SHEVUOS 43 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.

1)

(a)We extrapolate from 'Eser Gefanim Te'unos Masarti lach ... Rebbi Meir Mechayav' that Rebbi Meir holds 'Kol ha'Mechubar le'Karka Eino ke'Karka'. What problem do we have with thayt?

(b)Rebbi Yossi b'Rebbi Chanina therefore, establishes our Mishnah by vines that are due to be harvested. What is then the basis of the Machlokes between Rebbi Meir and the Rabbanan?

1)

(a)We extrapolate from 'Eser Gefanim Te'unos Masarti Lach ... Rebbi Meir Mechayav' that Rebbi Meir holds 'Kol ha'Mechubar le'Karka Eino ke'Karka'. The problem with that is - why he then needs to refer to a case where the vines are laden. Why did he and the Rabbanan (who would then hold 'Kol ha'Mechubar le'Karka ke'Karka Dami') not argue over empty vines?

(b)Rebbi Yossi b'Rebbi Chanina therefore, establishes our Mishnah by vines that are due to be harvested, in which case - Rebbi Meir holds that the grapes are considered picked, and the Rabbanan hold that they are not.

2)

(a)How does Abaye try to qualify our Mishnah 'Ein Nishba'in Ela al Davar she'be'Midah ... '? In which case would there be a Chiyuv Shevu'ah, even though the claimant did not verbalize a specific amount?

(b)How does Rava refute Abaye's statement, based on the Seifa 'Zeh Omer ad ha'Ziz, ve'Zeh Omer ad ha'Chalon, Chayav'?

(c)What is therefore Rava's conclusion?

2)

(a)Abaye tries to qualify our Mishnah 'Ein Nishba'in Ela al Davar she'be'Midah ... ', by confining it to where the claimant said 'Bayis' Stam, but if he said 'Bayis Zeh Malei', where the amount is self-evident, the debtor will be Chayav a Shevu'ah even though the claimant did not verbalize the amount.

(b)Rava refutes Abaye's statement, based on the Seifa 'Zeh Omer ad ha'Ziz, ve'Zeh Omer ad'ha'Chalon, Chayav' - since, according to Abaye, the Tana ought to rather to have concluded 'Bameh Devarim Amurim, be'Bayis S'tam, Aval 'be'Bayis Zeh Malei, Chayav'.

(c)Rava therefore concludes that - he is not Chayav a Shevu'ah until the claimant claims Davar she'be'Midah, she'be'Mishkal ve'she'be'Minyan, and the debtor likewise admits to the same.

3)

(a)We cite a Beraisa in support of Rava. What does the Tana say in a case where Reuven claims ...

1. ... a Kur of produce and Shimon denies it?

2. ... a large Menorah (or a large belt), and Shimon admits that he owes him a small one?

3. ... a Menorah weighing ten Litrin, and Shimon admits that he owes him one weighing five?

(b)The Beraisa ends with the 'Klal' requiring a Davar she'be'Midah ... ' on the part of both the claimant and the debtor. What does this come to exclude?

(c)What is the reason for the Tana's ruling (Patur) in the case of a large Menorah and a small one?

(d)How does Rav Shmuel bar Rav Yitzchak initially establish the case of a Menorah of ten and five Litrin where the Tana rules Chayav?

3)

(a)We cite a Beraisa in support of Rava. In a case where Reuven claims ...

1. ... a Kur of produce and Shimon denies it - the Tana rules Patur (mi'Shevu'ah, because he is a 'Kofer ba'Kol').

2. ... a large Menorah (or a large belt), and Shimon admits that he owes him a small one - the Tana rules Patur.

3. ... a Menorah weighing ten Litrin, and Shimon admits that he owes him one weighing five - the Tana rules Chayav.

(b)The Beraisa ends with the 'Klal' requiring a Davar she'be'Midah ... ' on the part of both the claimant and the debtor - which comes to exclude 'Bayis Malei Zeh' (see Tosfos DH 'La'av la'Asuyi').

(c)The reason for the Tana's ruling (Patur) in the case of a large Menorah and a small one is - because it is a case of 'Ta'ano Chitin ve'Hodeh Lo bi'Se'orin' (see Rashash).

(d)Initially, Rav Shmuel bar Rav Yitzchak establishes the case of the Menorah of ten and five Litrin (where the Tana rules Chayav) - where Reuven claims from Shimon a Menorah made of parts weighing ten Litrin, and Shimon admits to the same Menorah, but with half the parts removed, weighing only five.

