SHEVUOS 49 - Two weeks of study material, including the Siyum of Maseches Shevuos, 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.

Perek Arba'ah Shomrin

1)

(a)Our Mishnah obligates a Shomer Chinam to swear on everything. What does 'everything' incorporate?

(b)What is the Din of ...

1. ... a Sho'el?

2. ... a Shomer Sachar and a Socher?

(c)In spite of what we learned, in which case will a Sho'el be Patur with a Shevu'ah?

1)

(a)Our Mishnah obligates a Shomer Chinam to swear on everything - incorporating theft, loss and 'Shevurah u'Meisah' (Oneis).

(b)The Din of ...

1. ... a Sho'el is - that he is Chayav to pay for everything.

2. ... a Shomer Sachar and a Socher is - that he swears on Shevurah u'Meisah, but has to pay for Geneivah va'Aveidah.

(c)In spite of what we learned, a Sho'el is Patur with a Shevu'ah - if the animal died (or depreciated) due to regular work ('Meisah Machmas Melachah').

2)

(a)Seeing as we already learned these Halachos in Bava Metzi'a, why did Rebbi find it necessary to repeat them here?

(b)What will be the Din if the owner asks for his ox, and the Shomer Chinam claims that it died, broke a leg, or has been captured, stolen or lost, when in reality, anything else happened to the animal other than what he claimed; the owner then demands a Shevu'ah, and the Shomer swears?

(c)And what does the Mishnah rule in the same case, only where the Shomer Chinam denies having received the ox in the first place?

(d)What is the common reason for both of these rulings? What is the criterion for being Chayav a Korban Shevu'ah?

2)

(a)Despite our having already learned these Halachos in Bava Metzi'a, Rebbi found it necessary to repeat them here - because of the Din of Korban Shevu'ah that is determined by the Chiyuv and P'tur of the Shomer, as we shall now see.

(b)If the owner asks for his ox, and the Shomer Chinam claims that it died, broke a leg, or has been captured, stolen or lost, when in reality, anything else happened to the animal other than what he claimed; the owner then demands a Shevu'ah, and the Shomer swears - he is Patur from bringing a Korban Shevu'ah ...

(c)... as he is in the same case, only where the Shomer Chinam denied having received the ox in the first place.

(d)The common reason for both of these rulings is - because the Shomer Chinam's Shevu'ah did not exempt him from paying (since even if his response would have been correct, he would have been Patur). The criterion for being Chayav a Korban Shevu'ah is - that the Shevu'ah that he made exempts him from paying.

3)

(a)What does the Tana rule in a case where, after the Shomer Chinam claims and swears that the ox ...

1. ... is lost, witnesses testify that he ate the animal?

2. ... has been stolen, witnesses testify that he is the thief?

(b)In both of the above cases, how will the Din differ if he confesses himself that he ate it or stole it?

(c)Why does he not pay Kefel in these cases?

(d)What do we learn from the Pasuk in Naso (in connection with Gezel ha'Ger) "Vehisvadu es Chatasam asher Asu"?

3)

(a)The Tana rules, in a case where, after the Shomer Chinam claims and swears that the ox ...

1. ... is lost, witnesses testify that he ate the animal - that the Shomer is Chayav to pay the value of the ox.

2. ... has ben stolen, witnesses testify that he is the thief - he is obligated to pay double (due to the Din of 'To'en Ta'anas Ganav').

(b)In both of the above cases, the Din will differ if he himself confesses that he ate it or stole it - inasmuch as he is then obligated to pay an extra fifth, and to bring an Asham Gezeilos ...

(c)... but not Kefel - due to the principle 'Modeh bi'Kenas Patur'.

(d)We learn from the Pasuk in Naso (in connection with Gezel ha'Ger) "Vehisvadu es Chatasam asher Asu" - that one only pays an extra fifth and brings an Asham by one's own admission (but not on the testimony of two witnesses).

4)

(a)What does our Mishnah say about a case where Shimon denies knowledge of the ox that Reuven claims he stole from him, and witnesses testify that ...

1. ... he did steal it?

2. ... he Shechted or sold it?

(b)Why can the Tana not be speaking here too, where Shimon swore falsely?

(c)The Tana then cites a case where Shimon sees that witnesses are about to go to Beis-Din. He then preempts them and admits to having stolen the animal, but denies having Shechted or stolen it. What do the witnesses subsequently testify?

(d)On what basis does Beis-Din obligate Shimon to pay only the Keren ...

1. ... but not the Kefel?

2. ... but not Arba'ah va'Chamishah?

4)

(a)Our Mishnah rules in a case where Shimon denies knowledge of the ox that Reuven claims he stole from him, and witnesses testify that ...

1. ... he did steal it - that he is obligated to pay Kefel.

2. ... he Shechted or stole it - that pays four or five times the amount that he stole (Arba'ah va'Chamishah).

