Commentary for Bava Metzia 9:14

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

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