Commentary for Bava Metzia 9:10

But according to [Rav Sheshet], the one who says that [where the debtor says]: Here you are, [he is] exempt; why was [it] necessary [for the] verse [to exclude]. The Gemara earlier on 4a assumed that whenever a defendant admits that he owes the plaintiff land, it is by definition a case of ‘הילך - Here, it is yours!’, since the land is available to be returned to the plaintiff. Based on this assumption, the Gemara now asks: If when a defendant says ‘הילך - Here, it is yours!’ he is exempt from swearing, why must the Torah teach us that land cannot generate an oath obligation, when a defendant admits owing land, he would be exempt from swearing because it is a case of ‘הילך - Here, it is yours!’?
It seems from the Gemara’s question that we have this difficulty understanding the need for an exclusion of land from an oath obligation only if we hold that when the defendant says, ‘Here, it is yours!, he is exempt. However, if we hold that in cases of ‘Here, it is yours!’, the defendant is obligated to swear, there is no difficulty. Tosfos will demonstrate that even if we hold that one is liable in cases of ‘Here, it is yours!, there would still be a difficulty with the need for an exclusion for land from an oath obligation.
Earlier on 3b we learned in Tosfos ד'ה בכוליה בעי דלודי ליה, that the reason one who admits partially to the plaintiff’s claim is obligated to swear and we do not exempt him from the oath because he would not have the audacity to deny his debt in the face of his creditor, is because we do not view his partial denial as audacity, rather, he is merely evading his creditor and stalling for time. We may summarize this as follows:
A) A counterclaim is not a demonstration of audacity if it can be explained as a means of ‘evading the creditor’. It also follows that the reverse is also true:
B) If a counterclaim cannot be dismissed as a means of ‘evading the creditor’, it is viewed as a demonstration of audacity and we rule that a person does not have the audacity to deny a creditor’s claim in his face. He must therefore be believed that he is telling the truth.
Tosfos earlier on 3b: 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.
When a defendant denies that he owes the plaintiff land, the idea that he might be ‘evading the creditor’ to stall for time is inapplicable, because the land is always here and available. We should therefore rule that when one denied a claim against himself, we believe him because he would not have the audacity to deny his debt in the face of his creditor.
This is bewildering! For even according to the one who says: In a case of ‘Here, it is yours!’ the defendant is obligated to swear, why is a verse needed to exclude land from generating an oath obligation, for when dealing with land the possibility of ‘evading the creditor’ is inapplicable? The portion of the land that he is denying is always here and available and can be returned immediately.
The Gemara on 6a is discussing שבועת היסת - the ‘oath of incitement’ instituted by Rav Nachman. The Gemara is attempting to prove that even when ‘evading the creditor’ is inapplicable, there is an obligation to swear. Tosfos asks: But even in the case of one who denies the claim entirely, there is a possibility that he is attempting to evade the creditor? Tosfos concludes that Rav Nachman requires an oath even when ‘evading the creditor’ is totally inapplicable. For example: When the plaintiff claims that the item the defendant has in his hands is mine and the defendant denies it, Rav Nachman also requires an oath by the defendant. Certainly, there is no possibility of ‘evading the creditor’ when the disputed item is available in our presence.
Tosfos there ד'ה אלא הא argues that Rav Hai Gaon also holds that Rav Nachman’s oath is required even when ‘evading the creditor’ is not a factor. His example is that one is required to swear even when the issue is about land. We see that in regard to land ‘evading the creditor’ is inapplicable because the land is always here.
So too, Rav Hai Gaon explains that we do swear שבועת היסת - the ‘oath of incitement’ when the claim is about land, even though ‘evading the creditor’ is inapplicable.
So does [the Gemara]¹See מהרש"א who offers the following amendment of the text, which is what we followed in our explanation of Tosfos: וכן פריך לקמן וכי כופר. ask later according to Rav Hai as explained by Tosfos (See 6a תוס' ד'ה אלא): That the Gemara on 6a is referring to a ruling that one must swear according to Rav Nachman even when the dispute is about land. We therefore see from Rav Nachman that even when there is no possibility of ‘evading the creditor’ an oath of incitement is required by Rabbinic law. Based on this conclusion Tosfos now continues his question: When [a defendant] denies owing some of the land that the plaintiff is claiming, he should be exempt from paying and swearing, for we should believe him, since one does not have the audacity to lie in the face of his creditor. As explained, evading the creditor cannot be used as an explanation for his ability to lie in this instance, since the land he denies is always here.
