[5a - 39 lines; 5b - 46 lines]
1)[line 2]כל קרקע הילך הואKOL KARKA HEILACH HU!- all land is presented in its current state [since it cannot be stolen, lost, or destroyed]!
2)[line 4]דחפר בהCHAFAR BAH- he dug in [the land, thereby changing its state]
3a)[line 4]בורותBOROS- round wells
b)[line 4]שיחיןSHICHIN- elongated ditches [used for water storage]
c)[line 4]ומערותME'AROS- caves [used for water storage]
4)[line 5]והודה בכליםHODAH B'CHELIM- he admitted to the utensils [which are not necessarily "Heilach"]
5)[line 6]ארבעה שומרין צריכין כפירה במקצת והודאה במקצתARBA'AH SHOMRIN TZERICHIN KEFIRAH B'MIKTZAS V'HODA'AH B'MIKTZAS (ARBA'AH SHOMRIM: MODEH B'MIKTZAS)
(a)There are "Arba'ah Shomrim" ("Four Custodians") - four classes of those who guard the item of another. Their level of responsibility for the object they guard varies according to what, if anything, they receive from the agreement.
(b)There are four classifications of damages that can occur to an item. These are:
1.PESHI'AH - damage incurred through negligence
2.GENEIVAH O AVEIDAH - theft or loss
3.ONES - damage incurred through an unavoidable accident
4.MESAH MACHMAS MELACHAH - death as a result of normal, expected use
(c)The four Shomrim and the degree of responsibility for which they are held accountable are:
1.SHOMER CHINAM - one who guards an item and receives no compensation. He is liable to pay for damages only in the case of Peshi'ah. He is exempt in the case of Geneivah or Aveidah, and certainly in that of Ones. A Shomer Chinam has no permission to use the item that he is guarding; if he does so, he is responsible even for Onsim.
2.SHO'EL - one who borrows an item with intent to utilize it. He is liable to pay for damages in cases of Peshi'ah, Geneivah or Aveidah, and Ones. He is exempt only in a case of Mesah Machmas Melachah, or if the damage was incurred while the owner of the item was working for the borrower ("Be'alav Imo").
3.NOSEI SACHAR or SHOMER SACHAR - one who receives compensation for guarding an item. He is liable to pay for damages in cases of Peshi'ah and Geneivah or Aveidah, but not in a case of Ones. A Shomer Sachar has no permission to use the item that he is guarding; if he does so, he is responsible even for Onsim.
4.SOCHER - one who rents an item. Rebbi Meir rules that his level of responsibility is identical to that of a Shomer Chinam. Rebbi Yehudah maintains that his level is equal to that of a Shomer Sachar.
(d)When a Shomer claims that he is exempt from paying damages since they occurred in a manner for which he is not accountable, he is not exempt until he supports his claim with an oath. A Shomer Chinam, for example, may swear that he was not negligent; a Shomer Sachar may swear that the item was Ne'enas; and a Sho'el may swear that he was not negligent in guarding the item. In addition, a Shomer Chinam and a Shomer Sachar must swear that they had not used or taken the item that they were meant to guard (Shemos 22:6-14; Bava Metzia 93a). Mid'Rabanan, these Shomrim must also swear that the item in not currently in their possession (34b).
(e)Rami bar Chama maintains that mid'Oraisa, the four Shomrim are required to take an oath only under specific circumstances. The Halachos of Modeh b'Miktzas ha'Ta'anah (see Background to 3:28) are derived from words written in the Parshah of the four Shomrim (Shevu'os 39b). Rami bar Chama therefore understands that the conditions of Modeh b'Miktzas ha'Ta'anah apply to the Shomrim as well. This would be possible only if the Shomer denies that he ever received part of what the owner claims he deposited, admits to owing another part, and claims that he is exempt from paying for a third part. This case is presumably one in which he was asked to take care of three cows. When the owner requests them back, the Shomer claims that he only received two, and offers back one of them as requested. He them claims that the remaining one died as a result of an Ones (or Geneivah or Aveidah if he was a Shomer Chinam).
