פירוש על בבא מציעא 11:7
Tosafot on Bava Metzia
Perhaps [one of the litigants] has a questionable loan against [the garment’s owner]. Let us review the mathematics of the Gemara:
a) R’ Yochanan said that the need for the oath in this Mishna is because Shimon may have seen Ruvain lifting up the garment and decided that since Ruvain did not invest time or effort to find or purchase this garment, he too wants to have a share in it and he therefore grasps the garment. Although, this is indeed an act of stealing, Shimon rationalizes his behavior. We therefore require an oath, which will discourage Shimon from doing so.
b) The Gemara asks: If you are concerned that Shimon might steal, you should also be concerned that he might swear falsely. Stealing and swearing falsely are equally prohibited by the Torah.
c) The Gemara answers: Even when Shimon is suspected of stealing, he is not suspected of swearing falsely. The Gemara proceeds at length to prove that one who is suspected of stealing is not suspected of swearing falsely. The Gemara presents three rulings to prove that even one who is suspected of stealing is not suspected of swearing falsely: 1) Rav Nachman’s ruling that a total denier swears an ‘oath of incitement’. See Tosfos 6Aa. 2) R’ Chiya’s Baraisa which rules that both the worker and storekeeper swear and collect from the householder. In this case one of the parties is definitely attempting to steal and even so we require and allow him to swear. 3) Rav Sheishes’ ruling that a custodian must swear that the deposit is not in his domain. If the custodian did have the deposited item in his domain and denied receiving it, this would be an outright attempt to steal the item, even so we require and allow him to swear and are not concerned that he might swear falsely.
d) Abaye says that the reason each of the litigants must swear is not because we are concerned that Shimon may steal from the true owner. Rather, we are concerned that Shimon might feel that Ruvain may owe him money from a questionable old debt, which Ruvain has long forgotten. Shimon knows that if he would claim payment for that questionable loan, Ruvain would most probably deny owing the money. When the opportunity presents itself Shimon grabs Ruvain’s garment in an attempt to collect the questionable loan. In order to discourage Shimon from attempting to recoup this questionablel loan, we require that both Ruvain and Shimon swear. It is expected that in the face of taking an oath Shimon will back down.
Abaye’s explanation is valid as a second way of explaining this Mishna. Does Abaye disagree with the principle of ‘one who is suspected of stealing is not suspected of swearing falsely?1See שיטה מקובצת who quotes other Rishonim who do not view Abaye as arguing with R’ Yochanan’s rationale ‘one suspected of stealing is not suspected of swearing falsely’. It is noteworthy that Tosfos does not tell us how to deal with the first proof of the Gemara from Rav Nachman’s ruling requiring an ‘oath of incitement’ from a total denier. See Tosfos 6Aa who questions the proof from Rav Nachman’s ruling. Perhaps Tosfos held that Abaye has the option of holding that there truly is no proof from Rav Nachman’s ruling. See תוספות הרא"ש who clearly says that Abaye’s rationale that he might have an old questionable loan on himself can be used to disprove Rav Nachman’s proof as well. The Gemara cited other sources as well, where it is evident that one who is suspected of stealing is not suspected of swearing falsely. If those are truly absolute proof that one who is suspected of stealing is not suspected of swearing falsely, Abaye must certainly agree with that principle.
If so, what did Abaye gain by introducing a second explanation of our Mishna? Ultimately Abaye must agree with the principle of ‘one who is suspected of stealing is not suspected of swearing falsely’, because we have proof of this from the sources quoted in the Gemara. Tosfos feels compelled to show us that the other sources quoted by the Gemara are also not definite proof that ‘even one who is suspected of stealing is not suspected of swearing falsely’. Thus, Abaye is free to reject that principle and explain our Mishna according to his own opinion that the oath in our Mishna is required because of the possibility that Shimon may believe that Ruvain owes him money from a long forgotten debt.
