R'Yosef suggests there's no Shvua She Aino B'Rshuso in the case of the Mishnah in Shvuos because Eidim told us already that the Mashkon was stolen. Consequently, we must transfer the Shvua of Modeh B'Miktzas from the Nit'an to the Toen.
Abaye explains differently: There IS a Shvua She Aino B'Rshuso in the case of the Mishnah, yet, there is STILL a need to transfer the Shvua of Modeh B'Miktzas from the Nit'an to the Toen, as a Gezeirah.
Pashtus, Abaye agrees in Din with Rav Yosef, that when Eidim tell us the Pikadon was stolen, there is no more need for the Nifkad to take a Shvua She Aino B'rshuso; we already know it's not in his Rshus! Abaye is only arguing against the need for the Ukimta of Eidim in the Mishnah.
The Lechem Mishnah (Hilchos Toen V'Nit'an, 5:8) however, explains why, according to the Rambam, even though a Shomer swears that a Pikadon was stolen, he still needs to take a Shvua She Aino B'Rshuso. It is because even though the Shomer's Shvua told us the Pikadon was stolen, it might currently be in his Rshus, if for e.g. the thief subsequently returned it to him.
It would seem we would have the very same concern when Eidim tell us that a Pikadon was stolen. We should require the Shomer to take a Shvua She Aino B'Rshuso, because the Pikadon might currently be in his Rshus, if for e.g. the thief subsequently returned it to him.
According to the Svara of the Lechem Mishnah, is it possible, that Abaye argues in Din with Rav Yosef, and holds that even with Eidim telling us the Pikadon was stolen, the Nifkad would still have to take a Shvua She Aino B'Rshuso. In other words, Abaye holds that Rav Yosef's Ukimta Teretz of Eidim, to explain why there is no Shvua She Aino B'Rshuso in the Mishnah in Shvuos, is insufficient, and that is why he explains the Mishnah differently?
B'chavod.
Daniel Steinberg, Columbus
1) Daniel, how did you find that Lechem Mishneh?! I will have to look into this more, bs'd, but what I want to say for the moment is that Abaye said that the Gezerah is because he might say "I found it after I took the Shevu'ah." Abaye did not say that it might have been returned afterwards by the thief, so it seems that the reason why Abaye said differently from Rav Yosef is not because of the Lechem Misheh's Sevara.
2) After looking at this a bit more, while I certainly do not think that I have gotten to the bottom of the Inyan yet, I will write what I am thinking at the moment:
a) A few years ago I wrote in pencil in the margin of my Gemara, after the answer of Rav Yosef when the Gemara says that the person it was stolen from might make an effort and manage to recover the stolen item, that this Gemara appears to contradict the rule (see Bava Kama 68b) that "Stam Geneivah Yi'ush Ba'alim" -- if there was a Geneivah we may assume that the victim gives up hope of ever recovering the stolen property. The SM'A on Choshen Mishpat 361:4 writes that this is because the owner loses hope of recovering his property after a Geneivah because he does not know who stole it (since it was done in secret).
b) How does this reconcile with the Gemara (six lines down from the top of 35a) that the owners go to the bother of retreiving the item and ask people who come into their house who the thief was (Rashi)? I think we have to answer that this indeed is a somewhat more remote possibility, but to try to avoid a false oath (with the undesirable repercussions that it may render a Jew unfit to be a witness) we take into account small possibilities also.
c) I want to argue that Abaye is not worried about more remote possibilities, and this indeed may be the root of the dispute between him and Rav Yosef. Abaye's scenario seems to be more likely to occur. Really, the Malveh was deliberately hiding the pledge, but afterwards he invents a story that he found it only after he had made the oath.
d) I saw now that the Pnei Yehoshua (on Tosfos 34b, DH Shema, near the end of the first paragraph) writes something different than what I have written, but there seems to be a common factor that Abaye is concerned about more likely scenarios. He writes that when a person makes a Shevu'ah that it is not in his Reshus, he is not so worried about making sure that it will certainly never be found in his house, because he justifies himself by thinking that at the moment he really does not possess it, so if it is found later he can always claim, truthfully, that he did not know about it at the time.
e) At any rate, these are more likely scenarios that might actually take place, while the idea of the Lechem Mishneh seems more unusual. A thief returning an item is unusual and contradicts the Halachah of Stam Geneivah Yi'ush Ba'alim. I suggest therefore that the Lechem Mishneh fits well with Rav Yosef's way of thinking, not Abaye's.
