פירוש על בבא מציעא 7:16
Tosafot on Bava Metzia
And Rav Sheshet says: [One who says]: Here you are [is] exempt. Our Gemara fails to rule in this dispute. Tosfos tells us that elsewhere the Gemara does demonstrate its halachic preference in this issue.
It appears that the halacha is in accordance with Rav Sheishes, for in Perek Hashoel (below 100a) in regard to a dispute about whether a large slave or a small slave was sold,1A seller sold one of two slaves: a smaller or a larger slave. They are now disputing which of the two slaves was sold. The Mishna there rules that the seller must swear that he sold a small slave. The Gemara challenges this ruling for three reasons: a) The claim is not about the same item that he admitted. b) It is a case of “Here, it is yours!, and c) one does not swear about slaves. Since the Gemara uses the argument that it is b) a case of “Here, it is yours!” it is proof that the Gemara assumes that the halacha follows Rav Sheishes. [the Gemara] argues that there should be no oath obligation because it is a case of “Here, it is yours!”.2Shulchan Aruch Choshen Mishpat 75, 6, also rules that in a case of “Here, it is yours!” the defendant is exempt from a Torah oath. He is however required to take a Rabbinic oath, called שבועת היסת, which will be discussed later. The Gemara there is a clear indication that it assumes that one is exempt from swearing in a case oh “Here, it is yours!”.
However, in Sefer Chaifetz it is to be understood that he rules that in a case of “Here, it is yours” the defendant is obligated to swear.3See רא"ש who presents some difficulties with the ruling that in a case of “Here, it is yours!” one is exempt from a Torah oath. The רא"ש manage to find differences betyween the cases that he quotes and the Gemara in Hashoel 100a. Perhaps Sefer Hacheifets feels that those Gemaros are in fact proof that the halacha should follow R’ Chiya. See Tosfos Bava Basra 128b: ד'ה הלכתא. Tosfos there quotes Rabbeinu Chananel4See – מהר"ץ חיות quoted in the digest of ש"ס נהרדעא who explains that there are those who held that Sefer Hacheifetz was written by Rabbeinu Chananel. The autyhor of this gloss is disproving thios theory by showing that Rabbeinu Chananel rules that ‘הילך’ is exempt from a Torah oath in opposition to Sefer Hacheifetz. as also ruling in accordance with Rav Sheishes that in a case of “Here, it is yours!” the defendant is exempt from swearing.
It appears that the halacha is in accordance with Rav Sheishes, for in Perek Hashoel (below 100a) in regard to a dispute about whether a large slave or a small slave was sold,1A seller sold one of two slaves: a smaller or a larger slave. They are now disputing which of the two slaves was sold. The Mishna there rules that the seller must swear that he sold a small slave. The Gemara challenges this ruling for three reasons: a) The claim is not about the same item that he admitted. b) It is a case of “Here, it is yours!, and c) one does not swear about slaves. Since the Gemara uses the argument that it is b) a case of “Here, it is yours!” it is proof that the Gemara assumes that the halacha follows Rav Sheishes. [the Gemara] argues that there should be no oath obligation because it is a case of “Here, it is yours!”.2Shulchan Aruch Choshen Mishpat 75, 6, also rules that in a case of “Here, it is yours!” the defendant is exempt from a Torah oath. He is however required to take a Rabbinic oath, called שבועת היסת, which will be discussed later. The Gemara there is a clear indication that it assumes that one is exempt from swearing in a case oh “Here, it is yours!”.
However, in Sefer Chaifetz it is to be understood that he rules that in a case of “Here, it is yours” the defendant is obligated to swear.3See רא"ש who presents some difficulties with the ruling that in a case of “Here, it is yours!” one is exempt from a Torah oath. The רא"ש manage to find differences betyween the cases that he quotes and the Gemara in Hashoel 100a. Perhaps Sefer Hacheifets feels that those Gemaros are in fact proof that the halacha should follow R’ Chiya. See Tosfos Bava Basra 128b: ד'ה הלכתא. Tosfos there quotes Rabbeinu Chananel4See – מהר"ץ חיות quoted in the digest of ש"ס נהרדעא who explains that there are those who held that Sefer Hacheifetz was written by Rabbeinu Chananel. The autyhor of this gloss is disproving thios theory by showing that Rabbeinu Chananel rules that ‘הילך’ is exempt from a Torah oath in opposition to Sefer Hacheifetz. as also ruling in accordance with Rav Sheishes that in a case of “Here, it is yours!” the defendant is exempt from swearing.
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