Commentary for Bava Metzia 8:9
הכי נמי מסתברא דאי סלקא דעתך שתים חייב בשלש היכי פטר ליה ר"ע האי אערומי קא מערים סבר אי אמינא שתים בעינא אשתבועי אימא שלש דאהוי כמשיב אבידה ואיפטר אלא ש"מ שתים נמי פטור
Some construe the objection from the <i>latter</i> clause: 'R. Akiba says, he is only like the restorer of lost [property], and he is free [from taking an oath].' Now the reason is presumably that he said 'three', but [if he had said] 'two'<span class="x" onmousemove="('comment',' When the debtor could not be said to have restored a loss, as his admission did not go beyond the sum proved by the document. ');"><sup>9</sup></span>
Tosafot on Bava Metzia
Thus, we can learn from here that [in a case of] “Here, it is yours! [the defendant] is exempt [from taking an oath]. The Gemara is discussing a plaintiff who has a document that says the defendant owes him selaim or dinarim, which are the plural of sela or dinar. At this point in the dialogue the Gemara is deducing that if the defendant admitted that he owes only two selaim or dinarim, he would not need to take a Torah oath. It is only because he admitted owing a third sela or dinar that is not mentioned in the document that he is liable for the oath of one who partially admits the claim against him.
The Gemara assumes that the reason one is exempt if he admits to owing only two selaim or dinarim is because that admission is the equivalent of “Here, it is yours!”, since the plaintiff has a document that the defendant owes him two dinarim or selaim. Any debt recorded in a document has an automatic lien on the defendant’s real property. The property is always available and an admission is therefore the equivalent of saying, “Here, it is yours!”.
According to the present analysis of the Baraisa, R’ Shimon ben Elazar holds that one is obligated to swear by Torah law when he admits that he owes three dinarim or selaim, but exempt from swearing if he admits owing only two dinarim or selaim. But why?
If you ask: [The defendant] should be believed without taking an oath when he admits that he owes three selaim or dinarim, because he has a migo that he could have said he owes only two selaim or dinarim? Since the Gemara deduced that if he would admit owing only two selaim or dinarim, he would be exempt from taking an oath, the rule of migo says that the same should be true when he admits owing three selaim or dinarim?
We must find a reason why the defendant could not have as easily claimed b) “I owe two selaim or dinarim”, instead of claim a) “I owe three selaim or dinarim”. We have already learned that a migo is effective only when the defendant is as comfortable with claim b) as he is with claim a).
Why is a claim of “Here, it is yours!”, exempt from swearing? The Gemara explained on 4a, that we view the portion that the defendant admitted as if it is already paid. The remainder of the claim is viewed as being independent of the portion the defendant admitted. We are noe dealing bwith ba claim of three selaim or dinarim. This claim is being totally denied by the defendant and in a case of total denial one is exempt from swearing.
See Tosfos earlier 3Af, who says that admitting partial liability is not believed without an oath even though he has a migo that he could have denied the claim entirely. This is because one is not brazen enough to totally dent the claim of the plaintiff. The same principle applies in this case as well.
We can answer: Since a case of “Here, it is yours!”, is exempt because we view the portion that he admits as if it is has been paid and in regard to the balance of the claim the defendant is denying everything. Therefore, if [the defendant] would admit that he owes only two dinarim or selaim, he would be in total denial of the balance of the claim, and one cannot be so brazen to deny the complete claim of the plaintiff. Claim b) is therefore not as comfortable as claim a) and there is no migo.
But R’ Akiva does hold that one who admits owing three selaim or dinarim is exempt because he could have claimed he owes only two, why doesn’t he hold that the defendant is not as comfortable with claim b) as he is with claim a)?
But according to R’ Akiva, claim b) is not considered to be brazen, because the document which does not mention a specific number supports [his counter-claim] that he owes only two dinarim or selaim. The minimum of any plural is two. Since the document did not record the number of selaim or dinarim, it is a fair assumption that the amount was two selaim or dinarim.
The Gemara assumes that the reason one is exempt if he admits to owing only two selaim or dinarim is because that admission is the equivalent of “Here, it is yours!”, since the plaintiff has a document that the defendant owes him two dinarim or selaim. Any debt recorded in a document has an automatic lien on the defendant’s real property. The property is always available and an admission is therefore the equivalent of saying, “Here, it is yours!”.
According to the present analysis of the Baraisa, R’ Shimon ben Elazar holds that one is obligated to swear by Torah law when he admits that he owes three dinarim or selaim, but exempt from swearing if he admits owing only two dinarim or selaim. But why?
If you ask: [The defendant] should be believed without taking an oath when he admits that he owes three selaim or dinarim, because he has a migo that he could have said he owes only two selaim or dinarim? Since the Gemara deduced that if he would admit owing only two selaim or dinarim, he would be exempt from taking an oath, the rule of migo says that the same should be true when he admits owing three selaim or dinarim?
We must find a reason why the defendant could not have as easily claimed b) “I owe two selaim or dinarim”, instead of claim a) “I owe three selaim or dinarim”. We have already learned that a migo is effective only when the defendant is as comfortable with claim b) as he is with claim a).
Why is a claim of “Here, it is yours!”, exempt from swearing? The Gemara explained on 4a, that we view the portion that the defendant admitted as if it is already paid. The remainder of the claim is viewed as being independent of the portion the defendant admitted. We are noe dealing bwith ba claim of three selaim or dinarim. This claim is being totally denied by the defendant and in a case of total denial one is exempt from swearing.
See Tosfos earlier 3Af, who says that admitting partial liability is not believed without an oath even though he has a migo that he could have denied the claim entirely. This is because one is not brazen enough to totally dent the claim of the plaintiff. The same principle applies in this case as well.
We can answer: Since a case of “Here, it is yours!”, is exempt because we view the portion that he admits as if it is has been paid and in regard to the balance of the claim the defendant is denying everything. Therefore, if [the defendant] would admit that he owes only two dinarim or selaim, he would be in total denial of the balance of the claim, and one cannot be so brazen to deny the complete claim of the plaintiff. Claim b) is therefore not as comfortable as claim a) and there is no migo.