3) I saw that the Tosfos ha'Rosh (beginning of 35a) explains the opinion of Abaye. He writes that "the Malveh searched in his house and did not find the Pikadon. He then takes an oath, correctly, that he does not know that the item is in the house." First, it is interesting to note that the Tosfos ha'Rosh does not write that he swears that it is not in his Reshus. Rather, he writes that he swears that he does not know that it is in his Reshus. This suggests that even if he did not make a very thorough search, it is still possible to swear honestly that he is not aware that it is in his possession. I also saw in the Shitah Mekubetzes (beginning of 35a) in the name of the Ritva who writes, "Even if you will say that he only takes a Shevu'ah that he does not know that it is in his Reshus." The Ritva appears to be in doubt about whether it is possible to make an oath with the words, "I am not aware that I possess it." However, the Ritva above (6a, DH v'Tu) writes that he swears that "he does not know that it is in his Reshus."
The Tosfos ha'Rosh continues and writes that before a person takes an oath how much it is worth, he will carry out a more thorough search in his house because he is afraid that somebody has taken it from his house and then his evaluation of the item may be shown to be inaccurate. The Tosfos ha'Rosh seems to say the same as the Pnei Yehoshua that I cited above, who writes that for "Shevu'ah she'Eino b'Reshuso" a person does not bother to ensure that he will certainly not find it, since at the present moment he is taking an oath truthfully. But when he swears how much it is worth, he must be more careful so that he should not get a bad reputation if it transpires that it is worth more than he said.
What we learn from these explanations is that, according to Abaye, the issue is whether he knows it is now in his Reshus, or if he is taking an accurate Shevu'ah about its value. This is quite different from the possibility of the Lechem Mishneh (Hilchos To'en v'Nit'an 5:6) that the thief might have returned it.
Yasher Ko'ach Gadol,
Dovid Bloom
Thank you, R' Dovid.
This is indeed a difficult Sugya to be Mivarer. I came across the Lechem Mishnah via a Shiur I was listening to from the Rosh Yeshiva of Lakewood East, R'Yaakov Eliezer Schwartzman, Shlita. He wanted to use the Svara of the Lechem Mishnah to answer the following Ha'ara of the Pnei Yehoshua:
According to one answer of Tosfos on 33b, d.h. 'HaMafkid', the case of our Mishnah is that there are Eidim that the Pikadon was stolen ("Anu Yod'im She'Nignevo M'Toch Beiso..."). If so, then Rav Huna's statement, that we make a Shomer swear that the Pikadon is not in his Rshus, cannot be referring to the case of our Mishnah, as Rashi says it is (34b, d.h. "Mashbi'in Oso"). Because as we know from the Sugya on 35a, when there are Eidim, there is no Shvuah She Aino B'Rshuso. (The Ritva also brings up this Ha'ara.)
The Rosh Yeshiva cited this Lechem Mishnah to answer the Pnei Yehoshua. Just as we still require a Shvua She Aino B'Rshuso, even though a Shomer is swearing that it was stolen (because maybe the item is currently in his Rshus), so too, we would need a Shvuah from a Shomer when there are Eidim who tell us it was stolen, to know that it's not currently in the Shomer's Rshus.
This obviously cannot fit with Rav Yosef's Ukimta in the Mishnah of Shavuos on 35a - that when there are Eidim that it was stolen, there is no Shvuah She'Aino B'Rshuso. However, the Lechem Mishnah could possibly fit with Abaye and Rav Ashi - neither of whom mention Eidim in their explanation of the Mishnah in Shavuos.
This is was what made me wonder if the reason Abaye and Rav Ashi do not answer like Rav Yosef is because they feel that his Ukimta of Eidim is insufficient to explain the absence of a Shvuah She Aino B'Rshuso in the Mishnah of Shavuos.
