Two questions: 1:Twice on this page -Ketuvot 87b - Rami Bar Hama suggests that the oath taken is D'Oriata and Rava refutes the analysis of Rami Bar Hama - using the same refutations: 'Kol HaNishba'im - Nishba'im velo mashalmim' and 'Ein Nishba'im al kfirat shiabud karkaot'! Rami Bar Hama was one of the most astute scholars of his time. - why didn't he accept the argument of Rava? Why didn't Rami Bar Hama think of these arguments himself - they are not esoteric Halachot, after all!?
Possibility: The first question is based upon an illusion caused by the method of the redaction of the Gemara: The Gemara follows the order of the Mishna, and so we have Rami Bar Hama saying two different interpretations, with Rava answering Rami Bar Hama regarding each explanation. Actually, however, it seems to be that Rami Bar Hama explained the whole Mishna, and said that he understands the oaths to be D'Oriata; after he finished expounding - Rava challenged these explanations - with the same refutations.
2nd question: Both arguments of Rava: 'Kol HaNishba'im - Nishba'im velo mashalmim' and 'Ein Nishba'im al kfirat shiabud karkaot' - are used to show that the oaths of the Mishna are not D'Oraita - but for this argument to be a refutation it must be shown that these rules are D'Oraita! Are they indeed? Perhaps Rami Bar Hama these Halachot are D'Rabbanan, and cannot refute his position that the oaths in our Mishna are D'Oraita!
Where do we find that thse rules: 'Kol HaNishba'im - Nishba'im velo mashalmim' and 'Ein Nishba'im al kfirat shiabud karkaot' are d'Oraita?
The first rule: 'Kol HaNishba'im - Nishba'im velo mashalmim' - seems to be an observation from the Tora, in which this rule seems to hold - but is it a necessary condition? I don't remember a proof of that! The second rule: 'Ein Nishba'im al kfirat shiabud karkaot' - seems to be a Svara, and we can say: 'Lama li kra, Svara hi' (Bava Kama 46b, Nidda 25a) - but can we refute Rami Bar Hama on the basis of SUCH a D'Oriata?
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Yeshayahu HaKohen Hollander
Excuse me for answering all your questions together and not answering each one individually.
The Rishonim are bothered by the Havah Amina of Rami bar Chama. The Shitah Mekubetzes cites from the Ritva and from Rashi that actually Rami bar Chama was referring to a "K'ein d'Oraisa" (a d'Oraisa-type oath) and not actually a d'Oraisa oath. The Halachah of "Nishba'in v'Lo Mishalmin" is deduced from the verse, "v'Lakach Ba'alav v'Lo Yishalem," as Talmidei Rabeinu Yonah point out. The Halachah of "Ein Nishba'in Al ha'Karka'os" is deduced from the verse in Parshas Mishpatim, "Al Kol Devar Pesha" or from the verse, "Ki Yiten Ish El Re'eihu Kesef O' Keilim," as cited in Perek Shevuos ha'Dayanim and Perek Merubah respectively. The fact that Shi'abud Karka'os is like Karka'os is a Sevara, based on logic, but in fact it is an interpretation of the meaning of Karka'os.
Dov Zupnik