But R’ Akiva does hold that one who admits owing three selaim or dinarim is exempt because he could have claimed he owes only two, why doesn’t he hold that the defendant is not as comfortable with claim b) as he is with claim a)?
But according to R’ Akiva, claim b) is not considered to be brazen, because the document which does not mention a specific number supports [his counter-claim] that he owes only two dinarim or selaim. The minimum of any plural is two. Since the document did not record the number of selaim or dinarim, it is a fair assumption that the amount was two selaim or dinarim.
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Tosafot on Bava Metzia
Actually, I can tell you [that if the defendant admitted that he owes] two [selaim or dinarim he is] obligated [to swear]. Initially, the Gemara held that we may deduce from the Baraisa that if the defendant admitted owing only two selaim or dinarim he would not need to take an oath. The Gemara suggested that the reason that there is no obligation, is because it is a case of “Here, it is yours!”. The Gemara now counters that it is entirely possible to interpret the Baraisa as holding that an admission of two would also necessitate an oath even though it is a case of “Here, it is yours!”.
If so, why did the Baraisa discuss an admission of three selaim or dinarim? That is because R’ Akiva argues only when he admits a third sela or dinar. It is only then that R’ Akiva views the defendant as one who is returning a lost item. When the defendant admits that he owes only two selaim or dinarim, R’ Akiva agrees that there is an oath obligation.
But we must now re-examine our understanding of R’ Akiva’s argument that one who admits that he owes three is similar to one who is returning a lost object. Initially, when we believed that an admission of two selaim or dinarim would be free of an oath obligation, it is understandable that one who is admitting a third sela or dinar might be viewed as returning a lost object. After all, he could simply have admitted owing two and he would be free of an oath obligation. Why penalize him for being honest and admitting that he owes a third?
However, now that we hold that an admission of two selaim or dinarim obligates an oath, how can we think of an admission of a third sela or dinar as grounds for freeing him from an oath obligation? Had he admitted to owing two selaim or dinarim, he would also be required to swear? Why should he be free from swearing for the admission of one more sela or dinar? Even though when the defendant admits that he owes two, he is obligated to take an oath, R’ Akiva thinks of [the defendant] as one who is returning a lost object and he is exempt from the obligation to swear.
For when he says that he owes two selaim or dinarim, he appears to be more reliable than when he admits owing three, since the document supports him. The document, as we have explained, is assumed to mean that the loan was for two selaim or dinarim. When he admits that he owes two, even though he is obligated to swear, he is completely comfortable with his admission, because he is saying exactly what is indicated by the document. Admitting a third sela or dinar is a bit treacherous, since he no longer has the raw interpretation of the document to support him. His only motivation to admit owing the third sela or dinar is his honesty and desire to return a lost object. He should not be penalized for such honesty.
If so, why did the Baraisa discuss an admission of three selaim or dinarim? That is because R’ Akiva argues only when he admits a third sela or dinar. It is only then that R’ Akiva views the defendant as one who is returning a lost item. When the defendant admits that he owes only two selaim or dinarim, R’ Akiva agrees that there is an oath obligation.
But we must now re-examine our understanding of R’ Akiva’s argument that one who admits that he owes three is similar to one who is returning a lost object. Initially, when we believed that an admission of two selaim or dinarim would be free of an oath obligation, it is understandable that one who is admitting a third sela or dinar might be viewed as returning a lost object. After all, he could simply have admitted owing two and he would be free of an oath obligation. Why penalize him for being honest and admitting that he owes a third?
However, now that we hold that an admission of two selaim or dinarim obligates an oath, how can we think of an admission of a third sela or dinar as grounds for freeing him from an oath obligation? Had he admitted to owing two selaim or dinarim, he would also be required to swear? Why should he be free from swearing for the admission of one more sela or dinar? Even though when the defendant admits that he owes two, he is obligated to take an oath, R’ Akiva thinks of [the defendant] as one who is returning a lost object and he is exempt from the obligation to swear.
For when he says that he owes two selaim or dinarim, he appears to be more reliable than when he admits owing three, since the document supports him. The document, as we have explained, is assumed to mean that the loan was for two selaim or dinarim. When he admits that he owes two, even though he is obligated to swear, he is completely comfortable with his admission, because he is saying exactly what is indicated by the document. Admitting a third sela or dinar is a bit treacherous, since he no longer has the raw interpretation of the document to support him. His only motivation to admit owing the third sela or dinar is his honesty and desire to return a lost object. He should not be penalized for such honesty.
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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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Tosafot on Bava Metzia
We do not swear [when a] denial [is about a loan that] is secured by land. The counterclaim of one who partially admits the claim against him consists of two sections:
Section a) The portion of the loan that the defendant admits owing.
Section b) The portion of the loan that he denies owing.
When b ) the denied portion is secured by land there is no Torah oath obligation as indicated in the heading of this Tosfos: We do not swear for a denial of a loan that is secured by land. Our Gemara is adding that the same is true if a) the portion of the claim he admitted is secured by land.
In the Baraisa, where the document testifies to a loan of an unspecified amount of selaim or dinarim, and the plaintiff claims that the loan was for five selaim or dinarim, if the defendant admits that he owes two, he is admitting to a loan that is secured by land, since the amount he admits owing is stated in the document and any documented loan is secured by the real property of the borrower. Thus, our Gemara says that since the section a) is secured by land there is no oath obligation.
Why is a loan that is secured by land not subject to an oath? The Mishna in Shavuos 42b tells us that one does not swear when the claim and/or denial is about land. The Gemara elaborates on this: An unpaid custodian need not swear if the property lost or stolen due to his negligence was land. How do we know this? The Rabanan taught in a Baraisa that explains a verse in Shemos 22, 6, which deals with an oath obligation. If a man will give anything to his neighbor, this is a generalization. Cash or vessels, this is a specific item. To guard anything, this is a repeat of the generalization.
