1)
The Rabbanan in the current case took their cue from 'Naska de'Rebbi Aba'. What happened there after Reuven grabbed a piece of silver from Shimon?
What would have been the Din there, had ...
... two witnesses testified that they saw him grabbing the silver?
... no witnesses had been present, but the knowledge that he had grabbed it came through the admission of Reuven himself?
... Reuven countered the testimony of the one witness by denying that he had grabbed the object?
So what was the problem in that case? Why could Reuven not ...
... swear on the one hand, to counter the witness?
... be absolved due to his 'Migu', on the other?
What did Rebbi Aba actually rule there?
1)
The Rabbanan in the current case took their cue from 'Naska de'Rebbi Aba', where, after Reuven grabbed a piece of silver from Shimon - the former countered the one witness' testimony by admitting that he had grabbed it, but added that the silver had been his to begin with.
Had ...
... two witnesses testified that they saw him grabbing the silver - he would have been obligated to pay, since no-one has the right to take anything from the established owner without clear proof that the object belongs to him.
... no witnesses had been present, but the knowledge that he had grabbed it came through the admission of Reuven himself - then he would have been believed with a 'Migu' (that he could have denied grabbing it altogether, and rather said that the object had been in his domain all along).
... Reuven countered the testimony of the one witness by denying that he had grabbed the object - he would have had to swear a Shevu'ah d'Oraysa that he was telling the truth.
The problem in that case was - that Reuven could not ...
... on the one hand, swear to counter the witness - since his testimony did not clash with that of the witness.
... be absolved due to his 'Migu' - since it was weakened by the testimony of the witness.
Rebbi Aba ruled there - that seeing as he was unable to refute the witness' claim, he was obligated to pay ('Kol ha'Mechuyav bi'Shevu'ah she'Eino Yachol Lishava, Meshalem').
2)
It is obvious that in our case, Reuven was obligated to return the field, seeing as he did not have two witnesses. That being the case, why was it necessary to cite the case of 'Naska de'Rebbi Aba'?
On what grounds did Abaye object to the Rabbanan's comparison between the two cases?
Abaye therefore concluded 'Ela I Damya Ha de'Rebbi Aba, le'Chad Sahada u'le'Tarti Sh'ni u'le'Peiri. What will be the Din if Shimon claims that Reuven stole his field and ate the fruit for two years, against Shimon's claim that he sold it to him, there where ...
... witnesses testify that Reuven ate the fruit for two years?
... Reuven admits that he ate the fruit for two years?
... one witness testifies that he ate the fruit for two years?
2)
It is obvious that in our case, Reuven was obligated to return the field, seeing as he did not have two witnesses, and the reason that we needed to cite the case of 'Naska de'Rebbi Aba' was - because of the fruit, which the Rabbanan were obligating him to pay.
Abaye objected to the Rabbanan's comparison between the two cases on the grounds - that whereas there, the witness testified against him (had a second witness been found, he would have lost the case outright), here the witness was brought to testify on his behalf (and had he managed to bring a second witness, he would have won the case).
Abaye therefore concluded 'Ela I Damya Ha de'Rebbi Aba, le'Chad Sahada u'le'Tarti Sh'ni u'le'Peiri. If Shimon claims that Reuven stole his field and ate the fruit for two years, against Shimon's claim that he sold it to him, there where ... ...
... witnesses testify that Reuven ate the fruit for two years - he will have to pay for it.
... Reuven himself admits that he ate the fruit for two years - he will be Patur from paying (with a Shevu'as Hesses) due to a 'Migu' (since he could have said that he did not eat any fruit during that period).
... one witness testifies that he ate fruit during those two years - then he ought to be Chayav to swear that he did not eat the fruit, but since (like in the case of Naska de'Rebbi Aba), he admits that he did eat it, he he is unable to do so, in which case, he will have to pay (like in the case of Naska de'Rebbi Aba) as we just explained.
3)
Rav and Shmuel (in Shevu'os) disagree with Rebbi Aba. What would they have said in the case of 'Naska de'Rebbi Aba'?
Why is that?
On what basis do they rule (with regard to the Mishnah in Shevu'os 've'Chein Yesomim min ha'Yesomim Lo Yipar'u Ela bi'Shevu'ah') in a case where the debtor died before the creditor, that the debtor's Yesomim are Patur from paying?
What would they have ruled had the debtor's Yesomim been able to swear that the debt had been paid?
And what does Rebbi Elazar (who holds like Rebbi Aba) say there?
3)
Rav and Shmuel (in Shevu'os) disagree with Rebbi Aba. In the case of 'Naska de'Rebbi Aba' - they would have absolved Reuven from paying for the fruit ...
... based on the S'vara 'Chazrah Shevu'ah le'Sinai' (meaning that the Shevu'ah is only Lechatchilah, and not a condition by which the defendant becomes Patur. Consequently, there where he is unable to swear, the defendant is Patur from paying).
