QUESTIONS: Rebbi Chiya teaches that one is obligated to swear when witnesses testify that he owes half of the amount of money that his opponent claims. The Gemara derives Rebbi Chiya's ruling from a Tzad ha'Shaveh from Hoda'as Piv and Ed Echad. The Gemara asks that Rebbi Chiya's ruling should not be derived from this Tzad ha'Shaveh, since neither Hoda'as Piv nor Ed Echad makes the defendant "Huchzak Kafran," whereas when two witnesses testify that he owes half of the claim he is "Huchzak Kafran."

The Gemara answers that even when two witnesses contradict his word regarding the loan (and he is a "Kofer b'Milveh"), he retains the status of a valid witness. Therefore, even when witnesses testify against him he is not "Huchzak Kafran."

There are a number of questions on this Gemara.

(a) Why does the Gemara state that the person is not "Huchzak Kafran" when he is contradicted by an Ed Echad? Obviously, since Beis Din makes the defendant swear, Beis Din suspects that he is lying and anticipates that the fear of a Shevu'ah will motivate him to admit the truth. Accordingly, it is clear that Beis Din suspects him of lying and nevertheless requires him to swear! Why is this different from a case in which he is contradicted by the testimony of two witnesses?

(b) RASHI himself writes at the beginning of the Sugya (3b, DH d'Leika l'Meimar Hachi) that a person who is "Kofer ba'Kol" (denies owing everything) is suspected of stealing, and therefore Beis Din cannot make him swear because he may swear falsely. The same logic should apply to a person who is contradicted by an Ed Echad: since he was "Kofer ba'Kol," Beis Din should suspect him of stealing because he is not merely stalling for time, and therefore Beis Din should not be able to accept his Shevu'ah! Not only is the Gemara difficult to understand (because it says that an Ed Echad does not make him "Huchzak Kafran"), the Halachah of the Torah that an Ed Echad makes the defendant swear is difficult to understand if every "Kofer ba'Kol" is suspected of swearing falsely! (MAHARI KATZ, 3b)

(c) The Gemara concludes that when two witnesses obligate a person to pay half of the claim, the defendant is not "Huchzak Kafran" because every person who denies owing a loan ("Kofer b'Milveh") retains his status as a valid witness to testify in other cases ("Kasher l'Edus") since he might merely be stalling for time. Accordingly, if witnesses testify in court about an object that the defendant is holding and they say that half of it belongs to someone else, the defendant should not be able to make a Shevu'ah since he is "Kofer b'Pikadon." One who denies owing a Pikadon is disqualified from giving testimony, and he may not make a Shevu'ah. However, the case in the Mishnah from which Rebbi Chiya derives his ruling discusses just such a situation: the "Anan Sahadei" testifies that half of the garment that a person is holding does not belong to him! How, then, can the defendant swear in such a situation? (PNEI YEHOSHUA, NACHALAS DAVID)

(a) There are two types of people who are "Chashid a'Mamona," suspected of stealing money. The first type is a person suspected of stealing a particular object for which he is brought to court to swear in order to attest to his ownership. Such a person has never been caught stealing an object in the past. Beis Din makes him swear now simply because he is suspected of trying to steal this object. This type of suspicion is the subject of the Gemara's discussion later (5b) regarding whether or not a person who is "Chashid a'Mamona" is also "Chashid a'Shevu'asa," and this is the type of person to whom Rashi refers (on 3b) when he writes that a person who is "Chashid a'Mamona" is also "Chashid a'Shevu'asa."

The second type of "Chashid a'Mamona" is a person who has been proven in the past to have attempted to take an object that was not his, such as when two witnesses testified that the person denied a loan or stole money in the past. Since it has been confirmed that this person is a thief, Beis Din has greater reason to suspect that he will steal again, and that he will even swear falsely to attain his goals. It is to such a person that the Gemara refers when it uses the words "Huchzak Kafran."

The Rishonim (RABEINU YEHUDAH HA'CHASID cited by Tosfos to 5b; see also TOSFOS RABEINU PERETZ here) explain that a person in this second category is suspected of swearing falsely even according to those who maintain that one who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa." The reason for this is that a person who has not yet stolen money might refrain from stealing for the first time because of the fear of making a false Shevu'ah. Once a person has already stolen (even if he was forced by Beis Din to return what he stole), he is more brazen and might even swear falsely in order to steal again. This is why the Gemara states that a person who is contradicted by an Ed Echad is not "Huchzak Kafran," while a person who is proven by witnesses to have lied with regard to half of a loan is "Huchzak Kafran" and should not be allowed to swear with regard to the second half of the loan.