Tosfos will now demonstrate that proofs 2 & 32See Artscroll note 13. Also see שיטה מקובצת who cites רמב"ן, who explains that when it is unknown to us whether a person has stolen and we are considering his status in regard to taking an oath, we may say that this is not an attempt to steal, rather, he is trying to recover an old questionable loan. We therefore allow him to swear. However, when one has already stolen or denied receiving a deposit, our assumption must be that he is a thief. We cannot disregard the fact that he is a thief, because he might have been recovering an old questionable loan when we do not know this to be true. הר"ש די ויד"ש argues that our initial assumption that the person is a thief or is denying receiving a deposit is based upon our choice not to judge him favorably by assuming that he was attempting to recover a loan. If so, how can we differentiate between before the fact or after the fact? הרב יוסף הלוי also known as R’I Migash says that even if one stole or denied a deposit in order to recover an old loan, it is inherently an act of theft and the perpetrator is disqualified from swearing and testifying as a witness. The item that he is stealing is definitely not his and he has no right to take this particular item to satisfy the debt. Therefore, after the fact we say that the thief or denier of a deposit is disqualified from swearing. It is only before the fact, when he might be attempting to use the garment as leverage for payment of the debt, that we would allow him to swear, because he does have the right to seize the garment as collateral for the debt. quoted by the Gemara earlier are not absolute proofs that ‘one who is suspected of stealing is not suspected of swearing falsely. That (proof 3), quoted from Rav Sheishes’ ruling that we impose upon [the custodian] three oaths including an oath that the deposited item is not presently in the custodian’s domain, and also (proof 2) R’ Chiya’s Baraisa which says: Both the storekeeper and the employee swear and collect from the householder, which are offered as proof that one who is suspected of stealing etc., can be explained as follows: There as well we require and allow the defendant to swear, because we are concerned that perhaps the custodian, employee or storekeeper believes that the defendant may owe them money from a dubious stale debt. Thus, from these cases as well, there is no proof that one who is ‘suspected etc.’, rather, we are concerned that the employee, storekeeper or custodian may believe that the householder owes him money, which they could not otherwise claim. When they have the opportunity to take advantage of a misstep of the householder, they enters a false claim in order to recoup money, that may be legitimately theirs.
Therefore, we cannot exempt [the custodian] without an oath, and [the employee or storekeeper] also cannot collect from the householder without swearing. If we always consider the possibility that a defendant is not attempting to steal, but is only trying to collect funds that he legitimately believes are his, shouldn’t we extend this excuse to one who has definitely stolen or denied having a deposited item. In those cases as well we could say that the reason he stole or denied possession of a deposit is because he believed that the depositor or their victim owed them money from an old questionable debt. Tosfos will now inform us that the rationale of the victim possibly owing them money is applicable only about events that are in the process of happening, but not to events that have already occurred.
However, a known thief and [a custodian] who denied receiving a deposit and was discovered to be lying, cannot be permitted to swear because perhaps the thief stole the money or the custodian denied receiving the deposit, because he thought that there was a questionable old debt that their victims owed.
a) R’ Yochanan said that the need for the oath in this Mishna is because Shimon may have seen Ruvain lifting up the garment and decided that since Ruvain did not invest time or effort to find or purchase this garment, he too wants to have a share in it and he therefore grasps the garment. Although, this is indeed an act of stealing, Shimon rationalizes his behavior. We therefore require an oath, which will discourage Shimon from doing so.
b) The Gemara asks: If you are concerned that Shimon might steal, you should also be concerned that he might swear falsely. Stealing and swearing falsely are equally prohibited by the Torah.
c) The Gemara answers: Even when Shimon is suspected of stealing, he is not suspected of swearing falsely. The Gemara proceeds at length to prove that one who is suspected of stealing is not suspected of swearing falsely. The Gemara presents three rulings to prove that even one who is suspected of stealing is not suspected of swearing falsely: 1) Rav Nachman’s ruling that a total denier swears an ‘oath of incitement’. See Tosfos 6Aa. 2) R’ Chiya’s Baraisa which rules that both the worker and storekeeper swear and collect from the householder. In this case one of the parties is definitely attempting to steal and even so we require and allow him to swear. 3) Rav Sheishes’ ruling that a custodian must swear that the deposit is not in his domain. If the custodian did have the deposited item in his domain and denied receiving it, this would be an outright attempt to steal the item, even so we require and allow him to swear and are not concerned that he might swear falsely.
d) Abaye says that the reason each of the litigants must swear is not because we are concerned that Shimon may steal from the true owner. Rather, we are concerned that Shimon might feel that Ruvain may owe him money from a questionable old debt, which Ruvain has long forgotten. Shimon knows that if he would claim payment for that questionable loan, Ruvain would most probably deny owing the money. When the opportunity presents itself Shimon grabs Ruvain’s garment in an attempt to collect the questionable loan. In order to discourage Shimon from attempting to recoup this questionablel loan, we require that both Ruvain and Shimon swear. It is expected that in the face of taking an oath Shimon will back down.