However, as you point out, Rav Yosef's Teretz of Eidim (to explain why there's no Shvua She Aino B'Rshuso) is still dependent on us being concerned that the Malveh might track down the stolen Mashkon and Pasul the Loveh (to explain why there's a need to transfer the other Shvuah from Loveh to Malveh), which perhaps Abaye feels is too remote a possibility.
I believe the Ritva says that Abaye's answer of Gezeirah (i.e. that maybe the Malveh will claim he found the Mashkon after having already sworn that it's not in his Rshus) argues with Rav Yosef - who holds that a person would be embarrassed to produce the Mashkon after having already sworn it was not in his Rshus. Abaye responds that's not necessarily embarrassing, since the Shomer could always claim that at the time he took the Shvua - he swore in earnest, and the item just turned up afterwards.
I suppose it is possible that Abaye holds of the Lechem Mishnah's Svara - and would require a Shvua She Aino B'Rshuso even when Eidim tell us that a Pikadon was stolen - but is arguing with Rav Yosef according to his reasoning ("L'Ta'amech").
And Rav Ashi (whom I believe we Paskin like) might also hold we require a Shvua She Aino B'Rshuso even with Eidim, but sidesteps the question from the Mishnah in Shavuos altogether (by saying there is a Shvua She Aino B'Rshuso taken by the Malveh and a Modeh B'Miktzas Shvua taken by the Loveh, and the Mishnah is just telling you that the Malveh swears first.)
B'chavod.
Warm regards,
-Daniel Steinberg
1) Tosfos (35a, DH Migo, on the Gemara where Rav Huna bar Tachlifa asks on Rav Huna from the Mishnah in Shevuos that since he has to take a Shevu'ah that it is not in his Reshus, he should also take a Shevu'ah by Gilgul how much it is worth) writes that Rav Huna bar Tachlifa's question applies only on Abaye and Rav Ashi. Tosfos Rabeinu Peretz, Tosfos ha'Rosh, and the Maharam explain that according to Rav Yosef one could have answered that the reason why he does not take a Shevu'ah is that there are witnesses who testify that it was stolen. We see from here that Abaye and Rav Ashi both learn that there are no witnesses that it was stolen, and also that everyone agrees that if there would be witnesses on Geneivah then we need not worry that afterwards it was returned.
2) As you write, Reb Daniel, the Ritva also learns that Abaye does not hold of the Lechem Mishneh's Sevara, because if that would have been Abaye's reasoning then the Ritva would not have had to say that Abaye holds that the Malveh is not embarrassed. We now have Tosfos according to Rabeinu Peretz, the Rosh, and the Maharam, and the Ritva who all imply that Abaye is not going in the way of the Lechem Mishneh.
3) Also, according to what you are saying, Reb Daniel, a big practical difference in Halachah emerges. As you write, we rule like Rav Ashi, as the Shulchan Aruch (Choshen Mishpat 72:10) writes: "The Malveh swears first that it is not in his Reshus and then the Loveh swears how much it is worth." The Shulchan Aruch does not mention anything about what the Din is if witnesses say it was stolen, which suggests that in such a case there is no need for a Shevu'ah, since Rav Yosef stated in the Gemara that if witnesses said it was stolen there is no need to swear. If the Shulchan Aruch would be ruling like the Lechem Mishneh's Sevara, he should have mentioned that.
4) I would like to add to what I wrote earlier.
a) In the above reply I tried to suggest that a lot of Mefarshim disagree with the Lechem Mishneh's idea, and I have now found, bs'd, that the Sm'a on Shulchan Aruch (Choshen Mishpat 295:5) also seems to reject this Sevara. He is explaining the Shulchan Aruch there (295:2) who writes, "Every watchman who swears the oath of the Shomrim includes three matters in his oath: (a) that he guarded the object the normal way that Shomrim do, (b) that such and such happened to the Pikadon, (c) that the Pikadon is not in his Reshus."
