1) DOES ONE BRING A "KORBAN SHEVU'AH" FOR DENYING AN OBLIGATION OF "KEFEL"?
The Gemara discusses whether Rebbi Shimon exempts the person from a Korban Shevu'ah only when there was no Ha'amadah b'Din -- that is, Beis Din did not yet rule that he must pay the Kenas -- or even if there already was a Ha'amadah b'Din. The Gemara concludes that Rebbi Shimon must be discussing an obligation of Kenas after Ha'amadah b'Din.
The Gemara proves this from the beginning of that Beraisa, which cites a dissenting opinion that if a person accuses someone of owing him a payment of Kefel and other types of Kenas, and the accused denies it with an oath and then admits that he swore falsely, he is obligated to bring a Korban Shevu'ah. The Gemara explains that the Beraisa must be referring to a case in which there already was Ha'amadah b'Din, because "if there was no Ha'amadah b'Din, there is no Kefel." What is the meaning of this cryptic statement?
RASHI gives two explanations for why one is unable to claim from another person a Kenas of Kefel when there was no Ha'amadah b'Din. In his first explanation, Rashi writes that when there was no Ha'amadah b'Din, it was never established that the other person stole his object in the first place, such that he should now be able to demand a payment of Kefel. The only way he can be sure that the other person stole his object is if there was Ha'amadah b'Din.
In his second explanation, Rashi writes that the thief has the ability to admit that he stole and thereby to exempt himself from the Kenas (since one who admits that he did something that obligates him to pay a Kenas is exempt from paying the Kenas). Thus, there is no claim of Kefel against him prior to Ha'amadah b'Din, since he is able to exempt himself by admitting to it.
Rashi's words are difficult to understand for the following reasons, as the RITVA asks (see also MAHARAM SHIF).
(a) In his first explanation, what does Rashi mean when he says that a person cannot know that someone stole from him unless there is Ha'amadah b'Din? In the case of any accusation, how does the person know that the other person owes him something? Obviously, the person simply claims that he knows even though he cannot prove it. The same is true in a case of Kefel. Why is it not possible to accuse another person of owing Kefel before Ha'amadah b'Din?
(b) In his second explanation, Rashi writes that since the thief might admit to his deed and exempt himself from the Kenas, it is not possible for the Kenas to obligate him to bring a Korban Shevu'ah unless there was Ha'amadah b'Din. However, this reasoning should apply to any other type of Kenas as well. Why does the Gemara need to cite the beginning of the Beraisa as proof that Rebbi Shimon's ruling refers to a case in which there was Ha'amadah b'Din? The Gemara should prove this point from Rebbi Shimon's own words! Rebbi Shimon needs a verse to exempt a person from a Korban Shevu'ah where the person is accused of owing a Kenas. Why does he need a verse if it is before Ha'amadah b'Din? Before Ha'amadah b'Din, the accusation is meaningless because the accused can simply admit to owing the Kenas and thereby exempt himself!
(See MAHARAM SHIF and HAFLA'AH who attempt to find other explanations for the proof from Kefel, other than the explanations given by Rashi.)
In a normal case of Geneivah, in which the theft was perpetrated in secret, it is assumed that the owner did not see the thief. If the owner did not see the thief steal his item, how can he accuse him of theft? For all other claims and accusations, the victim's allegation is based on the claim that he witnessed the offense, but in the case of Geneivah he cannot claim to have witnessed the offense! This is what Rashi means when he says that it is not possible for the owner to know who the thief is before Ha'amadah b'Din.
(Rashi is not completely satisfied with this explanation because the owner could still claim that he was peeking from behind a door when the Ganav sneaked in and stole his item. Although the Ganav attempted to hide his actions, the owner still may claim to have seen him.)
(b) With regard to Rashi's second explanation, the RITVA cites TOSFOS who suggests that the proof indeed is not necessarily from Kefel, and that the Gemara actually proves its point from all of the Kenasos. One cannot be obligated to bring a Korban Shevu'ah for the denial of a Kenas because even if he would have admitted to the accusation he would not have had to pay. This is the logic which Rebbi Shimon expresses in the earlier Beraisa (42a).
Why, then, does the Gemara not prove from Rebbi Shimon's own statement that Rebbi Shimon is discussing Kenas after Ha'amadah b'Din? He must be discussing Kenas after Ha'amadah b'Din because otherwise he would not have to cite the verse "v'Chichesh" to exempt the person from Kenas, as there are strong enough logical grounds to exempt him from Kenas (as the Gemara says with regard to the view of the Rabanan in the end of the Beraisa).
1. Tosfos (as cited by the Ritva) answers that the proof from Rebbi Shimon's own statement would not be conclusive because "v'Chichesh" might be merely an "Asmachta," and the real reason for Rebbi Shimon's ruling might indeed be the logic that the perpetrator would not pay if he admitted to his action. The proof from the Rabanan, who rule that one does bring a Korban Shevu'ah for denying a Kenas with an oath, is conclusive.
2. The Ritva himself adds that according to Rebbi Shimon, perhaps "v'Chichesh" is necessary to teach that when a man accuses another man of raping his daughter, his primary intent is to claim the money of the Kenas, not the payments of Boshes and Pegam (in contrast to the opinion of the Rabanan). Alternatively, "v'Chichesh" is necessary to exempt denial of a Kenas from a Korban Shevu'ah when the Kenas is of the type that is not added to the compensation for damages, but is in place of the compensation for damages (such as the Kenas owed when one knocks out the tooth or eye of his servant, or the Kenas of "Sheloshim Shel Eved" when one's ox kills another person's servant). Since, in those cases, the Kenas takes the place of payments for damages, one might have thought that the person is obligated to bring a Korban Shevu'ah for denying the Kenas with an oath.
