Implied Question: One cannot say that we should derive this very point using a Kal v'Chomer (from Shevuas ha'Eidus to Shevuas ha'Pikadon). (Why not?)

Answer: This is because it is possible to say that a Shevuas Bituy (where the law is not the same regarding someone who swears on his own and someone who is sworn by others) would prove this Kal v'Chomer incorrect.

Observation: However, it would seem one could derive this using a Meh Matzinu.

Observation(cont.): It appears that this is why the Gemara asks later, why don't we derive the law regarding someone who is sworn by others from Shevuas ha'Pikadon to Shevuas ha'Eidus? If you will say, on the contrary, we should derive from a Shevuas Bituy, it is more understandable to derive from Shevuas ha'Eidus, due to the following things it has in common with Shevuas Pikadon. They are: It says "Secheta" by both, the case is against another person (as opposed to being against Hekdesh), and the liability comes through a claim and subsequent denial.

Text: Some do not have the text, "And they are in the past" because a Shevuas Bituy according to Rebbi Akiva can also be in the past.

Question: This does not seem accurate. If so, a claim and denial are two different things. This is from the fact that the Gemara says, "These are more." However, the Gemara later shows that this is one thing.

Question(cont.): The Gemara asks, "On the contrary, we should learn from Shevuas ha'Eidus, as it says "Secheta" by both, the case is against another person (as opposed to being against Hekdesh), the sin is a false Shevuah, the liability comes through a claim and subsequent denial, and they both share the fact that the Pasuk says, "Oh" many times when discussing them." The Gemara answers, there are more common elements regarding Bituy. However, if claim and denial are counted as two separate things, this is simply incorrect (math).

Observation: The Gemara implies that Rebbi Acha holds of using assumptions in capital (i.e. death) cases.

Question: This is difficult. The Mishnah in Sanhedrin (37a) says, "How do we intimidate the witnesses?" (This means to show them that their testimony is a serious matter.) "Perhaps you might have assumed what you had seen?" The Gemara there deduces that this implies that regarding monetary matters we do use assumptions. The Gemara asks, who is this like? It is according to Rebbi Acha. This implies that Rebbi Acha is not discussing a capital case!

Answer: It is possible to answer that certainly the Gemara's original thought was that the Mishnah is unlike the Rabbanan, and it therefore said it must be according to Rebbi Acha. The Gemara thought that he must hold that this is only true regarding monetary matters and not capital cases, in order to say that the Mishnah is according to his opinion. However, according to the Gemara's conclusion that the Mishnah is according to the Rabbanan, it is possible that Rebbi Acha holds that this is even true regarding capital cases.

Question: However, there is another difficulty. The Gemara implies that because he holds this is correct regarding monetary matters, he also holds it is correct regarding capital cases. (This is why it asked, "If he holds like Rav Acha etc.") If so, even if we do not hold like Rebbi Acha, we can still say that we do use assumptions according to everyone, even in capital cases. For example, if there was a bite mark on his face and the membrane of his brain was pierced, even the Rabbanan agree that this assumption is valid. This is apparent from the Gemara later (46b) that gives the example of having a bite mark on one's back, and between his elbows or armpit (see Rashba in Shabbos 92a regarding the definition of this word).

Answer: It is possible to answer that the Gemara could have said, "And according to your reasoning." (The question was not based on the fact that this is true regarding monetary matters.)

Explanation: This person was a scholar. This is according to the opinion that such a person does not require warning.

Implied Question: This is despite the fact that the body was convulsing and there was the possibility that the wind was causing him to die, as he was in a ruin. Even so, he would not have been exempt for this reason. (Why not?)

Answer: Specifically regarding exile we say that such a person is exempt, as stated in Yevamos (120b). This is because there are extra Pesukim regarding Galus, as the Torah states many times, "And he will on him and he will die." However, regarding being killed for murder he would not be exempt due to these circumstances.

Proof: You should know that this is true, as we say in Sanhedrin (78b) that they would put the assailant in prison (until it would become apparent if his victim would survive or die).

Implied Question: However, one could say that the Gemara in Sanhedrin (ibid.) is not proof to this concept, as we could say the case is where he hit him in a marble house and he did not convulse. (There is therefore no other reason he could have died.)

Observation: This is also what must be according to the opinion in Kesuvos (33b) that says the Pasuk is discussing an accidental death, and that "v'Nikah" -- "and he will be cleansed" refers to him being exonerated from having to be exiled. (In other words, there is no proof from the Gemara in Sanhedrin (78b), as this opinion understands this is talking about accidental death, not murder.)