The Sm'a (#5) asks that part (c) of the oath, "she'Eino bi'Reshuso," appears to be superfluous, since if we are dealing with a Shomer Chinam, this means that he will swear that it was stolen, since a Shomer Chinam is exempt for Geneivah. The Sm'a continues and writes that one cannot say that the reason he swears "she'Eino bi'Reshuso" is "in order that they should not perform a Rama'us (cheating), that we are apprehensive that even though it was stolen, possibly it has now been returned to the Shomer's Reshus."
b) We see that the Sm'a does mention the Lechem Mishneh's idea but rejects it, for the reason we will soon see, bs'd. Meanwhile, it is interesting to note that the Sm'a implies that one might have argued that a deliberate fraud is taking place between the Shomer and the so-called thief who are colluding to claim that it was stolen.
c) The Sm'a continues and explains what the possible dishonesty one might suspect is happening if the Shomer referred to is a Shomer Sachar, who is being paid for his services. The Shomer Sachar would take a Shevu'ah that there was an Ones, which exempts him, but then he made a special effort to find the lost Pikadon, in a similar way that the Gemara (35a) states that possibly the Shomer makes an effort to search for the stolen item until he tracks it down.
d) The Sm'a writes that the reason one cannot say that the above scenarios provide the necessity for the Shevu'ah she'Eino bi'Reshuso is that one will be left without any way of explaining why this Shevu'ah must be taken even when a Shomer Sachar claims that the animal died. If it died, it cannot return to his Reshus! The Sm'a concludes that one must say that the Shevu'ah she'Eino bi'Reshuso means that he is swearing that when it was in his Reshus he did not derive any prohibited benefit from it that would make him responsible for what happened afterwards.
e) At any rate, we have seen that a major Posek, the Sm'a, disagrees with the idea of the Lechem Mishneh. Since the Halachah follows Rav Ashi, according to the Sm'a Rav Ashi cannot be going with the Lechem Mishneh.
5) It is possible that the Peshat of the Lechem Mishneh is cited by the Perishah but not favored:
a) The Sm'a cites a similar Peshat to that of the Lechem Mishneh, in the Perishah (Choshen Mishpat 305:1, DH Yishava). (The Sm'a on Choshen Mishpat and the Perishah on all four sections of the Tur were written by the same author.)
The Tur (Choshen Mishpat 305) discusses the Halachos for a paid Shomer. The Tur writes that if this Shomer claims that an Ones occurred and there are no witnesses on hand, the Shomer must take an oath on this and he also includes in his Shevu'ah that he did not use the item being looked after and that it is not in his Reshus.
b) The Perishah asks that since he has already sworn that there was an Ones, this obviously means that it is not in his Reshus, so why does he have to swear this again? Therefore, we must say that when he swears that he has not used it, "Lo Shalach Bo Yad," this in effect means that he is conceding that if he was Shalach Bo Yad, then it would be considered as being in his Reshus in order to make him liable for anything that happened to it. This is, in effect, the same as what the same author writes (in the Sm'a 295:5) as I cited above.
c) The Perishah then cites "v'Y'M k'Peshuto," "And some explain according to its simple explanation," that even though he has sworn that there was an Ones, we nevertheless must be concerned that the Shomer knows how to make a Hishtadlus and return it to his Reshus, as the Gemara (Bava Metzia 35a) says that the Shomer makes an effort and gets the item back. The Perishah also writes that this Peshat is also slightly implied in the words of the Rambam (Hilchos She'elah u'Pikadon 1:6). What the Perishah means is that the Rambam writes there that he includes in his Shevu'ah that "such and such happened and that it is not in his Reshus." If "such and such happened" that means, for instance, that it was stolen, so why does he need to swear it is not in his Reshus? Therefore, there is room to say that he must swear that it did not in some way or other return later into his Reshus.
d) However, the Perishah concludes that this Peshat is forced, and he prefers the approach I cited above in (b). I argue that the reason why the Perishah writes that the Peshat is forced is because it is too unlikely that a stolen item can be returned to where it was stolen from.
e) Of course, there is nothing new in what I have written here. The Sm'a merely repeated in 295:5 what he had already written in the Perishah 305:1. However, I think it has now become clear that there is a head-on dispute between the Perishah and the Lechem Mishneh. In fact, if we look up their dates, we will find that the Perishah lived between 1555-1614 and the Lechem Mishneh lived between 1560-1605, so they were contemporaries. It is even possible that the source of the "Y'M k'Peshuto" is from the Lechem Mishneh himself. However, I already wrote above that Rabeinu Peretz, the Rosh, Ritva, and Maharam do not learn like the Lechem Mishneh, and now we can add the Perishah in two places. In addition, since Rav Schwartzman used the Sevara of the Lechem Mishneh to answer the He'arah of the Pnei Yehoshua, this means that the Pnei Yehoshua also disagrees with the Lechem Mishneh.
