Question: When the witnesses came after the first Shevu'ah and testified that at that time they saw it in his R'shus, they contradict the second Shevu'ah as well - when he swore that it was lost ...

Question (cont.): ... so when he admits after the witnesses, why does he pay the Chomesh, seeing as we learned earlier in a Beraisa (on 106a [See also Mesores ha'Shas]) in the case of 'Where is my Pikadon ... ?' that if he admits of his own volition he pays the Keren plus the Chomesh ...

Question (concl.): ... implying specifically of his own volition (See Hagahos ve'Tziyunim), but that if he does so after witnesses, he is not?

Answer: After Ta'anas Avad, he is Chayav to pay the Chomesh, even if he admits after the witnesses ...

Support: ... as is implied shortly, when the Gemara says 'Indeed, since this Shevu'ah does not obligate him to pay Kefel, why does it not obligate him to pay a Chomesh? From here we see that Mamon that obligates him to pay Kefel, exempts him from the Chomesh ...

Support (cont.): ... thus implying that wherever the admission via the witnesses does not obligate him to pay Kefel - such as where he claims that it is lost, it obligates him to pay a Chomesh, even where he admits after the witnesses?

Clarification: And when the Tana said Hodeh me'Atzmo, that is La'av Davka, because the same applies even where he admits after witnesses ...

Clarification (cont.): ... only since in the Seifa, in connection with 'To'en Ta'anas Ganav', he says 'Hodeh me'Atzmo', he says it also in the Reisha.

Clarification: It seems that the Tana specifically mentions 'Hodeh' first ...

Reason: ... because if he would first deny one of the cows and then admit to one, the witnesses would precede the admission and he would be Chayav Kefel on both scores ...

Reason (cont.): ... since the witnesses who came to testify testified on both.

Reason (concl.): But where he admits to one of them first, even though witnesses arrive afterwards, the Tana holds that he is Patur ...

Proof: ...as is implied in the entire Sugya - that 'Modeh bi'Kenas ve'Achar-kach Ba'u Eidim, Patur'.

Text: We need to erase the word 've'Hodeh' from the text' ...

Reason: ... because, once he admits, it is in his R'shus to be Chayav Onsin from the moment he swears falsely ...

Reason (cont.): ... and if he then claims that it is lost, he will not have denied anything - even if he says that it got lost after the Shevu'ah.

Conclusion: We must therefore conclude that he admitted after the second Shevu'ah.

Question: What is Rav Papa's She'eilah, seeing as it is explicit in the Mishnah cited above (on Daf 106a) - 'If he made him swear five times whether in front of Beis-Din or not in front of Beis-Din, and he denied it, he is Chayav for each and every one'?

Question: How can the Beis-Din obligate him to swear, seeing as he became Patur in the first Beis-Din when he made the first Shevu'ah?

Question (cont.): ... and even if he claimed that it was stolen after the first Shevu'ah, why did they make him swear ...

Question (concl.): ... because, seeing as from the first Shevu'ah that he made falsely he became Chayav be'Onsin; it transpires that when he claimed that it was stolen after the first Shevu'ah, he did not deny anything?

Refuted Answer: We cannot answer by saying that the second Beis-Din made him swear, because they were not aware that he had already become Patur, and that now, since he swore via the Beis-Din who did not know, he is Chayav Kefel ...

Refuted Answer (cont.): ... and that, when the Gemara said earlier (on Daf 107b) that he has already been Yotzei with the first Shevu'ah ...

Refuted Answer (concl.): ... it speaks where it is the same Beis-Din which made him swear, and they erred ...

Refutation: ... since there is no S'vara to differentiate.

Answer: And it speaks where, after the defendant was found to have sworn falsely the first time, the owner of the Pikadon once again asked him to become a Shomer Chinam, like he was before, and once again he claims that it was stolen after he appointed him ...

Answer (cont.): ... and he exempts himself, seeing as he did not become Chayav Onsin, since he specifically made him a Shomer Chinam.

Question: The question remains however, that, if so, it is not 'one lot of money' now that he deposited it by him a second time ...

Question (cont.): ... because what difference does it make whether he takes it in his hand and gives it to him, or whether he does not take it but appoints him a Shomer Chinam whilst he still has it in his possession?

Implied Question: One cannot exempt him on the grounds that he became Pasul before the second Shevu'ah by virtue of the fact that he was found to be a liar from the first Shevu'ah ...

