QUESTIONS: Although a person normally is not obligated to bring a Korban when he sins intentionally (b'Mezid), the sin of a Shevu'as ha'Pikadon is an exception. Even if he knows that the Torah prohibits one from swearing falsely and denying possession of another person's money, he is obligated to bring a Korban if he does so. The Gemara asks whether this is true even when the person received Hasra'ah, a warning, before he swore falsely. Perhaps the verse obligates him to bring a Korban only when he sinned without Hasra'ah and is not Chayav Malkus. When, however, he sinned with Hasra'ah, perhaps he is punished with Malkus and he does not receive a second punishment of having to bring a Korban.

RASHI asks why the Gemara does not ask the same question with regard to Shevu'as ha'Edus, for which the verse also obligates a Korban when one sins b'Mezid. The Gemara should ask what the Halachah is when a person is warned not to swear falsely and deny knowledge of testimony that will benefit another person. Perhaps he will receive Malkus and be exempt from a Korban.

Rashi answers that the question is not applicable in the case of Shevu'as ha'Edus since it is impossible, for practical reasons, to give Hasra'as Vadai to a person not to swear falsely that he does not know testimony. Those who administer the Hasra'ah cannot possibly know that the witnesses know testimony. Therefore, the Hasra'ah is a Hasra'as Safek at best; when they warn the potential witnesses not to swear falsely, they can say only that "perhaps you are transgressing a sin."

Rashi's explanation is difficult to understand for several reasons.

1. Rashi's explanation suffices only according to the opinion that Hasra'as Safek is not a valid Hasra'ah. The Gemara, however, could have asked its question regarding Shevu'as ha'Edus according to the opinion that maintains that Hasra'as Safek is a valid Hasra'ah (see Shevuos 3b)!

2. If the witnesses who administer the Hasra'ah do not know whether or not the potential witnesses know testimony because there is no way to prove what they know, then the reason why the potential witnesses will not be punished is not because of a lack in the Hasra'ah. They will not be punished because Beis Din can never know whether or not they sinned, since it is possible that they indeed did not know testimony!

Perhaps Rashi means that even if Beis Din finds proof that the potential witnesses indeed did know testimony when they denied it, they will not be punished with Malkus, because those who administer the Hasra'ah were not aware of that fact at the time of the Hasra'ah. (See third question below.) However, such Hasra'ah is not considered lacking at all, as TOSFOS proves from the Gemara in Kesuvos (33a) which asserts that it is possible to give Hasra'ah to Edim Zomemim and punish them only when Mazimim come later and prove that those Edim were Edim Zomemim. (TOSFOS DH Hezid)

3. As the MAHARI BEN LEV points out, it certainly is possible for the witnesses who administer the Hasra'ah to know that the potential witnesses know testimony, such as in a case when those who gave the Hasra'ah were present when the event occurred and they saw the other witnesses watching the event. Why do the people who saw the witnesses at the event not testify themselves?

According to the opinion of Rebbi Yochanan (37b), even if those people were able to testify, the second set of witnesses can be liable for Shevu'as ha'Edus. According to the opinion of Rabah, who exempts witnesses from Shevu'as ha'Edus when other witnesses were present, there are a number of cases in which those who administer the Hasra'ah could be sure that the other witnesses know testimony, and yet they are not able to testify themselves. For example, they might be related to one of the parties in the dispute, or they might be related to each other at that time, and before they gave the Hasra'ah their common relative died. (MAHARSHAL)

(Another possible situation in which those who give the Hasra'ah could know for certain that the potential witnesses know testimony is a case in which the potential witnesses admitted in front of other witnesses that they knew testimony, and then they later swore that they did not know testimony.)

Moreover, if no case can be construed in which those who give the Hasra'ah know that the potential witnesses know testimony, because in such a case there would be another set of witnesses to the event and there would be no liability for Shevu'as ha'Edus, then the same argument should make it impossible to construe a case in which Hasra'ah can be given in a case of Shevu'as ha'Pikadon, and yet the Gemara says that Hasra'ah may be given in such a case! (MAHARSHA)

Why, then, does Rashi assert that it is impossible for those who administer the Hasra'ah to know for certain that the potential witnesses know testimony?