6) I found, bs'd, that the Chasam Sofer agrees with the logic of the Lechem Mishneh. He writes that is common that a thief would return a stolen item to a Shomer Chinam.
a) This is in Toras Moshe (by the Chasam Sofer) on Parshas Mishpatim on the verse, "The oath of Hash-m will be between them both" (Shemos 22:10). The Chasam Sofer asks why is it that according to the Tur (Choshen Mishpat 294), the chief Shevu'ah that a Shomer Chinam takes is that the item is not in his possession, and the oath that he was not negligent in his guarding is only secondary? I think that the Chasam Sofer saw this in the Tur, since Siman 294 deals with the Dinim of a Shomer Chinam. The Tur writes there that if the Shomer claims that the item was stolen and no witnesses saw this, he must swear to this effect, and he includes with this oath that he was not negligent in his Shemirah. We see that the chief oath is that it was stolen, and negligence is only included as a secondary consideration.
b) This seems to contradict what the Tur writes (in CM 305) concerning a Shomer Sachar who is being paid for his services. There he writes that he swears that the item was taken from him b'Ones and he includes with this that it is not in his Reshus. We learn that "Eino b'Reshuso" is included only as a secondary oath! There seems to be a contradiction between the Tur in CM 294 and in CM 305!
c) The Chasam Sofer answers that the crucial distinction is whether the person taking the Shevu'ah is a Shomer Chinam or a Shomer Sachar. Since a Shomer Chinam is not being paid, he is expected to do only a minimal guarding, so it is more frequent that the item will be stolen. On the other hand, it is also common that the thief will return the item because he regrets what he did, or he is afraid that he will be embarassed when people find out what he did. This is why the main Shevu'ah for a Shomer Chinam is "Eino b'Reshuso" since the item might be already back in the Shomer's Reshus after the Ganav returned it. The Shevu'ah that he was not Poshe'a is less crucial for a Shomer Chinam since less Shemirah is expected of him, so it is less likely that he will fail.
A Shomer Sachar is different. Since he is getting paid, he will probably guard it better, and it is therefore less unlikely that a Geneivah will happen. On the other hand, it is more likely that a Gazlan will forcibly seize it openly from him, and, if this happens, the Shomer will be liable since he is expected to prevent this by doing a top Shemirah. This is why his Shevu'ah is that the item was lost b'Ones. But if a brazen Gazlan grabbed it from him, it is less likely that he will return it, so the Shevu'ah of "she'Eino b'Reshuso" is only secondary.
d) We do see, at any rate, that the Chasam Sofer writes that it is frequent that a Ganav returns the item to a Shomer Chinam, so this agrees with the Lechem Mishneh.
7) I will now relate something else I found regarding Abaye's opinion and the logic of the Lechem Mishneh.
a) I found, bs'd, that the Chidushei ha'Rashba (end of 34b) writes that Abaye does not agree with the reason of "d'Tarach u'Maisi Lei"; he does not agree with Rav Yosef who says that the Shomer might make an effort and retrieve the item. This confirms the suggestion that we made earlier in the discussion that Abaye is not concerned about more remote possibilities.
b) I also found, bs'd, in the Urim v'Tumim (Tumim 75:25), by Rav Yehonasan Eibeshitz, that he writes that the Halachah does not follow the answer of the Gemara that even though it was lost, we are still concerned "d'Tarach u'Maisi Lei." He writes the same thing also in Tumim 73:17, that if witnesses saw the theft, we are not concerned "d'Tarach u'Maisi Lei," because presumably the victim of the theft does not know who stole it from him.