(b)The Tana cannot be speaking here too, where Shimon swore falsely - because actual theft does not require a Shevu'ah for the Ganav to be Chayav to pay.

(c)The Tana then cites a case where Shimon sees that witnesses are about to go to Beis-Din. He then preempts them and admits to having stolen the animal, but denies having Shechted or stolen it. The witnesses subsequently testify that he did steal the animal and Shechted or sold it.

(d)Beis-Din obligate Shimon to pay only the Keren ...

1. ... but not the Kefel - on the basis of the principle 'Modeh bi'Kenas Patur' ...

2. ... and not Arba'ah va'Chamishah - because whoever is not Chayav Kefel, is not Chayav Arba'ah va'Chamishah either (seeing as he would actually be paying three or four times, and not four or five, as prescribed by the Torah.

49b----------------------------------------49b

5)

(a)In a case where Reuven asks a Sho'el what happened to his ox, and he replies that it died, or was broken, captured, stolen or lost, when in reality, anything else happened to the animal other than what he claimed; the owner then demands a Shevu'ah, and the Sho'el swears, our Mishnah exempts the Sho'el from a Korban Shevu'ah. Why is that?

(b)What does the Tana rule in a case where the Sho'el denies having received the animal, and swears to that effect, and witnesses testify that the animal died, was wounded, captured, stolen or lost?

(c)And what does the Tana rule in a case where a Shomer Sachar or Socher claims, backing his claim with a Shevu'ah, that the animal ...

1. ... died, when in reality, it was captured or vice-versa?

2. ... was stolen, when in reality, it went lost or vice-versa?

3. ... died, or was wounded or captured, when in reality, it was stolen or went lost?

4. ... was stolen or went lost, when in reality, it was wounded or captured?

5)

(a)In a case where Reuven asks a Sho'el what happened to his ox, and he replies that it died, or was broken, captured, stolen or lost, when in reality, anything else happened to the animal other than what he claimed; the owner then demands a Shevu'ah, and the Sho'el swears, our Mishnah exempts the Sho'el from a Korban Shevu'ah - because here again, the Shevu'ah that he made did not exempt him from paying (this time because even after the Shevu'ah, he still remains Chayav to pay).

(b)In a case where the Sho'el denies having received the animal, and swears to that effect, and witnesses testify that the animal died, was wounded, captured, stolen or lost - the Tana obligates him to bring a Korban (because his oath would have exempted him from paying).

(c)And in a case where a Shomer Sachar or Socher claims, backing his claim with a Shevu'ah, that the animal ...

1. ... died, when in reality, it was captured or vice-versa - he exempts him from a Korban (since he would have been Patur even if he had not made the Shevu'ah).

2. ... was stolen, when in reality, it went lost or vice-versa - he exempts him too (seeing as he is Chayav to pay, even with the Shevu'ah).

3. ... died, or was wounded or captured, when in reality, it was stolen or went lost - the Tana obligates him to bring a Korban Shevu'ah (because the Shevu'ah would have exempted him from paying).

4. ... was stolen or went lost, when in reality, it was wounded or captured - he exempts him from a Korban, seeing as a. the Shevu'ah did not exempt him from paying, and b. without it, he would have been Patur anyway.

6)

(a)On what grounds did Rava object, when Rav Nachman Amar Rabah bar Avuhah established our Mishnah (which refers to four types of guardians) like Rebbi Meir?

(b)To what was Rav Nachman really referring when he made that statement?

(c)How did Rabah bar Avuhah reconcile what he just said with the Beraisa, which presents this opinion in the name of Rebbi Yehudah, whereas Rebbi Meir says 'Socher ke'Shomer Chinam'?

(d)And how do we explain our Mishnah 'Arba'ah Shomrim hein' in light of the fact that there are only three Dinim?

6)

(a)When Rav Nachman Amar Rabah bar Avuhah established our Mishnah, which refers to four types of guardians, like Rebbi Meir, Rava objected - on the grounds that even those who argue with Rebbi Meir agree with that statement.

(b)What Rav Nachman really meant was - that the author of our Mishnah, who gives a Socher the same Din as a Shomer Sachar, must be Rebbi Meir.

(c)Rabah bar Avuhah reconciled his statement with the Beraisa, which presents this opinion in the name of Rebbi Yehudah, whereas Rebbi Meir says 'Socher ke'Shomer Chinam' - by switching the opinions of Rebbi Meir and Rebbi Yehudah in the Beraisa.

(d)Despite the fact that there are only three Dinim, we explain our Mishnah 'Arba'ah Shomrim hein' - with regard to the number of Shomrim (as indeed the words suggest), even though there are only three Dinim.

7)

(a)What does Rav comment regarding all the cases that we just cited where the Shomer is absolved from a Korban Shevu'ah?

(b)According to Shmuel, they are Patur from Shevu'as Bituy, too. What are the ramifications of this Machlokes?

(c)On what condition are they Chayav, according to Rav?