ANSWER: The MITZPEH EISAN and PORAS YOSEF suggest that Rashi indeed intends to present the same argument as Tosfos presents in his conclusion. That is, the reason why the Gemara does not ask its question in a case of Shevu'as ha'Edus is that even if those who give the Hasra'ah saw with their own eyes that the potential witnesses saw the event in question, perhaps the potential witnesses forgot what they saw and that is why they swear that they cannot testify. (This does not apply to a Shevu'as ha'Pikadon because in that case the Hasra'ah involves telling the Shomer the present situation, and not something that happened in the past. The Masrim say to him, "Do not deny having the other person's object, because we know that it is in your house." Therefore, the Shomer cannot say later that he forgot that he had the object, because the Hasra'ah itself reminded him that he had it!)

However, as the PARDES YITZCHAK asks, this explanation does not seem to be consistent with Rashi's words. Although it answers the first question (since this is not a matter of Hasra'as Safek) and the third question (since it is indeed impossible to know whether the potential witnesses can testify), it does not answer the second question. Why does Rashi state that there is no Hasra'as Vadai in such a case? He should say simply that Beis Din cannot administer Malkus because Beis Din does not know that the potential witnesses sinned. (Even if they admit later that they did know testimony, the rule of "Ein Adam Mesim Atzmo Rasha" teaches that Beis Din cannot punish a person with Malkus based on his own admission.)

The answer to this question seems to be that Rashi is following his opinion as expressed elsewhere. Rashi in Chulin (80a, DH Lo b'Tayish, see Insights there) writes that if an animal which is a Safek goat is slaughtered on the same day as its child, the person who slaughters it is not punished with Malkus, because the Hasra'ah that he receives is a Hasra'as Safek, and Malkus cannot be given without a valid Hasra'ah. Rashi clearly applies the rule of Hasra'as Safek to exempt a person from Malkus in a case in which there is a doubt about whether an Aveirah was done in the first place. In fact, Rashi writes in numerous places that if a person commits a Safek Aveirah, he is exempt from Malkus because he lacks Hasra'ah, since his Hasra'ah was a Hasra'as Safek (Yevamos 99b, DH Ein Sofgin; see also Rashi to Yevamos 101a, DH Chayav; Chulin 23b, DH Ela d'Rebbi Yehudah, and see LEV ARYEH there; Chulin 86a, DH she'Eino Sofeg; Sanhedrin 89b, DH Dilma, and see ARUCH LA'NER and Insights there). When Rashi uses the term "Hasra'as Safek" in these places, he does not refer to the Machlokes Amora'im in Makos (15b) about whether or not Hasra'as Safek is a valid Hasra'ah. The Gemara in Makos refers to a situation in which it will become clear later whether the Aveirah was transgressed. In contrast, in the case of a Safek Aveirah, there is no expectation that it will become clear later whether the Aveirah was transgressed. In such a case everyone agrees that the Hasra'ah is lacking, since the transgressor was not warned that what he was doing was definitely an Aveirah. The same would apply with regard to the words of Rashi here.

This is also evident from the words of Rashi in Kesuvos (15a) and Bava Kama (44b). The Gemara there discusses a case in which a person throws a stone into a group of ten people, half of whom are Jews and half Nochrim. Even if the stone kills one of them, the one who threw it is exempt from Misah because of "Safek Nefashos l'Hakel." Rashi explains that the law is lenient in a case of a Chiyuv Misah because of the verse, "v'Hitzilu ha'Edah" (Bamidbar 35:25). (See Insights to Kesuvos 15:2 and Bava Basra 50:1.)

Why is the verse necessary to exempt the perpetrator from Misah in such a case? Even without the verse he should be exempt, because it is not known that he did an Aveirah! Apparently, Rashi understands that since the person was aware that his act constituted a Safek Aveirah (because he was warned) which the Torah prohibits, he may be punished for transgressing the Safek Aveirah (even if the doubt is never clarified). This is comparable to a case in which there is a doubt about whether or not a certain act is prohibited, and a Chazakah (or a Rov) dictates that the act is prohibited. Beis Din may administer punishments of Malkus and Misah in such cases even though the person would be exempt from any punishment if it is discovered later that the act did not constitute a transgression. (See TOSFOS to Gitin 33a, DH v'Afka'inhu.)

