Implied question: Why do we say in the conclusion "rather, if there is a case like R. Aba's case, it is one witness who testifies about two years, and for Peros"? (This implies that until now, we did not discuss for Peros!)

Answer: There was no need to say "and for Peros", for also until now, we discuss only Peros. Rather, along with "two years", it mentioned also "one witness" and "for Peros."

Explanation: [He cannot swear to contradict the witness] because he admits [that he grabbed].

Question: We should believe him through a Shevu'ah about what he says, "I grabbed my own", Migo that if he wanted, he could have said "I did not grab"!

Suggestion: This is not considered a Migo, for if he said "I did not grab", he would need to take a Shevu'ah mid'Oraisa!

Rejection: This is wrong. It says below (70a) that if one deposited with his friend with a document, he is believed to say "I returned it to you" with a Shevu'ah;

He is believed Migo that if he wanted, he could have said that Ones occurred, and he would be believed through a Shevu'ah, even though the Shevu'ah about Ones is a Shevu'ah mid'Oraisa.

Answer #1 (and defense of Suggestion): However, according to R. Tam, who explained (70b DH Sof) that the Shevu'ah about Ones is mid'Rabanan, for he is not obligated a Shevu'ah mid'Oraisa even regarding Ones, only if there was partial admission, this is fine.

Suggestion: This is not considered a Migo, because he would not be brazen to say "I did not grab" to contradict the witness;

Alternatively, [he would not say so] because he fears lest the witness and the owner of the ingot disqualify him for testimony;

It says in Sanhedrin (25a) that a litigant is believed to say "he lent to me with Ribis" (he joins to disqualify the lender).

Rejection: It connotes that if not for the witness who obligates a Shevu'ah, he would be exempt. You are forced to say that this is due to a Migo. If not for a Migo, he would not be believed to say "I grabbed my own";

Proof: When there are two witnesses, he pays. He is not believed to say "I grabbed my own."

Answer #2 (Ri): Surely, if not for the witness who obligates a Shevu'ah, he would be believed through a Migo. If he wanted, he could have said "I did not grab." He can be brazen to contradict the witness without a Shevu'ah;

However, now that [the witness] obligates him a Shevu'ah, he is not believed with a Shevu'ah through a Migo that he could have been brazen to swear about a matter about which the witness contradicts him.

Question: If there is no Migo, what is the reason for Rav and Shmuel, who argue in Shevuos (47a) with R. Aba, and exempt regarding an ingot?

They do not hold that "since he cannot swear, he must pay." Why do they exempt? Obviously, he is not believed to say "I grabbed my own" without a Migo, like I explained above!

Answer #3 (Rivam): Surely, it is a Migo. This is why Rav and Shmuel exempt, for he is believed with a Shevu'ah, through the Migo that if he wanted, he could say "I did not grab";

R. Aba holds that even though he has a Migo, he is obligated, since there is one [witness] who obligates him a Torah Shevu'ah. The law is, he must swear to contradict the witness, or pay. The Migo does not help to be exempt.

Question: How does R. Aba derive this in Shevuos (47a) from "Shevu'as Hash-m Tihyeh Bein Sheneihem", and not between the heirs?

[The claimant] says "your father owed my father 100", and [the defendant] says "I know about 50. I do not know about [the other] 50.

The Gemara infers there that since we need a verse to exempt heirs, this shows that in such a case, his father would be obligated. This shows that one who is obligated to swear, and he cannot swear, he must pay.

How can we derive from there (Modeh b'Miktzas) the law of an ingot? There, surely he must pay, for there is no Migo. However, here (the ingot) there is a Migo. What is the source that he must pay?

Answer (Ri): R. Aba does not learn from the verse, rather, from mere reasoning, like we explained.

Implied question: Why does it say there "presumably, R. Aba is correct, for R. Ami taught "Shevu'as Hash-m Tihyeh Bein Sheneihem", and not between the heirs? (This connotes that he learns from the verse!)

Answer: The verse comes to exempt heirs, and not to obligate the father. (We obligate the father due to reasoning, that he is obligated to swear, but he cannot.)

Implied question: It says there 'what do Rav and Shmuel expound from "Shevu'as Hash-m..."? (They could agree that the verse comes to exempt heirs!)

Answer: It means that since regarding the father, in such a case they exempt, why do we need a verse to exempt heirs?

Consequence: In Kesuvos (85a), regarding Avimi the son of R. Avahu, who owed money in Bei Chuzai... it says "since they can say that nothing happened (we did not receive any payment), they can say that we took the money for another loan without a document";

This was after Rabanan enacted Shevu'as Heses. Now, the Shali'ach is not a witness, for he is Noge'a in his testimony, since he must swear Heses;

Before Rabanan enactment Shevu'as Heses, the Shali'ach was a proper witness. He was believed to say "I paid the lender" Migo if he wanted, he could say "I returned the money to the borrower", like it says in Kidushin (43b).

Since there is a witness, how would he be believed through a Migo that nothing happened? He is obligated to swear, and since he cannot swear, he must pay, like we say here!

Inference: This connotes that R. Aba was a Talmid of R. Ami.