It seems to me that the Tumim is saying that since the Halachah follows the opinion that "Stam Geneivah creates Yi'ush on the part of the victim" (Bava Kama 66b; see Rashi there, DH Shel Ganav, that this is because he does not know from whom to reclaim the item), it automatically follows that the Halachah does not follow the answer of the Gemara "d'Tarach u'Maisi Lei." We see that the Tumim does not rule like the Lechem Mishneh.
Once again a big big thank you for the tremendous Iyun!
Kol Tuv,
Dovid Bloom
R'Dovid,
I wanted to address your understanding of Tosfos, the Maharam, and the Talmidei Rabeinu Peretz (quoted above).
Based on their Girsaos, I think there may be a Machlokes between the Maharsha and the Maharam about the way Tosfos understood the question of Rav Huna Bar Tachlifa. It is a very slight nuance, but one that I feel is worth exploring.
The Maharam: Tosfos begins by saying, "L'Rabah U'L'Rav Yosef Lo Parich" - that Rav Huna Bar Tachlifa is not asking his Kasha on their answer of Eidim. Rather, "L'Abaye U'L'Rav Ashi Parich", he is asking a Kasha on the answers of Abaye and Rav Ashi, that assume the Malveh takes a Shevua She Aino B'Rshuso in the Mishnah, which leaves room for a secondary Kasha on Rav Huna from the Seifa. Again, it is a slight nuance, but it seems to me that Tosfos understands that Rav Huna Bar Tachlifa is asking on Abaye and Rav Ashi's answers to the Gemara's Kasha on Rav Huna, which leaves room for a secondary Kasha on Rav Huna, from the Seifa of the Mishnah.
The Maharsha: The Maharsha explains that Tosfos' words "L'Rav Huna U'L'Rav Yosef Lo Parich" are meant to be understood as Rav Huna Lifee Rav Yosef. See also the Maharam Shif, who has a Girsa of "L'Ukimta D'Rav Yosef". Tosfos explains that Rav Huna Bar Tachlifa is asking an independent Kasha on Rav Huna from the Seifa of the Mishnah (i.e. irrespective of the answers of Abaye and Rav Ashi), but that he would not have his Kasha according to the way Rav Yosef explains the Mishnah - that there are Eidim to the Geneiva and therefore no Shvua She Aino B'Rshuso. But according to the way Abaye and Rav Ashi explain the Mishnah - that there is a Shvua She Aino B'Rshuso - Rav Huna Bar Tachlifa does have his Kasha ("Elah, L'Abaye U'L'Rav Ashi Parich").
The Nafka Mina would be whether or not Rav Huna Bar Tachlifa agrees in Din with Rav Yosef's Ukimta of Eidim, meaning - does Rav Huna Bar Tachlifa also hold that when there are Eidim to the Geneiva, there is no Shvua She Aino B'Rshuso? Or could he perhaps hold like the Lechem Mishnah, that there would still be a Shvua She Aino B'Rshuso even though there's Eidim to the Geneivah.
According to the Maharsha's way of explaining Tosfos - that Rav Huna Bar Tachlifa is asking an independent Kasha, i.e. irrespective of the answers of Abaye and Rav Ashi, just that he doesn't have his Kasha according to the way Rav Yosef explains the Mishnah - it seems pretty clear to me that Rav Huna Bar Tachlifa agrees in Din with Rav Yosef, that when there are Eidim to the Geneivah, he would also say there's no Shvua She Aino B'Rshuso.
However, according to the Maharam's way of explaining Tosfos - that Rav Huna Bar Tachlifa is asking on Abaye and Rav Ashi's answers to the Gemara's Kasha on Rav Huna - all we know is that Rav Huna Bar Tachlifa doesn't feel that Rav Yosef's Ukimta of Eidim creates any secondary Kushyos in the Mishnah, but that doesn't give us any insight into Rav Huna bar Tachlifa's personal Shita in such a scenario, i.e. when there are Eidim to the Geneiva. He might still personally hold there would still be a Shvua She Aino B'Rshuso, for the reason of the Lechem Mishnah's Svara.
The Tosfos Talmidei Rabbeinu Peretz seem to be somewhere in the middle between these 2 Mehalchim.
