פירוש על בבא מציעא 11:1
Tosafot on Bava Metzia
But that which Rav Nachman said, [that when one denies all, he is obligated to swear an oath of incitement, etc.] Rav Nachman’s ‘oath of incitement’ is presented as proof that even when one is suspected of stealing, he is not suspected of swearing falsely. This is bewildering! For here as well, one who entirely denies owing a loan, may be ‘evading the creditor’ and stalling for time, as the Gemara said earlier (4a,5b), when one completely denies the plaintiff’s claim and is found to be lying, he is still eligible to testify as a witness, because we do not view him as a confirmed liar, but rather as ‘evading his creditor’.
We can answer: That Rav Nachman obligates [the defendant] to take an ‘oath of incitement’, even when [the plaintiff] claims that the object in your hand is mine, where if he is lying it is not possible to say that he is ‘evading the creditor’.1Tosfos’ answer that Rav Nachman requires an ‘oath of incitement’ even when the plaintiff claims that the object in your hands is mine, is somewhat difficult. It appears that the Gemara knew this to be true, even though there is no specific mention of this fact in the Gemara. In fact, Tosfos proceeds to question why this should be true as we will soon see. Perhaps Tosfos views the ruling in the Mishna in Shavuos which says “You owe me a hundred zuz, and the defendant answers: I owe you nothing”, as being equally applicable to a deposit as it is to a loan. If so, when Rav Nachman adds that we impose an ‘oath of incitement’, it is referring to a deposit as well as a loan. Thus, the source of Tosfos’ reasoning is that Rav Nachman’s original ruling includes even a situation where justifying the defendant because he is ‘evading the creditor’ is inapplicable. Tosfos then proceeds to ask: Why is this so? He never questions the truth of his conclusion.2It is noteworthy that Tosfos does not even mention how Rashi ד'ה נימא deals with this problem. For a better understanding of Rashi’s explanation see שיטה מקובצת, רמב"ן and נחלת דוד. When the object he must return is immediately accessible, we cannot argue that he is denying the charges because he wants to ‘evade the creditor’. All he needs to do, is simply return the object to the plaintiff. His refusal to do so, can be construed only as an attempt to steal the item. Even so, Rav Nachman obligates him to swear. This is conclusive proof that even though one is suspected of stealing, he is not suspected of swearing falsely. So too, Rav Hai Gaon explains that we impose an ‘oath of incitement’ upon a denial of land, even though ‘evading the creditor’ is inapplicable to land. One merely needs to return the land to its owner, since it is always here and accessible. We see that Rav Nachman’s oath is required even when there is no possibility of ‘evading the creditor’.
The Gemara in Shavuos 40b is discussing Rav Nachman’s oath: Rav Nachman said: We impose an ‘oath of incitement’ upon [one who denies all]. What is the reason that we suspect that he might be lying? It is assumed that [the plaintiff] would not lay claim, if [the defendant] did not owe him. The Gemara counters: On the contrary, we may assume that a person does not have the audacity to deny his debt in the face of his creditor. If he is denying the debt, he is most probably telling the truth.
The Gemara answers: He is not exhibiting audacity, rather, he is ‘evading the creditor’, he thinks, I will deny the debt till I will have funds with which to pay.
We see that Rav Nachman’s original oath was imposed only because of the possibility of ‘evading the creditor’. It follows that when ‘evading the creditor’ is inapplicable, there should be no ‘oath of incitement’. Tosfos has concluded that Rav Nachman does impose an ‘oath of incitement’ even when there is no possibility of justifying his claim as ‘evading the creditor’, such as when the plaintiff claims the object in your hands is mine or when the dispute is about land as Rav Hai ruled.
And this conclusion that Rav Nachman’s oath was instituted even when ‘evading the creditor’ is not an option, is difficult! For in Perek Shavuos HaDayanim (Shavuos 40b) it appears that [Rav Nachman] obligates an ‘oath of incitement’ only because of the possibility of ‘evading the creditor’? For [the Gemara] asks about the ruling that an ‘oath of incitement’ is required because the creditor would not claim something if the debtor did not owe him: On the contrary, a person does not have the audacity to deny his debt in the face of his creditor, and [the Gemara] answers: that [the defendant] is not exhibiting audacity, rather he is ‘evading the creditor’. It is evident that an ‘oath of incitement’ is required only because of the possibility that the debtor might be lying in order to ‘evade the creditor’.
We can answer: Since when the loaned money or deposited item is not accessible, [the defendant] must swear because he might be ‘evading the creditor’, even when the disputed item or funds are accessible, the Rabanan did not differentiate between different types of disputes and required an oath in all cases. Initially the oath was instituted for such cases where there is the possibility of ‘evading the creditor’. However, once it was instituted, it was expanded to include all types of disputes, even those where there is no likelihood of ‘evading the creditor’, as in the cases that Tosfos speaks of. However, we do see that there is an oath requirement even where the defendant is suspected of stealing the disputed item or land and he is not suspected of swearing falsely.
There is an inherent weakness in Tosfos’ previous explanation. We must concede that Rav Nachman initially instituted his ‘oath of incitement’ for disputes where there is a possibility of ‘evading the creditor’. We must then say that the Gemara knows that the initial ruling was expanded to include all types of disputes even though the Gemara presents no evidence of this. Tosfos searches for a better solution to his question.
In the second approach Tosfos will concede that his question is better than his answer and the proof offered by the Gemara from Rav Nachman’s ruling is in fact inconclusive. However, at this point in the dialogue, the Gemara simply chose not to pursue this weakness, even though it certainly could have deflected the proof offered from Rav Nachman’s ruling.