Question: In Shevuos (47a), R. Ami said "Raboseinu in Eretz Yisrael said that the Shevu'ah returns to the one who was obligated to take it." We say there that "Raboseinu in Eretz Yisrael" is R. Aba!

Answer (Ri): We find in Shabbos (146b) that Rav called Rav Kahana and Rav Asi "Raboseinu", even though they were his Talmidim.

Question (Ri): In Bava Metzi'a (24b), it says R. Ami found slaughtered chicks. He came in front of R. Aba, who told him "go take them for yourself."

Answer #1: According to the Seforim that say that R. Ami came in front of R. Asi, this is better.

Implied question: R. Ami was greater than R. Asi. R. Ami is always mentioned before R. Asi!

Strengthening of question: In Gitin (54b) it says that someone came in front of R. Ami... R. Asi said to him "Rebbi, do you say so? R. Yochanan said..."

Answer: In any case, he was his colleague. Since [R. Ami] was greater than him, he called him Rebbi. Because he was his colleague, R. Ami came to R. Asi to take counsel from him, and he said "go take them for yourself."

Note: Perhaps it was clear to R. Ami that he is permitted to keep them, and he took counsel whether he should go beyond the letter of the law and try to return them. Rav Asi advised not to, for it was very unlikely that he would find the loser, and if he would not eat them promptly, they were prone to spoil.

Citation (Shevuos 47a - Mishnah - R. Meir): If both parties are suspected to swear falsely, the Shevu'ah returns to its place. R. Yosi says, they divide;

Raboseinu in Eretz Yisrael explain there that "to its place" is the one who was obligated to take it." It brings there from this Sugya that "Raboseinu" is R. Aba.

There, Rav Nachman rules like R. Yosi. He rules in an actual case like R. Yosi, that they divide. He does not hold like R. Aba.

Question #1 (Ri): We say in Bava Metzi'a (97b) regarding one who borrows a cow, "let us say that this refutes Rav Nachman, who says that if one said 'you owe to me 100', and the other says "I don't know', he is exempt!"

We answer that the Mishnah discusses when [even without this] he must swear to him, like Rava taught;

Rava said that if one said ' 'you owe to me 100', and the other says "I owe you only 50, and 50 I do not know', "since he cannot swear, he must pay. This is like R. Aba!

Answer #1: We could say that Rav Nachman establishes our Mishnah like R. Meir, like R. Aba explains, and he (Rav Nachman) holds like R. Yosi.

Question #2: In our Sugya, it connotes that the Halachah follows R. Aba, since we say "Rabanan in front of Abaye thought that to say that this is like Niska d'R. Aba", and we say also "rather, if a case is like R. Aba..."

Everywhere, we hold like Rav Nachman in monetary laws!

Question #3: There, regarding orphans [claiming] from orphans, Rav and Shmuel said that if the borrower died in the life of the lender, the lender was already obligated to swear to the lender's children, and one cannot bequeath an oath to his sons;

Since the claimants cannot swear, the defendant is exempt.

R. Elazar disagrees (48a), and says that the heirs take the oath of heirs, and receive. This is like R. Aba. Since neither the claimant or defendant can swear, the defendant pays.

We conclude there that one who did (gave a verdict) like Rav and Shmuel, it stands. One who did like R. Elazar, it stands. (Since we rule like R. Aba, we should retract a ruling like Rav and Shmuel!)

Answer #2 (R. Tam): Rav Nachman could hold like R. Aba regarding the ingot, and regarding 'you owe to me 100', and the other says "I owe you only 50, and 50 I do not know';

Only regarding when both are suspected of swearing falsely, Rav Nachman rules like R. Yosi, who says that they divide. R. Aba agrees to Rav Nachman when both are suspected that the Halachah follows R. Yosi;

This is because we fine his opponent, because he is suspected. Therefore, he loses half;

However, normally, one who is obligated to swear, and he cannot swear, he must pay.

Implied question: We say there that "Raboseinu in Eretz Yisrael" (who explained R. Meir's opinion) is R. Aba! (Here, Tosfos says that R. Aba rules like R. Yosi.)

Answer: This does not mean that R. Aba holds like R. Meir;

Rather, we derive that since R. Aba normally holds that since he cannot swear, he must pay, we should say that he explains the words of R. Meir, that the Shevu'ah returns to the one who was obligated to take it.

Pesak: The Halachah follows Rav Nachman when both are suspected, and it follows R. Aba regarding an ingot.

Only regarding orphans, we conclude that one who did like Rav and Shmuel, it stands. One who did like R. Elazar, it stands, like [Rav Nachman] said (48b) "let us not extend [acceptance of a verdict like Rav and Shmuel] to other cases."

