1) THE DIFFERENCE BETWEEN A SHEVU'AH D'ORAISA AND A SHEVU'AH D'RABANAN
QUESTIONS: The Mishnah (87a) lists the Shevu'os d'Rabanan which a woman might need to make in order to collect her Kesuvah. Among these Shevu'os are the Shevu'ah of "Pogemes" (which is made when the husband claims that he paid her all of the Kesuvah, and she admits that she received part of it) and the Shevu'ah of "Ed Echad" (which is made when a single witness supports the husband's claim that he paid the Kesuvah).
The Gemara teaches that in the case of the Shevu'ah of Ed Echad, if the husband is cunning there is a way for him to require her to make a Shevu'ah d'Oraisa instead of the Shevu'ah d'Rabanan which she is supposed to make. By paying the Kesuvah to her a second time in front of witnesses, he thereby turns one of the two payments of her Kesuvah into a loan. He can then demand of her that she make a Shevu'ah d'Oraisa in order to exempt herself from repaying the loan. She will have no choice but to make the Shevu'ah d'Oraisa or repay one of the payments.
RASHI explains that the advantage of having her make a Shevu'ah d'Oraisa is that it is a much more serious Shevu'ah, since it is done with the name of Hash-m and while holding a Sefer. Hence, she is more likely to back out from making a Shevu'ah d'Oraisa than a Shevu'ah d'Rabanan.
(a) Why does Rashi explain that the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan is that a Shevu'ah d'Oraisa is made with the name of Hash-m and with a Sefer? Earlier (87b), when Rami bar Chama initially thought that the Shevu'ah of a Pogemes is a Shevu'ah d'Oraisa, Rashi explains that the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan is that a person who is obligated to make a Shevu'ah d'Rabanan may "reverse" the Shevu'ah and ask the other litigant to swear. In contrast, if the person is obligated to make a Shevu'ah d'Oraisa and he does not want to, he must pay and he has no option to reverse the Shevu'ah. Since the Shevu'ah of Pogemes in the Mishnah is d'Rabanan, if the woman does not want to swear in order to receive her Kesuvah she can tell her husband to swear that he paid her in order to exempt himself from paying the Kesuvah. If he does not make a Shevu'ah, she will take the Kesuvah.
Why does Rashi not give the same explanation here? Rashi should explain that the Gemara here means that if the husband is cunning and wants to prevent the woman from reversing the Shevu'ah onto him, he can turn it into a Shevu'ah d'Oraisa! (Indeed, this is the way TOSFOS and other Rishonim explain the Gemara.)
(b) Conversely, why does Rashi (87b) explain that when Rami bar Chama mistakenly thought that the Shevu'ah of Pogemes is a Shevu'ah d'Oraisa, he thought so with regard to allowing the Shevu'ah to be reversed onto the husband? Why does Rashi there not explain that Rami bar Chama thought that it was a Shevu'ah d'Oraisa with regard to the severity of the Shevu'ah, as Rashi here explains?
(a) The Acharonim suggest a number of answers to the first question:
1. The MAHARSHA explains that Rashi prefers not to explain that the Gemara's advice to the husband is meant merely to help him avoid having the Shevu'ah reversed onto him. Having the Shevu'ah reversed onto him is not necessarily a bad thing! After all, the husband presumably is telling the truth when he says that he paid the Kesuvah, and thus he certainly would prefer to have to swear truthfully and keep his money than for his wife to swear falsely and wrongfully take money from him. Since the reversal of the Shevu'ah would be to his advantage, the Gemara would not suggest a way for the husband to make the woman's Shevu'ah into a Shevu'ah d'Oraisa which could not be reversed onto him.
2. The PNEI YEHOSHUA adds that the Gemara in Shevu'os (41a) records the opinion of an Amora who maintains that even a Shevu'ah d'Oraisa may be reversed onto one's opponent. Rashi earlier (87b) explains the Gemara only according to the Amora who says that a Shevu'ah d'Oraisa cannot be reversed. (Why Rashi explains the Gemara there according to that opinion will be explained below.) Here, Rashi gives a difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan which is true according to all of the Amora'im.
3. REBBI AKIVA EIGER suggests that Rashi infers from the Gemara that even after she has already sworn a Shevu'ah d'Rabanan, the husband still may cause the wife to swear again a Shevu'ah d'Oraisa by using the tactic the Gemara describes (as the RA'AVAD explains, according to the YAM SHEL SHLOMO, Bava Kama 9:47). Beis Din would require a second Shevu'ah after she has already sworn only if the first Shevu'ah did not fulfill the requirements of the second Shevu'ah -- for example, if the first Shevu'ah did not require that she use Hash-m's name and hold a Sefer, but the second one does. This is why Rashi explains that the way a woman swears a Shevu'ah d'Oraisa is more stringent that the way she swears a Shevu'ah d'Rabanan. (Rebbi Akiva Eiger suggests another explanation for Rashi based on the SHACH in CM 87:35.)