Perhaps, even in regard to land ‘evading the creditor’ is somewhat applicable, for perhaps [the defendant] pledged [the land] to a third party as security for a debt and he cannot presently return it to its true owner. He thinks that he will deny the plaintiff’s claim until he will accumulate cash and will pay the debt to the third party and then return the land to the plaintiff.

Why is it necessary to have a [special] verse to exclude land [from an oath obligation]? As explained in the introduction to the previous Tosfos, the Gemara holds that if the rule in cases of ‘הילך - Here, it is yours!’ is that one is exempt from swearing, cases involving land should always be exempt from an oath obligation, because one’s admission that he owes land is tantamount to ‘הילך - Here, it is yours!’ since the land is always here and available. If so, why is a special verse needed to exclude cases of ‘הילך - Here, it is yours!’ from an oath obligation?
The assumption of this Gemara’s question is that there is in fact a superfluous verse to exclude land from an oath obligation. Tosfos re-examines this assumption! This is bewildering! But there is no superfluous verse to exclude land from an oath obligation? Rather, it is excluded from a generalization, specific and generalization. Perhaps the Gemara’s question is that this system is not needed? Tosfos explains that this is not so. The generalization, specific and generalization, is needed to exclude documents from an oath obligation. The same generalization etc. can be used to exclude land if needed, but it is certainly not superfluous?
Tosfos is convinced of the strength of his challenge and must resort to a different explanation of the Gemara’s question. We can answer: That the Gemara’s question is not about a superfluous verse, rather, [the Gemara’s] question is why did the Tanna need to derive that land is exempt from an oath from the generalization and specific etc. system, since disputes involving land are inherently cases of ‘הילך - Here, it is yours!’, which are automatically exempt from an oath obligation.
A short review of the Gemara on 3a about the exemption of ‘הילך - Here, it is yours!’: Rav Sheishes says: A defendant who says: ‘הילך - Here, it is yours!’ is exempt from an oath obligation. What is the reason?
Since the defendant says: ‘הילך - Here, it is yours!’, the money that he admitted owing, are as if the lender is holding them. In regard to the other fifty, the borrower denies owing them entirely. Therefore, this is not a case of one who admits part of the claim against him.
It is obvious that the rationale for exempting one from an oath in a situation of ‘הילך - Here, it is yours!’, is not one that is applicable to all oath obligations. Its logic is exclusively relevant to the oath of one who partially admits the claim against him.
If you ask: Let us say that [the Tanna] who discusses an exemption for land needed to exclude land from the oath generated by a single witness? Why is the Gemara convinced that he spoke of this exclusion for the oath of one who partially admits the claim against him?
However, we can answer: Because the Mishna’s discussion of not swearing about land is speaking about the oath of one who partially admits the claim against him. It is therefore reasonable to assume that the exclusion he discusses is for this oath. Thus proving that even in case of ‘הילך - Here, it is yours!’ one is obligated to take an oath.

Alternatively, [the Baraisa is speaking of when the plaintiff] claimed utensils and land. The defendant’s admission that he owes utensils is not a situation of ‘הילך - Here, it is yours!’. Even so, since the denial is about land, there is no oath obligation.
There is an assumption that if a plaintiff claimed two types of movable objects such as wheat and barley and the defendant admitted owing barley, he would be liable for an oath. We do not look at each item as an independent claim. Rather, we view them as one aggregate claim and a denial or admission of one of the items is a partial admission or denial of the claim against him.
From this [Gemara] it appears that when [the plaintiff] claims wheat and barley and [the defendant] admits owing one of them, he is obligated to take an oath. We consider both species as one claim and the admission of one as partial admission of that one claim.
We can see from our Gemara that only when the combined claim was land and utensils, [the defendant] who admits owing utensils is exempt because his denial of land does not generate an oath obligation, but if the combined claim was wheat and barley and he admitted owing one of these species, [the defendant] would be obligated to take an oath.
The Gemara in Shavuos 40a: Rav Nachman said in the name of Shmuel: if [the plaintiff] claimed wheat and barley and [the defendant] admitted owing one of them, he is obligated to take an oath. R’ Yitzchak said to [Rav Nachman]: … and so too did R’ Yochanan say.
On 40b the Gemara says: R’ Chiya bar Abba said in the name of R’ Yochanan: If [the plaintiff] claimed wheat and barley and [the defendant] admitted owing one of them, he is exempt from swearing. Since these are two separate species, each one is viewed as an independent claim. This is not a case of partial admission of the claim by the defendant.