6)[line 8]שומר חנם, והשואל, נושא שכר, והשוכרSHOMER CHINAM, VEHA'SHO'EL, NOSEI SACHAR, VEHA'SOCHER- see previous entry
7)[line 11]חדא, לא היו דברים מעולםCHADA, LO HAYU DEVARIM ME'OLAM- one of them I never received (lit. never existed)
8)[line 13]דבעינא שלומי לךD'BA'INA SHELUMEI LACH- for which I must pay you
9)[line 14]אבוה דרבי אפטוריקיAVUHA D'REBBI AFTORIKI- the father of Rebbi from Aftoriki
10)[line 14]לדרבי חייא קמייתאLED'REBBI CHIYA KAMAISA- [that poses a contradiction to] the first [Halachah cited in the name of] Rebbi Chiya (namely, that when witnesses testify that a creditor owes half of a debt that he had completely denied, he must swear that he does not indeed owe the rest; 3a)
11)[line 17]יכולYACHOL- I might have thought
12)[line 17]"... עַל כָּל אֲבֵדָה אֲשֶׁר יֹאמַר, 'כִּי הוּא זֶה', [עַד הָאֱלֹקִים יָבֹא דְּבַר שְׁנֵיהֶם; אֲשֶׁר יַרְשִׁיעֻן אֱלֹקִים יְשַׁלֵּם שְׁנַיִם לְרֵעֵהוּ]""... AL KOL AVEIDAH ASHER YOMAR, 'KI HU ZEH', [AD HA'ELOKIM YAVO DEVAR SHENEIHEM; ASHER YARSHI'UN ELOKIM YESHALEM SHENAYIM L'RE'EIHU]"- "... regarding any loss about which he will say, 'This is how it was', [to the judges their litigation shall come; he whom the judges convict shall pay double to his fellow]" (Shemos 22:8). Although this verse is written regarding a Shomer Chinam (see above, entry #5), Chazal derive the Halachos of Modeh b'Miktzas ha'Ta'anah from the words "Ki Hu Zeh" (Shevu'os 39b).
13)[line 20]מתניתא קא רמית עליה דר' חייא?MASNISA KA RAMIS ALEI D'REBBI CHIYA?- you are posing a contradiction to the opinion of Rebbi Chiya from a Beraisa?
14)[line 20]ר' חייא תנא הוא ופליגREBBI CHIYA TANA HU U'PALIG - Rebbi Chiya May Argue with Tana'im
(a)Mishnayos, Beraisos, and Toseftos were authored by Tana'im. The commentary on the Mishnayos, called the Gemara, was authored by Amora'im. Together, these texts constitute the main body of the Oral Torah. Since the Tana'im (as a group) lived many years before the Amora'im, they were the greater Torah authorities. Therefore, an Amora cannot disagree with a Tana unless his opinion is shared by a different Tana. As such, the Gemara will often attempt to disprove the statement of an Amora from a Mishnah, Beraisa, or Tosefta. If no other Tana is known to share the opinion of the Amora, the Gemara will either explain the statement of either the Tana or Amora in such a way that they are not contradictory, or it will conclude that the opinion of the Amora has been disproved.
(b)Rav was a first-generation Amora. Although he was a contemporary and Talmid of Rebbi (Rebbi Yehudah ha'Nasi), who organized the Mishnayos and is quoted extensively within, the opinion of Rav is never found in a Mishnah or Beraisa. The Gemara therefore poses questions on his opinions from these texts. If possible, the Gemara will find a Tana who agrees with Rav or will otherwise explain the contradiction away. However, the Gemara will never conclude that Rav is incorrect. This is because "Rav Tana Hu u'Palig" - "Rav has the status of a Tana and may disagree [with them]." In certain instances, Rav clearly disagrees with Tana'im (see, for example, Bava Basra 175b).
(c)TOSFOS DH Rav maintains that Rebbi Yochanan, at least, did not agree with this classification of Rav, for otherwise he would never have disagreed with him. (The KOVETZ SHI'URIM to Bava Basra 170b argues that Rav Sherira Ga'on disagrees with Tosfos and understands that Rebbi Yochanan agreed that Rav had the ability to disagree with Tana'im.)
(d)Six times throughout Shas, Rav is described as a Tana. Our Gemara uses this argument in defense of Rebbi Chiya, and the Gemara in Shabbos (64b) applies it to Rebbi Yishmael b'Rebbi Yosi (whose father was the Tana, Rebbi Yosi). As is true regarding Rav, Rebbi Chiya and Rebbi Yishmael b'Rebbi Yosi were Talmidim of Rebbi Yehudah ha'Nasi.