4)

(a)How do we refute Rav Shmuel bar Rav Yitzchak's explanation from the case of a large belt and a small one? What do we see from there?

(b)So how does Rebbi Aba bar Mamal finally explain the ruling of the Menorah of ten and five Litrin? Why is it considered 'mi'Miyn ha'Ta'anah'?

4)

(a)We refute Rav Shmuel bar Rav Yitzchak's explanation from the case of a large belt and a small one however - where the Tana could also have ruled Chayav by establishing it by a belt made of parts joined together, in the same way as we established the case of Menorah (and since he did not do that, it is clear that the Tana does want to deal with such a case).

(b)Rebbi Aba bar Mamal finally ascribes the Chiyuv in the case of the Menorah of ten and five Litrin - to the fact that a Menorah of ten Litrin can be filed down to five (in which case it is 'mi'Miyn ha'Ta'anah').

5)

(a)What does our Mishnah rule in a case where the creditor loses the security he received against the loan and claims that the loan was a Sela, and the security was worth a Shekel (half a Sela), if the debtor counters that it was worth ...

1. ... a Sela, and that he therefore owes him nothing?

2. ... three Dinrim and he owes him only one Dinar?

(b)And what the Din in a case where the debtor claims that the security was worth two Sela'im (in which case it is the creditor who owes him a Sela), and the creditor counters that it was worth only ...

1. ... one, and that they are therefore quits?

2. ... five Dinrim and that he therefore owes him only one Dinar?

(c)On what basis does the Tana obligate the creditor (the guardian of the Pikadon) to swear how much the Pikadon was worth, and not the debtor (the Pikadon's owner)?

5)

(a)Our Mishnah rules in a case where the creditor loses the security he received against the loan and claims that the loan was a Sela, and the security was worth a Shekel (half a Sela), if the debtor counters that it was worth ...

1. ... a Sela, and that he therefore owes him nothing that - the debtor is Patur from a Shevu'ah.

2. ... three Dinrim and he owes him one Dinar that - he is Chayav a Shevu'ah.

(b)And in a case where the debtor claims that the security was worth two Sela'im (in which case it is the creditor who owes him a Sela), and the creditor counters that it was worth only ...

1. ... one, and that they are quits - the creditor is Patur from a Shevu'ah.

2. ... five Dinrim and that he therefore owes him only one Dinar - he pays him the Dinar and swears on the rest.

(c)The Tana obligates the creditor (the guardian of the Pikadon) to swear how much the Pikadon was worth, and not the debtor (the Pikadon's owner) - because he is afraid that if the latter swears, the former will produce the Pikadon, and prove the former a liar (disqualifying him from being a witness, even though he may only have erred in his assessment).

43b----------------------------------------43b

6)

(a)Shmuel concludes that when the Tana states 'Mi Nishba, Mi she'ha'Pikadon Etzlo', he must be referring to the Reisha, where the creditor claims that the debt exceeded the value of the Pikadon (and Rebbi Chiya bar Ashi and Rebbi Yochanan concur with him). Why can it not refer to the Seifa?

(b)To which of the two cases in the Reisha does it then refer?

(c)According to Rav Ashi, we do not switch the Shevu'ah at all, and it is the debtor who swears how much the Pikadon is worth. How does he then interpret ...

1. ... the question 'Mi Nishba'?

2. ... the answer 'Mi she'ha'Pikadon Etzlo'?

6)

(a)Shmuel concludes that when the Tana states 'Mi Nishba, Mi she'ha'Piladon Etzlo', he must be referring to the Reisha, where the creditor claims that the debt exceeded the value of the Pikadon (and Rebbi Chiya bar Ashi and Rebbi Yochanan concur with him) - because if he was referring to the Seifa, the Kashya 'Mi Nishba' (as well as the answer 'Mi she'ha'Pikadon Etzlo') would be meaningless, seeing as the onus of swearing lies on him anyway.

(b)In fact - it refers to the Seifa de'Reisha (the second of the two cases), because the Reisha de'Reisha is a case of 'Kofer ba'Kol', where no Shevu'ah is required.

(c)According to Rav Ashi, we do not switch the Shevu'ah at all, and it is the debtor who swears how much the Pikadon is worth. According to him, when the Tana ...

1. ... asks 'Mi Nishba', he means - who swears first, the debtor as to how much the Pikadon was worth, or the creditor, that he does not have the Pikadon in his possession. And he ...

2. ... answers 'Mi she'ha'Pikadon Etzlo' - the creditor must swear first to preempt the scenario where the debtor swears how much the Pikadon is worth, and the creditor then produces it to prove him wrong.