We see that Shmuel definitely holds that we view the combined claim of wheat and barley as one. According to R’ Yitzchak, R’ Yochanan agrees with Shmuel. According to R’ Chiya bar Avin, R’ Yochanan disagrees with Shmuel. So too, do Shmuel and R’ Yochanan , according to one version, the opinion of R’ Yitzchak, hold in Perek Shavuos Hadayanim (Shavuos 40a).

An unpaid custodian. The Gemara now introduces a Baraisa as proof that in a case of ‘הילך - Here, it is yours!’, one is obligated to swear. The Baraisa discusses the conditions of oath liability and a superficial reading of the Baraisa seems to indicate that even in cases of ‘הילך - Here, it is yours!’ one is obligated to swear.
Tosfos first turns his attention to the structure of the Baraisa, which follows a different order than the way the custodians appear in the Torah. In Parshas Mishpatim (Shemos 22, 6) we have the passage dealing with
a) an unpaid custodian. This is followed by the rules governing
b) a paid custodian,
c) a borrower and
d) a renter.
Our Baraisa follows a different order when listing the four custodians:
1) an unpaid custodian,
2) a borrower,
3) a paid custodian and
4) a renter.
Tosfos explains why: An unpaid custodian is exempt from all liability. This includes unavoidable accidents, theft and loss, except for negligence.
A borrower is liable for everything, except when an animal dies as a result of its regular work. This applies to any object that breaks as a result of normal usage.
A paid custodian and a renter are liable for some losses such as negligence, loss or theft and exempt for some losses such as unavoidable accidents. The rules governing an unpaid custodian and a renter are the same.
That is why [the Tanna] taught them in this order, and did not teach them in the order in which they are written in the Torah, where the borrower appears between the unpaid custodian and the renter.
The Gemara’s initial assumption when asking its question is that in the case of the four custodians when an item is deposited in their possession, the partial admission will always be one of ‘הילך - Here, it is yours!’, because unlike one who borrows money, the item was never meant to leave their domain. When they admit that they owe the item it is always immediately available. If so, there are many other Mishnayos where we see that there is liability for the custodians and presumably those too are speaking of when the items are intact and immediately available.
If you ask: Why doesn’t [the Gemara] ask from many Mishnayos, where it is also evident that in cases of ‘הילך - Here, it is yours!’ that one is liable? For example: The Mishna about [the plaintiff] who says that the produce he entrusted with the custodian filled the storage room till the projecting ceiling beam and [the defendant] responds: the produce reached only till the window.
In the very same Mishna: The plaintiff says I gave you ten vines to guard and the defendant claims there were only five vines. These cases are found in Shavuos (42b). Presumably, in both of these cases the defendant is ready to give the plaintiff the portion that he admits owing, which is of course a case of הילך.
So too, in the Mishna in HaShoel (Below 97b) where the Mishna is discussing a case where both agree that two cows were deposited with the custodian. One was borrowed and the other rented. One of the two cows died as a result of an unavoidable accident. [The plaintiff] says: The borrowed one died and you are liable for unavoidable accidents. [The defendant] says: The rented one died and I am exempt for unavoidable accidents.
In all these cases the Mishnayos are speaking of deposited items, which are cases of ‘הילך - Here, it is yours!’. These too could be presented as proof that even in cases of ‘הילך - Here, it is yours!’, one is liable.
We can answer: [The Gemara] is more comfortable with asking a question from a Baraisa that speaks about all of the custodians, as opposed to the quoted Mishnayos that all speak of only one of the custodians.

R’ Chiya is a Tanna and argues [with the Baraisa presented by the father of Rav Aftoriki]. There seems to be two versions of the text in the Gemara earlier on 3a, where R’ Chiya presents his opinion that the testimony of witnesses of partial liability generates an oath obligation.
A) It is a personal statement of R’ Chiya.
B) R’ Chiya is quoting a Baraisa.
If the second text is correct, there is no need for our Gemara to defend R’ Chiya by saying that he is a Tanna and can argue with a Baraisa. He was also quoting a Baraisa that can certainly disagree with the Baraisa of R’ Aftoriki’s father.
If our text earlier is “R’ Chiya said”, which implies that the ruling was R’ Chiya’s personal ruling and not of a Baraisa, our Gemara which defends R’ Chiya’s ruling by saying that R’ Chiya has the right to argue with the Baraisa comes out well. Initially, the Gemara did not know that R’ Chiya ranks as a Tanna and presented this Baraisa as a contradiction to R’ Chiya. The Gemara defends R’ Chiya by saying that he does rank as a Tanna and can disagree with the ruling of the Baraisa.