Answer: ... because someone who is suspect on a Shevu'ah is Pasul only mi'de'Rabanan ...

Source: ... as is evident in Shevu'os (Daf 45a)) , where the Mishnah inserts 'Someone who is suspect on a Shevu'ah' - which the Sugya there implies is mi'de'Rabanan ...

Answer (cont.): ... and since mi'd'Oraysa his Shevu'ah is a Shevu'ah, he is Chayav Kefel.

Question: Here Rava holds that even though he troubled the owner to go to Beis-Din, the owner is nevertheless Makneh him the Kefel ...

Question (cont.): ... whereas in Perek ha'Mafkid (Bava Metzi'a, Daf 35a) in connection with 'A man who deposited rings with his friend', Rava says that Rav Nachman was justified in not answering his question, since 'Here he troubled him to go to the Beis-Din, whilst there he did not'?

Answer: It is different there, seeing as he troubled him to go to Beis-Din and did not pay him anything ...

Answer (cont.): ... whereas here, even though he did slightly inconvenience him to go to Beis-Din - by swearing first, nevertheless, he did pay him in the end and did not trouble him to go to Beis-Din - which is why he is Makneh him the Kefel.

Inference: This implies that he admitted to somebody else who is not involved in the case, in which case his admission is invalid.

Question: Why does the Gemara not ask about the Keren itself - even where the witnesses did not arrive - whether his admission is valid or not? Why does it mention that they brought witnesses, thereby implying that it is only asking about the Kefel?

Answer: Because with regard to the Keren, it could not have resolved that what it does now - from 'Im be'Sheker Nishba, Lo Niftar ha'Ganav'.

Question: Rashi asks on the text that reads 'If he swore truthfully, the Ganav ought not to be Patur' - that if so, why does the Gemara ask what the Din will be if he stood up to swear falsely, but they did not let him ...

Question (cont.): Because if where he actually swore falsely, where he is removed from the Beis-Din, since he is no longer obligated, how much more so where he has not sworn, where he remains obligated to swear?

Answer: Some commentaries answer that, since they did not let him swear, he is Mochel him, and the Shomer is Patur as if he would have sworn truthfully.

Answer (cont.): Consequently, he is no longer obligated, and hence the Gemara asks.

Refutation: This is incorrect however, since it is not because they did not allow him to swear that the owner is Mochel him, and this does not let the Shomer off the hook.

Support: The B'hag too Paskens - that even where the owner is Mochel the Shevu'ah to the defendant, he is not Mochel the money completely ...

Support (cont.): ... how much more so where he is not Mochel the Shevu'ah - and it is only temporarily that he does allow him to swear.

Clarification: It would seem that no case of Geneivah is considered an Oneis except for that of armed robbers, as Rashi explains.

Reference: ... and so is evident above, in 'ha'Koneis' (Daf 57a).

Clarification: This refers to the sons and the brothers of the Gazlan - first to his sons, if he has sons ...

Reason: ... since they take precedence over everybody else in the portion to which he is entitled; and he is considered as if he is dead, in which case his sons inherit his portion together with his brothers, who do not inherit because of him, but rather because of their grandfather ...

Source: ... as the Gemara states at the end of 'Mi she'Meis' (Bava Basra, Daf 159a) based on the Pasuk "Tachas Avosecha Yih'yu Banecha".

Conclusion: Consequently, even though their father receives nothing from the property, seeing as he is obligated to return the theft ...

Conclusion (cont.): Nevertheless they are the first to inherit his portion - based on the reason cited in Bava Basra ...

Clarification (cont.): .. or to his brothers, if he has no sons.

Clarification: This means that he borrowed from others against his own Karka, even without an Apotiki (a security) ...

Reason: ... since Karka is Meshu'bad to one's creditor; And he then gives his Karka to his sons or his brothers on account of the theft - assuming that the theft is no longer available ...

Clarification (cont.): ... and the creditors then come and claim it, even though he has other property with which to pay.

Explanation: And it seems that he does he need to declare, when giving the money to his sons or to his brothers, that he is giving it on condition that his creditors will claim it from them ...

Reason: ... since in any event, they are not able to acquire it without his consent.

Conclusion: But if the theft is available, he must either declare that the loan is against the stolen article or make it an Apotiki for the creditor and return it ... (continued on the next page)