7)

(a)What does Shmuel say about Reuven who lends Shimon a thousand Zuz against a security of the handle of a scythe?

(b)Why is that?

(c)Why can Shimon then not turn round to the creditor and tell him to keep the handle as payment of the loan?

7)

(a)Shmuel rules that if Reuven lends Shimon a thousand Zuz against a security of the handle of a scythe - and the handle gets lost, Shimon is Patur from paying ...

(b)... because, since he accepted the handle as a security, which in effect, is in lieu of payment of the loan, he maintains 'Avad Kata de'Magla, Avad Kol Ma'osav'.

(c)Shimon cannot however, turn round to the creditor and tell him to keep the handle as payment of the loan - because, having accepted it as a security only, Reuven retains the right to redeem his money with it (after the specified time, or after thirty days in the case of a S'tam Milveh) as long as it is available.

8)

(a)Why would Shmuel not issue the same ruling in a case where Reuven received a security of two handles, and one of them got lost?

(b)Rav Nachman disagrees. What does he say?

(c)In which case, would he agree with Shmuel? Why is that?

(d)What do the Neherda'i say?

8)

(a)Shmuel would not issue the same ruling in a case where Reuven received a security of two handles, and one of them got lost - because since they did not stipulate that each handle covers half the loan, Reuven only needs to pay for the lost handle, and he is still entitled to claim the full thousand Zuz.

(b)Rav Nachman disagrees. In his opinion - since Reuven received two scythe-handles against the loan of a thousand Zuz, it is obvious that each handle covers five hundred Zuz.

(c)He would however, agree with Shmuel - in a case where Shimon gave Reuven a scythe handle and a piece of silver, because the piece of silver is eligible to serve as payment, in which case it simply covers its own value (see Tosfos DH 'Aval').

(d)According to the Neherda'i - even if Shimon gave Reuven the handle of a scythe plus a piece of silver, each one would cover half the loan. Consequently, if Reuven were to lose either of them, he would only be entitled to claim five hundred Zuz.

9)

(a)What does our Mishnah rule in a case where Reuven loses the security that he received against a loan of a Sela, which he claims is worth a Shekel, if Shimon counters that it is worth three Dinrim?

(b)How do we reconcile this with Shmuel, who says 'Avad Kata de'Magla, Avad Kol Ma'osav'?

(c)Rebbi Eliezer rules in a Beraisa that if Reuven loses the security, he swears that he lost it, and claims his loan. What does Rebbi Akiva say?

(d)In which case will Rebbi Eliezer agree that once Reuven loses the security, he loses his right to claim?

9)

(a)In a case where Reuven loses the security that he received against a loan of a Sela, which he claims is worth a Shekel, if Shimon claims that it is worth three Dinrim - our Mishnah rules that Shimon is Chayav a Shevu'ah.

(b)To reconcile this with Shmuel, who says 'Avad Kata de'Magla, Avad Kol Ma'osav' - we establish the Mishnah where Reuven specifically stipulated that he accepted the security only at its market value, whereas Shmuel speaks where he accepted it S'tam.

(c)Rebbi Eliezer rules in a Beraisa that if Reuven loses the security, he swears that he lost it, and claims his loan - Rebbi Akiva accepts Shimon's claim because, seeing as Reuven insisted on a security, having lost it, he loses his right to claim.

(d)Rebbi Eliezer will agree however that - if the loan is documented (in which case Reuven has the automatic security of 'Shibud Karka'os'), the additional security is intended as payment, and in the event that Reuven loses it, he loses his right to claim.

10)

(a)Why can Rebbi Eliezer and Rebbi Akiva not be arguing over a security that is equal in value to the amount of the loan?

(b)In that case, they must be arguing where it is worth less (like the case of Shmuel). What do we initially suggest to be the basis of their Machlokes?

(c)According to Rebbi Eliezer, the creditor is no more than a Shomer over the security. What kind of Shomer?

10)

(a)Rebbi Eliezer and Rebbi Akiva cannot be arguing over a security that is equal in value to the amount of the loan - because if they were, Rebbi Eliezer's ruling would be meaningless.

(b)In that case, they must be arguing where it is worth less (like the case of Shmuel) and we suggest that - Rebbi Akiva follows the opinion of Shmuel, whereas Rebbi Eliezer holds that no person in his right mind would accept a security for more than it is worth.

(c)According to Rebbi Eliezer, the creditor is no more than a Shomer - Chinam over the security (which explains why he swears and is Patur).

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