But if R’ Chiya was quoting a Baraisa, there should be no need to say that R’ Chiya has the right to argue with a Baraisa?
And even if our original text was “R’ Chiya taught a Baraisa” there should be no need to defend R’ Chiya by saying that he was a Tanna, since he was teaching a Baraisa? We can answer: That the Gemara means as follows: Even if this ruling of R’ Chiya would not be a Baraisa there would be no problem, because [R’ Chiya] is a Tanna and has the right to argue with any Baraisa.

[If the plaintiff claimed wheat] and [the defendant] admitted [owing] barley, he is exempt. The Gemara can easily be understood as exempting the defendant from swearing. We might believe that he is liable to return the barley that he admits owing. Tosfos tells us that this is not so.
When we say that if the plaintiff claimed the defendant owes him wheat and he admits that he owes barley, he is exempt -this means that he is exempt not only from the wheat but also from the barley that he admitted owing, because we construe the plaintiff’s claim of wheat as an admission that the defendant does not owe him any barley, as is evident from the end of HaManee’ach (Bava Kama 35b, and Tosfos ד'ה לימא there.)¹The Gemara there clearly says that the defendant is exempt from barley as well.
If [the plaintiff] claimed that the subject owes him wheat and [the defendant] admitted that he owes [the plaintiff] barley, he is exempt. What is Rabah bar Nassan teaching us? We have learned this in a Baraisa: If [the plaintiff] claimed wheat and [the defendant] admitted that he owes barley - [the defendant] is exempt. The Gemara explains: If our source was only the Baraisa I would say - what is meant by that Baraisa - that [the defendant] is exempt from the value of wheat and liable for the value of barley. Rabah bar Nassan teaches us that he is entirely exempt, even from the equivalent amount of wheat.

They gave [the sheep] to [the shepherd in the presence of] witnesses. As is evident from the Gemara, their intention was to be able to verify that he had indeed received the sheep from them. Otherwise, the shepherd could deny ever receiving the sheep, as he eventually did. Tosfos points out that merely having witnesses is insufficient to avoid a legally valid denial.
It is speaking of when they also told him “do not return the sheep without witnesses” to verify that you did indeed return them. For if they did not do so, we have established (Kesubos 18a): Concerning one who lends his neighbor in the presence of witnesses, the borrower does not need to pay him in the presence of witnesses in order to prove that he has already paid the debt. The borrower may claim that he has paid the debt and the burden of proof is on the lender, even though the lender lent the money in the presence of witnesses. It is only when the lender says at the time of the loan that it must be paid only in the presence of witnesses, that the borrower cannot later claim, I have already paid.

If R’ Chiya’s [first law] is [accepted as halacha]. The Gemara’s use of the word “if” seems to suggest that R’ Chiya’s first law may not necessarily be accepted as halacha. Tosfos will prove that it is indeed accepted as halacha and demonstrates that the word “if” is also used elsewhere where the ruling is halacha.
Earlier the Gemara introduced a Baraisa that contradicts R’ Chiya’s first ruling. The Gemara countered: R’ Chiya has the rank of a Tanna and can disagree with the author of that Baraisa. The Gemara asks:
But that Tanna of the contradictory Baraisa quoted a verse? The words אשר יאמר כי הוא זה which are the source for the oath of partial admission teach us that it is in effect only for one’s own admission but not when partial guilt is established by witnesses.
R’ Chiya will answer: That verse comes to teach us that we are dealing with a partial admission. The defendant is saying that my liability is only this amount and not your entire claim. The father of R’ Aftoriki will answer you: There are two exclusions in the verse. The word “this” is written and the word “it” is written in the verse. Both are exclusions, one comes to teach us that the defendant must swear only for partial admission and one comes to teach that when partial liability is known by the testimony of witnesses, the defendant is exempt from swearing.
The other disputant (R’ Chiya) will tell you: one exclusion teaches us that liability is only for partial admission and one exclusion teaches us that the admission must be about the same species as the claim. The Gemara will soon give us an example of this case.
The other disputant (R’ Aftoriki’s father) will answer: He does not hold that the admission must be of the same species as the claim. He holds like Raban Gamliel, as we learned in a Mishna: If [the plaintiff] claimed that [the defendant] owes him wheat and [the defendant] admits that he owes barley, he is exempt. Raban Gamliel holds that he is liable.
We see that R’ Chiya’s ruling is dependent on his position that the second exclusion comes to exclude an admission of barley to a claim of wheat, which is the position of the Rabanan. If so, there is no verse to exclude when the partial liability is known from witnesses. The kal v’chomer of R’ Chiya tells us that in this case we are to obligate the defendant to swear.
