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BAVA METZIA 35

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1) MAKING THE LENDER SWEAR THROUGH "GILGUL SHEVU'AH"
QUESTION: Rav Huna (34b) rules that whenever a Shomer does not return the Pikadon itself (and either claims that he is exempt or returns money in its place), he must swear that the object is not in his possession. Rav Huna bar Tachlifa in the name of Rava challenges Rav Huna's ruling from one of the cases mentioned in the Mishnah in Shevuos (43a). The Mishnah there presents several scenarios of a lender who lent a Sela to a borrower and received an item of collateral from the borrower, which he subsequently lost. The lender and borrower now dispute how much the item of collateral was worth. In one of the scenarios, the borrower claims that it was worth two Sela'im, and thus the lender owes him one Sela. The lender claims that it was worth one Sela, and thus he owes nothing. The Mishnah rules that the lender is exempt and does not even need to make a Shevu'ah (since he denies owing anything -- "Kofer ha'Kol"). The Gemara asks that if Rav Huna's ruling is correct, then the lender -- who was a Shomer for the collateral of the borrower -- must swear that the object is not in his possession. Accordingly, the principle of "Gilgul Shevu'ah" should also obligate him to swear as to the value of the collateral.

Why does the Gemara assume that the principle of "Gilgul Shevu'ah" would obligate the lender to make a Shevu'ah? In this situation, he should not become obligated to make a Shevu'ah because he has a "Migu": if he wanted to lie, he could have made a more effective claim and asserted that the borrower never gave him collateral in the first place. Although this "Migu" does not exempt him from the primary Shevu'ah that he must make (that the item is not in his possession), that is because it would be a "Migu d'He'azah" (that is, he would not have made the more effective claim because he would have had to be overly brazen to do so). With regard to the Shevu'ah about the value of the item, since the lender anyway denies that he owes the borrower any money, the claim of the "Migu" (that he never received collateral) would be on the same level of brazenness, and the "Migu" should therefore exempt him from the "Gilgul Shevu'ah." (REBBI AKIVA EIGER, CHASAM SOFER)

ANSWERS:
(a) REBBI AKIVA EIGER and the CHASAM SOFER answer that the "Migu" is still a "Migu d'He'azah" because the claim that he never received any collateral actually would require an extra degree of brazenness. Although the lender already denies owing anything (with his claim that the collateral was worth one Sela), this claim is not as brazen because the borrower will not assume that the lender is an outright liar; the borrower will assume that the lender simply made a mistaken assessment of the item's value. In contrast, if the lender claims that he never received collateral from the borrower, the borrower will accuse him of being a liar. Therefore, the lender would prefer not to make that claim, and thus he has no "Migu."

(b) CHIDUSHEI REBBI MEIR SIMCHAH answers that the "Migu" does not exempt him from the "Gilgul Shevu'ah" because the lender would not want to make the claim of the "Migu," that the borrower never gave him collateral. Since the object indeed may have been stolen from him, the lender will not claim that he never received it, because if he does he will not be able to retrieve the object from the Ganav. (I. Alsheich)

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