Commentary for Bava Metzia 6:1
והאי בכוליה בעי דלודי ליה והאי דלא אודי אשתמוטי הוא דקא מישתמט מיניה סבר עד דהוו לי זוזי ופרענא ליה ואמר רחמנא רמי שבועה עליה כי היכי דלודי ליה בכוליה
On the other hand, it may be assumed that the defendant would have been ready to admit the whole claim,<span class="x" onmousemove="('comment',' His honesty, therefore, need not be doubted, and one need not suspect that he would swear falsely if given an oath. ');"><sup>1</sup></span>
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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