It appears that the halacha is in accordance with R’ Chiya. For earlier [the Gemara] explains that [this first ruling] of R’ Chiya follows the Rabanan who disagree with Raban Gamliel and the halacha is in accordance with them.¹See שיטה מקובצת and מהר"ם who deflect Tosfos’ proof from the ruling that the denial must be of the same species. It is possible to agree with that ruling and still disagree with R’ Chiya. R’ Chiya’s ruling is dependent on deriving the case of witnesses’ testimony of partial liability from a combination of one’s own admission and the single witness. The Gemara protested that they both share a common characteristic, that they are not subject to paying if they are nullified by the hazamah process. The Gemara answered that R’ Chiya does not consider this a challenge to his combined source. See Tosfos 4a –ד'ה עד אחד . This is an adequate defense of R’ Chiya’s position, but it is certainly not so convincing that all others must agree with him. It is possible that others hold that even though we hold like the Rabanan of Raban Gamliel insofar as the denial being from the same species as the claim, we may still disagree with R’ Chiya because of the challenge to his combined source. It follows that since R’ Chiya’s way of expounding the verse is the same as the Rabanan, just as the halacha follows the Rabanan, it is also follows R’ Chiya.
Tosfos now presents three Gemaros where it is evident that we rule in favor of the Rabanan who disagree with Raban Gamliel and that it is required that the admission be of the same species as the claim. As the [Gemara] asks in the end of HaMeinee’ach (Bava Kama 35b) when the Gemara discusses Rabah bar Rav Nassan’s ruling that if one claimed wheat and the other admitted barley, he is exempt, what is he teaching us, we have already learned this in a Baraisa? The Gemara then quotes our Baraisa as proof of this ruling. It is obvious that despite Raban Gamliel’s dissenting opinion, we follow the Rabanan.
The Mishna in HaShoel rules that if the purchaser claimed that he bought a large slave and the seller insists that he sold him a small slave, the seller must swear that he sold him a small slave. The Gemara asks:
Why should he swear? What [the plaintiff] claimed, i.e. a large slave, [the defendant] did not admit. What [the defendant] admitted, i.e. a small slave, [the plaintiff] did not claim.
Tosfos understands that the Gemara means that this claim and admission do not satisfy the requirement of the admission being the same type as the claim. (See Rashi there ד'ה ועוד.)
So too, in Perek HaShoel (Below 100a) [the Gemara] asks: Why should the seller swear? This is a case of [the plaintiff]claiming wheat and [the defendant] admitting barley.²These exact words do not appear in the Gemara there. This is Tosfos’ interpretation of the Gemara that says מה שטענו לא הודה לו, what the plaintiff claimed (a large slave) which the defendant did not admit. He admitted owing a small slave, which is not the same species as the claim.
The Gemara in Shavuos 40a: Rav And Shmuel are disputing whether the amount of the claim for the oath of partial admission must be two silver ma’ah and the denial and admission are from within that amount or whether the denial must be two silver ma’ah and the original claim was more. Their discussion eventually turns to the verse כי הוא זה, which we already know is the source for the oath obligation.
How does Rav deal with the two exclusions? One teaches us that there must be a partial admission. One teaches us that he admission must be of the same species as the claim.
How does Shmuel explain the verse? Granted that Rav’s interpretation is correct but we still must understand from the verse that since the original claim was two silver ma’ah, after admitting some of the original claim the denial must perforce be less than two silver ma’ah.
It is evident that both Rav and Shmuel agree that the admission must be of the same species as the claim. So too, do Rav and Shmuel hold in Perek Shavuos HaDayanim (Shavuos 40a). Tosfos quoted three sources to prove that the halacha follows the Rabanan who disagree with Raban Gamliel who hold that the admission must be of the same species as the claim. Since R’ Chiya’s first ruling is aligned with this understanding of the verse, the halacha follows R’ Chiya as well. But our Gemara seems to indicate otherwise, by using the phrase “if” R’ Chiya’s ruling is halacha, it seems that it is not at all certain that the halacha is in accordance with R’ Chiya. Tosfos will now show us that we find other places in Shas where “if” is used even though the halacha definitely is in accordance with that position.
