1) Why would you take a shvua if their is no drara d'memona but not take a shvua if their ~is~ drara d'memona?
2) At the top of daf 3 we conclude that sumchus thinks the shvua of our mishna is a shvua d'rabonon, does this imply that rabanan think it is a shvua d'oraysa? if so, what kind of shvua is it? if it's a shvua of mb"m then according to the rabanan would it have all the technical requirements of a mb"m like 2 kesef?
Thanks.
T. Bacon, New York, USA
1) This is the essence of the Gemara's question "v'Lav Kal v'Chomer...".
2) Rebbi Chiya (3a) entertained the possibility that it was Modeh b'Miktzas and the Gemara refutes it. Althogh even according to the Rabanan it is a Shevu'ah d'Rabanan, the Gemara thought that according to the Rabanan it related to the P'sak of Chalukah, i.e. that it was imperative to the P'sak (see Rashi 2b DH Alav ha'Ra'ayah). Whereas according to Sumchus the Gemara was saying that although the P'sak of "Yachloku" does not require a Shevu'ah any more than any other Mamon ha'Mutal b'Safek according to Sumchos, however, in this case there was a new Shevu'ah (i.e. a localized Gezeirah).
D. Zupnik
Yes, but what was the hava amina?
Thanks
The Havah Amina is difficult. There are those Achronim who say that the Havah Amina is that we should say that there is no Shevu'ah since he is Chashud a'Mamona. The Shitah Mekubetzes cites a Gilyon who says that the Metaretz maintained that when the real owner is losing half, we will not further cause him to swear. However, there are those who say that at this point Rashi explains "Derara" like Tosefos.
D. Zupnik