Explanation #1: Rashi explains that this Pasuk of "Ki hu Zeh" comes from another Parshah - because it ought to have been written in that of "Im Kesef Talveh es Ami", since that is where it belongs ...

Proof: ... because, as far as the Parshah of Pikadon is concerned, he is Chayav even without admitting part of the claim.

Question: And the reason that we move it from its location is ...

Answer: ... as the Gemara concludes 'Why is Milveh different? Like Rabah, who said that 'A person does not have the Chutzpah to deny everything', which is why someone who does so is Patur; But by a Pikadon, where the owner did not do him any favor, he does (have the Chutzpah). That is why even Kofer ha'Kol is Chayav.

Question: At the beginning of Sanhedrin (Daf 2b and 3a) it implies that even the opinion that holds 'Eiruv Parshiyos are written here we do not uproot it completely from Pikadon - with regard to 'three' (Dayanim) and 'experts'?

Answer: One can however, answer with a Dochek, that regarding 'Modeh be'Miktzas', where there is good reason, we do indeed uproot it from Pikadon completely, but with regard to 'three' and 'experts', where there is not, the Pasuk refers to both.

Question #1: In Perek ha'Sho'el (Bava Metzi'a, Daf 97b, See Tosfos there 98a DH 'Mashkachas'), in connection with the Gemara, which establishes the Mishnah there 'where there is a Shevu'ah between them', and it establishes the Reisha by two cows and the Seifa by three, it implies that one is only Chayav a Shevu'ah if there is one cow to which he admits? ...

Question #1 (cont.): ... and that Sugya goes according to Rebbi Chiya bar Yosef, since it says afterwards 'According to Rami bar Chama'. So we see that Rebbi Chiya bar Yosef is not Mechayav a Shevu'ah without a partial admission, and that "Ki hu Zeh" is not totally precluded from Pikadon?

Question #2: Furthermore there are many Mishnayos which imply that one is only Chayav a Shevu'ah by Pikadon, when there is a partial admission? ...

Example #1: ... such as the case cited in Shevu'os (Daf 43a) of 'Sela Hilvisani u'Shetayim Hayah Shaveh' ...

Examples #2, #3 &4: ... and the case there of 'A Menorah of Asarah Litrin, that of 'Eser Gefanos Te'unos Masarti l'cha' (Ibid, Daf 43b) and the case in 'ha'Nizakin' (Gitin, Daf of 'Sh'nei Kisin Kshurim Matzasa li' (in Gitin, Daf 51a & 51b), where the Gemara declares Modeh be'Miktzas Chayav and exempts Kofer ha'Kol, even though he (the owner) did not do him any favors ...

Question #2 (cont.): ... and in the second Perek of Kesuvos (Daf 18a & 18b) and in 'Shevu'as ha'Dayanim' (Shevu'os, Daf 42a) the Gemara exempts from a Shevu'ah a case of 'Manah le'Avhicha be'Yadi ve'Ha'achaltiv P'ras' with a Migu that he could have denied it all, seeing as a person does have Chutzpah when confronting the owner's son ...

Question #2 (concl.): ... whereas according to Rashi, on the contrary, where he denied everything too, he ought to be Chayav there, as he ought to be in the first Perek of Bava Metzi'a (on Daf 4b) in the Sugya of 'Heilech' in connection with 'Sela'in Dinrin'?

Explanation #2: Rabeinu Tam therefore explains that when the Torah writes "Ki hu Zeh", it refers to Milveh as well, inasmuch as there too, one needs an admission together with the Shevu'ah of denial, and so too, does one need an admission together with the Shevu'ah of Ne'ensu.

Explanation #2 (cont.): .. although a denial is not necessary together with that of 'Ne'ensu' ...

Explanation #2 (cont.): ... because in the same circumstances as "Ki hu Zeh" applies to Milveh it also applies to Pikadon, so that just as Milveh is Chayav with just two cows - one which he admits, the other, which he denies, so too, with regard to Pikadon is he Chayav with two cow ... .

Explanation #2 (concl.): But Rebbi Chiya bar Aba and Rami bar Chama require three cows, one which he admits, one which he denies and one where he claims 'Ne'ensu'.

Question: And the reason that one requires denial and admission in the case of Milveh ...

Answer: ... may well be because we learn it with a 'Mah Matzinu' from Pikadon.

Implied Question: Even though, in Maseches Sanhedrin (Daf 2b & 3a) we do not learn Milveh from Pikadon with regard to 'Sheloshah' and 'Mumchin' - according to those who do not hold of Eiruv Parshiyos ...