3. However, this does not appear to be Rashi's opinion. Rashi explains that one cannot be obligated to bring a Korban Shevu'ah for denial of Kefel because "perhaps the accused will admit to the offense and thereby exempt himself." It is noteworthy that Rashi does not say that he will be exempt "even if" he confesses to the claim (which is the way Rashi explains the logic of Rebbi Shimon on 42a, DH she'Eino Meshalem, and 42b, DH she'Eino Meshalem). Rather, Rashi says that "perhaps" he will confess, meaning that even if he denies the claim at present there is reason to exempt him from a Korban because of the possibility that he will exempt himself from the payment of the Kenas at some point before the Ha'amadah b'Din. Rashi's words here follow the opinion in Bava Kama (75a) that "Modeh b'Kenas v'Achar Kach Ba'u Edim, Patur" -- when a person confesses to an act that is punishable with a Kenas, and then witnesses come and testify that he committed that act, he nevertheless remains exempt. Rashi is saying that a person cannot become obligated to bring a Korban Shevu'ah for denying and then admitting to a Kenas, since there is no certainty whether he will confess before witnesses come, in which case he will have no obligation altogether even after the witnesses come. That is why Rashi says that "perhaps" he will confess; the only reason why he should not be obligated to bring a Korban Shevu'ah is the possibility that he will confess. If, however, he does not confess, it would be appropriate to obligate him to bring a Korban Shevu'ah.
Why can the same inference not be made from Rebbi Shimon's words, that one is exempt only because of "v'Chichesh"? The answer is that the argument that the accused cannot be obligated to bring a Korban Shevu'ah since he can exempt himself by confessing is valid only according to the opinion that maintains that "Modeh b'Kenas v'Achar Kach Ba'u Edim, Patur" -- when a person confesses to an act that is punishable with a Kenas, and then witnesses come and testify that he committed that act, he nevertheless remains exempt. Rebbi Shimon, however, rules that one is Chayav when witnesses come later and testify against the person.
Rashi perhaps derives this from the question the Ritva asks: how can the Gemara suggest that Rebbi Shimon learns from the verse "v'Chichesh" that the accused is exempt from a Korban Shevu'ah when -- in the Beraisa -- he gives a logical reason and not a verse and says that the person is exempt because of the rule that a person does not pay a Kenas when he confesses to it? Why does Rebbi Shimon need a verse ("v'Chichesh") to teach that one is exempt? Rashi answers that Rebbi Shimon himself does not rely on the logic that "Eino Meshalem Kenas Al Pi Atzmo" to exempt a person from a Korban Shevu'ah, because that logic is not such a strong argument. While it is true that he would not have to pay the Kenas if he confessed to it, nevertheless since he would have to pay the Kenas if witnesses come later, perhaps his denial should be treated like the denial of any monetary obligation. Although no Kenas-obligation exists before the Ha'amadah b'Din, nevertheless after the Ha'amadah b'Din a Kenas-obligation exists retroactively from the time of the misdeed (as the CHIDUSHEI HA'RASHBA in Bava Kama (74b) proves). Therefore, Rebbi Shimon needs an additional source to exempt the person from a Korban Shevu'ah in the case of a Kenas, and that is why he must learn this Halachah from the word "v'Chichesh."
(According to this approach, Rebbi Shimon himself is not convinced that the logical argument of "Eino Meshalem Kenas Al Pi Atzmo" should exempt a person from a Korban Shevu'ah. Nevertheless, he attempts to convince the Rabanan to agree with his ruling by using that argument. This type of polemic is common in the Mishnah and Beraisa, as TOSFOS writes in Zevachim 77b, DH Odu Li, and elsewhere.)
Accordingly, it is clear why the Gemara cannot prove from Rebbi Shimon's own words in the Beraisa (in which Rebbi Shimon says that one is exempt from a Korban Shevu'ah in the case of a Kenas because of "v'Chichesh") that Rebbi Shimon is discussing Kenas after Ha'amadah b'Din. Perhaps he is discussing Kenas before Ha'amadah b'Din, and yet "v'Chichesh" is necessary to exempt the person from a Korban Shevu'ah in the case of a Kenas. The Gemara instead proves from the beginning of the Beraisa that the Beraisa is discussing Kenas after Ha'amadah b'Din, in which case the Rabanan rule that one is obligated to bring a Korban Shevu'ah for the denial of a Kenas-obligation. The Gemara asks, how can the Rabanan say that one is obligated to bring a Korban Shevu'ah for Kenas when -- according to the Halachic opinion among the Amora'im -- the Rabanan maintain that "Modeh b'Kenas v'Achar Kach Ba'u Edim, Patur"? This question -- that he should not be obligated to bring a Korban Shevu'ah because there is no certain obligation of Kenas at present due to the possibility that he will confess and exempt himself from the Kenas -- presents an indisputable argument to exempt him from a Korban Shevu'ah. The words of the Rabanan in the beginning of the Beraisa, who obligate him to bring Korban Shevu'ah for the denial of a Kenas, provide conclusive proof that the Beraisa is discussing the Korban Shevu'ah for a Kenas after Ha'amadah b'Din. (M. Kornfeld)
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