn in the Gemara that there are two possible reasons to exempt one who admits owing two selaim or dinarim besides the fact that it is a case of “Here, it is your!”. Those are:
a) The document supports his admission of two selaim or dinarim.
b) It is an admission to owing a debt that is backed up by a lien on land. Such an admission cannot generate an oath obligation as will be explained later in the Gemara and Tosfos.
Our Gemara is now saying that it is true that if the defendant admits owing two selaim or dinarim, he is exempt from an oath obligation, but not because it is a case of “Here, it is yours!”. If that was the only factor, he might be obligated to swear. The reason he is exempt is for one of the other reasons mentioned later.
We must now review Tosfos 4Ae, where Tosfos asked that if one is exempt from swearing when he admits owing two, the rule of migo says that he should also be exempt when he admits owing three, because he could have admitted owing only two. Tosfos explained that if the reason for his exemption is because his claim is “Here, it is yours!”, the concept of migo does not apply.
The Gemara on 4a says, “Here, it is yours!” separates the portion that he admits from the rest of the plaintiff’s claim. The portion that the defendant admitted is no longer part of the original claim of five selaim or dinarim. Once he admits that he owes two and says “Here, it is yours!”, we now view the plaintiff’s claim as demanding that the defendant owes him only three selaim or dinarim. He is in total denial of that claim of three. Thus, the argument that the defendant has a migo is untenable. His migo is that he might have admitted only two. But if he admitted that, he would be in total denial of the plaintiff’s claim of three, and one is not brazen enough to deny a claim entirely.
This rationale is acceptable if the reason for exempting the defendant from swearing is because it is a case of “Here, it is yours!”. However, if the reason the defendant is exempt when admitting that he owes two is one of the above mentioned reasons,
a) because the document supports his admission, or
b) because his admission is backed by a lien on real property we must have a new explanation of why the defendant should not be free of swearing when he admits owing three selaim or dinarim, since he has a migo that he could have admitted owing only two.
If you ask: Since when one says “Here, it is yours!”, he is obligated to swear, because we view the plaintiff’s original claim of five as one claim, when [the defendant] says he owes only two, he is not in total denial of the claim against him, thus, when he says “I owe three” he should be believed with a migo that if he wanted to lie, he would have said that he owes only two. If so, what is the reason of R’ Shimon ben Elazar who says that he is obligated to swear? He should be exempt by the rule of migo.
Once again, we must find a reason why the defendant is more comfortable with admitting that he owes three selaim and dinarim than with admitting that he owes only two.
We can answer: That [R’ Shimon ben Elazar] holds that he would not willingly claim that he owes only two, which is supported by the document, because it appears that his admission is only because of the document and if there was no document he would deny everything. In order to avoid this appearance, he prefers to admit another sela or dinar. Thus, he has no migo. Migo is viable only when the defendant is as comfortable with the second claim as he is with his first claim.
a) The document supports his admission of two selaim or dinarim.
b) It is an admission to owing a debt that is backed up by a lien on land. Such an admission cannot generate an oath obligation as will be explained later in the Gemara and Tosfos.
Our Gemara is now saying that it is true that if the defendant admits owing two selaim or dinarim, he is exempt from an oath obligation, but not because it is a case of “Here, it is yours!”. If that was the only factor, he might be obligated to swear. The reason he is exempt is for one of the other reasons mentioned later.
We must now review Tosfos 4Ae, where Tosfos asked that if one is exempt from swearing when he admits owing two, the rule of migo says that he should also be exempt when he admits owing three, because he could have admitted owing only two. Tosfos explained that if the reason for his exemption is because his claim is “Here, it is yours!”, the concept of migo does not apply.
The Gemara on 4a says, “Here, it is yours!” separates the portion that he admits from the rest of the plaintiff’s claim. The portion that the defendant admitted is no longer part of the original claim of five selaim or dinarim. Once he admits that he owes two and says “Here, it is yours!”, we now view the plaintiff’s claim as demanding that the defendant owes him only three selaim or dinarim. He is in total denial of that claim of three. Thus, the argument that the defendant has a migo is untenable. His migo is that he might have admitted only two. But if he admitted that, he would be in total denial of the plaintiff’s claim of three, and one is not brazen enough to deny a claim entirely.
This rationale is acceptable if the reason for exempting the defendant from swearing is because it is a case of “Here, it is yours!”. However, if the reason the defendant is exempt when admitting that he owes two is one of the above mentioned reasons,
a) because the document supports his admission, or
b) because his admission is backed by a lien on real property we must have a new explanation of why the defendant should not be free of swearing when he admits owing three selaim or dinarim, since he has a migo that he could have admitted owing only two.
If you ask: Since when one says “Here, it is yours!”, he is obligated to swear, because we view the plaintiff’s original claim of five as one claim, when [the defendant] says he owes only two, he is not in total denial of the claim against him, thus, when he says “I owe three” he should be believed with a migo that if he wanted to lie, he would have said that he owes only two. If so, what is the reason of R’ Shimon ben Elazar who says that he is obligated to swear? He should be exempt by the rule of migo.
Once again, we must find a reason why the defendant is more comfortable with admitting that he owes three selaim and dinarim than with admitting that he owes only two.
We can answer: That [R’ Shimon ben Elazar] holds that he would not willingly claim that he owes only two, which is supported by the document, because it appears that his admission is only because of the document and if there was no document he would deny everything. In order to avoid this appearance, he prefers to admit another sela or dinar. Thus, he has no migo. Migo is viable only when the defendant is as comfortable with the second claim as he is with his first claim.
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