Answer: Regarding 'Modeh be'Miktzas' it is more logical to say that we do (learn Milveh from Pikadon) ...

Answer (cont.): And similarly by Pikadon one is Chayav for Kefirah and Hoda'ah without 'Ne'ensu', although for 'Ne'ensu' without "Ki hu Zeh" he will not be Chayav ...

Reason: ... since he understands the simple explanation of "Ki hu Zeh" to mean that "Ki hu Zeh" goes together with 'Ne'ensu', but not vice-versa.

Answer (concl.): However Kofer ha'Kol is Patur from a Shevu'ah under all circumstances, even there where he is able to confront the claimant with Chutzpah ...

Reason: ... because it is a Gezeiras ha'Kasuv - specifically "Ki hu Zeh", but not Kofer ha'Kol!

Explanation #2 (cont.): And when the Gemara asks 'Mai Sh'na Milveh', says Rabeinu Tam, it means to ask why Modeh be'Miktzas is Chayav; Why is he not believed with a Migu, since he could have denied everything? ...

Precedent: ... and it is akin to the Gemara at the end of 'Kol ha'Nishba'in' (Shevu'os, Daf 48b) where, in connection with the case of 'Nishab'in she'Lo be'Ta'anah', the Gemara asks 'Mai Sh'na Hani' - by which it means 'Mai Ta'ama de'Hani?' ...

Text: ... and as for the wording 'Gabi Milveh hu de'Ika Lemeimar Hachi, Aval be'Pikadon Me'iz u'Me'iz!', Rabeinu Tam erases it from his text ...

Proof: In fact, it does not appear in the original texts.

Implied Question: When the Gemara states at the end of 'ha'Mocher es ha'Bayis' (Bava Basra, Daf 70b & 71a) in connection with 'ha'Mafkid Eitzel Chavero bi'Sh'tar' - If he would claim 'Ne'ensu', would he not require a Shevu'ah?', implying that 'Ne'ensu' on its own without any admission is Chayav a Shevu'ah?

Answer: Rabeinu Tam explains that the Shevu'ah there is mi'de'Rabanan, instituted before a Shevu'as Heses, similar to the case of Shevu'ah in Perek ha'Kosev (Kesuvos, Daf 87b) in connection with a woman who receives half her Kesubah, and the other cases mentioned there, where Rami bar Chama initially thought that they are mi'd'Oraysa, but the Gemara concludes that they are mi'de'Rabanan.

Implied Question: ... and when, in connection with the Mishnah in Perek ha'Sho'el (Bava Metzi'a, Daf 97b), which rules 'Zeh Omer "She'ulah", ve'Zeh Omer "Sechurah", Yishava', the Gemara asks 'Why is that, seeing as 'What the one claims, the other does not admit?' ...

Clarification: And this Pircha does not go according to Rav Nachman, according to whom the Gemara there establishes the Mishnah when there is a Shevu'ah between them, and that the Reisha speaks where there are two cows and the Seifa where there are three, or the Reisha speaks where there are three cows and the Seifa, where there are four, in which case he does admit to part of the claim, but according to Rav Huna ...

Implied Question (concl.): And Rav Yehudah asks that there is only that of She'eilah and that of Sechirus? And the Gemara answers via Gilgul - based on the Shevu'ah that it died naturally ...

Answer: ... that Shevu'ah too, is mi'de'Rabanan; but min ha'Torah, he is not Chayav, since there has been no admission.

Question: According to both Rashi and Rabeinu Tam however, there is a Kashya from the Gemara in Perek Kol ha'Nishba'in (Shevu'os, Daf 45b & 46a) which states that if Reuven hired Shimon without witnesses, since he is able to claim that he did not hire him at all, he is believed to say that he hired him and paid him ...

Question (cont.): ... and the Gemara then asks under what circumstances the Torah is then Mechayev a Shevu'ah by Shevu'as Shomrim, because - since he is able to claim 'Lo Hadam' (a denial that he received anything), he is believed to claim 'Ne'ensu'?

Question on Rabeinu Tam: Now, according to Rabeinu Tam to which object does the Kashya refer ...

Question on Rabeinu Tam (cont.): ... if it is to the one that he admits, then, had he said 'Lo Hadam', he would be a Kofer ha'Kol, in which case there is no Migu ...

Reason: ... because if that was not the case, one could ask that every Modeh be'Miktzas should be Patur with a Migu that he could have been Kofer ha'Kol ...