(d)Rav's reason is because the Shevu'ah is applicable 'be'La'av ve'Hein (Nignav, ve'Lo Nignav)'. What is Shmuel's?

(e)What problem do we have with this Machlokes?

7)

(a)Regarding all the cases that we just cited where the Shomer is absolved from a Korban Shevu'ah, Rav comments - that they are nevertheless Chayav because of Shevu'as Bituy.

(b)According to Shmuel, they are Patur from Shevu'as Bituy, too - and are therefore Patur from a Korban Oleh ve'Yored. According to Rav however, they are Chayav ...

(c)... assuming that he was Meizid on the Shevu'ah but Shogeg on the Korban).

(d)Rav's reason is because the Shevu'ah is applicable 'be'La'av ve'Hein (Nignav, ve'Lo Nignav)'; Shmuel's - because it is not applicable in the future.

(e)The problem with this Machlokes is - that we have already learned it before, so why does the Tana repeat it?

8)

(a)To answer the Kashya, we explain that even if they had argued in the case of 'Shevu'ah she'Zarak P'loni Tz'ror le'Yam ... ', we would have thought that, in our case, Rav would agree with Shmuel, because of a statement by Rebbi Ami. What did Rebbi Ami say about any Shevu'ah that is enforced by Beis-Din?

(b)And having taught us their Machlokes here, why did they then find it necessary to repeat it there?

(c)What does Rebbi Ami learn from the Pasuk in Vayikra (in connection with the Shevu'as Bituy) "O Nefesh Ki Sishava"?

(d)This in turn, is based on a statement of Resh Lakish. What did Resh Lakish say about the word "Ki"?

(e)So how does Rebbi Ami now interpret "Ki Sishava"?

8)

(a)To answer the Kashya, we explain that even if they had argued in the case of 'Shevu'ah she'Zarak P'loni ... ', we would have thought that, in our case, Rav will agree with Shmuel, because of a statement by Rebbi Ami, who says that any Shevu'ah that is enforced by Beis-Din - is not subject to a Shevu'as Bituy.

(b)And having taught us their Machlokes here, they found it necessary to repeat it there - to teach us that Shmuel's ruling of Patur is not confined to our case, because of Rebbi Ami, but extends to a Shevu'ah which the Nishba made of his own volition, where it is not subject to a Shevu'as Bituy, because it does not pertain to the future, as we explained. Note, that in any event, it is of course, subject to a Shevu'as Shav, for which he would receive Malkos, if he transgressed be'Meizid.

(c)Rebbi Ami learns from the Pasuk (in connection with the Shevu'as Bituy) "O Nefesh Ki Sishava" - that a Shevu'as Bituy is confined to a Shevu'ah that is made on the Nishba's volition, precluding one that is enforced by Beis-Din.

(d)This in turn, is based on a statement of Resh Lakish, who learns that the word "Ki" - has any one of four meanings 'I' (If or when), 'Dilma' (perhaps), 'Ela' (but) or 'de'Ha' (because).

(e)Rebbi Ami now interprets "Ki Sishava" as - 'if he swears' (with connotations of swearing voluntarily).

9)

(a)How does Rav then interpret "Ki Sishava"?

(b)With whom does Rebbi Elazar side in the current Machlokes?

(c)In his opinion, all the cases in our Mishnah are Chayav for Shevu'as Bituy except for two (which might be construed as more). One of them is 'Eini Yode'a Mah Atah Sach' of a Sho'el. What is the other?

9)

(a)Rav, on the other hand, interprets "Ki Sishava" - as 'because he swore' (meaning that he must bring the Korban whether he chose to swear or not).

(b)Rebbi Elazar sides - with Rav, obligating all cases in our Mishnah to bring a Korban Shevu'ah ...

(c)... except for two (which might be construed as even three or four). One of them is 'Eini Yode'a Mah Atah Sach' of a Sho'el. The other - is the Geneivah or Aveidah, which the Shomer Sachar or Socher denied with a Ta'anah of Meis, Nishbar or Nishba.

10)

(a)Our Mishnah categorizes all of the above cases into two 'K'lalim'. Of all the possible computations of changing from Chovah to Chovah, from P'tur to P'tur, from Chavah to P'tur and from P'tur to Chovah, which is the only one that renders a Shomer Sachar (or Socher) Chayav?

(b)Which second 'K'lal' does he present, based on 'Lehakel and Lehachmir'?

10)

(a)Our Mishnah categorizes all of the above cases into two 'K'lalim'. Of all the possible computations of changing from Chovah to Chovah, from P'tur to P'tur, from Chavah to P'tur and from P'tur to Chovah, the only one which renders a Shomer Sachar (or Socher) Chayav is - from Chovah to P'tur.

(b)In the second 'K'lal' - he only obligates a Korban Shevu'ah in a case where the Nishba's Shevu'ah alleviates his situation, but not where it aggravates it.

Hadran Alach 'Arba'ah Shomrin', u'Selika lah Maseches Shevu'os

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