Question: Words of a Shechiv Mera, it is as if they were written [in a document] and handed over. Since if they wrote and handed over, they would give, why don't they give when he apportions all his property?

Answer: That is different. When he gives for a gift, surely they enacted that [his words] are as if they were written and handed over, lest he get frenzied;

However, when he commands to them to give due to a loan, and not for another reason, it has only the power of a loan, like initially. Therefore, they do not give.

Question #1: When he has a validated document, is it necessary to teach that he is believed?!

Question #2: Why do we need that he is believed? Automatically, [the lender] collects based on the document in his hand!

Question #3: Why did [Rav Huna] mention Hekdesh? (Also if he gave his property to people, the lender would collect!)

Question #4: Why did he discuss a Shechiv Mera, for one does not sin if he will not profit from it, like it explains in Erchin (23a)? Even a healthy person (the lender would collect)!

Answer: All of these are needed to collect without a Shevu'ah. If not, it is like a [regular] document, it would require a Shevu'ah, like a Mishnah (Kesuvos 87a) teaches that one who comes to collect from Meshubadim (sold property), he collects only through a Shevu'ah;

Even [for the lender to collect from] Hekdesh, if [the giver] were not a Shechiv Mera, and if not that he is believed, [the lender] would need to swear;

There is no difference between a lien to Hekdesh, and a lien to a person.

Support: The Gemara in Shevuos (42b) explains like this explicitly regarding what was taught "but we swear to a minor and to Hekdesh, to collect from Hekdesh." It asks "[another] Mishnah taught this! One who collects from Meshubadim must swear. (Why should we distinguish whether the property passed to a person or to Hekdesh?!)

[The Gemara answers] one might have thought [that we swear] only to a person, but we are not concerned lest one scheme to cheat Hekdesh. The Mishnah teaches that this is not so (we are concerned even for Hekdesh).

[The Gemara] asks that Rav Huna taught that if a Shechiv Mera [was Makdish all his property...] and answers that this is only for a Shechiv Mera, for one does not sin if he will not profit from it.

Citation (Tosfos' Rebbi): In Gitin (50b), we asked about "we do not collect from Meshubadim when there are Bnei Chorin, even if they are Ziburis. What is the law about a gift?";

Inference: Regarding "we collect from Meshubadim only through a Shevu'ah", surely the same applies to a gift. [The lender] swears when he comes to collect from it;

Source: It is obvious also here that there is no difference whether there is a lien to Hekdesh or to a person. This shows that in such a case of a person (like Hekdesh, which was a gift), a Shevu'ah is needed.

Implied question: Just like if it was not validated, we say that it is a forgery, and the father said Lo Lehasbi'a Es Banav, also here (Rashash - a validated document), we should say that he said Lo Lehasbi'a Es Banav, and [really, the loan] was paid, and there is no proof from the father!

Implied suggestion: If so, they would give through a Shevu'ah if it was validated, for he needs to swear only that it was not paid, and this [the lender] can do, so it is not applicable to teach "we do not give";

However, if it was not validated, it needs Kiyum before he collects. It is applicable to teach "we do not give."

Rebuttal: Regarding Hekdesh, they said that he is believed about a validated document, and we do not claim [against] him that it was paid, and obligate him to swear;

Rather, he is believed without a Shevu'ah, like is proven from Shevu'os (42b) that I brought above (DH Ha d'Mekuyam)!

Answer (Tosfos' Rebbi): When the lender holds a validated document, the borrower is not prone to say that he owes 100 Zuz, like is written in the document, in order Lo Lehasbi'a, when he really paid, lest people think that he did not pay.

Explanation: He does not want to say "rather, it was said oppositely", for the Gemara knew that he said about "I have a Maneh of Ploni" that [the orphans] are believed.

Explanation: [They say that their father retracted and said that] he had paid beforehand, like it says "perhaps he remembered", i.e. at that time [it was already paid]. This is proven below, for it says "if it were true that he paid..."