Question: This is difficult, as we follow Rov when it comes to trying murderers! We derive this from in Chulin (11b) from the fact that we do not suspect that perhaps there was already a hole in the place when a murderer inserted the sword.

Answer: It is possible to answer that the case is where there was clearly one Treifah and one healthy person in front of us. We must know which one of them he killed.

Explanation#1: If they were inside, they would know if he was paying back money or lending him money.

Explanation#2: Rashi explains that being that they were outside, the defendant did not know they were there. (The Cheishek Shlomo explains at length that Rashi and Tosfos have a practical argument, not just two different understandings of how the case happened.)

Question: In Bava Metzia (3a), the claimant says that the defendant owes him a Manah, while the defendant claims that he does not owe anything. The witnesses testify that the defendant owes fifty (half of the amount claimed). The defendant must pay half, and swear that he does not owe the rest. Why don't we say according to our Gemara that he is considered to have the status of a liar and therefore must pay the entire amount? It would seem that testimony that he owes fifty should not be worse than our case where witnesses testified he had in fact went to the bathroom by that pole.

Answer: In our case, when he says that he never passed by this pole, the implication is that if I ever did pass by the pole I am liable. This is why he is considered to deny everything when witnesses testify he had in fact when to the bathroom by that pole. However, in the Gemara there he was only found to be denying that he owed fifty, and he is indeed paying these fifty.

Question: This is difficult. Perhaps when Rebbi Shimon says that they made someone sworn by others to have the same law as someone who swears on his own regarding Shevuas ha'Eidus, this is because it is true after we have the Gezeirah Shaveh. As long as we do not have the Gezeirah Shaveh, we cannot derive this through a Mah Matzinu. This is because we can ask that regarding Pikadon women are like men (as opposed to Shevuas ha'Eidus where the Shevuah is only relevant to men).

Explanation: This means that we should derive using a Mah Matzinu, as we explained earlier.

Question: As long as we do not know here (at this point in the Gemara) that a person who does this on purpose is like one who does so by accident, how can we derive this? One can ask that regarding Shevuas ha'Eidus we consider doing so on purpose like doing so by accident (as opposed to Shevuas ha'Pikadon)!

Answer: It is possible to answer that now we are asking both questions. However, it only stated the first question (that one who is sworn is unlike one who swears himself, without stating that accidental is unlike on purpose regarding Shevuas ha'Eidus).

Question: This is difficult. How can Shevuas Pikadon be compared to Shevuas ha'Eidus? Shevuas ha'Eidus is stated next to Shevuas Bituy and Tumas Mikdash v'Kadashav where the Pasuk says, "v'Nelam" -- "it was hidden." It does not say, "v'Nelam" regarding Shevuas ha'Eidus (implying accidental is equivalent to on purpose regarding Shevuas ha'Eidus).

Question(cont.): It cannot be said that the Gemara did not realize this until the end of the Gemara, as it says later, "Instead of deriving from Meilah, we should derive from Eidus." This implies that it is obvious to the Gemara that regarding Eidus it is more clear that accidental is like on purpose than it is by Pikadon for this reason (that the Torah specifically leaves out "v'Nelam" though it is stated by Bituy and Tumas Mikdash nearby).

Answer: However, it is possible to answer that the reason the Gemara understands accidental is like on purpose regarding Eidus more than Pikadon is because one cannot derive Eidus from Meilah like one could derive Pikadon from Meilah, as Eidus is not similar to Meilah.

Explanation: As long as we do not hold of the Gezeirah Shaveh of "Secheta," there is more reason for us to derive from Meilah using a Mah Matzinu, as there are more things in common regarding Meilah and Pikadon than Eidus and Pikadon. However, after we hold of the Gezeirah Shaveh, we derive from Eidus even though Pikadon has more in common with Meilah. This is as we say in Kerisus (9a) that a Gezeirah Shaveh is better. "Meilah from Meilah" (stated earlier in the Gemara) is not a Gezeirah Shaveh.

Question: This is difficult. Being that Rebbi Shimon derives a Gezeirah Shaveh, how does Rava bar Isi quoted later know that the Tana who holds that one who falsely takes a Shevuas Pikadon on purpose cannot atone is Rebbi Shimon? There is no such thing as a halfway Gezeirah Shaveh! Even if he had a tradition that this is true, the Gemara should ask why Rebbi Shimon holds this way!

Answer: Perhaps he (Rebbi Shimon) holds that "Meilah from Meilah" is a Gezeirah Shaveh.