How is this configuration interpreted? A generalization, a specific and a generalization - we include only that which is very similar to the specific: Just as the specific, cash or vessels, is clearly something that is movable and has inherent value, so too any object that is movable and has inherent value is subject to the laws of swearing. This excludes land, which is not movable. Slaves are excluded because they are comparable to land. Documents are excluded, because they have no inherent value. They only represent the money owed by the borrower, but have no inherent value. See רש"י ד'ה אי נמי to our Gemara, who says that the source for the rule that when a loan is secured by a lien on land, it is not subject to an oath, is derived from the very same source that excludes land from an oath obligation.
Now that we have learned that any loan secured by land is not subject to an oath obligation, we must ask some important questions: Isn’t every loan secured by the land of the borrower? If one is unable to pay his debts, the creditor can collect from the real property of the borrower. If so, how can there ever be an oath obligation?
Perhaps not every loan is secured by one’s property? This is actually the subject of a dispute in Bava Basra 175b.
The Mishna says in Bava Basra 175a: One who lends money to his neighbor and the loan is recorded in a document, may collect the debt from encumbered properties. Even if the property was sold after the loan, there is a lien on the property and the lender may collect the property from the purchaser.
If the loan took place before witnesses, but was never recorded in a document, one can collect only from unencumbered property which have not yet been sold by the borrower. If the property was sold, even after the loan, the lender cannot collect that property.
The Gemara on 175b explains: Ula said: By Torah law both a loan that was documented and an undocumented loan, can collect from encumbered property. What is the reason? A lien is automatically established on the property by Torah law. Thus when a person borrows money, his property is security for the loan. There is no difference between a written loan or an oral loan.
But then for what reason did they say: an oral loan can be collected only from unencumbered property? Because of the loss that would be incurred by the purchasers of real estate, who have no way of knowing that the seller of the property they are buying is heavily in debt. When the loan is recorded in a document, the fanfare surrounding the writing of a document generates publicity that the borrower is in debt and people can be careful about not purchasing encumbered property from the debtor.
According to this opinion, by Torah law all debts are automatically secured by one’s land. If you ask: According to the one who says in Perek Get Pashut (Bava Basra 175b) that all loans automatically establish a lien on the debtor’s land by Torah law, why does one swear when he partially admits a plaintiff’s claim, his denial of the balance is a denial about a loan that is secured by land and is not subject to the law of swearing. There should never be an oath for partial admission, yet we know that such an oath is mandated by Torah law.
We can answer: That the Torah mandated this oath only when [the creditor] waived the lien, subsequently, he cannot collect from the real property of the debtor. The loan is no longer secured by land. Or, when [the borrower] has no land at all, even encumbered land. It is only in these cases that one would be obligated to swear according to the opinion that all loans automatically establish a lien on the debtor’s property.
Tosfos now introduces another Gemara where there is a similar difficulty, but where we cannot say that it is speaking of when the creditor waived the lien.1מהר"ם explains that if the creditor waived the lien, there cannot be a difference between a documented and an oral loan. Even if the loan was documented, there is no lien on the land and the debtor would be required to swear by Torah law. See Tosfos Shavuos 37b ד'ה ואין מביאין who asks the same question as Tosfos does here and does answer that R’ Yochanan as well is speaking of when the lender waived the lien. This seems to contradict our Tosfos who holds that if the lien is waived, even a documented loan would generate an oath obligation, since the loan will ultimately not be collected from land. See אוצר מפרשי התלמוד, here, who explains that this issue is a dispute between Tosfos. See not 4 where we quote the opinions of the ש"ך and סמ"ע about this issue. However, according to R’ Yochanan who says in Perek Shavuos Hapikadon (Shavuos 37b) concerning one who denies owing money which is verifiable only by witnesses, but not by a document, and he swore falsely, when it is discovered that he lied, he is liable to bring a karban. There was an obligation for a Torah oath and when one swears falsely when obligated to do so by the Torah, he must offer a karban. If the money he denied owing was verifiable by a document, he is exempt from bringing a karban, because he denied money that was secured by land. Even though he swore falsely that he does not owe the money, since there was no Torah obligation to swear because the loan is secured by land, there is no karban obligation.
We see that when there are only witnesses to verify the loan, but no document, he is not considered as denying money secured by land, even though R’ Yochanan holds that a lien is established on one’s property by Torah law. Thus, even a non-documented loan establishes a lien on the debtor’s property. Why should the debtor be obligated to swear and be liable for a karban when he swears falsely while denying a non-documented loan, that too, is secured by land?
That is because once the Rabanan removed the lien for an oral loan, because of losses2See Gemara Bava Basra 175a quoted on pages 3 &4, of this Tosfos. that might be incurred by purchasers of the debtor’s property who have no way of knowing that the borrower is in debt, it is considered as if the creditor waived the lien and the debt is not secured by the borrower’s land.
R’ Yochanan is speaking of when [the debtor]3The phrase “he has encumbered land” is a bit difficult to translate. Tosfos is referring to land that the debtor owned at the time of the loan, which was subsequently sold. The borrower doesn’t actually have the land, he already sold it to the purchaser. The phrase “he has encumbered land” means that the land which the borrower owned at the time of the loan and was then sold can be collected from the purchaser by the creditor. has encumbered land, which has already been sold, but he does not have unencumbered land that has not yet been sold. For if he has unencumbered property, even if there are only witnesses on the loan, and he swore falsely, he is exempt from a karban, because the loan was secured by the land that he presently owns. If [the debtor]doesn’t even have encumbered property that was sold, even if there was a document4Tosfos holds that we must always take into account the reality of the situation. If the borrower does not own any land whatsoever, we may not view the loan as secured by land because in reality the borrower does not own any land. See חושן משפט פ"ח, ש"ך ס"ק מ"ח who quotes this Tosfos to prove this point. סמ"ע ס"ק נ"א disagrees. He holds that since the document is inherently capable of collecting from encumbered properties if there were such properties, it is considered as if this loan is secured by land, even though the reality is that there is no land from which to collect. to verify the loan [the debtor] is liable to bring a karban when he swears falsely, since the loan is not secured by land.
Section a) The portion of the loan that the defendant admits owing.