However, if it is true that a person would be Chayav Misah out of doubt, and the only reason why he is exempt is the verse of "v'Hitzilu ha'Edah," then why should a person who performs a doubtful act of an Aveirah, for which one normally would be Chayav Malkus, be exempt? The reason why he is exempt is not the verse of "v'Hitzilu ha'Edah," because that verse applies only to Dinei Nefashos, capital cases which are judged with 23 Dayanim (as derived from that verse itself). A case of a Chiyuv Malkus, on the other hand, may be judged with three Dayanim, according to the Chachamim in Sanhedrin (2a), and yet no one argues that a person who performs an act of a Safek Chiyuv Malkus is exempt from Malkus. Such a person certainly is exempt even though the verse of "v'Hitzilu ha'Edah" does not apply.

It is evident, therefore, that there is another factor that exempts a person from Malkus in a case of a Safek. That factor is the rule that Hasra'as Safek is not a valid Hasra'ah, as Rashi writes. (As mentioned above, this type of Hasra'as Safek is not the subject of the Machlokes between Rebbi Yochanan and Reish Lakish, since this Safek will never be clarified. When a person hears such a Hasra'ah for an Aveirah which he knows cannot be proven, he does not take it as seriously as a normal Hasra'ah, and therefore it cannot make him liable to receive Malkus.)

Rashi's source might be the Gemara in Sanhedrin (89b) which says that a person who is eating dates and is told not to eat them because they might be forbidden (see ME'IRI, and Insights to Makos 21b) cannot be punished with Malkus because "nobody can give him a [proper] Hasra'ah." The Gemara should say instead that he cannot be punished because nobody knows that he sinned! The fact that the Gemara instead explains that he is not punished because nobody can give him Hasra'ah implies that one who performs a Safek Aveirah does not receive Malkus because his act lacks Hasra'ah.

In summary, Rashi here expresses what he explains elsewhere, that a person is exempt from Malkus when he transgresses a Safek Aveirah because the Hasra'ah is lacking. (M. KORNFELD)

(See also Insights to Chulin 23:4, 80:1, and Bava Basra 50:1.)

QUESTIONS: Rebbi Yochanan rules that if a person swears falsely with a Shevu'as ha'Pikadon, and it is later discovered that he not only owes the claimant the money that he denied but the claimant even has a Shtar written to that effect, the defendant is exempt from liability for Shevu'as ha'Pikadon. The Torah never obligates a person to swear in disputes involving ownership of land (Karka), and what is written in a Shtar is comparable to land since the Shtar creates a Shibud (lien) on the person's land.

(a) In Bava Basra (175b), Rebbi Yochanan rules that mid'Oraisa a Shibud is created not only for a Milveh b'Shtar but even for a Milveh Al Peh. According to his view, how can the Torah obligate a person to make a Shevu'as ha'Pikadon when someone claims that he owes money? (TOSFOS DH v'Ein)

(b) Even according to the law nowadays, after the Chachamim instituted that there is no Shibud when a person lends money without a Shtar, Rebbi Yochanan's ruling that one is liable to bring Korban when he denies owing money which was loaned without a Shtar, but with witnesses, does not seem to apply. Mid'Oraisa, a Shibud exists on the borrower's property and, therefore, the claim should be considered a claim of land! Even if the Chachamim do not allow the lender to collect -- based on this Shibud -- from the Lekuchos who purchased the land from the borrower, nevertheless the Shibud certainly exists, and until the borrower sells his property his land is Meshubad to the repayment of the loan! (RITVA)

(a) There seem to be two different approaches in the Rishonim regarding this question.

1. TOSFOS explains that according to Rebbi Yochanan, the only case in which a person will be liable for a Shevu'as ha'Pikadon is a case in which the lender decided to forgo his rights to a Shibud at the time that he lent the money. Tosfos in Bava Metzia (4b, v'Ein) adds that another case in which there would be no Shibud is one in which the borrower owns no land. (Although it is impossible to know that the borrower did not buy land clandestinely, Tosfos might be referring to a case in which the borrower (who denies, with a Shevu'ah, owing money) admits that he owns no land, obligating himself to bring a Korban for Shevu'as ha'Pikadon.)

2. TOSFOS in Bava Basra (175a, DH Milveh) answers that the case in which there is no Shibud on the land is one in which there were no witnesses present when the money was borrowed. Since the lender cannot prove that the loan took place, he cannot collect the loan from Lekuchos. Therefore, there is no relevance to the Shibud Karka.