He asks: "Let him answer that there are Eidim that it was stolen, {and that is why} that now there's no need for a Shvua She Aino B'Rshuso!" This seems to be Noteh to the Mehalech of the Maharsha, that takes it as a given that Rav Huna Bar Tachlifa would not have had his own question on Rav Huna from the Seifa of the Mishnah if there were Eidim to the Geneiva. But then Talmidei Rabbeinu Peretz answers: "He is standing on the answers of Abaye and Rav Ashi." This answer seems to be Noteh to the Maharam, that Rav Huna Bar Tachlifa was not asking his Kasha on Rav Yosef's answer of Eidim. He was only asking on Abaye and Rav Ashi's answers to the Gemara's Kasha on Rav Huna.
It could be that this is what Tosfos Talmidei Rabbeinu Peretz meant with his answer: I.e. You misunderstood Rav Huna Bar Tachlifa's question, and that is why you had your question of "Let him answer that there are Eidim that it was stolen." Rav Huna Bar Tachlifa is not asking an independent question (irrespective of Abaye and Rav Ashi's answers) to which an Ukimta of Eidim would be an acceptable answer, like the Maharsha. He is asking on Abaye and Rav Ashi's answers to the Gemara's Kasha on Rav Huna (like the Maharam), which creates a secondary Kushya from the Mishnah - and he doesn't have that problem with Rav Yosef's Ukimta of Eidim.
B'Chavod.
Warm regards,
-Daniel Steinberg
Reb Daniel, Shalom u'Vrachah!
1) I did not understand what you meant by what you wrote in parentheses, in the paragraph beginning, "The Maharsha," and also in the paragraph beginning "According" -- that Rav Huna is asking irrespective of the answers of Abaye and Rav Ashi. The Maharsha agrees that the question is according to Abaye and Rav Ashi.
2) The Maharam writes explicitly that according to Rava and Rav Yosef he does not swear that it is not in his Reshus since there are witnesses. This is certainly not like the Lechem Mishneh. I also argue that the Maharsha cannot be like the Lechem Mishneh, since the Maharsha writes that Rav Huna bar Tachlifa did not ask according to Rav Yosef's answer on Rav Huna, which must mean that since there are Edim it follows that there is no Shevu'ah she'Eino bi'Reshuso and this is because if there are Edim we are not worried that it was returned later on.
Kol Tuv,
Dovid Bloom
The question I was exploring through the different Girsaos in Tosfos was: is it Muchrach that RAV HUNA BAR TACHLIFA personally holds that if there are Eidim, there is no Shvua She Aino B'Rshuso?
The Maharsha's Girsa - "L'RAV HUNA U'L'Rav Yosef Lo Parich", is different than the one we currently have in Tosfos (that of the Maharam) - "L'Rabah U'L'Rav Yosef Lo Parich".
I was suggesting that according to the Maharam's explanation of Tosfos, the Kasha of Rav Huna Bar Tachlifa is not being asked directly on Rav Huna - it is being asked on both Abaye and Rav Ashi's ANSWERS ('Gezeirah...' and 'Mi Nishba Techilah...', respectively) to the original Kasha on Rav Huna. Their answers both incorporate the presence of a Shvua She Aino B'Rshuso in the Mishnah. This is what allows for a new Kasha to be asked on Rav Huna - "Reisha D'Seyfa Tiyuvta D'Rav Huna". Tosfos is saying that Rav Huna Bar Tachlifa's Kasha is not prompted by Rabah/Rav Yosef's answers of the Ukimta of Eidim, rather it is prompted by Abaye and Rav Ashi's answers to the original Kasha on Rav Huna.
According to the Maharsha's Girsa, however, "L'Rav Huna U'L'Rav Yosef Lo Parich", Rav Huna Bar Tachlifa is not specifically prompted to ask his Kasha as a result of Abaye and Rav Ashi's answers - he would have asked his Kasha even without the answers of 'Gezeirah' and 'Mi Nishba Techilah'. All Tosfos is saying is that he would not have had a Kasha if he had Rav Yosef's Ukimta of Eidim.
The Nafka Mina is: is it Muchrach that Rav Huna Bar Tachlifa personally holds that if there are Eidim, there is no Shvua She Aino B'Rshuso?