(b) Why does Rashi earlier (87b) write that a Shevu'ah d'Oraisa cannot be reversed, instead of writing that a Shevu'ah d'Oraisa is more severe than a Shevu'ah d'Rabanan?
1. The PNEI YEHOSHUA explains that the Mishnah groups together the Shevu'ah of Pogemes with the Shevu'ah that the woman must make in order to collect her Kesuvah from the heirs (Yesomim) or from buyers who purchased land from the husband (Lekuchos). Since the Mishnah groups them together and does not differentiate between them, it implies that the Halachos of the two are similar. Hence, if a Shevu'ah d'Oraisa must be made with the name of Hash-m and while holding a Sefer, then Rami bar Chama -- who thought that the Shevu'ah of Pogemes is d'Oraisa -- must have understood that a Shevu'ah d'Rabanan also is done with the name of Hash-m and while holding a Sefer! (This indeed is the opinion of TOSFOS on 88a, DH Mayesi, and RASHI to Gitin 35a, as cited by Tosfos.)
Rashi therefore explains that according to Rami bar Chama, who thought that the Shevu'ah of Pogemes is mid'Oraisa, the difference between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan must be whether one may reverse the Shevu'ah onto one's opponent. Although this difference does exist between a Shevu'ah d'Oraisa and a Shevu'ah d'Rabanan, the Mishnah nevertheless groups together the Shevu'ah of Pogemes with the Shevu'ah of collecting from Yesomim and Lekuchos because when it comes to collecting from Yesomim and Lekuchos it is obvious that one cannot reverse a Shevu'ah d'Rabanan onto them, since they have no way of knowing whether or not the debt was repaid.
(See also HAFLA'AH to 87b who suggests other ways to answer this question.)
2. Perhaps Rashi's words (87b) may be explained in a different manner. The reason why Rashi does not explain that Rami bar Chama thought that a Shevu'as Pogemes has the severity of a Shevu'ah d'Oraisa is, as the Ritva asks, that Rami bar Chama would not have made such a mistake. The Mishnah in Shevuos (which the Gemara here quotes) clearly states that there is no Shevu'ah d'Oraisa which is "Nishba v'Notel," which he makes in order to take money (and not to exempt himself from having to pay money). Any Shevu'ah which a person makes in order to take money must be d'Rabanan. How, then, could Rami bar Chama have thought that this is a Shevu'ah d'Oraisa?
The Rishonim (Ritva, Rashba in Teshuvos 2:54) answer that Rami bar Chama did not really mean that the Shevu'ah of Pogemes is a Shevu'ah d'Oraisa, but that it is as severe as a Shevu'ah d'Oraisa since it has the appearance of a Shevu'ah d'Oraisa (i.e. a Shevu'as Modeh b'Miktzas, whereby the defendant admits that he owes half of the claimant's claims). Rava either does not understand that this was Rami bar Chama's intention (Ritva), or he argues that it should not have the severity of a Shevu'ah d'Oraisa since it has no conceptual similarity to a Shevu'ah d'Oraisa, and the Rabanan would not have given it the severity of a Shevu'ah d'Oraisa.
Rami bar Chama, on the other hand, insists that the Shevu'ah d'Rabanan of the Mishnah is of the same degree of severity as a Shevu'ah d'Oraisa and differs from a normal Shevu'ah d'Rabanan because of the question which Rashi (DH Ela Amar) asks. Rashi points out that even if the wife does not admit to having received any part of the Kesuvah, the husband can require her to make a Shevu'ah d'Rabanan that she was not yet paid (as the Gemara says in Shevuos 41a). What, then, is the point of the Shevu'ah of the Mishnah here? Rami bar Chama answers that the point of the Shevu'ah of the Mishnah is that since she was "Pogemes" and admitted that she received part of the Kesuvah, the Shevu'ah is more severe than a normal Shevu'ah d'Rabanan and she cannot reverse the Shevu'ah onto her husband.
This is why Rashi does not explain that Rami bar Chama maintains that the Shevu'ah is d'Oraisa with regard to using the name of Hash-m and holding a Sefer (even though that distinction would have been preferable, since the distinction Rashi makes -- the reversal of the Shevu'ah -- is disputed by the Amora'im in Shevuos, as mentioned above in a:1). Rami bar Chama agrees that the Shevu'ah is only mid'Rabanan, and the Rabanan certainly would not have enacted that the name of Hash-m be used simply to make the Shevu'ah more severe. Instead, Rashi explains that Rami bar Chama maintains that the Rabanan gave it the severity of a Shevu'ah d'Oraisa insofar as they did not allow the woman to reverse the Shevu'ah onto her husband. (M. KORNFELD)