Even though [the Gemara] here says “if R’ Chiya’s first ruling is halacha”, which implies that in reality it is not, so too, we find in Perek Hamadir (Kesubos 70a)³This Gemara is actually in Perek HaMadir Kesbos 70a. [the Gemara] says: If it is so, that Rav Huna’s ruling that a wife can say to her husband “I do not want your sustenance etc. and I will not work for you” is halacha, which is the same phrase employed by our Gemara, and even so in Perek Shenai Dayanei Gezeiros (Kesubos 107b) [the Gemara] rules like Rav Huna. We see that despite the Gemara’ use of the introductory phrase “if it is so” the halacha does follow that opinion. In the case of R’ Chiya’s ruling as well, even though the Gemara uses the introductory phrase “if it is so” the halacha can be in accordance with R’ Chiya.
Tosfos has shown that the halacha does in fact follow R’ Chiya and witnesses’ testimony can generate an oath obligation. Tosfos will now discuss an entirely different aspect of the particular case under discussion. In the previous cases we learned that the oath is required because we are not concerned that the defendant is an outright liar. Even when we know that he lied when he said “I owe nothing”, we say that he is a basically honest individual who would truly like to pay his debts, but has no funds available at this time. In the case of the shepherd who ate two of the sheep that were deposited with him, this is simply not true. Eating the sheep is an outright theft that cannot be excused by saying that he is ‘evading the creditor’.
Tosfos will now return us to the source of R’ Chiya’s ruling, which is the combination of one’s own admission and the testimony of a single witness, each of which generate an oath obligation. So too, the testimony of witnesses must also generate an oath obligation. Earlier on 4a the Gemara asked: but upon one’s own admission and the testimony of a single witness, the defendant is not an established denier, whereas in R’ Chiya’s case when one denies owing anything and witnesses testify that he owes half, he is an established denier. The Gemara answered that in R’ Chiya’s case as well, the defendant is not an established denier, because he is ‘evading the creditor’. We must conclude that when one’s denial cannot be attributed to ‘evading the creditor’, he would not swear.
This is bewildering! Even if R’ Chiya’s fist ruling is halacha, there cannot be an oath obligation here in the case of the shepherd who denied receiving the sheep, for the witnesses testified that he ate two of the sheep. They are thus contradicting his claim that he never received the sheep from their owners. He is now an ‘established denier’ and we have no source from which to establish that an established denier takes an oath.
For the cases of one’s own admission and a single witness share a common characteristic that [the defendant] is not an established denier. Can you say the same here where the shepherd is an established denier by denying that he received the sheep?⁴There are those who ask that Tosfos’ question seems to be the same as the Gemara, which asks: But he is a thief? We have followed מהר"ם who stresses that Tosfos’ question is about the shepherd’s initial denial of receiving any sheep. We now know that when the shepherd denied receiving the sheep, he was lying. He is therefore an established denier. Tosfos is focusing not on the fact that the shepherd stole the sheep by eating them, but on his denial of receiving them. The Gemara will ask: “But he is a thief?”. This question assumes that there is inherently an oath obligation, but how can we allow the thief to swear? Tosfos’ question is that there should not even be an oath obligation at all, since we have no source for a derivation when the situation is one of an established denier. There is no rationalization for his behavior.⁵Some argue that this too is a case where there is no established denier. We do not have any testimony that the shepherd in fact received the sheep from his regular clients. All we have is testimony that he ate two sheep. The shepherd had the option of saying that he purchased those sheep. When he does not say so, he is admitting that they belonged to his regular clients. His guilt is known to us only by this admission and he is therefore not to be considered an established denier.
Perhaps we can answer: Once we learn that there is an oath obligation generated by the testimony of witnesses for denial of a loan, then we should not differentiate between a loan and a deposit.⁶See מהר"ם שי"ף who explains Tosfos’ thinking as follows: R’ Chiya derives that witnesses’ testimony generates an oath obligation from one’s admission and a single witness. If we should limit the derivation to when there is a possibility of ‘evading the creditor’, we will be faced with a grave difficulty. One’s own admission and a single witness obligate an oath for a deposited item even when there is no possibility of ‘evading the creditor’. If the testimony of witnesses is limited only to such cases where there is a possibility of ‘evading the creditor’, we can challenge the derivation by arguing that even if witnesses testimony is effective in establishing an oath obligation, it will remain inherently weaker than one’s admission and a single witness, because they can obligate an oath even when there is no possibility of ‘evading the creditor’ and the testimony of witnesses would only be effective when there is a possibility of ‘evading the creditor’. It must therefore be that once we derive that the testimony of witnesses can generate an oath obligation, it must be effective even when the subject is no possibility of ‘evading the creditor’. מהר"ם שי"ף’s explanation proves that in fact it must be that the testimony of witnesses is acceptable even in cases where there is an established denier. It does not inform us of how we arrive at this. See משנת הלוי אות נ"ב by הרב הגאון רפאל שארד שליט"א son of ,מו"ר הרב גדלי' שארד זצ"ל who explains that if there was no possibility that witnesses could actually cause a defendant to swear we would necessarily conclude that the testimony of witnesses does not generate an oath obligation, because the defendant would never be able to swear since he is an established denier. However, once we find a situation where the defendant can swear because he is ‘evading the creditor’ and not an established denier, we see that inherently witnesses can generate an oath obligation. In those instances where the defendant is an established denier, he will not be allowed to swear even though there is an oath obligation and his opponent will have the right to swear and collect. Since a deposit is usually a case where the defendant cannot be assumed to be ‘evading the creditor’ we conclude that in all cases there is inherently an oath obligation. As the Gemara will soon illustrate, we cannot always enact the oath obligation, i.e. when the defendant is a thief or an established denier. We then reverse the oath to the plaintiff, who swears and collects.