Section b) The portion of the loan that he denies owing.
When b ) the denied portion is secured by land there is no Torah oath obligation as indicated in the heading of this Tosfos: We do not swear for a denial of a loan that is secured by land. Our Gemara is adding that the same is true if a) the portion of the claim he admitted is secured by land.
In the Baraisa, where the document testifies to a loan of an unspecified amount of selaim or dinarim, and the plaintiff claims that the loan was for five selaim or dinarim, if the defendant admits that he owes two, he is admitting to a loan that is secured by land, since the amount he admits owing is stated in the document and any documented loan is secured by the real property of the borrower. Thus, our Gemara says that since the section a) is secured by land there is no oath obligation.
Why is a loan that is secured by land not subject to an oath? The Mishna in Shavuos 42b tells us that one does not swear when the claim and/or denial is about land. The Gemara elaborates on this: An unpaid custodian need not swear if the property lost or stolen due to his negligence was land. How do we know this? The Rabanan taught in a Baraisa that explains a verse in Shemos 22, 6, which deals with an oath obligation. If a man will give anything to his neighbor, this is a generalization. Cash or vessels, this is a specific item. To guard anything, this is a repeat of the generalization.
How is this configuration interpreted? A generalization, a specific and a generalization - we include only that which is very similar to the specific: Just as the specific, cash or vessels, is clearly something that is movable and has inherent value, so too any object that is movable and has inherent value is subject to the laws of swearing. This excludes land, which is not movable. Slaves are excluded because they are comparable to land. Documents are excluded, because they have no inherent value. They only represent the money owed by the borrower, but have no inherent value. See רש"י ד'ה אי נמי to our Gemara, who says that the source for the rule that when a loan is secured by a lien on land, it is not subject to an oath, is derived from the very same source that excludes land from an oath obligation.
Now that we have learned that any loan secured by land is not subject to an oath obligation, we must ask some important questions: Isn’t every loan secured by the land of the borrower? If one is unable to pay his debts, the creditor can collect from the real property of the borrower. If so, how can there ever be an oath obligation?
Perhaps not every loan is secured by one’s property? This is actually the subject of a dispute in Bava Basra 175b.
The Mishna says in Bava Basra 175a: One who lends money to his neighbor and the loan is recorded in a document, may collect the debt from encumbered properties. Even if the property was sold after the loan, there is a lien on the property and the lender may collect the property from the purchaser.
If the loan took place before witnesses, but was never recorded in a document, one can collect only from unencumbered property which have not yet been sold by the borrower. If the property was sold, even after the loan, the lender cannot collect that property.
The Gemara on 175b explains: Ula said: By Torah law both a loan that was documented and an undocumented loan, can collect from encumbered property. What is the reason? A lien is automatically established on the property by Torah law. Thus when a person borrows money, his property is security for the loan. There is no difference between a written loan or an oral loan.
But then for what reason did they say: an oral loan can be collected only from unencumbered property? Because of the loss that would be incurred by the purchasers of real estate, who have no way of knowing that the seller of the property they are buying is heavily in debt. When the loan is recorded in a document, the fanfare surrounding the writing of a document generates publicity that the borrower is in debt and people can be careful about not purchasing encumbered property from the debtor.
According to this opinion, by Torah law all debts are automatically secured by one’s land. If you ask: According to the one who says in Perek Get Pashut (Bava Basra 175b) that all loans automatically establish a lien on the debtor’s land by Torah law, why does one swear when he partially admits a plaintiff’s claim, his denial of the balance is a denial about a loan that is secured by land and is not subject to the law of swearing. There should never be an oath for partial admission, yet we know that such an oath is mandated by Torah law.
We can answer: That the Torah mandated this oath only when [the creditor] waived the lien, subsequently, he cannot collect from the real property of the debtor. The loan is no longer secured by land. Or, when [the borrower] has no land at all, even encumbered land. It is only in these cases that one would be obligated to swear according to the opinion that all loans automatically establish a lien on the debtor’s property.
Tosfos now introduces another Gemara where there is a similar difficulty, but where we cannot say that it is speaking of when the creditor waived the lien.1מהר"ם explains that if the creditor waived the lien, there cannot be a difference between a documented and an oral loan. Even if the loan was documented, there is no lien on the land and the debtor would be required to swear by Torah law. See Tosfos Shavuos 37b ד'ה ואין מביאין who asks the same question as Tosfos does here and does answer that R’ Yochanan as well is speaking of when the lender waived the lien. This seems to contradict our Tosfos who holds that if the lien is waived, even a documented loan would generate an oath obligation, since the loan will ultimately not be collected from land. See אוצר מפרשי התלמוד, here, who explains that this issue is a dispute between Tosfos. See not 4 where we quote the opinions of the ש"ך and סמ"ע about this issue. However, according to R’ Yochanan who says in Perek Shavuos Hapikadon (Shavuos 37b) concerning one who denies owing money which is verifiable only by witnesses, but not by a document, and he swore falsely, when it is discovered that he lied, he is liable to bring a karban. There was an obligation for a Torah oath and when one swears falsely when obligated to do so by the Torah, he must offer a karban. If the money he denied owing was verifiable by a document, he is exempt from bringing a karban, because he denied money that was secured by land. Even though he swore falsely that he does not owe the money, since there was no Torah obligation to swear because the loan is secured by land, there is no karban obligation.
We see that when there are only witnesses to verify the loan, but no document, he is not considered as denying money secured by land, even though R’ Yochanan holds that a lien is established on one’s property by Torah law. Thus, even a non-documented loan establishes a lien on the debtor’s property. Why should the debtor be obligated to swear and be liable for a karban when he swears falsely while denying a non-documented loan, that too, is secured by land?
That is because once the Rabanan removed the lien for an oral loan, because of losses2See Gemara Bava Basra 175a quoted on pages 3 &4, of this Tosfos. that might be incurred by purchasers of the debtor’s property who have no way of knowing that the borrower is in debt, it is considered as if the creditor waived the lien and the debt is not secured by the borrower’s land.