Question on Rabeinu Tam (concl.): ... whereas if it refers to the object where he claims 'Ne'ensu', when he says 'Lo Hadam', he is Chayav a Shevu'ah, seeing as there is Kefirah and Hoda'ah?

Question on Rashi: And according to Rashi too, where there is no Hoda'ah, even if he were to claim on the object of 'Ne'ensu' 'Lo Hadam' he would require a Shevu'ah, seeing as one is Chayav a Shevu'ah by a Pikadon when one is Kofer ha'Kol ...

Refuted Answer: If however, we were to say that Rebbi Yochanan and Rami bar Chama are not Mechayev by a Pikadon on Kefirah ve'Hoda'ah without Ne'ensu, the Kashya would he justified.

Refutation: One cannot say that however, since one is definitely Chayav on Kefirah and Hoda'ah alone without Ne'ensu, as is evident from many Mishnayos - such as that of 'Sela Hilvisani' and 'Menorah' and 'Eser Gefanim' (which Tosfos quoted earlier in the Dibur).

Refuted Answer: ... And even though the Gemara established the Mishnah in 'ha'Sho'el' where there are many cows, even though the Tana did not mention this in the Mishnah ...

Refutation: ... it is not logical to establish those Mishnayos in the same manner.

Refuted Answer (cont.): And the same applies to Halva'ah which we learn from Pikadon by 'Sela'im Dinrim' and in Shevu'os, by 'Sela Hilvisicha'.

Explanation #3: The correct explanation therefore, is that of the Riva who explains 'When the Torah writes "Ki hu Zeh" it writes it with regard to Milveh' - Consequently, by Pikadon as well, we only establish it with regard to a claim that applies to a loan - by Kefirah and Hoda'ah, but not by 'Ne'ensu'.

Explanation #3 (cont.): The Gemara then means to ask - What is the difference between the claim that applies to Milveh and 'Ne'ensu'? And it answers 'Like Rabah'.

Explanation #3 (cont.): ... 'And it is in connection with Milveh that one can say this' - meaning a claim that applies to Milveh - Kefirah and Hoda'ah, because a person does not have the Chutzpah to deny what his friend knows ...

Explanation #3 (cont.): ... whereas by Pikadon' - a claim that applies to Pikadon, such as Ne'ensu' about which his friend does not know, he will indeed have the Chutzpah (and deny) ...

Explanation #3 (cont.): ... and he is Chayav even without Hoda'ah, because if Kofer ha'Kol would be Patur, then Kofer be'Miktzas would also be Patur with a Migu because he could have denied it all ...

Explanation #3 (concl.): But there where he denies the claim completely, he is Patur even where he is able to answer with Chutzpah,

Reason: ... because it is a Gezeiras ha'Kasuv].

Conclusion: Now the case in 'Kol ha'Nishba'in' is in order - when it says 'Since he can say "Lo Hadm, he is believed to say 'Ne'ensu' ...

Implied Question: ... even though it is not a real Migu - since the former (which the owner knows) is considered a Chutzpah, but not the latter (which he doesn't) ...

Answer: The Gemara nevertheless compares it to the Migu above, which is also not a real Migu ...

Answer (cont.): Since he prefers to say 'I hired you and paid your wages' which he considers a mistake because he is busy dealing with his laborers and not a deliberate lie, than 'I never hire you to begin with', which one cannot ascribe to being busy with his laborers ...

Implied Question #1: ... and as for the case in 'Chezkas ha'Batim' (Bava basra, Daf 36a) in connection with 'Those goats that ate pounded grain in Neherda'a', where he (the owner of the grain, who seized them as payment) is able to claim up to the value of the goats, with a Migu that he could have said that he purchased it (See Hagahos ve'Tziyunim) ...

Implied Question #2: ... and in the second Perek of Kesuvos (Daf 15b) in connection with 'This field belonged to your father and I purchased it from him', where, even if he (the son?) claims that it belonged to his father but he has no witnesses, he is believed to say that he purchased it with a Migu that he could have said that it never belonged to his father, even though he was aware of the former but not of the latter ...

Answer: ... they are not comparable to a denial, since he will certainly not have the Chutzpah to deny something that the claimant knows (to be false) ...

Answer (cont.): ... and both of those cases are not cases of denial.

Question: The (above-mentioned) case of 'ha'Sho'el' however poses a Kashya on the Riva - since it implies that Rebbi Chiya bar Yosef too, requires Hoda'ah together with 'Ne'ensu', seeing as it establishes the Reisha where there are two cows and the Seifa where there are three? ...