Here they are believed because he would have been believed to say "I paid beforehand", Migo (since) he is believed to say "I paid afterwards";

This is like a Mishnah (Shevu'os 38b) teaches. If Reuven said "you owe to me a Maneh", and Shimon said "yes", and tomorrow Reuven said "give it to me", and Shimon said "I gave to you", he is believed. However, [after the Mishnah, it was enacted that] we make him swear Heses mid'Rabanan.

And even [the orphans] could say "we paid you afterwards."

Implied question: It says here that they are not believed, since [the father] did not say a clearcut matter (that they must definitely pay)!

Answer: This means that it is more reasonable to say that they are not believed than in the case of "give a Maneh to Ploni." (However, we can say that really, in both cases they are believed.)

Citation (Tosfos' Rebbi): It says in Gitin (14a) that gardeners made a calculation together. (Reuven thought that he had too much.) At the end, he found that he did not have too much. It concludes that the Kinyan to the landowner of the extra money he had was a mistake, and it is returned.

Opinion #1 (R. Tam and R. Chananel): They admit that they erred initially in the calculation. If not, he would not be believed.

Source: If not, no Kinyan helps, for one can always say "I erred", and also the other one will say that he erred!

Rebuttal (Tosfos' Rebbi): This is not a proof. Surely, he can be believed in several places, Migo (since) he could have said "I paid afterwards", like we find here!

Opinion #2 (Tosfos' Rebbi): Rather, not only is he believed to say that he erred when he said "I owe Ploni a Maneh." Rather, he is believed to say "I already paid", Migo he could have said "I paid afterwards."

In any case, it can be that there, he needs that afterwards they agreed that he erred, because the Kinyan is considered like "give" here. [We can testify that] if he paid, he would not say "give." This is [like] a Migo against witnesses;

Likewise there, if he really erred and did not have anything extra, he would not have been Makneh [to him. Therefore, he can retract only if they agree to him].

Defense (of Opinion #1): Some say that only a Shechiv Mera can say that he remembered afterwards, for his mind is not settled on him, but a healthy person cannot. (If so, there is no proof from here to the case in Gitin.)

Explanation: This "as if they were written" is unlike "as if they were written" above (151a);

There, it says that they are like they were already written and handed over, so no Kinyan is required;

However, here he does not want to say that they are only as if they were written and handed over (so no Kinyan is required). Rather, they are stronger, like matters that are written. Therefore, it is as if he said "write".

Chachamim gave much extra power to a Shechiv Mera [even] without the law above that no Kinyan is required, like it says in Gitin (14b) that [a Meshale'ach who says] "take" is like one who says "acquire for" regarding a Shechiv Mera, even if regarding a healthy person it is not like "acquire for."

Explanation: Here a Mishnah explicitly teaches that a Milveh Al Peh is not collected from Meshubadim, mid'Rabanan.

Reference: Rashi explained in Gitin (51a) that food for a widow and daughters is collected from Bnei Chorin because it has no limit, but if it were limited, they would collect [from Meshubadim], even though they are not written [in a document], and it is like a Milveh Al Peh.

Rejection: This is wrong. [Rashi] did not investigate this. Rather, the reason why eating Peros and food for a widow and daughters would be collected [from Meshubadim] if they were limited, even though they are not written, is because they have publicity.

Note: Maharsha says that the following begins a new Dibur. The Dibur ha'Maschil is "Shibuda d'Oraisa."

Citation: Shibud is mid'Oraisa.

Question (Ri of Korvil): If so (Shibud is mid'Oraisa), how can one swear Modeh b'Miktzas ha'Ta'anah? We do not swear about denial of [a debt] with a lien on land!

Answer #1 (Tosfos' Rebbi): The case is, [the lender] pardoned his lien.

Answer #2: The case is, there are no witnesses. Shibud is mid'Oraisa only through witnesses, but not through [the borrower's] admission.

Reference: In Bava Metzi'a (4b) I elaborated more than here.

Explanation: Even though this discusses collecting from [the borrower, when they collected] coins [the Bechor does not get a double portion], because their father did not leave these coins.