They rule (with regard to the Mishnah in Shevu'os 've'Chein Yesomim min ha'Yesomim Lo Yipar'u Ela bi'Shevu'ah') in a case where the debtor died before the creditor, that the creditor's Yesomim are Patur from paying - on the basis of the principle 'Ein Adam Morish Shevu'ah le'Banav', meaning that the creditor cannot bequeath to his heirs any claim that requires a Shevu'ah.
Had the debtor's Yesomim been able to swear that the debt had been paid - Rav and Shmuel would have switched the Shevu'ah over to them.
Whereas Rebbi Elazar (who holds like Rebbi Aba) rules - that the creditor's Yesomim swear the Shevu'as Yesomim (that their father did not leave them any instructions that the debt had been paid) and claim from the debtor's Yesomim.
4)
How does the Sugya in Shevu'os rule regarding the Machlokes between Rebbi Aba and Rav and Shmuel?
On what basis do we nevertheless rule like Rebbi Aba in the case of 'Naska de'Rebbi Aba'?
How do we reconcile the ruling in Shevu'os with the ruling here?
4)
Regarding the Machlokes between Rebbi Aba and Rav and Shmuel - the Sugya in Shevu'os rules 'de'Avad ke'Mar Avad, u'de'Avad ke'Mar Avad' (whichever way one rules is acceptable).
We nevertheless rule like Rebbi Aba in the case of 'Naska de'Rebbi Aba' - due to the fact that Abaye (who lived later) based the previous ruling upon it.
We reconcile the ruling in Shevu'os with the ruling here - by confining it to that Sugya, exclusively, turning it into a Takanah on behalf of the Yesomim, so that they should not lose out by having to pay without someone having made a Shevu'ah to substantiate the claim.
34b----------------------------------------34b
5)
In the case of the ship over which Reuven and Shimon were arguing, how do we know that neither of the disputants was actually Muchzak in it?
Reuven asked Beis-Din to seize the on his behalf whilst he went to fetch witnesses that the ship was his. Why could this not have been to prevent Shimon from making a Chazakah on it?
Then what was his reason?
The argument for seizing the ship was that, seeing as, in the event that Reuven failed to find witnesses, Beis-Din would release it, no harm will have been done. What was the argument against seizing it?
5)
In the case of the ship over which Reuven and Shimon were arguing, we know that neither of the disputants was actually Muchzak in it - from the fact that the Gemara does not query the final ruling of 'Kol de'Alim G'var', from the Mishnah of 'Shenayim Ochzin be'Talis', where the Din is that each disputant takes what he is holding and they share the rest (with a Shevu'ah).
Reuven asked Beis-Din to seize the ship on his behalf whilst he went to fetch witnesses that the ship was his not to prevent Shimon from making a Chazakah on it - because seizing after the Safek has arisen is ineffective (since we know that he seized it) but ...
... in order to prevent Shimon from selling it whilst he was away.
The argument for seizing the ship was that, seeing as, in the event that Reuven failed to find witnesses, Beis-Din would release it, no harm would have been done. The argument against seizing it was - that once Beis-Din took control of it, they would not be able to let it out of their jurisdiction until one of the parties proved that it belonged to him (as will be explained shortly).
6)
Rav Huna maintained that Beis-Din should impound the ship, because he held like Rav Papa (who lived after him). What did Rav Papa say, assuming that Beis-Din seized the ship on behalf of one of the litigants?
What did Rav Yehudah say?
What is Rav Yehudah's reasoning?
6)
Rav Huna maintained that Beis-Din should seize the ship, because he held like Rav Papa (who lived after him), who rules that, assuming that Beis-Din seized the ship on behalf of one of the litigants - they would let it go again, should the one claimant prove unable to substantiate his claim.
Rav Yehudah said - 'Lo Tafsinan' ...
... because he holds that, once Beis-Din seize the object, they will not let it go again until one of the litigants brings proof of ownership. Consequently, to seize it Lechatchilah would be playing into the hands of the swindler, whilst causing the real owner an unfair loss).
7)
When Reuven returned without having managed to prove that the ship belonged to him, what did he discover?
This may be because the Beis-Din held like Rav Huna. How else might we explain it?
What did Reuven then ask Beis-Din to do?
What is the final ruling in this matter?
7)
When Reuven returned without having managed to prove that the ship belonged to him, he discovered that Beis-Din had impounded the ship ...
... either because they held like Rav Huna, or because - Shimon agreed that they should.
Reuven then asked Beis-Din to release the ship (like Rav Papa).
The final ruling in this matter is - Lechatchilah 'Lo Tafsinan, ve'Heicha de'Tafas, Lo Mafkinan' (like Rav Yehudah).