R’ Yochanan is speaking of when [the debtor]3The phrase “he has encumbered land” is a bit difficult to translate. Tosfos is referring to land that the debtor owned at the time of the loan, which was subsequently sold. The borrower doesn’t actually have the land, he already sold it to the purchaser. The phrase “he has encumbered land” means that the land which the borrower owned at the time of the loan and was then sold can be collected from the purchaser by the creditor. has encumbered land, which has already been sold, but he does not have unencumbered land that has not yet been sold. For if he has unencumbered property, even if there are only witnesses on the loan, and he swore falsely, he is exempt from a karban, because the loan was secured by the land that he presently owns. If [the debtor]doesn’t even have encumbered property that was sold, even if there was a document4Tosfos holds that we must always take into account the reality of the situation. If the borrower does not own any land whatsoever, we may not view the loan as secured by land because in reality the borrower does not own any land. See חושן משפט פ"ח, ש"ך ס"ק מ"ח who quotes this Tosfos to prove this point. סמ"ע ס"ק נ"א disagrees. He holds that since the document is inherently capable of collecting from encumbered properties if there were such properties, it is considered as if this loan is secured by land, even though the reality is that there is no land from which to collect. to verify the loan [the debtor] is liable to bring a karban when he swears falsely, since the loan is not secured by land.
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Tosafot on Bava Metzia
We do not swear for a denial [of funds that are secured by land]. In the Baraisa at the beginning of this page the Gemara quotes the opinions of two Tanaim, R’ Shimon ben Elazar and R’ Akiva. There are texts of our Gemara that quote R’ Yaakov as the second Tana. We will see in the course of learning this Tosfos that there are two valid reasons to believe that the other texts are correct that the second Tana is not R’ Akiva:
a) The Gemara will employ the ruling that we do not swear in cases involving funds that are secured by land. Tosfos will present the case to show that R’ Akiva might not concur with this ruling.
b) In this Baraisa R’ Akiva is quoted after R’ Shimon ben Elazar who was his disciple. It seems a bit strange that the author of the Baraisa would quote them out of chronological order.
The first issue that must be clarified is where R’ Akiva stands on the ruling that we do not swear when the funds in question are secured by land. Can R’ Akliva hold of this ruling? Why not?
See previous Tosfos 4Bc page 1, 2 & 3, where we quoted the Gemara in Shavuous 42b, where we derive that one does not swear for an admission and denial of funds that are secured by land. The system used by the Baraisa there for this derivation is called כלל פרט וכלל loosely translated, this means that we view the verse as speaking of a generalization, a specific item and repeating a generalization. Since the specific items that are mentioned in the verse, vessels and cash, have the characteristics that they are movable and have inherent value, we say that the oath obligation is only for similar items, but not for land which is immovable or for documents that do not have any inherent value.
There is another way of interpreting the Torah. Instead of viewing the more expansive word as a generalization meant to expand somewhat on the specific item, but only in a limited fashion, there is a system called ריבויי, מיעוט וריבויי - an expansive term, a restrictive term and finally another expansive term. The very same words quoted in the Baraisa on Shavuos 42b can be expounded differently:
כלל פרט וכלל
כי יתן -- generalization
כסף או כלים -- specific
לשמור -- generalization
ריבויי מיעוט וריבויי
כי יתן -- expansive
כסף או כלים -- restrictive
לשמור -- expansive
The net result is that in the generalization etc. system, only such items that are very similar to the specific items are included in the ruling. In the expansive etc. system, all items that share some similarity with the restricting item are included. Thus the same verse when explained with the expansive system will include many more items than if expounded by the generalization system.
So too, in the explanation of the verse under discussion, those who usually follow the expansive etc. system, will include land in the list of items for which one is obligated to swear. It is only in the generalization etc. system, that land is excluded.
Tosfos will demonstrate from other sources that R’ Akiva holds we generally expound the Torah with the expansive etc. system. Accordingly, he should hold that an oath is required for matters pertaining to land. But our Gemara has used the rule of not swearing for an admission or denial for loans that are secured by land to explain R’ Akiva’s position. R’ Akiva should however hold that one does swear even when the loans are secured by land. It would be logical to say that the second Tana is R’ Yaakov and this problem would be solved.
The Gemara in Shavuos 4b is discussing R’ Akiva’s opinion in regard to liability for swearing falsely about something that happened in the past. The Gemara explains: What is the reason that R’ Akiva holds one liable for swearing falsely about something that happened in the past? Because he expounds the Torah with the system of expansive and restrictive etc.
The Gemara in Bava Kama 117b quotes a dispute between R’ Eliezer and the Rabanan in regard to items that are subject to various laws of theft: R’ Eliezer expounds the Torah with the expansive restrictive system. What is included? All items are included and subject to the rules of theft. What is excluded? Documents are excluded. The Rabanan expound the Torah with the generalization and specific system. Land is excluded because it is immovable. Slaves are excluded because they are equated to land. Documents are excluded, for even though they are movable, they are not inherently valuable. They only represent a debt, but are intrinsically worthless.
It is clear that if we use the expansive restrictive system, we include land and exclude only documents. It is only if we use the generalization system that land is excluded. According to the manuscripts whose text in our Baraisa is R’ Akiva as it is in our text, instead of R’ Yaakov as others suggest, we cannot ask: But R’ Akiva expounds the Torah with the expansive restrictive system in the first Perek of Shavuous (4b) and in Perek Shelosha Minim (Nazir 35a), and one who expounds the Torah with the expansive restrictive etc. system, does not exclude land from an oath obligation, but only documents, as it is evident in Perek Hagozel the latter, (Bava Kama 117b), and if so, how can [the Gemara] here say that according to R’ Akiva we do not swear for denial of funds secured by land? It seems that the author of this position is not R’ Akiva.