Implied question: Even though [likewise] land, they collected from the borrower, why does he get [a double portion? Their father did not leave this land. Why does the Bechor get more than when they collected coins?!]

Answer: Rather, surely the primary lien is on the land. This shows that Shibud of land of buyers is mid'Oraisa. (Even though here we discuss from the borrower, since we find that the lender has a Kinyan in the land, the buyer bought land with a lien on it.)

Question: How is it proven from here that Shibud is mid'Oraisa? Perhaps [a creditor collects Ziburis] from him (the borrower himself). Obviously one may collect from him, whether land or [Metaltelim, even if they are inferior, e.g.] bran!

Answer: Perhaps Ula said [his teaching] regarding what it says in Gitin (48b) that we do not collect from Meshubadim when there are Bnei Chorin, even if they are Ziburis. Due to buyers' loss, they sustained Torah law.

Inference: Since it says "they sustained Torah law", this implies that also there it is mid'Oraisa.

Question: However, we do not find that [Ula] said so explicitly, but the Gemara says there "this is like Ula, for Ula said... and due to buyers' loss [they sustained Torah law]."

And even if he said so explicitly, one may not infer this, for "they sustained Torah law" properly connotes that [a creditor collects Ziburis] from him (the borrower)!

Answer: Perhaps since he said "Ziburis", this implies inferior land, since he did not mention bran. (From the borrower itself, he would collect also Metaltelim.)

Implied suggestion: The one who says that it is not mid'Oraisa holds that [a creditor does not collect] even from him (the borrower).

Rejection: Obviously, he is obligated to pay, and if he does not have coins, obviously he is not exempt through this! Rather, he gives bran or land, or sells them and gives to him coins;

Rather, it discusses Shibud of buyers, that there is a lien against them. Even though [the borrower] wrote Achrayus, this Kinyan is not mid'Oraisa;

Mid'Oraisa, one cannot put a lien for his debt [to enable the lender to collect] his property from buyers, even though he can sell it.

Explanation (Rashbam): [The one who says that] Shibud is mid'Oraisa, it is the Kinyan "Yotzi Elecha Es ha'Avot";

Regarding [the opinion that it is] not mid'Oraisa, [the Rashbam] explained that "Yotzi Elecha Es ha'Avot" is when he took a security not at the time of the loan. In Bava Metzi'a (114b) it connotes that they argue about Shibud from him (the borrower).

Rebuttal: [My] Rebbi did not understand what he said that according to the opinion that it is not mid'Oraisa, the verse discusses a security taken not at the time of the loan. All the more so it is mid'Oraisa, for not at the time of the loan is collection of the debt!

Question: Since a loan with a document is collected from heirs, even though Shibud is not mid'Oraisa, also without a document, why is it not collected? What difference does it make whether there is publicity, or there is no publicity?

Answer: Since one who lends with witnesses [without a document] is not concerned for publicity and to collect from buyers, Chachamim did not enact [for him] to collect from heirs.

Question (Ri): In Bava Kama (11b), regarding "the Halachah is, we collect from slaves (like from land)", R. Eliezer said "even from orphans." [The Gemara rejected] "no, from him (the borrower. It asks that this cannot be, for) from him, we collect even from the shirt on his back!" It answered that [the slave] was made an Apotiki, and he sold it;

Inference: One does not collect [slaves] from orphans.

This is astounding, for below (116a) we rule that a Milveh Al Peh is collected from heirs, but not from buyers. This shows that one collects from heirs more than from buyers, and there (in Bava Kama) one collects more from buyers!

Answer (Tosfos' Rebbi): Surely, one collects from buyers more than from heirs.

Implied question: We find that buyers are better (have more rights to keep their property) here, like we find that one who sells his field with witnesses [and Achrayus, but without a document. If the seller's creditor took the field, the buyer] collects his money from Meshubadim;

It said above (41b-42a) that [those who bought after him] caused their own loss. [He collects from later buyers] even though he does not collect from heirs!

