פירוש על בבא מציעא 9:15
Tosafot on Bava Metzia
I was saying[ that the party] opposing him [takes an oath]. See Tosfos 3Ba ד'ה בכוליה where we discussed R’ Abba’s ruling that when one has an oath obligation and cannot swear, he is obligated to pay. Tosfos wonders why the same does not apply when the defendant cannot swear because he is suspected of swearing falsely.
If you ask: Why is there a difference? For one who is suspected of swearing falsely, we rule that his opponent must swear in order to collect. Why don’t we say that since he cannot swear, because we suspect that he might swear falsely, he must pay, as [the Gemara] says in regard to a defendant who responds to a plaintiff’s claim of one hundred zuz, by saying fifty I know that I owe you, so we have a partial admission, and the other fifty that you claim, I do not know if I am liable or not (Below 98a). The Gemara rules that since the defendant cannot swear that he does not owe the “second” fifty zuz, he must pay. We do not say that his opponent must swear that the defendant owes him the fifty zuz in order to collect.
Also in the case of the ingot of R’ Abba (Shavuos 32b), where the plaintiff accused the defendant of seizing an ingot of silver from him. The defendant answered: it is true that I seized the ingot from you, but the ingot was truly mine. There was a single witness who testified in favor of the plaintiff. The Gemara rules that the defendant needs to swear to contradict the witness. Since he cannot take such an oath because he has already admitted that he did seize the ingot, he is in the position of one who needs to swear and cannot do so and must therefore pay.
In both these cases we rule that when there in an oath obligation on the defendant, which he cannot fulfill, he must pay. Why do we not say that the plaintiff must swear in order to collect?
Superficially, it seems that the case of our Gemara is very similar to the cases Tosfos quoted from Bava Metzia 98a and Shavuos 32b. We must search for a distinction between these cases in order to answer Tosfos question. If we examine these cases correctly, we will see that the cases of Bava Metzia 98a and Shavuos 32b are isolated happenings. It is not every day where we have a defendant saying “I know that I owe fifty zuz, but I do not know about the other fifty”. So too, the ingot of R’ Abba where we have a person saying “It is true that I seized the ingot, but it is mine”, is an uncommon story. If we rule in these uncommon cases that the defendant must pay, we are not endangering his financial future. The particular story may never happen again.
However, if we rule that any person suspected of swearing falsely must pay because he cannot swear, we are endangering his financial future, because any dishonest person can take advantage of his inability to swear. We can answer: Here, in the case of one who is suspected of swearing falsely, if we say that he must always pay, we are not allowing him to live, because all people will bring him to an oath obligation and they will collect all his assets. For example: If he borrows one hundred zuz from Ruvain, Ruvain will claim that he owes him two hundred zuz, when he admits that he owes one hundred zuz, he will be obligated to swear the oath of partial admission. Since he cannot swear because he is suspected of swearing falsely, he will have to pay. This situation can repeat itself forever and ever. Even though he is suspected of swearing falsely, we cannot allow him to be in a position where he is so susceptible to financial ruin by unscrupulous people. We therefore require that his opponent swears before he is allowed to collect. As explained earlier, in the two cases of Bava Metzia 98a and Shavuos 32b, a one time ruling that the defendant who cannot swear must pay, will not ruin him financially, because these situations are rather uncommon.
Upon further analysis we can see that there is another major difference between one who is suspected of swearing falsely and Bava Metzia 98a and Shavuos 32b.
In Bava Metzia 98a, where the plaintiff claims one hundred zuz and the defendant responds with “fifty I owe and the other fifty I am uncertain”, there is an oath obligation because the defendant admitted partial liability. Because of the nature of his counterclaim he cannot take the oath required of him, which is to swear that he does not owe the second fifty zuz. He has admitted that he might owe the fifty zuz and he obviously cannot now swear that he does not owe them. He has backed himself into a corner, from which he cannot extricate himself.
So too, in Shavuos 32b, in the case of the ingot of R’ Abba, where the defendant admits that he did in fact seize the ingot from the plaintiff and the plaintiff has a single witness who testifies in his behalf. The oath required of the defendant is to contradict the witness. This he cannot do, because he has admitted that he did seize the ingot from the plaintiff. Here too, he has backed himself in to a corner. He must swear but he cannot do so, because his own counterclaim precludes him from taking the necessary oath.
The case of one who is suspected of swearing falsely is entirely different. He is perfectly agreeable to taking the needed oath. It is the court who cannot allow him to do so, because they suspect that he might swear falsely. Furthermore, there is the following distinction between these cases, for there, in Bava Metzia 98a and Shavuos 32b, [the plaintiff] says to [the defendant]: I have the right to demand a Torah oath from you. Either you swear or pay. You cannot swear because of your counterclaim, therefore you must pay. However, here in the case of the defendant suspected of swearing falsely, he would willingly swear, if we would allow him to. Therefore, he need not pay unless the plaintiff first swears that his claim is honestly true.