According to the Maharam's explanation of Tosfos - I don't believe it is Muchrach. All Tosfos is saying is that his Kasha is not prompted by Rav Yosef's answer, but we have no insight into what Rav Huna Bar Tachlifa's personal Shita would be in such a situation. All we know is that Rav Huna Bar Tachlifa doesn't feel Rav Yosef's answer is Shver, in terms of creating another Kasha on Rav Huna from the Reisha D'Seyfa. In this Mehalech - there is room for the possibility that Rav Huna Bar Tachlifa would hold there's still a Shvua She Aino B'Rshuso when there's Eidim.
In the Maharsha's explanation of Tosfos, that Rav Huna Bar Tachlifa is asking an independent Kasha on Rav Huna, and that he would not have had his Kasha if he had Rav Yosef's Ukimta of Eidim, I think it emerges clearly that Rav Huna Bar Tachlifa must hold if there are Eidim, there is no Shvua She Aino B'Rshuso.
Does that make sense?
Warm regards,
-Daniel Steinberg
1) Reb Daniel, before we get started I just want to make a quick historical observation. Rav Huna bar Tachlifa is saying his question in the name of Rava. So, according to the simple understanding, it would be difficult to say that he is asking a question on Rav Ashi, since Rav Ashi lived after Rava (unless what you mean is that he is asking on the Shitah of Rav Ashi, which may have been known even before Rav Ashi's time).
2) However, I then noticed that my above historical observation is not a difficulty on what you wrote, but is a He'orah on the Girsa of the Gemara itself, three lines from the top of the page, where our Girsa is "Rava," so the problem arises: how can Rav Huna bar Tachlifa in the name of Rava ask on Rava? This may be why the Masores ha'Shas changes the Girsa to Rabah, and we now may also be able to understand why the Maharsha writes "Rav Asi" and not "Rav Ashi," because Rav Asi lived before Rava while Rav Ashi lived after Rava.
3) Apologies for this disgression -- now let's return to your argument. I do not understand how you can write that according to the Maharam it is not Muchrach that Rav Huna bar Tachlifa personally holds that if there are Edim there is no Shevu'ah she'Eino bi'Reshuso. The Maharam writes explicitly that according to Rava and Rav Yosef he does not take a Shevu'ah at all since there are witnesses.
Reb Daniel, a big Yasher Ko'ach for being Medayek so closely.
B'Hatzlachah Rabah,
Dovid Bloom
Thank you, R'Dovid.
My main point is exactly in your words "the Maharam writes explicitly that according to Rava and Rav Yosef he does not take a Shevu'ah at all since there are witnesses." The only point Tosfos is making (according to the Maharam) is that Rav Huna Bar Tachlifa won't have his Kasha ON THEM, because of how THEY HOLD when there's Eidim. ("L'Rabah U'L'Rav Yosef Lo Parich"). But Tosfos does not give us any insight into how Rav Huna Bar Tachlifa holds when there's Eidim. Contrast this with the Girsa of the Maharsha - "L'Rav Huna U'L'Rav Yosef Lo Parich". The point Tosfos is making (according to the Maharsha) is that Rav Huna Bar Tachlifa wouldn't have had his Kasha on RAV HUNA at all, if he was going according to Rav Yosef. That clearly indicates that Rav Huna Bar Tachlifa must hold that when there's Eidim, there's no Shvua.
Warm regards,
-Daniel Steinberg
Reb Daniel, if Rav Huna bar Tachlifa agrees that according to Rava and Rav Yosef he does not take a Shevu'ah when there are witnesses, then why should we say that Rav Huna bar Tachlifa himself holds that there is a Shevu'ah when there are Edim? We have a rule, "Afushei Plugta Lo Mafshinan" -- we do not make more disputes than already exist (see Teshuvas Radbaz, end of 2:830, who calls this a "Klal Gadol").
See Mevo ha'Talmud (printed at the end of Maseches Berachos), in the Kitzur Klalei ha'Talmud (page 89 in the older editions, DH Afushei) who cites the Ran who says that whenever it is possible to say that the Amora'im are not disputing, even if it is a bit forced to say there is no Machlokes, we still should not say that they are arguing.
Once again, thanks very, very much for the Iyun Rav!
Dovid Bloom