This approach is followed by the RAMBAN and RASHBA. They point out that the same law applies when witnesses were present at the time of the loan but they died, or when a Shtar was written at the time of the loan but was lost. They add that even if a Shtar was written and is still present, as long as there are no witnesses to prove that the loan was not yet paid back the lender cannot collect from the Lekuchos and, therefore, there is no relevance to the Shibud Karka.

However, this answer requires further elucidation. It is true that the Shibud cannot be collected from the purchasers when the debt cannot be proven with witnesses or with a Shtar. Nevertheless, the Shibud still exists; it just cannot be utilized to collect the loan, since the loan cannot be proven. Why, then, is the loan not considered a dispute regarding a Shibud Karka?

Apparently, these Rishonim understand that what makes a debt into a land dispute is the fact that the lender can collect the land even if the borrower has sold the land. This fact makes land the most secure way to collect a loan, since every other possession that a person owns can be hidden or sold, preventing the lender from claiming it. Land, on the other hand, remains accessible and collectable forever. Since the focus of the lender's claim is the borrower's land, the dispute is considered a dispute over land. (See Shevuos 38b with regard to the intention of the claimant).

Tosfos here and in Bava Metzia does not accept the simple answer of the other Rishonim. He asserts instead that it would be a case of Shibud Karka unless the borrower has no land or the lender forgoes the Shibud. Apparently, Tosfos understands the logic of Rebbi Yochanan differently. The reason why the loan is considered a dispute over land is that when the borrower owns land, aside from the obligation incumbent upon the borrower to repay, the land that he owns becomes like a "Mashkon," collateral, towards the repayment of the loan. (See Pesachim 30a where the Gemara mentions one opinion that maintains that when the loan is collected from the land, it becomes retroactively a sale instead of a loan.) The land is like an "Arev Kablan" for the repayment of the loan. That is why the dispute is considered one over land. According to this logic, even if land cannot be collected from those who purchased land from the borrower, land that is still in the borrower's possession remains Meshubad to the repayment of the loan, and that is the Shibud Karka to which Rebbi Yochanan refers.

(b) The answer to the second question depends on the two opinions cited above in the answer to the first question.

1. According to Tosfos in Bava Basra and the Rishonim here (cited above in the second answer to the first question), the second question does not begin. When the Chachamim revoked the privilege of one who lends money with witnesses to collect from Lekuchos, they effectively annulled the Shibud of Karka, since the only outcome of the Shibud is to allow the collection of property that the borrower sold. (This is in contrast to the assumption in the question, that the Shibud refers also to some type of lien that makes the land more collectable than Metaltelin even when it is not sold.) This indeed is the explicit view of the RITVA and other Rishonim here, who write that the Chachamim revoked the Shibud from the property through their power of "Hefker Beis Din Hefker."

How, though, can the Ritva say that the Chachamim revoked the Shibud with their power of "Hefker Beis Din"? If that is true, then why does the law state that a Milveh Al Peh may be collected from heirs of the debtor? How is the debt collected from heirs if there is no Shibud on the Karka? (NACHALAS DAVID in Bava Metzia)

Apparently, the answer is that the Chachamim did not annul that part of the Shibud (with regard to collecting from the heirs). Nevertheless, the loan is not considered a land dispute, since the lender no longer relies on collecting from land because he knows that the land can be withheld from him (by being sold) just as Metaltelin can be withheld from him. (M. KORNFELD)

2. Tosfos in Bava Metzia, however, apparently follows his opinion there that the definition of Shibud Karka is that land is a form of a Mashkon or Arev for the repayment of the loan. Therefore, even if the land cannot be collected from the Lekuchos, the dispute still should be considered a land dispute. (See TOSFOS REBBI AKIVA EIGER to Shevuos 5:1 and 6:38.)

Tosfos writes, therefore, that the only case in which a Korban will be brought for Shevu'as ha'Pikadon when a person denies owing a Milveh Al Peh (even after the Chachamim took away the rights of Shibud) is a case in which the borrower has no land still in his possession (Bnei Chorin) at the time of his Shevu'ah. (Obviously, if the lender decided to forgo the Shibud, the borrower also will be liable for Shevu'as ha'Pikadon.)