Suggestion: Perhaps Rav Nachman's reason is because since both are suspected, it is as if both of them are obligated to swear, and they cannot, therefore each loses half;

R. Aba holds that since the Shevu'ah is primarily on the defendant, and he cannot swear, he pays everything.

Rejection: If so, R. Aba and Rav Nachman could hold like Rav and Shmuel regarding orphans claiming from orphans, when the borrower died in the life of the lender;

The lender's children lose, since they cannot swear, and they do not collect. This is like one whose opponent is suspected to swear falsely loses half, i.e. he does not collect [the entire amount] when also he himself is suspected;

In Shevuos (47a), the entire Sugya connotes that Rav and Shmuel argue with Rav Nachman and with R. Aba;

If so, we are forced to say that according to R. Aba, and also Rav Nachman, since he cannot swear, [and] even the claimant cannot swear, the defendant pays [everything], like I explained. (Kovetz Shi'urim 146 questions why the defendant should need to pay due to the claimant's inability to swear.)

Explanation: The law is, Kol d'Alim Gavar (whoever overpowers the other keeps it. Beis Din does not rule about it.)

Question: What is the difference between this and two who hold a Talis [and each claims that it is his]? In Bava Metzi'a (2a), we say that they divide it!

Answer #1 (R. Tam): When they are holding it is different. Since both are Muchzak, we should not let one steal from his friend. It is considered as if we know that both of them have a share in it;

Everything, we should establish it in the Chazakah of the one holding it, like we say regarding the ingot of R. Aba;

Even though he said "I grabbed my own", we consider him to be a thief, and he must pay, as if it was clear that the ingot belonged to the one who was Muchzak in it.

Implied question: Why do we compare there (Bava Metzi'a 3a) the case of a Talis to [the case of two who deposited with the same Shomer? He does not know who gave the larger deposit. Each gets the smaller amount, and] the remainder we leave until Eliyahu comes [and will tell us who it belongs to]. There, neither one is Muchzak in the remainder! (It is unlike a Talis.)

Answer: We must say that also the remainder, it is considered that both of them are Muchzak, since it was deposited due to both of them. (Nesivos ha'Mishpat understands Tosfos to mean that the Shomer guards it for both of them.)

Answer #2 (Riva): [We say that they divide the Talis] not only when they are holding it, since we compare it to the remainder.

Implied question: Why is the law different in our Sugya?

Answer: We can answer like we answer there. We can even say [that the Mishnah of dividing a Talis] is like R. Yosi [who says that we leave all the deposited money until Eliyahu, to encourage the liar to admit]. There (the deposit), there is surely a liar. Here (regarding a Talis), perhaps both of them picked it up together [to acquire it from Hefker]!

Similarly, regarding a boat, since there is a [Vadai] liar, they do not divide it. Rather, the law is Kol d'Alim Gavar.

Implied question: In the case of two who deposited, why don't we say Kol d'Alim Gavar?

Partial answer: It is because [when Beis Din or a Shomer holds contested property], we do not release it, like we say here "if they seized, they do not release it."

However, according to the opinion that we release it, this is difficult.

Question: What was the question below from two documents, and one who swapped a cow for a donkey? There, there is not a liar!

Rejection (of Answer (f) - Ri): We gave that reason (regarding the deposit, there is surely a liar) only to establish the Mishnah [of a Talis] even like R. Yosi;

However, according to Rabanan, we say there that the [remaining] 100 surely belongs to one of them. Regarding the Talis, we can say that it belongs to both of them, so they divide it;

According to that reason, also here we should say that they divide [the boat], for it is possible that it belongs to both of them!

Answer #3 (Riva): When they are holding it, even if there is a liar, they divide it, like a Beraisa there (7a) says about two holding a document.

Objection #1 (Ri): If so, according to his Perush, what was the question "also this (the Talis) is like the remainder!"? We can say that when they are holding it is different, for it helps [to say that we divide it] even if there is a liar!

Objection #2: What was the question there (7a) "does Rav disagree with the Mishnah of two holding a Talis"?

You are forced to say that there is a difference between the law of a document and a Talis. Regarding a Talis, even if they are not holding, they divide, and regarding a document, when they are not holding it, the law is Kol d'Alim Gavar!

Explanation #1 (Rashbam): [He says that we seize it,] because later, we can release it [if no proof is brought]. Rav Yehudah says that we do not seize it, for if we seize it, we do not release it [and we caused a loss to his opponent].

Objection (Ri): It seems that these do not depend on each other, for the same Amora'im who argue about seizing do not argue about releasing!

Explanation #2: Rav Huna says that we seize it, even according to the opinion that we do not release it. We believe the litigant that he will bring witnesses;

Rav Yehudah says that we do not seize it, even according to the opinion that we release it, i.e. if we already seized it. L'Chatchilah we do not seize it, for we are concerned lest he not bring witnesses, and we will not know how to clarify whose it is and to whom to return it. Therefore, we should not enter the matter.

Explanation: We discuss documents of sale or gift;

Therefore, according to Shmuel, who said Shuda (judges' discretion. They give to whom they prefer, or to whom they think the owner liked more), this is unlike the Mishnah in Kesuvos (93b) that if [a man with three wives died, and] all the Kesuvos have the same date, and there is only 100 (the amount of the smallest Kesuvah), they all divide equally.

There, we discuss Shibud. The lien takes effect only from the time that it is proven from the document that the lien begins, i.e. the day after they were written;

On the day they were written, it is not proven from the document when the lien begins, if it is from the morning or the afternoon;

However, a gift or sale, whoever was first on that same day, acquired.