Tosfos will suggest that there is some missing information that the Gemara knows about, but is unidentified. Obviously, an explanation such as this requires support, which Tosfos needs to present. We can answer: That [R’ Akiva] has some exclusion in some verse to exclude land from an oath obligation. It is true that the expansive restrictive system excludes only swearing about documents, but there is some other source to exclude swearing about land. Even though, we are not presently aware of what that exclusion is, Tosfos will now demonstrate that this unidentified exclusion must exist according to R’ Meir. If we know that such an unidentified exclusion exists according to R’ Meir, we can assume that R’ Akiva also uses that exclusion to exclude land. There is no need to conclude that our Baraisa is not the opinion of R’ Akiva.
Generally speaking slaves are governed by the same rules as land. In regard to swearing according to R’ Meir there is a difference, one swears on matters involving slaves, but not on matters involving land. Why are the laws of swearing different than all other areas of Torah law? Tosfos suggests that R’ Meir holds like R’ Akiva who expounds the Torah with the expansive restrictive system, thus only
a) documents are excluded from this verse. There must be a special exclusion
b) to exclude land from an oath obligation, which cannot be applied to slaves. Thus, there is an oath obligation for slaves, but not for land. That special (unknown) exclusion can also be used to exclude land according to R’ Akiva, who also expounds the Torah with the expansive restrictive system.
So too, we are compelled to say later in Perek Hashoel (100b) according to R’ Meir, who holds that we do swear about claims involving slaves, but not about claims involving land, even though slaves are usually equated to land according to all opinions and it should follow that just as we do not swear about land, we should also not swear about slaves.
Where do we see that slaves are equated to land? For it is for this reason, that slaves are equated to land, that ownership of a slave can be transferred by using a coin to effect the transfer, according to all opinions, in the first Perek of Kidushin (22b).
The Gemara in Kidushin 22b is discussing the acts of acquisition that are effective for acquiring slaves: Mishna: A Canaanite slave is acquired by coin, document and proprietary acts. Gemara: How do we know this? It is written in Vayikra 25, 46, And you shall hold them as a heritage for your children after you to inherit as a possession. The Torah equates [slaves] to an inherited field, just as an inherited field is acquired by coin, document and proprietary acts, so to a Canaanite slave is acquired by coin, document and proprietary acts.
If so, why does R’ Meir hold that we do swear about slaves and not about land? Rather, it must be that R’ Meir expounds the Torah with the system of expansive and exclusive
a) to exclude swearing about cases involving documents, and he has some other exclusion, unknown to us,
b) to exclude swearing in cases involving land, and with that unknown exclusion we cannot exclude slaves even though they are usually equated with land, The Gemara in Bava Kama 63a is discussing the verse in Shemos 22, and concludes that this verse must be interpreted with the expansive restrictive system. The Gemara then informs us that special exclusions are needed for documents, land and slaves. The exclusion for land does not automatically exclude slaves as well.
Now that you say that in this verse the word ‘כל - all’, is an expansive, why do we need all these specific items? What is their function in the expounding of the verse?
The Gemara answers: One is to exclude land. One is to exclude slaves, and one is to exclude documents.
We see that in this system one exclusion cannot exclude both land and slaves, despite the verse that equates them insofar as Kidushin is concerned. as is evident in Merubah (Bava Kama 63a), that the one who expounds the Torah with the system of expansive and exclusive needs two exclusions to exclude both land and slaves from an oath obligation.
Tosfos has reconciled our Gemara which says that according to R’ Akiva, one does not swear about funds that are secured by land and the Gemara that says R’ Akiva expounds the Torah with the expansive restrictive system. In our introduction we mentioned that there is also a chronoligical question which indicates that the second opinion in the Baraisa is not R’ Akiva. Tosfos will now address this second issue. Even though R’ Shimon ben Elazar was a disciple of R’ Akiva, we need not be concerned with the fact that [R’ Shimon ben Elazar] argues with [R’ Akiva] and is mentioned in the Baraisa before [R’ Akiva]. For we find a similar situation below (7a) in regard to two litigants who are holding a document, where Rebbe is mentioned first in the Baraisa and he argues with Raban Shimon ben Gamliel who was his father. Tosfos acknowledges that there are those who find all his explanation somewhat awkward and follow a different text. There are manuscripts that have ion their text here R’ Yaakov instead of R’ Akiva. This of course solves both problems that we have with our text.
a) The Gemara will employ the ruling that we do not swear in cases involving funds that are secured by land. Tosfos will present the case to show that R’ Akiva might not concur with this ruling.
b) In this Baraisa R’ Akiva is quoted after R’ Shimon ben Elazar who was his disciple. It seems a bit strange that the author of the Baraisa would quote them out of chronological order.
The first issue that must be clarified is where R’ Akiva stands on the ruling that we do not swear when the funds in question are secured by land. Can R’ Akliva hold of this ruling? Why not?
See previous Tosfos 4Bc page 1, 2 & 3, where we quoted the Gemara in Shavuous 42b, where we derive that one does not swear for an admission and denial of funds that are secured by land. The system used by the Baraisa there for this derivation is called כלל פרט וכלל loosely translated, this means that we view the verse as speaking of a generalization, a specific item and repeating a generalization. Since the specific items that are mentioned in the verse, vessels and cash, have the characteristics that they are movable and have inherent value, we say that the oath obligation is only for similar items, but not for land which is immovable or for documents that do not have any inherent value.
There is another way of interpreting the Torah. Instead of viewing the more expansive word as a generalization meant to expand somewhat on the specific item, but only in a limited fashion, there is a system called ריבויי, מיעוט וריבויי - an expansive term, a restrictive term and finally another expansive term. The very same words quoted in the Baraisa on Shavuos 42b can be expounded differently:
כלל פרט וכלל
כי יתן -- generalization
כסף או כלים -- specific
לשמור -- generalization
ריבויי מיעוט וריבויי
כי יתן -- expansive
כסף או כלים -- restrictive
לשמור -- expansive
The net result is that in the generalization etc. system, only such items that are very similar to the specific items are included in the ruling. In the expansive etc. system, all items that share some similarity with the restricting item are included. Thus the same verse when explained with the expansive system will include many more items than if expounded by the generalization system.
So too, in the explanation of the verse under discussion, those who usually follow the expansive etc. system, will include land in the list of items for which one is obligated to swear. It is only in the generalization etc. system, that land is excluded.
