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BAVA METZIA 5

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1)
(a) Rami bar Chama cites a Beraisa which requires both a partial denial (Kefirah) and a partial admission (Hoda'ah) before one of the four Shomrim is obligated to swear. Partial Kefirah entails a complete denial of one of the objects that the Shomer is guarding (either by denying that he ever received it or by claiming that he already returned it).
(b) The source of this ruling is the Pasuk in Mishpatim "Ki Hu Zeh", from which we learn that a Kofer ba'Kol (who denies the claim completely) is Patur from a Shevu'ah.
(c) Not everyone agrees with this D'rashah however. According to others, the Pasuk refers to a Milvah, and not to a Pikadon ('Eiruv Parshiyos Kasuv Ka'an', as we learned at the end of Bava Kama).

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2)
(a) Initially, we present the case involving a Shomer Sachar and three cow where the Shomer admits to one cow which is still intact and which the owner is welcome to take ('Heilech'), denies the second, and claims that an Oneis occurred (or that it was stolen, if he was a Shomer Chinam) ...
(b) ... a Kashya on Rebbi Chiya, who holds that 'Heilech' is Patur from a Shevu'ah).
(c) To resolve the Beraisa with Rebbi Chiya, we change case to where the third cow too, died through the Shomer's negligence, and he offers to pay for it (which is not Heilech).

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3)
(a) The father of Rebbi Apturiki cites a Beraisa, which learns from the Pasuk "Ki Hu Zeh" that it is only when the defendant admits to part of the claim that he is obligated to swear, but not when witnesses force him to do so (seemingly clashing with Rebbi Chiya's first ruling [that Hoda'as Eidim obligates the defendant to swear]).
(b) With no other answer available we answer that Rebbi Chiya is considered a Tana, and has the power to argue with a Beraisa (see Tosfos DH 'Rebbi Chiya').
(c) Rebbi Chiya learns from "Ki Hu Zeh" the principle of 'Modeh be'Miktzas'. The Tana of Rav Apturiki's father learns two D'rashos from the Pasuk one from "Ki" (to include a Modeh be'Miktzas to swear) and one from "Zeh" (to exclude Hoda'as Eidim from a Shevu'ah).

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4)
(a) Rebbi Chiya uses the second D'rashah to exclude 'Ta'ano Chitin ve'Hodeh Lo bi'Se'orin' (when Shimon admits to part of a claim, and that admission pertains to something that Reuven did not claim) from a Shevu'ah.
(b) The other Tana does not learn the P'tur of 'Ta'ano Chitin ve'Hodeh Lo bi'Se'orin' from anywhere since he holds like Raban Gamliel, who rules 'Ta'ano Chitin ve'Hodeh Lo bi'Se'orin, Chayav.'

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5)
(a) It happened once that the shepherd to whom people would hand their sheep each day with witnesses received the sheep without witnesses.
(b) When he denied having received any sheep that day and witnesses testified that he had eaten two of them Rebbi Zeira commented that, had the Halachah been like Rebbi Chiya's first ruling (obligating a Shevu'ah in the case of 'Hoda'as Eidim'), then the shepherd would have had to swear on the remainder of the sheep.
(c) Abaye object to Rebbi Zeira's ruling on the grounds that the shepherd was a Ganav, and as such, he could not be trusted to swear ...
(d) ... to which Rebbi Zeira's replied that what he meant was that the Shevu'ah should be switched to the claimants (as is standard in cases where the defendant is unable to swear).

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6)
(a) Despite the fact that the Halachah is not like Rebbi Chiya, Abaye asked Rebbi Zeira, the shepherd ought to have been Chayav a Shevu'ah because of a statement of Rav Nachman who says that a 'Kofer be'Kol' (someone who denies all that is claimed from him) is Chayav a Shevu'as Hesses.
(b) The Chachamim obligated a 'Kofer ba'Kol' to swear based on the Chazakah that a person does not claim money unless there are grounds for it.
(c) This Shevu'ah is referred to as a 'Shevu'as Hesses' because min ha'Torah, he is exempt from swearing, and it is the Rabbanan who have 'incited' him (from the word Lehasis, to incite) to do so.
(d) Rebbi Zeira answered Abaye that if not for Rebbi Chiya, it would not have been possible to obligate the shepherd to swear, seeing as both his initial obligation to swear, and the switching of the Shevu'ah to the claimant, are Takanos Chachamim, and 'Takanta li'Tekanta Lo Avdinan' (we don't institute a Takanah on a Takanah (much in the same way as we don't institute a 'Gezeirah li'Gezeirah').