I was saying[ that the party] opposing him [takes an oath]. See Tosfos 3Ba ד'ה בכוליה where we discussed R’ Abba’s ruling that when one has an oath obligation and cannot swear, he is obligated to pay. Tosfos wonders why the same does not apply when the defendant cannot swear because he is suspected of swearing falsely.
If you ask: Why is there a difference? For one who is suspected of swearing falsely, we rule that his opponent must swear in order to collect. Why don’t we say that since he cannot swear, because we suspect that he might swear falsely, he must pay, as [the Gemara] says in regard to a defendant who responds to a plaintiff’s claim of one hundred zuz, by saying fifty I know that I owe you, so we have a partial admission, and the other fifty that you claim, I do not know if I am liable or not (Below 98a). The Gemara rules that since the defendant cannot swear that he does not owe the “second” fifty zuz, he must pay. We do not say that his opponent must swear that the defendant owes him the fifty zuz in order to collect.
Also in the case of the ingot of R’ Abba (Shavuos 32b), where the plaintiff accused the defendant of seizing an ingot of silver from him. The defendant answered: it is true that I seized the ingot from you, but the ingot was truly mine. There was a single witness who testified in favor of the plaintiff. The Gemara rules that the defendant needs to swear to contradict the witness. Since he cannot take such an oath because he has already admitted that he did seize the ingot, he is in the position of one who needs to swear and cannot do so and must therefore pay.
In both these cases we rule that when there in an oath obligation on the defendant, which he cannot fulfill, he must pay. Why do we not say that the plaintiff must swear in order to collect?
Superficially, it seems that the case of our Gemara is very similar to the cases Tosfos quoted from Bava Metzia 98a and Shavuos 32b. We must search for a distinction between these cases in order to answer Tosfos question. If we examine these cases correctly, we will see that the cases of Bava Metzia 98a and Shavuos 32b are isolated happenings. It is not every day where we have a defendant saying “I know that I owe fifty zuz, but I do not know about the other fifty”. So too, the ingot of R’ Abba where we have a person saying “It is true that I seized the ingot, but it is mine”, is an uncommon story. If we rule in these uncommon cases that the defendant must pay, we are not endangering his financial future. The particular story may never happen again.
However, if we rule that any person suspected of swearing falsely must pay because he cannot swear, we are endangering his financial future, because any dishonest person can take advantage of his inability to swear. We can answer: Here, in the case of one who is suspected of swearing falsely, if we say that he must always pay, we are not allowing him to live, because all people will bring him to an oath obligation and they will collect all his assets. For example: If he borrows one hundred zuz from Ruvain, Ruvain will claim that he owes him two hundred zuz, when he admits that he owes one hundred zuz, he will be obligated to swear the oath of partial admission. Since he cannot swear because he is suspected of swearing falsely, he will have to pay. This situation can repeat itself forever and ever. Even though he is suspected of swearing falsely, we cannot allow him to be in a position where he is so susceptible to financial ruin by unscrupulous people. We therefore require that his opponent swears before he is allowed to collect. As explained earlier, in the two cases of Bava Metzia 98a and Shavuos 32b, a one time ruling that the defendant who cannot swear must pay, will not ruin him financially, because these situations are rather uncommon.
Upon further analysis we can see that there is another major difference between one who is suspected of swearing falsely and Bava Metzia 98a and Shavuos 32b.
In Bava Metzia 98a, where the plaintiff claims one hundred zuz and the defendant responds with “fifty I owe and the other fifty I am uncertain”, there is an oath obligation because the defendant admitted partial liability. Because of the nature of his counterclaim he cannot take the oath required of him, which is to swear that he does not owe the second fifty zuz. He has admitted that he might owe the fifty zuz and he obviously cannot now swear that he does not owe them. He has backed himself into a corner, from which he cannot extricate himself.