Tosfos will demonstrate from other sources that R’ Akiva holds we generally expound the Torah with the expansive etc. system. Accordingly, he should hold that an oath is required for matters pertaining to land. But our Gemara has used the rule of not swearing for an admission or denial for loans that are secured by land to explain R’ Akiva’s position. R’ Akiva should however hold that one does swear even when the loans are secured by land. It would be logical to say that the second Tana is R’ Yaakov and this problem would be solved.
The Gemara in Shavuos 4b is discussing R’ Akiva’s opinion in regard to liability for swearing falsely about something that happened in the past. The Gemara explains: What is the reason that R’ Akiva holds one liable for swearing falsely about something that happened in the past? Because he expounds the Torah with the system of expansive and restrictive etc.
The Gemara in Bava Kama 117b quotes a dispute between R’ Eliezer and the Rabanan in regard to items that are subject to various laws of theft: R’ Eliezer expounds the Torah with the expansive restrictive system. What is included? All items are included and subject to the rules of theft. What is excluded? Documents are excluded. The Rabanan expound the Torah with the generalization and specific system. Land is excluded because it is immovable. Slaves are excluded because they are equated to land. Documents are excluded, for even though they are movable, they are not inherently valuable. They only represent a debt, but are intrinsically worthless.
It is clear that if we use the expansive restrictive system, we include land and exclude only documents. It is only if we use the generalization system that land is excluded. According to the manuscripts whose text in our Baraisa is R’ Akiva as it is in our text, instead of R’ Yaakov as others suggest, we cannot ask: But R’ Akiva expounds the Torah with the expansive restrictive system in the first Perek of Shavuous (4b) and in Perek Shelosha Minim (Nazir 35a), and one who expounds the Torah with the expansive restrictive etc. system, does not exclude land from an oath obligation, but only documents, as it is evident in Perek Hagozel the latter, (Bava Kama 117b), and if so, how can [the Gemara] here say that according to R’ Akiva we do not swear for denial of funds secured by land? It seems that the author of this position is not R’ Akiva.
Tosfos will suggest that there is some missing information that the Gemara knows about, but is unidentified. Obviously, an explanation such as this requires support, which Tosfos needs to present. We can answer: That [R’ Akiva] has some exclusion in some verse to exclude land from an oath obligation. It is true that the expansive restrictive system excludes only swearing about documents, but there is some other source to exclude swearing about land. Even though, we are not presently aware of what that exclusion is, Tosfos will now demonstrate that this unidentified exclusion must exist according to R’ Meir. If we know that such an unidentified exclusion exists according to R’ Meir, we can assume that R’ Akiva also uses that exclusion to exclude land. There is no need to conclude that our Baraisa is not the opinion of R’ Akiva.
Generally speaking slaves are governed by the same rules as land. In regard to swearing according to R’ Meir there is a difference, one swears on matters involving slaves, but not on matters involving land. Why are the laws of swearing different than all other areas of Torah law? Tosfos suggests that R’ Meir holds like R’ Akiva who expounds the Torah with the expansive restrictive system, thus only
a) documents are excluded from this verse. There must be a special exclusion
b) to exclude land from an oath obligation, which cannot be applied to slaves. Thus, there is an oath obligation for slaves, but not for land. That special (unknown) exclusion can also be used to exclude land according to R’ Akiva, who also expounds the Torah with the expansive restrictive system.
So too, we are compelled to say later in Perek Hashoel (100b) according to R’ Meir, who holds that we do swear about claims involving slaves, but not about claims involving land, even though slaves are usually equated to land according to all opinions and it should follow that just as we do not swear about land, we should also not swear about slaves.
Where do we see that slaves are equated to land? For it is for this reason, that slaves are equated to land, that ownership of a slave can be transferred by using a coin to effect the transfer, according to all opinions, in the first Perek of Kidushin (22b).
The Gemara in Kidushin 22b is discussing the acts of acquisition that are effective for acquiring slaves: Mishna: A Canaanite slave is acquired by coin, document and proprietary acts. Gemara: How do we know this? It is written in Vayikra 25, 46, And you shall hold them as a heritage for your children after you to inherit as a possession. The Torah equates [slaves] to an inherited field, just as an inherited field is acquired by coin, document and proprietary acts, so to a Canaanite slave is acquired by coin, document and proprietary acts.
If so, why does R’ Meir hold that we do swear about slaves and not about land? Rather, it must be that R’ Meir expounds the Torah with the system of expansive and exclusive
a) to exclude swearing about cases involving documents, and he has some other exclusion, unknown to us,
b) to exclude swearing in cases involving land, and with that unknown exclusion we cannot exclude slaves even though they are usually equated with land, The Gemara in Bava Kama 63a is discussing the verse in Shemos 22, and concludes that this verse must be interpreted with the expansive restrictive system. The Gemara then informs us that special exclusions are needed for documents, land and slaves. The exclusion for land does not automatically exclude slaves as well.
Now that you say that in this verse the word ‘כל - all’, is an expansive, why do we need all these specific items? What is their function in the expounding of the verse?
The Gemara answers: One is to exclude land. One is to exclude slaves, and one is to exclude documents.
We see that in this system one exclusion cannot exclude both land and slaves, despite the verse that equates them insofar as Kidushin is concerned. as is evident in Merubah (Bava Kama 63a), that the one who expounds the Torah with the system of expansive and exclusive needs two exclusions to exclude both land and slaves from an oath obligation.
Tosfos has reconciled our Gemara which says that according to R’ Akiva, one does not swear about funds that are secured by land and the Gemara that says R’ Akiva expounds the Torah with the expansive restrictive system. In our introduction we mentioned that there is also a chronoligical question which indicates that the second opinion in the Baraisa is not R’ Akiva. Tosfos will now address this second issue. Even though R’ Shimon ben Elazar was a disciple of R’ Akiva, we need not be concerned with the fact that [R’ Shimon ben Elazar] argues with [R’ Akiva] and is mentioned in the Baraisa before [R’ Akiva]. For we find a similar situation below (7a) in regard to two litigants who are holding a document, where Rebbe is mentioned first in the Baraisa and he argues with Raban Shimon ben Gamliel who was his father. Tosfos acknowledges that there are those who find all his explanation somewhat awkward and follow a different text. There are manuscripts that have ion their text here R’ Yaakov instead of R’ Akiva. This of course solves both problems that we have with our text.