Answer: The reason [why one collects from buyers more than from heirs] is because [buyers] were brazen to buy something with publicity that there is a lien on it. This reason does not apply to heirs.

Also for this reason, there he collects from buyers but not from heirs.

Rebuttal (Tosfos' Rebbi): One who sells his field with witnesses collects from heirs, just like from buyers, since there is publicity, just like a loan with a document is collected from heirs according to Rav and Shmuel, even though a Milveh Al Peh is not collected, since [a loan with a document] has publicity.

It is due to an enactment, just like they enacted that a loan is collected, due to Ne'ilas Delet (lest people be afraid to lend).

Support #1: We find like this in Sanhedrin (32a). Why did [Chachamim] say that monetary cases do not require Drishah v'Chakirah (interrogation of witnesses)? This is due to Ne'ilas Delet (if witnesses must remember when and where the loan was given, a person will fear to lend, lest the witnesses forget, and he will be unable to collect).

Even all monetary cases in the world we judge without Drishah v'Chakirah, due to Takanas ha'Shuk, both inheritances (for which there is no need to enact) and laws of purchase;

Also here, the reason of Ne'ilas Delet is not precise (it is not limited to loans). The same applies to sales, like I explained.

Support #2: Also [it applies] when he stood in judgment (regarding an ox that fell on one who dug a pit) below, and due to publicity [of acts of Beis Din] he collects from heirs and from buyers, lest we encourage damagers.

Note: How does this encourage damagers? Whenever the damager gets money, he must pay! It is difficult to say that one's primary intent is to cause a loss to others, and he is not concerned if he himself will never have property! Perhaps if it is hard to collect damages, a victim will agree to pardon the damager for a small amount of money.

The case in Bava Kama (11b), it seems that one must say like I explained there (DH Kegon. Whenever Chachamim enacted to collect from buyers due to Ne'ilas Delet, one collects also from heirs. The Gemara answered) rather, the case is, he made it an Apotiki (so it is collected even from heirs).

Question: One who stood in judgment (for the ox that died in the pit) below, [my] Rebbi was unsure whether [he collects from heirs] due to publicity, or because he is considered Muchzak, like acts of Beis Din;

A Mishnah in Shevi'is (10:2) says that an act of Beis Din is not canceled in Shemitah. If every act of Beis Din is included, this shows that he is considered Muchzak;

If so, when he stood in judgment, it is like an act of Beis Din, and the reason [he collects from heirs] is because [he is considered] Muchzak;

However, if the Mishnah in Shevi'is discusses only when [the ruling was] written, then the reason for one who stood in judgment is due to publicity. Therefore, he collects from heirs lest we open the door in front of robbers, and all the more so from buyers.

Note: Based on the Hagahah of R. Simchah mi'Desvi above, perhaps also here the text should say "damagers" (in place of robbers).

Answer: It seems that this is primary. One who stood in judgment [collects from heirs] due to publicity, and not because he seized;

Source: Ones and Mefateh (one who raped or enticed a virgin Besulah) themselves, when they stood in judgment, it becomes like a loan, and Shemitah cancels them according to the Beraisa like Shmuel in Gitin (18a).

Question: Why did Rav Nachman teach "and [the ox] buried him", since we [must] explain it like this (judges were sitting by the pit), and he holds that [a Milveh Al Peh] is not collected from buyers?

Note: Granted, if he held that it is collected from buyers and heirs, he said that the ox buried him to show that there was no verdict in his lifetime, and still his heirs are liable. However, Rav Nachman does not hold like this. He must say like Rav Ada that Beis Din obligated him before he died. If so, why does he teach unlike Rav Ada, who said that the ox made him Tereifah? It is a very strange case, that judges were there, and instead of trying to save his life (e.g. it was hopeless), they judged him! Also, how could they obligate him before the ox died? Perhaps they knew that it became Tereifah.

Answer (Tosfos' Rebbi): [Rav Nachman] teaches that even though the one who dug the pit is close to death, for the ox was killing and hitting him, their judgment that they judged him helps. We do not say that they judged a dead man.