Abaye’s explanation is valid as a second way of explaining this Mishna. Does Abaye disagree with the principle of ‘one who is suspected of stealing is not suspected of swearing falsely?1See שיטה מקובצת who quotes other Rishonim who do not view Abaye as arguing with R’ Yochanan’s rationale ‘one suspected of stealing is not suspected of swearing falsely’. It is noteworthy that Tosfos does not tell us how to deal with the first proof of the Gemara from Rav Nachman’s ruling requiring an ‘oath of incitement’ from a total denier. See Tosfos 6Aa who questions the proof from Rav Nachman’s ruling. Perhaps Tosfos held that Abaye has the option of holding that there truly is no proof from Rav Nachman’s ruling. See תוספות הרא"ש who clearly says that Abaye’s rationale that he might have an old questionable loan on himself can be used to disprove Rav Nachman’s proof as well. The Gemara cited other sources as well, where it is evident that one who is suspected of stealing is not suspected of swearing falsely. If those are truly absolute proof that one who is suspected of stealing is not suspected of swearing falsely, Abaye must certainly agree with that principle.
If so, what did Abaye gain by introducing a second explanation of our Mishna? Ultimately Abaye must agree with the principle of ‘one who is suspected of stealing is not suspected of swearing falsely’, because we have proof of this from the sources quoted in the Gemara. Tosfos feels compelled to show us that the other sources quoted by the Gemara are also not definite proof that ‘even one who is suspected of stealing is not suspected of swearing falsely’. Thus, Abaye is free to reject that principle and explain our Mishna according to his own opinion that the oath in our Mishna is required because of the possibility that Shimon may believe that Ruvain owes him money from a long forgotten debt.
Tosfos will now demonstrate that proofs 2 & 32See Artscroll note 13. Also see שיטה מקובצת who cites רמב"ן, who explains that when it is unknown to us whether a person has stolen and we are considering his status in regard to taking an oath, we may say that this is not an attempt to steal, rather, he is trying to recover an old questionable loan. We therefore allow him to swear. However, when one has already stolen or denied receiving a deposit, our assumption must be that he is a thief. We cannot disregard the fact that he is a thief, because he might have been recovering an old questionable loan when we do not know this to be true. הר"ש די ויד"ש argues that our initial assumption that the person is a thief or is denying receiving a deposit is based upon our choice not to judge him favorably by assuming that he was attempting to recover a loan. If so, how can we differentiate between before the fact or after the fact? הרב יוסף הלוי also known as R’I Migash says that even if one stole or denied a deposit in order to recover an old loan, it is inherently an act of theft and the perpetrator is disqualified from swearing and testifying as a witness. The item that he is stealing is definitely not his and he has no right to take this particular item to satisfy the debt. Therefore, after the fact we say that the thief or denier of a deposit is disqualified from swearing. It is only before the fact, when he might be attempting to use the garment as leverage for payment of the debt, that we would allow him to swear, because he does have the right to seize the garment as collateral for the debt. quoted by the Gemara earlier are not absolute proofs that ‘one who is suspected of stealing is not suspected of swearing falsely. That (proof 3), quoted from Rav Sheishes’ ruling that we impose upon [the custodian] three oaths including an oath that the deposited item is not presently in the custodian’s domain, and also (proof 2) R’ Chiya’s Baraisa which says: Both the storekeeper and the employee swear and collect from the householder, which are offered as proof that one who is suspected of stealing etc., can be explained as follows: There as well we require and allow the defendant to swear, because we are concerned that perhaps the custodian, employee or storekeeper believes that the defendant may owe them money from a dubious stale debt. Thus, from these cases as well, there is no proof that one who is ‘suspected etc.’, rather, we are concerned that the employee, storekeeper or custodian may believe that the householder owes him money, which they could not otherwise claim. When they have the opportunity to take advantage of a misstep of the householder, they enters a false claim in order to recoup money, that may be legitimately theirs.
Therefore, we cannot exempt [the custodian] without an oath, and [the employee or storekeeper] also cannot collect from the householder without swearing. If we always consider the possibility that a defendant is not attempting to steal, but is only trying to collect funds that he legitimately believes are his, shouldn’t we extend this excuse to one who has definitely stolen or denied having a deposited item. In those cases as well we could say that the reason he stole or denied possession of a deposit is because he believed that the depositor or their victim owed them money from an old questionable debt. Tosfos will now inform us that the rationale of the victim possibly owing them money is applicable only about events that are in the process of happening, but not to events that have already occurred.
However, a known thief and [a custodian] who denied receiving a deposit and was discovered to be lying, cannot be permitted to swear because perhaps the thief stole the money or the custodian denied receiving the deposit, because he thought that there was a questionable old debt that their victims owed.
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