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Tosafot on Bava Metzia
But [if the defendant admits owing] vessels and [denies owing other vessels], he is obligated [to swear]. Our Gemara is attempting to prove that when a defendant admits part of the claim against him, and says ‘Here, it is yours!’ he is obligated to swear.
The Gemara analyzes a statement of a Mishna in Maseches Shavuos 38b, where the Mishna says: If the defendant admitted owing land but denied owing vessels, he is exempt from swearing. The reason is because the admission and denial must both be about movable objects and not about land. When the admission is about land, even though the denial is about vessels there is no oath obligation.
Our Gemara suggests that the reason the defendant is exempt from swearing even though he admitted owing land is strictly because land is excluded from an oath obligation as we have already learned. However, in a situation where both the admission and denial are vessels, even though the vessels the defendant admitted owing have the same characteristics as land, there would be an oath obligation.
Now when one admits that he owes land, it is inherently an admission of ‘Here, it is yours!’, because the land is always available. It need not be collected as cash or vessels need to be collected. If our analysis is correct, we may conclude that even when the vessels one admits owing are a situation of ‘Here, it is yours!’, there is also an oath obligation. For the reason one is exempt when his admission is for land is because of the special exemption of land, but vessels that have the very same characteristics as land do generate an oath obligation.
In short we may conclude that vessels which are = to land do generate an oath obligation. But which vessels are equal to land? When the defendant says: ‘Here, it is yours!’. Our Gemara eventually rejects this understanding of the Mishna in Shavuos 38b.
Tosfos however, suggests that there is a simpler way to deflect the Gemara’s question. Our Gemara assumes that an admission about land is always by definition one of ‘Here, it is yours!’. This argues Tosfos is not necessarily true. There are situations where one may admit that he owes land, but it is not a case of ‘Here, it is yours!’.
[The Gemara] could have answered, that the Mishna in Shavuos 38b is speaking of when [the defendant] dug pits, ditches and caverns, as the Gemara soon says on 5a. Although the defendant is admitting that he owes the plaintiff land, since the land has been damaged and must be restored to its original condition, this is not a case of ‘Here, it is yours!’ Similarly, if the admission was about vessels in a non-‘Here, it is yours!’ situation there would be an oath obligation.
The Gemara analyzes a statement of a Mishna in Maseches Shavuos 38b, where the Mishna says: If the defendant admitted owing land but denied owing vessels, he is exempt from swearing. The reason is because the admission and denial must both be about movable objects and not about land. When the admission is about land, even though the denial is about vessels there is no oath obligation.
Our Gemara suggests that the reason the defendant is exempt from swearing even though he admitted owing land is strictly because land is excluded from an oath obligation as we have already learned. However, in a situation where both the admission and denial are vessels, even though the vessels the defendant admitted owing have the same characteristics as land, there would be an oath obligation.
Now when one admits that he owes land, it is inherently an admission of ‘Here, it is yours!’, because the land is always available. It need not be collected as cash or vessels need to be collected. If our analysis is correct, we may conclude that even when the vessels one admits owing are a situation of ‘Here, it is yours!’, there is also an oath obligation. For the reason one is exempt when his admission is for land is because of the special exemption of land, but vessels that have the very same characteristics as land do generate an oath obligation.
In short we may conclude that vessels which are = to land do generate an oath obligation. But which vessels are equal to land? When the defendant says: ‘Here, it is yours!’. Our Gemara eventually rejects this understanding of the Mishna in Shavuos 38b.
Tosfos however, suggests that there is a simpler way to deflect the Gemara’s question. Our Gemara assumes that an admission about land is always by definition one of ‘Here, it is yours!’. This argues Tosfos is not necessarily true. There are situations where one may admit that he owes land, but it is not a case of ‘Here, it is yours!’.
[The Gemara] could have answered, that the Mishna in Shavuos 38b is speaking of when [the defendant] dug pits, ditches and caverns, as the Gemara soon says on 5a. Although the defendant is admitting that he owes the plaintiff land, since the land has been damaged and must be restored to its original condition, this is not a case of ‘Here, it is yours!’ Similarly, if the admission was about vessels in a non-‘Here, it is yours!’ situation there would be an oath obligation.
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Tosafot on Bava Metzia
[If] he admitted [owing] some [of the] vessels he is obligated [to swear]. The Mishna in Shavuos 38b is teaching us that when both the denial and the admission are about movable objects, there is an oath obligation.
If you ask: [The defendant] should be believed without an oath, because he has a migo, that if he wanted to lie he could have denied owing vessels entirely and he would have admitted owing some of the land? Assuming that the defendant does not have the audacity to deny everything as we learned earlier on 3a and 3b, he did not have to admit that he owes some of the vessels, which generates an oath obligation, he could have just as easily admitted owing some of the land. This too, would satisfy his need to admit something and not deny the claim against him entirely and he would be exempt from swearing.
We can answer: Perhaps he wants the land more than the vessels. Even though the value is the same, he would rather admit owing some of the vessels, so that he can retain the land. Since, the second claim does not accomplish his needs as does the first claim, he has no migo.
If you ask: [The defendant] should be believed without an oath, because he has a migo, that if he wanted to lie he could have denied owing vessels entirely and he would have admitted owing some of the land? Assuming that the defendant does not have the audacity to deny everything as we learned earlier on 3a and 3b, he did not have to admit that he owes some of the vessels, which generates an oath obligation, he could have just as easily admitted owing some of the land. This too, would satisfy his need to admit something and not deny the claim against him entirely and he would be exempt from swearing.
We can answer: Perhaps he wants the land more than the vessels. Even though the value is the same, he would rather admit owing some of the vessels, so that he can retain the land. Since, the second claim does not accomplish his needs as does the first claim, he has no migo.
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