15)[line 25]ואידךV'IDACH- and the other (namely, Rebbi Chiya) [would contend]
16)[line 25]למודה ממין הטענהMODEH MI'MIN HA'TA'ANAH- [that which one must swear in a case of Modeh b'Miktzas is only when] his admission is to that type of item which the claim was made upon
17)[line 28]פטורPATUR- he is exempt [from paying even for the barley to which he admitted, since there was no claim upon it]
18)[line 29]רעיאRAYA- a shepherd
19)[line 29]מסריMASREI- they would give
20)[line 29]חיותא בסהדיCHEIVASA B'SAHADEI- animals in front of witnesses [while stipulating that he must return them in front of witnesses as well (TOSFOS DH Masrei)]
21)[line 33]אם איתאIM ISA- lit. if it exists; i.e., if it is correct
22)[line 34]אשאראA'SHARA- on the rest [of the claim (in this case, the rest of the flock)]
23)[line 35]והא גזלן הוא!HA GAZLAN HU!- he is a thief [and therefore disqualified as a witness]! (see Background to 4:10)
24)[line 35]שכנגדוSHEKE'NEGDO (HIPUCH SHEVU'AH)
(a)Should one be obligated to take an oath mid'Oraisa, but he is unable to since he has been established as a Rasha (see Background to 4:10), then an enactment of the Chachamim states that the claimant shall take the oath. Therefore, in a case of Modeh b'Miktzas, if the defendant is a known thief, the claimant ought to swear that he is owed the full amount and then collect.
25)[line 35]קאמינאKA'AMINA- is what I meant to say
26)[last line]שבועת היסתSHEVU'AS HESES - A Rabbinically Enacted Oath
(a)Mid'Oraisa, one must swear only when he partially admits to a claim that he owes money to another. This is because he is assumed to be loathe to be so brazen as to deny the entire loan, and yet he wishes to buy time to come up with the money (see Background to 3:28).
(b)Rav Nachman teaches that the Rabanan enacted that one must swear even though he has denied the entire claim. This is because we may also assume that one does not claim that another owes him money when it is not true. We suspect therefore that that which the defendant denies the entire claim is not a true denial, but rather an attempt to buy time (Shevu'os 40b). Such a Shevu'ah is termed a Shevu'as Heses, since the Chachamim have "swayed" (Hisis) him to take it.
(c)A Shevu'as Heses is taken even upon real estate, even though as a general rule one does not swear upon land (TOSFOS to Bava Metzia 6a DH Ela, citing Rav Hai Ga'on).
27a)[last line]דרב נחמן תקנתא היאD'RAV NACHMAN TAKANTA HI- (the Gemara answers) that [Shevu'ah] of Rav Nachman is a Rabbinic enactment
5b----------------------------------------5b
b)[line 1]ותקנתא לתקנתא לא עבדינןV'TAKANTA L'TAKANTA LO AVDINAN- and we do not institute an enactment (namely, that the claimant should take the oath) on top of another enactment (namely, a Shevu'as Heses)
28)[line 1]ותיפוק ליהV'TEIPOK LEI- lit. and bring it out from; i.e., why did Abaye not ask that the defendant not be able to take the oath ...?
29)[line 2]סתם רועה פסולSTAM RO'EH PASUL- a shepherd is assumed to be unfit [as a witness due to that which he is a thief, since he grazes animals in the fields of others]
30a)[line 3]הא דידיהHA DIDEI- that [which a shepherd is presumed fit as a witness is when he herds] his own [animals]
b)[line 3]הא דעלמאHA D'ALMA- that [which a shepherd is presumed unfit as a witness is when he herds the animals] of others
31)[line 5]"... [וְ]לִפְנֵי עִוֵּר לֹא תִתֵּן מִכְשֹׁל...""... [V']LIFNEI IVER LO SITEN MICHSHOL..." - The Prohibition Against Leading Another Astray (LIFNEI IVER)
(a)The verse states, "... and do not place an obstacle in front of a blind person..." (Vayikra 19:14). Aside from the simple meaning of the verse, Chazal explain that this verse teaches that one may not give bad advice to a trusting individual, or place another in a situation in which he will be tempted to sin (see, for example, 75b and Pesachim 22b).
(b)Some Rishonim explain that these additional prohibitions are Rabbinic in nature, and that the verse is merely an allusion.
32)[line 6]חזקה אין אדם חוטא ולא לוCHAZAKAH EIN ADAM CHOTEI V'LO LO- we may presume that one does not [normally] sin if he gains nothing [from it]
33)[line 7]על דאית ליה משתבע, או על דלית ליה משתבע?AL D'IS LEI MISHTABA, O AL D'LEIS LEI MISHTABA?!- lit. does he swear [positively] upon that which he owns (i.e., half of the Talis], or does he swear [negatively] upon that which he does not own (i.e., less than half of the Talis)? [This oath appears to do little to discourage a thief! The oath that he "owns not less than half" does not imply an untruth unless he has a stake in the Talis, but it is less than half; if he indeed owns no part of the Talis, he has not sworn falsely.]