(b) Although Rashi rules that a person who is "Chashid a'Mamona" is "Chashid a'Shevu'asa" (see Insights to 3b), at this point the Gemara assumes that the Tzad ha'Shaveh can prove that anyone who is "Chashid a'Mamona" is not "Chashid a'Shevu'asa." This is why the Gemara suggests that until a person is "Huchzak Kafran" Beis Din allows him to swear even though he is "Chashid a'Mamona."

According to Rashi, the Gemara concludes that a person who is "Chashid a'Mamona" indeed is "Chashid a'Shevu'asa." However, if witnesses prove a person guilty of lying in court when he was "Kofer ba'Kol," Beis Din does not consider him "Chashid a'Mamona," since he might merely be stalling for time (see MAHARI KATZ, 3b). (This logic applies only when witnesses obligate him to pay, according to Rashi; if Beis Din does not know that there are witnesses, Beis Din considers a person who is "Kofer ba'Kol" to be "Chashid a'Mamona," as explained in Insights to 3b in the name of the Ritva.)

According to Rashi, an Ed Echad also can make a person swear only where the person is not "Chashid a'Mamona" and where he might be stalling for time, such as when he was guarding an object for someone and the object was lost (see Insights to 6a).

According to the first answer of TOSFOS (5b, DH d'Chashid), even if a person is "Huchzak Kafran" for lying in the past, he still is permitted to swear mid'Oraisa. According to Tosfos, it is not clear why the Gemara assumed that when two witnesses testify against the defendant and make him "Huchzak Kafran" that he should not be able to swear mid'Oraisa.

It seems that according to Tosfos, the Gemara simply is suggesting a Pircha for the Tzad ha'Shaveh, saying that Ed Echad and Hoda'as Piv have something in common which the testimony of two witnesses does not have, and therefore those two Halachos cannot teach that a person must swear when two witnesses testify that he is obligated to pay half of the claim. (MAHARI KATZ cited by the Shitah Mekubetzes to 3b; see Tosfos to 5a, DH Iy Isa.)

(c) The straightforward answer seems to be that the Gemara indeed could have asked such a question to refute Rebbi Chiya's source from the Mishnah. Instead, it refutes Rebbi Chiya's assertion of his source from the Mishnah by pointing out that in the case of the Mishnah, the testimony shows not only that each claimant does not own the other half of the garment, but that each does own the half he is holding. (The RASHBA (3a) offers a similar answer to another question he asks on how the Mishnah can serve as the basis for Rebbi Chiya's ruling.)

Some Acharonim answer that although the each claimant's grasp of half of the object is equivalent to the testimony of witnesses that each owns half ("Anan Sahadei") with regard to the Halachah of "Modeh b'Miktzas," nevertheless it is not strong enough to give the other claimant the status of a liar ("Huchzak Kafran"). The "Anan Sahadei" is not as strong as actual testimony of witnesses who testify against a person's claim. Therefore, in the case of the Mishnah, the claimants are not "Huchzak Kafran."

Although the claimants in the case of the Mishnah are not "Chashid a'Mamona" to the extent that a person against whom witnesses testified is "Chashid a'Mamona," nevertheless Rebbi Chiya proves from the Mishnah that a person may make a Shevu'ah when witnesses testify against him. His proof is that since, in the case of the Mishnah, Beis Din does not give the claimants the status of "Huchzak Kafran" because the "Anan Sahadei" is not strong enough proof against each one, Beis Din also does not the status of "Huchzak Kafran" to a person who denies owing a loan when witnesses testify against him, since it is possible that he merely is stalling for time. (PNEI YEHOSHUA, NACHALAS DAVID)

Alternatively, the Gemara earlier (2b) explains that even when a person is not suspected of stealing, he is suspected of making a claim to a lost object that his friend found. The reason for this is that he might be "Moreh Heter," allowing himself to seize the item from his friend's possession, saying that since his friend did not pay anything for the item, he may take it. Similarly, when his friend bought a garment, a person who is not a thief might be "Moreh Heter" and take a garment that his friend bought when both he and his friend paid the seller and the seller agreed to sell it to his friend. He will allow himself to take it, saying that he is entitled to it since he paid money for it, even though the seller agreed to sell it to his friend. He reasons that his friend can go and buy another one from someone else. Perhaps the Gemara understands that when a person steals by being "Moreh Heter," he is not "Chashid a'Shevu'asa" (see Insights to 5b). That is why the claimants in the case of the Mishnah are not considered "Huchzak Kafran" even though each one denies his friend's ownership of the part of the object that is in his hands.