If you ask: Why is there a difference? For one who is suspected of swearing falsely, we rule that his opponent must swear in order to collect. Why don’t we say that since he cannot swear, because we suspect that he might swear falsely, he must pay, as [the Gemara] says in regard to a defendant who responds to a plaintiff’s claim of one hundred zuz, by saying fifty I know that I owe you, so we have a partial admission, and the other fifty that you claim, I do not know if I am liable or not (Below 98a). The Gemara rules that since the defendant cannot swear that he does not owe the “second” fifty zuz, he must pay. We do not say that his opponent must swear that the defendant owes him the fifty zuz in order to collect.
Also in the case of the ingot of R’ Abba (Shavuos 32b), where the plaintiff accused the defendant of seizing an ingot of silver from him. The defendant answered: it is true that I seized the ingot from you, but the ingot was truly mine. There was a single witness who testified in favor of the plaintiff. The Gemara rules that the defendant needs to swear to contradict the witness. Since he cannot take such an oath because he has already admitted that he did seize the ingot, he is in the position of one who needs to swear and cannot do so and must therefore pay.
In both these cases we rule that when there in an oath obligation on the defendant, which he cannot fulfill, he must pay. Why do we not say that the plaintiff must swear in order to collect?
Superficially, it seems that the case of our Gemara is very similar to the cases Tosfos quoted from Bava Metzia 98a and Shavuos 32b. We must search for a distinction between these cases in order to answer Tosfos question. If we examine these cases correctly, we will see that the cases of Bava Metzia 98a and Shavuos 32b are isolated happenings. It is not every day where we have a defendant saying “I know that I owe fifty zuz, but I do not know about the other fifty”. So too, the ingot of R’ Abba where we have a person saying “It is true that I seized the ingot, but it is mine”, is an uncommon story. If we rule in these uncommon cases that the defendant must pay, we are not endangering his financial future. The particular story may never happen again.
However, if we rule that any person suspected of swearing falsely must pay because he cannot swear, we are endangering his financial future, because any dishonest person can take advantage of his inability to swear. We can answer: Here, in the case of one who is suspected of swearing falsely, if we say that he must always pay, we are not allowing him to live, because all people will bring him to an oath obligation and they will collect all his assets. For example: If he borrows one hundred zuz from Ruvain, Ruvain will claim that he owes him two hundred zuz, when he admits that he owes one hundred zuz, he will be obligated to swear the oath of partial admission. Since he cannot swear because he is suspected of swearing falsely, he will have to pay. This situation can repeat itself forever and ever. Even though he is suspected of swearing falsely, we cannot allow him to be in a position where he is so susceptible to financial ruin by unscrupulous people. We therefore require that his opponent swears before he is allowed to collect. As explained earlier, in the two cases of Bava Metzia 98a and Shavuos 32b, a one time ruling that the defendant who cannot swear must pay, will not ruin him financially, because these situations are rather uncommon.
Upon further analysis we can see that there is another major difference between one who is suspected of swearing falsely and Bava Metzia 98a and Shavuos 32b.
In Bava Metzia 98a, where the plaintiff claims one hundred zuz and the defendant responds with “fifty I owe and the other fifty I am uncertain”, there is an oath obligation because the defendant admitted partial liability. Because of the nature of his counterclaim he cannot take the oath required of him, which is to swear that he does not owe the second fifty zuz. He has admitted that he might owe the fifty zuz and he obviously cannot now swear that he does not owe them. He has backed himself into a corner, from which he cannot extricate himself.
So too, in Shavuos 32b, in the case of the ingot of R’ Abba, where the defendant admits that he did in fact seize the ingot from the plaintiff and the plaintiff has a single witness who testifies in his behalf. The oath required of the defendant is to contradict the witness. This he cannot do, because he has admitted that he did seize the ingot from the plaintiff. Here too, he has backed himself in to a corner. He must swear but he cannot do so, because his own counterclaim precludes him from taking the necessary oath.
The case of one who is suspected of swearing falsely is entirely different. He is perfectly agreeable to taking the needed oath. It is the court who cannot allow him to do so, because they suspect that he might swear falsely. Furthermore, there is the following distinction between these cases, for there, in Bava Metzia 98a and Shavuos 32b, [the plaintiff] says to [the defendant]: I have the right to demand a Torah oath from you. Either you swear or pay. You cannot swear because of your counterclaim, therefore you must pay. However, here in the case of the defendant suspected of swearing falsely, he would willingly swear, if we would allow him to. Therefore, he need not pay unless the plaintiff first swears that his claim is honestly true.
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