Answer: ... unless we say that that Sugya goes neither like like Rebbi Chiya bar Aba nor like Rebbi Chiya b'Rebbi Yosef.

Question: According to the opinion that requires three cows, why is he not Patur because he could claim 'Ne'ensah' on the cow that he denies?

Answer: It speaks where the cow that he denies is actually in front of us.

Question: Why is he not Patur with a Migu that he could have admitted to it, deny the one that he claimed died, and 'Ne'ensah' on the third one, since then the one to which he admits is 'Heilech', which is exempt from a Shevu'ah?

Answer #1: This is not a Kashya, since if it is 'Heilech', then he is Kofer ha'Kol - and a person does nor have the Chutzpah ... .

Answer #2: Alternatively, it speaks where the one that is standing in front of us is better, and he does not want to admit on it.

Refuted Question: Nor can one ask that he ought to be believed with a Migu because he could also have claimed 'Lo Hadam' on the one on which he claimed 'Ne'ensah' ...

Refutation: ... since at the beginning of 'Kol ha'Nishba'in' (Shevu'os, Daf 45b) the Gemara explains that the owner deposited it by him with witnesses or with a Sh'tar.

References: This is explained in many places throughout Shas (See Hagahos ve'Tziyunim).

Question: And when the Tana said earlier (on Daf 106a) that if the witnesses testify that he stole it, he pays double ...

Answer: ... that speaks where he used it.

Implied Question: Because even though he admitted that he swore falsely ...

Answer: He is not Halachically obligated to swear a second time that it was stolen, since it would be akin to presenting a new argument ...

Answer (cont.): But he is believed without a Shevu'ah to say that it was stolen with a Migu that he could have claimed that he swore correctly, in which case he would have been Patur.

Chidush: And the Tana is coming to teach us that even though it is Beis-Din who make him swear - there where he claimed in another Beis-Din, who, unaware that he had already sworn previously, made him swear again, he is Patur (from Kefel) ...

Reason: ... since Halachically, he ought not to have sworn.

Implied Question: And the Gemara which ruled earlier (on Daf 106b) that if witnesses testify that he ate it, he is Chayav to pay Kefel ...

Answer: ... must be speaking where he ate it after having sworn.

Clarification: It seems that he specifically says 've'Shalach ... ' , since it is a Gezeiras ha'Kasuv, as the Torah writes "Im Lo Shalach" - 'ha Shalach, Patur' ...

Clarification (cont.): ... but someone who denies a Pikadon, even though Rav Sheishes said earlier (on 105b) 'ha'Kofer be'Pikadon, Na'aseh alav Gazlan', he is nevertheless Chayav Kefel ...

Reason: ... because when he said 'Na'aseh alav Gazlan', that is merely to render him liable for Onsin.

Clarification: All of them are necessary - because if he were to swear that he was not negligent, we would still suspect that it was still in his possession and that he swore truthfully ...

Clarification (cont.): And when he swears that it isn't, we still suspect that he may have used it, in which case he will be Chayav, even though he was neither negligent nor is the article in his possession.

Clarification: The Gemara could equally well have asked on Rebbi Chiya bar Yosef - 'Isn't "Lo Shalachti" similar to "Lo Pashati?", and answered 'No, it is similar to "Ein bi'Reshusi" !'.

Reason: Since it is from here that we learn the Din of To'en Ta'anas Ganav - Since the Torah writes "Im Lo Yimatzei ha'Ganav", only he himself stole it

Clarification: Whereas the one who was negligent with it, did not steal it.

Clarification: The opposite is not feasible, because then he would not be Chayav Kefel ...

Source: ... as the Gemara said earlier - 'Since he has already fulfilled his duty vis-a-vis the owner with the first Shevu'ah'.

Explanation: And what the Gemara means is - that he then retracts and claims that the article got lost and says that when he swore that it was stolen, that was not correct, because in reality, it was lost, and that that is what he should have sworn.

Refuted Explanation: The Gemara cannot have meant that it got lost after he swore ...

Refutation: ... because then he could not have exempted himself by claiming that it got lost ...

Reason: ... since it was in his [possession at the time that he swore ...

Reason (cont.): ... because from the moment that he swears falsely, he is Chayav Onsin.

Clarification: And that Shevu'ah does not obligate him to pay a fifth and bring an Asham ...

Reason: ... since it does not concern a denial of money, and merely resembles a Shevu'as Bituy.