Alternatively, the Gemara is aware of the flaw of the proof from Rav Nachman’s ruling, however [the Gemara] chooses to ignore this, because it is relying on the question it raises from R’ Chiya’s ruling, which definitely does prove that even when one is suspected of stealing money, he is not suspected of swearing falsely. Since the Gemara knew that ultimately there is proof that even in this situation one is required to swear, it ignores the fact that Rav Nachman’s ruling does not in fact prove this at all.
We can answer: That Rav Nachman obligates [the defendant] to take an ‘oath of incitement’, even when [the plaintiff] claims that the object in your hand is mine, where if he is lying it is not possible to say that he is ‘evading the creditor’.1Tosfos’ answer that Rav Nachman requires an ‘oath of incitement’ even when the plaintiff claims that the object in your hands is mine, is somewhat difficult. It appears that the Gemara knew this to be true, even though there is no specific mention of this fact in the Gemara. In fact, Tosfos proceeds to question why this should be true as we will soon see. Perhaps Tosfos views the ruling in the Mishna in Shavuos which says “You owe me a hundred zuz, and the defendant answers: I owe you nothing”, as being equally applicable to a deposit as it is to a loan. If so, when Rav Nachman adds that we impose an ‘oath of incitement’, it is referring to a deposit as well as a loan. Thus, the source of Tosfos’ reasoning is that Rav Nachman’s original ruling includes even a situation where justifying the defendant because he is ‘evading the creditor’ is inapplicable. Tosfos then proceeds to ask: Why is this so? He never questions the truth of his conclusion.2It is noteworthy that Tosfos does not even mention how Rashi ד'ה נימא deals with this problem. For a better understanding of Rashi’s explanation see שיטה מקובצת, רמב"ן and נחלת דוד. When the object he must return is immediately accessible, we cannot argue that he is denying the charges because he wants to ‘evade the creditor’. All he needs to do, is simply return the object to the plaintiff. His refusal to do so, can be construed only as an attempt to steal the item. Even so, Rav Nachman obligates him to swear. This is conclusive proof that even though one is suspected of stealing, he is not suspected of swearing falsely. So too, Rav Hai Gaon explains that we impose an ‘oath of incitement’ upon a denial of land, even though ‘evading the creditor’ is inapplicable to land. One merely needs to return the land to its owner, since it is always here and accessible. We see that Rav Nachman’s oath is required even when there is no possibility of ‘evading the creditor’.
The Gemara in Shavuos 40b is discussing Rav Nachman’s oath: Rav Nachman said: We impose an ‘oath of incitement’ upon [one who denies all]. What is the reason that we suspect that he might be lying? It is assumed that [the plaintiff] would not lay claim, if [the defendant] did not owe him. The Gemara counters: On the contrary, we may assume that a person does not have the audacity to deny his debt in the face of his creditor. If he is denying the debt, he is most probably telling the truth.
The Gemara answers: He is not exhibiting audacity, rather, he is ‘evading the creditor’, he thinks, I will deny the debt till I will have funds with which to pay.
We see that Rav Nachman’s original oath was imposed only because of the possibility of ‘evading the creditor’. It follows that when ‘evading the creditor’ is inapplicable, there should be no ‘oath of incitement’. Tosfos has concluded that Rav Nachman does impose an ‘oath of incitement’ even when there is no possibility of justifying his claim as ‘evading the creditor’, such as when the plaintiff claims the object in your hands is mine or when the dispute is about land as Rav Hai ruled.
And this conclusion that Rav Nachman’s oath was instituted even when ‘evading the creditor’ is not an option, is difficult! For in Perek Shavuos HaDayanim (Shavuos 40b) it appears that [Rav Nachman] obligates an ‘oath of incitement’ only because of the possibility of ‘evading the creditor’? For [the Gemara] asks about the ruling that an ‘oath of incitement’ is required because the creditor would not claim something if the debtor did not owe him: On the contrary, a person does not have the audacity to deny his debt in the face of his creditor, and [the Gemara] answers: that [the defendant] is not exhibiting audacity, rather he is ‘evading the creditor’. It is evident that an ‘oath of incitement’ is required only because of the possibility that the debtor might be lying in order to ‘evade the creditor’.
We can answer: Since when the loaned money or deposited item is not accessible, [the defendant] must swear because he might be ‘evading the creditor’, even when the disputed item or funds are accessible, the Rabanan did not differentiate between different types of disputes and required an oath in all cases. Initially the oath was instituted for such cases where there is the possibility of ‘evading the creditor’. However, once it was instituted, it was expanded to include all types of disputes, even those where there is no likelihood of ‘evading the creditor’, as in the cases that Tosfos speaks of. However, we do see that there is an oath requirement even where the defendant is suspected of stealing the disputed item or land and he is not suspected of swearing falsely.
There is an inherent weakness in Tosfos’ previous explanation. We must concede that Rav Nachman initially instituted his ‘oath of incitement’ for disputes where there is a possibility of ‘evading the creditor’. We must then say that the Gemara knows that the initial ruling was expanded to include all types of disputes even though the Gemara presents no evidence of this. Tosfos searches for a better solution to his question.
In the second approach Tosfos will concede that his question is better than his answer and the proof offered by the Gemara from Rav Nachman’s ruling is in fact inconclusive. However, at this point in the dialogue, the Gemara simply chose not to pursue this weakness, even though it certainly could have deflected the proof offered from Rav Nachman’s ruling.
Alternatively, the Gemara is aware of the flaw of the proof from Rav Nachman’s ruling, however [the Gemara] chooses to ignore this, because it is relying on the question it raises from R’ Chiya’s ruling, which definitely does prove that even when one is suspected of stealing money, he is not suspected of swearing falsely. Since the Gemara knew that ultimately there is proof that even in this situation one is required to swear, it ignores the fact that Rav Nachman’s ruling does not in fact prove this at all.
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