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7)
(a) We then ask from a statement of Rav Yehudah, who said that 'S'tam Ro'eh Pasul' (because they would allow their animals to graze in other people's fields).
(b) This poses a Kashya on Abaye, who based his Kashya on the fact that this particular shepherd was a Ganav, when, according Rav Yehudah, all shepherds are Pasul.
(c) And we answer by confining Rav Yehudah's statement to where the shepherd is shepherding his own sheep (but not those belonging to others, because we have a principle 'Ein Adam Chotei ve'Lo Lo' [a person does not tend to sin with money that belongs to others).
(d) We prove this answer, by quoting the Pasuk in Kedoshim "Lifnei Iver Lo Siten Michshol" which would prohibit us from giving our animals to shepherds if they were Ganavim (and the fact is, that we do).

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8)
(a) We learned in our Mishnah that each of the two finders swear that they do not own less than half the Talis a Shevu'ah which implies that they own nothing as much as it implies that they own a half.
(b) So Rav Huna amends the Shevu'ah to read 'she'Yesh li Bah, ve'she'Ein li bah Pachos me'Chetzyah'.
(c) He cannot swear that ...
1. ... the whole Talis belongs to him because that is not what he will receive.
2. ... half the Talis belongs to him because that is not what he is claiming.
(d) Consequently, to prevent making a mockery out of Beis-Din, what he really swears is that the entire Talis is his, but that, even according to Beis-Din, who do not believe that, he does not own less than half the Talis.

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9)
(a) Although each one is holding half the Talis, Rebbi Yochanan explains that the Chachamim instituted the Shevu'ah to prevent a people from grabbing their friends Taleisim and claiming that it is theirs.
(b) Chazal instituted a Shevu'ah, despite the fact that it is based on the suspicion that the finder of the garment is a Ganav because they hold 'Migu de'Chashid a'Mamona, Lo Chashid Nami a'Shevuasa' (A person who is dishonest in money-matters is not suspected of making a false Shevu'ah).
(c) We refute the proof for this from 'Modeh be'Miktzas' (whom the Torah obligates to swear even though he appears to be dishonest in money-matters) by pointing out that in fact, he is not suspect of stealing at all, only of pushing off payment until he obtains funds with which to pay, like Rabah learned above.

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10)
(a) We prove the current S'vara from Rav Idi bar Avin Amar Rav Chisda, who draws a distinction between someone who denies a loan and someone who denies a Pikadon (as we learned earlier). This poses a problem however, in connection with the Beraisa of Rami bar Chama, who requires a partial denial and a partial admission before a Shomer can swear since there can be no justification in denying a Pikadon (yet the animal that he denies, according to Rami's Beraisa, is instrumental in making him swear).
(b) Were it not for the explanation of Rav Idi bar Avin Amar Rav Chisda, there would be no problem because the animal may have been stolen or lost for example, through his negligence, and he denies it until he finds the animal or the Ganav.
(c) We reconcile the Beraisa of Rami bar Chama with the S'vara of 'Ishtemuti ka'Mishtamet' by establishing it likewise when the animal was stolen or lost and he denies it altogether until such time as he finds it ...
(d) ... whereas Rav Chisda disqualifies someone who denies a Pikadon from testifying in a case when there are witnesses who testify that the animal is in his domain and he knows about it, or that he is holding it in his hand.

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11)
(a) Rav Huna rules that a Shomer Sachar who claims that the Pikadon is stolen or lost is obligated to swear that he does not have it in his domain.
(b) Neither can we refute the principle 'Migu de'Chashid a Mamona, Chashid Nami a'Shevu'asa' from there because there too, he is not suspect, since, seeing as a Shomer Sachar is liable to pay for Geneivah va'Aveidah, he allows himself the liberty of claiming that the article is not in his domain.
(c) Rav Acha from Difti asked Ravina that when all's said and done, he has transgressed the La'av of "Lo Sachmod", so why does that not disqualify him from swearing? To which Ravina replied since people think that, as long as they pay, they have not transgressed "Lo Sachmod", that La'av is not sufficient justification to suspect him of making a false Shevu'ah, which everyone knows is forbidden.

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