QUESTIONS: The Gemara records a dispute between Rebbi Chiya and Rav Sheshes regarding whether one is obligated to swear in a case of "Heilach," where one admits that he owes part of a loan and pays it in court at the time of the claim. Is such a case considered a normal case of "Modeh b'Miktzas," and the defendant must swear about the part that he denies owing, or is the part that he paid now ("Heilach") considered no longer part of the claim, and it is now considered as though he is "Kofer ha'Kol"?

The Gemara cites proof for the view of Rav Sheshes that "Heilach" is exempt from a Shevu'ah. If a person shows a Shtar which states that someone borrowed from him "a number of Sela'im" but the number is not specified, and the lender claims that he lent five and the borrower claims that he borrowed only three, Rebbi Akiva exempts the borrower from a Shevu'ah of "Modeh b'Miktzas" since he could have exempted himself from a Shevu'ah by saying that he owes only two. Rebbi Shimon ben Elazar disagrees and maintains that the borrower still must swear because it is still considered an ordinary case of "Modeh b'Miktzas."

Why does Rebbi Shimon ben Elazar exempt the borrower from a Shevu'ah when he claims that he owes only two? It must be that those two Sela'im are considered "Heilach" since they are written in the Shtar, and what is written in the Shtar is considered as though it is being paid outright (since a person's land is Meshubad to pay it).

RASHI (DH Eino Ela) explains that according to Rebbi Akiva, the reason why the borrower is exempt from a Shevu'ah when he claims that he owes only two is that the Shtar supports his claim, since had he borrowed more than two the amount would have been written explicitly in the Shtar.

Why does Rashi explain that the reason why Rebbi Akiva exempts the borrower from paying when he says that he owes two is that the Shtar supports his claim? He should explain that the reason the borrower is exempt is that when he says that he owes two, it is considered "Heilach," as the Gemara explains according to Rebbi Shimon ben Elazar! (PNEI YEHOSHUA)

Also, why does Rashi explain that Rebbi Akiva exempts the borrower from a Shevu'ah because the Shtar supports his claim? When the Gemara rejects this proof that "Heilach" is exempt, it offers two reasons to exempt the borrower from a Shevu'ah when he says that he owes two -- either because the Shtar supports his words, or because a Shtar is considered like Karka (land) and one does not make a Shevu'ah on Kefiras Shibud Karka'os. Why does Rashi not say that Rebbi Akiva exempts the borrower from a Shevu'ah either because the Shtar supports him or because it is a Kefirah of a Shibud Karka'os?

Finally, if the Gemara knew that Rebbi Akiva exempts the borrower from a Shevu'ah when he says that he owes two because the Shtar supports his claim, then why did the Gemara think that Rebbi Shimon ben Elazar exempts the borrower, when he admits to owing two, from a Shevu'ah for a different reason -- because it is "Heilach"? Perhaps he, too, exempts the borrower because the Shtar supports his claim, as the Gemara itself concludes when it rejects the proof from Rebbi Shimon ben Elazar's view! (RAMBAN)

ANSWER: Rashi indeed could have explained that Rebbi Akiva exempts the borrower from a Shevu'ah when he admits that he owes two because of "Heilach." However, that would not suffice to explain why Rebbi Akiva exempts the borrower from a Shevu'ah when he admits to owing three, for a number of reasons:

1. If "Heilach" is exempt from a Shevu'ah, then why does Rebbi Shimon ben Elazar not exempt the borrower from a Shevu'ah when he admits the he owes three because of a "Migu" of "Meshiv Aveidah," as Rebbi Akiva rules?

Two approaches to this question are given by the Rishonim. TOSFOS (4a, DH u'Shema Mina) explains that if "Heilach" is exempt from a Shevu'ah because "Heilach" is tantamount to "Kofer ha'Kol," then the borrower must be very brazen in order to claim that he owes only two, as in every case of "Kofer ha'Kol." For this reason, when the borrower admits that he owes three, he does not have a "Migu" that he could have claimed that he owed only two, as in every case of "Modeh b'Miktzas."

TOSFOS RABEINU PERETZ does not seem to accept the logic of Tosfos. Even though "Heilach" is judged by Halachah as "Kofer ha'Kol" and is exempt from a Shevu'ah, the claim of "Heilach" does not require the gross brazenness of a person who is "Kofer ha'Kol." Why should it take more brazenness to pay the amount that he admits that he owes, than to owe the amount that he admits that he owes (NACHALAS DAVID)? Even if admitting to two is considered "Heilach," when the borrower admits that he owes three he should be considered "Meshiv Aveidah."