34)[line 11]ומי יהבינן ליה כולה?U'MI YAHAVINAN LEI KULA?- (the Gemara answers) and would we give him all of it [if he took such an oath? Since Beis Din would not, instructing each of them to take such an oath would make Beis Din look bad.]
35)[line 12]מרע ליה לדיבוריהMARA LEI L'DIBUREI- [if he would take such an oath] he contradicts his [earlier] claim [that the Talis completely belongs to him]
36)[line 12]השתא נמי מרע ליה לדיבוריה!HASHTA NAMI MARA LEI L'DIBUREI!- now [that he swears that he has a share that is no less than one half] he also contradicts his [earlier] claim [since his oath also implies that he owns no more than half]!
37)[line 13]דאמר...D'AMAR...- (the Gemara answers) [the reason why his oath does not contradict his earlier claim is that] he says...
38)[line 19]מיגו דחשיד אממונא, חשיד נמי אשבועתאMIGU D'CHASHID A'MAMONA, CHASHID NAMI A'SHEVU'ASA- since he is suspected of [stealing] money, he is also suspected of swearing [falsely]
39)[line 20]לא אמרינן מיגו דחשיד אממונא חשיד אשבועתאLO AMRINAN MIGU D'CHASHID A'MAMONA CHASHID A'SHEVU'ASA- we do not say [that] since he is suspected of [stealing] money he is suspected of swearing [falsely, since people take the prohibition against swearing falsely more seriously that that against stealing money]
40)[line 32]משכחנא לגנב ותפיסנא ליהMASHKACHNA L'GANAV V'TAFISNA LEI- I will find the thief and I will seize it [back to its owner]
41)[line 33]משכחנא ליה באגם ומייתינא ליהMASHKACHNA LEI B'AGAM U'MAISINA LEI- I will find it in the swamp and bring it [back to its owner]
42)[line 36]דבחשנאBACHASHNA- I search
43)[line 38]דההיא שעתאHA'HI SHAITA- at that time [that he swore in denial]
44)[line 39]דהוה נקיט ליה בידיהHAVAH NAKIT LEI B'YADEI- lit. he was holding it in his hand; i.e., it was in his possession (see Insights)
45)[line 40]משביעין אותו שבועה שאינה ברשותוMASHBI'IN OSO SHEVU'AH SHE'EINAH BI'RESHUSO- we require him to take an oath that it is not in his possession [mid'Rabanan (see above, entry #5:d)]
46)[line 43]מורהMOREH- [we can assume that] he rationalizes
47)[line 43]דמי קא יהבנא ליה!DAMEI KA YAHAVNA LEI!- I gave him money [to pay for his item]!
48)[line 45]והא קא עבר על לא ד"לֹא תַחְמֹד"!HA KA AVAR AL LAV D"LO SACHMOD"! - but he has transgressed the sin of avarice! (LO SACHMOD)
(a)One who covets the property of his fellow Jew and decides to attempt to convince him to sell transgresses the prohibition of "Lo Sis'aveh" - "do not desire" (Devarim 5:18; second Dibros).
(b)One who covets the property of his fellow Jew and entreats him to sell it to him until he acquiesces transgresses the prohibition of "Lo Sachmod" - "do not covet" (Shemos 20:14; first Dibros). This is true even if he pays an exorbitant sum for the item. (According to the gloss of the RA'AVAD to Hilchos Gezeilah 1:9, one does not transgress Lo Sachmod when the seller clearly states that he consents to the sale.)
(c)One is not liable to receive Malkus (lashes) for transgressing either of these sins, since they are characterized by a feeling of avarice. Since one receives Malkus only for a sinful action, this desire is not enough for him to be liable (RAMBAM ibid.; see RA'AVAD, however, who gives a different rationale).
(d)Even Lo Sis'aveh is a grave sin, since one who desires the property of another will likely come to attempt to convince him to sell it (Lo Sachmod). If the owner does not agree to sell, he will likely then attempt to steal it (Lo Tignovu; Vayikra 19:11). If the owner then tries to prevent him from stealing the item, he may then come to kill him (Lo Sirtzach; Shemos 20:13) (RAMBAM ibid. 1:12).
49)[last line]"לֹא תַחְמוֹד" לאינשי בלא דמי משמע להו"LO SACHMOD" L'INSHEI "B'LO DAMEI" MASHMA LEHU- people assume that the prohibition of Lo Sachmod applies only when one does not pay money