So too, in Shavuos 32b, in the case of the ingot of R’ Abba, where the defendant admits that he did in fact seize the ingot from the plaintiff and the plaintiff has a single witness who testifies in his behalf. The oath required of the defendant is to contradict the witness. This he cannot do, because he has admitted that he did seize the ingot from the plaintiff. Here too, he has backed himself in to a corner. He must swear but he cannot do so, because his own counterclaim precludes him from taking the necessary oath.
The case of one who is suspected of swearing falsely is entirely different. He is perfectly agreeable to taking the needed oath. It is the court who cannot allow him to do so, because they suspect that he might swear falsely. Furthermore, there is the following distinction between these cases, for there, in Bava Metzia 98a and Shavuos 32b, [the plaintiff] says to [the defendant]: I have the right to demand a Torah oath from you. Either you swear or pay. You cannot swear because of your counterclaim, therefore you must pay. However, here in the case of the defendant suspected of swearing falsely, he would willingly swear, if we would allow him to. Therefore, he need not pay unless the plaintiff first swears that his claim is honestly true.

[If the defendant says]: Nothing of yours is in my possession he is exempt; Rav Nachman says [he must swear an oath of incitement]. In order to understand this Tosfos properly, we need to review a Gemara in Shavuos 41a, where the Gemara first quotes a Mishna of 38b: The plaintiff claimed: A maneh of mine is in your possession, i.e. you owe me a maneh. The defendant responds: You have nothing in my possession. The ruling is: [the defendant] is exempt. He need not pay or swear by Torah law. Rav Nachman says: We require him to swear an oath of incitement, by Rabbinic law.
The Gemara explains that this first version of Rav Nachman holds that even when there is nothing other than the claim of the plaintiff indicating that the defendant may be liable, an oath of incitement is required. Rav Chaviva taught this ruling of [Rav Nachman] in regard to the latter portion of the Mishna: If the plaintiff claimed: A maneh of mine is in in your possession. [The defendant] responded: Yes! The next day [the plaintiff] said: Give me [the maneh] that you admitted. The defendant responds: I gave it to you. The ruling is: he is exempt, i.e. the defendant need not pay or swear. It is in regard to this latter ruling that Rav Nachman says: We require him to swear an oath of incitement.
The Gemara explains the difference between the earlier and latter versions of Rav Nachman. The one who taught [Rav Nachman’s ruling] in regard to the earlier part of the Mishna when there is no indication of guilt other than the plaintiff’s claim, will certainly hold that Rav Nachman’s ruling applies to the latter part of the Mishna, where there is some indication that the defendant may owe money, since he admitted receiving a maneh from the plaintiff. However, the one who taught [Rav Nachman’s] ruling in regard to the end of the Mishna, holds that here in the latter part of the Mishna there is a suggestion of monetary liability, but [in the earlier part of the Mishna] where there is no suggestion of monetary liability, no oath of incitement is needed.
We now know that there are two opinions about Rav Nachman’s requirement of a Rabbinic oath of incitement:
a) Even when there is no suggestion of liability, it is required.
b) Only when there is a suggestion of liability, such as when the defendant admitted that there once was a liability, is an oath of incitement required.
Our Gemara quotes the earlier part of the Mishna in Shavuos 38b and then immediately introduces Rav Nachman’s ruling. It seems that our Gemara holds that Rav Nachman’s oath of incitement is relevant even for the earlier part of the Mishna. From [this Gemara] it seems that the halacha follows the first version in Perek Shavuos HaDayanim (Shavuos 41a), which does not require a suggestion of monetary liability for Rav Nachman’s oath of incitement, rather, even one who totally denies a claim against him is obligated to take an oath of incitement. This is evident from the fact that [the Gemara] does not cite the end of the Mishna in Shavuos where the Mishna says: after the defendant admitted owing a maneh, the next day he claims: I gave it to you, he is exempt. According to the second version in Shavuos, Rav Nachman’s ruling was said only in reference to this second statement of the Mishna where there is a suggestion of liability. Since our Gemara does not quote this second ruling of the Mishna 38b, but only the earl;ier part of the Mishna, where there is no suggestion of liability, it seems that our Gemara holds like the first version in Shavuos that Rav Nachman’s ruling is relevant even when there is no suggestion of liability.
We also find this explanation in the Shearim of Rav Hai. And if the defendant] claims: I do not know whether I am liable or not, he must swear that he does not know.