Tosfos Rabeinu Peretz therefore explains that when the lender brings proof (witnesses or a Shtar) that the borrower owes part of the loan, it requires brazenness for the borrower to admit only to what was proven. Therefore, admitting that he owes only two -- after the lender brought a Shtar to court to that effect -- requires brazenness, just as "Kofer ha'Kol" requires brazenness. That is why Rebbi Shimon ben Elazar does not exempt the borrower from a Shevu'ah when he admits that he owes three, for he is not considered "Meshiv Aveidah." (Tosfos (4b, DH l'Olam) also gives this explanation according to the Gemara's conclusion.)

According to both of these explanations, Rebbi Shimon ben Elazar has strong reason for not considering the borrower to be "Meshiv Aveidah" when he admits that he owes three. Why, then, does Rebbi Akiva argue and consider the borrower to be "Meshiv Aveidah"? It must be that Rebbi Akiva maintains that it does not require brazenness on the part of the borrower to admit that he owes only two. Rashi explains that admitting to two does not require the borrower to be brazen because the Shtar supports his claim, making it appear as though he is telling the truth.

2. Another reason for why it would not suffice for Rashi to write that "Heilach" exempts the borrower from a Shevu'ah when he admits that he owes two is that there is a point in the Sugya at which the Gemara thinks that according to Rebbi Shimon ben Elazar the borrower is obligated to make a Shevu'ah when he admits that he owes two, and nevertheless Rebbi Akiva exempts him from a Shevu'ah when he admits to three because he is "Meshiv Aveidah." Why should he be considered "Meshiv Aveidah" if he would have been obligated to swear had he admitted to two? (It does not seem plausible to suggest that Rebbi Akiva argues with Rebbi Shimon ben Elazar at this point in the Sugya and maintains that the borrower is exempt because of "Heilach" when he admits to two, because that would mean that Rebbi Shimon ben Elazar and Rebbi Akiva argue about the Halachah of "Heilach." The Gemara, though, does not introduce this Sugya by saying "Leima k'Tenai," that the Tana'im argue about the Halachah of "Heilach," which implies that the Gemara wants to prove that all of the Tana'im maintain either that "Heilach" is obligated or that "Heilach" is exempt. (RITZBASH, cited by the Shitah Mekubetzes))

This explains why Rashi finds it necessary to explain that Rebbi Akiva considers the borrower to be "Meshiv Aveidah" when he admits that he owes three; he could have admitted to only two, in which case his claim would have looked more believable because of the Shtar that supports his claim. Although he would have been required to had he admitted to two, nevertheless a borrower still prefers to make such a claim because it gives him the support of the Shtar, as the Gemara suggests in its second version of the proof with regard to "Heilach."

This also explains why Rashi does not write explicitly that Rebbi Akiva exempts the borrower from a Shevu'ah when he admits that he owes two. Even if Rebbi Akiva maintains that the borrower does swear when he admits to two, he is exempt from a Shevu'ah when he admits to three because the Shtar supports his claim (RITZBASH).

This approach also answers the second question. Rashi does not suggest that Rebbi Akiva exempts the borrower from a Shevu'ah when he admits that he owes two because the Shtar has a Shibud on Karka'os, because that reasoning does not reduce the brazenness required for the borrower to deny owing all but two Sela'im. Therefore, it would not explain why the borrower is "Meshiv Aveidah" when he admits that he owes three.

The third question was that if the Gemara already knew that the Shtar supports the claim of the borrower when he admits that he owes two, then why did the Gemara not assume that this (and not "Heilach") is the reason for why the borrower is exempt from a Shevu'ah when he admits to two? The RAMBAN answers that the Gemara knew at this point that the Shtar makes it easier for the borrower to admit to only two and to deny the rest, since it supports his claim. However, the Gemara did not know that the proof of the Shtar is so strong that it is able to exempt the borrower from making a Shevu'ah on the rest of the money. Therefore, the Gemara thought that what exempts the borrower from a Shevu'ah is the reasoning of "Heilach." The Gemara concludes that although the Shtar does not say explicitly that the borrower did not borrow more than two, nevertheless it is strong enough evidence to support the borrower's claim and exempt him from a Shevu'ah on the rest of the money.

The Ramban points out that this answer is implicit in the words of Rashi. In the Gemara's question, Rashi (DH Eino Ela) explains that the Shtar merely shows "strong evidence" ("Nikarim ha'Devarim") that only two Sela'im were borrowed. In the Gemara's conclusion, Rashi (DH v'Shani Hacha) writes that the witnesses who signed the Shtar "testify to the claim" of the borrower that he owes only two.