Explanation: [There, since there is surely a swindler], he fines him with what is Vadai his.

Distinction: However, here we can say that both of them picked it up together, and there is no liar, for each thinks that he picked it up first.

Explanation: However, here, even if there is a Vadai liar, e.g. this one says "I found it today", and this one says "I found it yesterday", he agrees that they divide, and we do not say "we leave it until Eliyahu comes";

Due to this, he will not refrain, for he does not lose anything.

Explanation #1: We can say that he retracted, and the reason that the liar should lose does not suffice. R. Yosi fines only when there is a Vadai liar, and he will lose;

However, where there is a liar, and there is no loss, he does not fine, like the words connote "if so, what did the liar lose"?

Explanation #2: The word "Ela" connotes that he totally retracted. (He fines whenever there is a Vadai liar, like we initially thought.)

Support: Below, he asks both according to Rabanan, and according to R. Yosi "we should say that it is Munach (left until Eliyahu comes)" even though there, the liar does not lose.

Citation (Yevamos 118b - R. Akiva): If one bought from [one of] five, [and he did not pay,] and he does not know from which, he gives to each.

Implied question: Why don't we ask why he must give to each? It should be Munach!

Answer: There, he should have remembered [from whom he bought]. He caused his own loss.

Question: The employer should be able to tell [the grocer] "I sent you to help me, and not to ruin me!"

Even though he did not tell him "pay him with witnesses", he (the grocer) himself should have thought of this, like we say in Kesuvos (85a);

Avimi owed money to people in Bei Chuzai. He sent it with Chama. He paid them, and said "give the document to me." They said "we accepted the money for a loan without a document";

We conclude there that whether [Avimi] said "take the document and give to them the money", or "give to them the money, and take the document", the Shali'ach is liable, for he says "I sent you to help me, and not to ruin me!"

Answer: There, since he mentioned taking the document, it is as if he said "do it in a way that you will get the document." However, here he did not mention witnesses at all.

Explanation: [We ask that] he should be believed through a Migo, for if he wanted, he could have denied everything. Alternatively, we should learn from here that we do not say Migo!

We answer that this is not a Migo, for one is not brazen to deny everything, since his friend knows that he lies.

Distinction: However, in a situation in which he can be brazen, e.g. to the [lender's] son, and he says 'I owed 100 to your father, and I returned to him half", he is believed, Migo he could have totally denied, like it says in Kesuvos (18a) and Shevu'os (42a).

Question: What is the source that one who totally denies is exempt [from a Shevu'ah]?

Suggestion: It is due to the Chazakah that one cannot be brazen. [Since he totally denies, this shows that he does not owe!]

Rejection: Even in a situation in which he can be brazen, he is exempt, e.g. to the son;

Even one who partially admits is exempt there, Migo if he wanted, he could have totally denied.

Suggestion: We learn from the fact that [the Torah] needed to write that one witness obligates a Shevu'ah;

If one who totally denies is liable, what difference does one witness make? Even without this, he is obligated [to swear]!

Rejection: We need it for a case in which Reuven does not claim anything, and he does not know, and the witness testifies that Ploni stole, or Reuven's father lent to Ploni!

Answer: "Ki Hu Zeh" connotes that it is a Gezeras ha'Kasuv that only one who partially admits is obligated [to swear], but not one who totally denies.

Explanation #1 (Rashi): [We ask that] since he is suspected about [trying to steal] money, why may he swear? We should say that since he is suspected about money, he is suspected to swear falsely!

We answer that he evades [the claim until he will be able to pay all of it]. He is not suspected [of wanting to steal].

Objection: We conclude below (6a) that one who is suspected about money is not suspected to swear falsely!

Suggestion: Mid'Rabanan [he is not suspected to swear falsely], because they saw that Shevu'ah is stringent to people, but mid'Oraisa, one who is suspected about this, is suspected about this.

Rejection #1: Below, we bring from Rav Nachman that we impose three Shevu'os on him (a Shomer), and one of them is that he was not Shole'ach Yad (did not make unauthorized use of the deposit);

It connotes in Bava Kama (107b) that this is mid'Oraisa. (Even though we suspect that he was Shole'ach Yad, and lies to exempt himself, the Torah obligates him to swear!)

Rejection #1: Regarding the ingot of R. Aba (one witness testified that Reuven grabbed from Shimon. Reuven said 'yes, I grabbed it. It is mine!' He must swear to contradict the witness, but he cannot, for he admits that he took it. Therefore, he must pay), it connotes that had he said "I did not grab", he would swear mid'Oraisa to contradict the witness!

Since it says "since he cannot swear, he must pay" [this shows that it is a Torah Shevu'ah]. We do not say so about a Shevu'ah mid'Rabanan.

Explanation #2: "He would like to totally admit", i.e. since he is not brazen, if so, it is true that he does not owe him more. Why must he swear? He should be believed through a Migo, that if he wanted, he could have totally denied!

We answer that this is not audacity. He [only] evades.

Question: Also one who totally denies, he evades, and this is not audacity, like we say in Shevuos (40b)!

Citation (40b - Rav Nachman): One who totally denies, we make him swear Shevu'as Heses, for there is a Chazakah that one does not claim unless he is owed.

We ask that just the contrary, one is not brazen to his creditor! We answer that he only evades.

Answer: In any case, it is more brazen to totally deny than to deny half, so there is no Migo.

Explanation: [When witnesses testify that he stole, we cannot say] so much that he evades [until he can pay], since he totally denies. We should say that since he is suspected to steal, he is suspected also to swear falsely! The Kal va'Chomer teaches that we do not say so.

Implied question: We say below (6a) that we do not say "since he is suspected..." (even when evading does not apply. If so, why must we learn this from a Kal va'Chomer, due to the reason that he evades?!)

Answer: Even so, also the Tana teaches that we do not say [since he is suspected...], from a Kal va'Chomer from his mouth and one witness. (Pnei Yehoshua - one might have thought that he swears mid'Oraisa only based on admission, when "since he is suspected..." does not apply [for he merely evades], but regarding witnesses, the Torah decreed that since he is suspected to steal, he is suspected also to swear falsely. The Kal va'Chomer refutes this.)

Question: Why do we need the reason of evading? He should say that if not for the Kal va'Chomer, I would think that admission is greater than testimony of witnesses, because it cannot be contradicted or Huzam, like we ask below (on this Amud)!

Also below, he should have asked "you cannot learn from admission, for he evades"!

Answer: Here that he comes to explain that admission is greater than testimony of witnesses, he prefers to mention the reason of evading, for it is reasonable that due to this reason, he should swear based on his admission, but not through witnesses;

The severity that it cannot be contradicted or Huzam, he prefers to mention below, to break the Kal va'Chomer.

The Gemara is wont to ask a challenge to a Kal va'Chomer from a verse, and not from reasoning. Therefore, below we do not bring the reason of evading.

Explanation: [His mouth] obligates him a Korban even if witnesses contradict him, and say "it was not Chelev [that you ate], rather, permitted fat."

Source: If witnesses do not contradict him, how can it say "will you say regarding witnesses?" Also witnesses obligate him a Korban if he does not contradict them!

Even one witness obligates him a Korban if he does not contradict him!

Observation: Our Sugya holds like the version in Kerisus (12a) that explains the reason for Rabanan below, [who say that if witnesses] told him "you ate Chelev", and he said "I did not eat", he is exempt because one is believed about himself more than 100 men;

Therefore, his mouth obligates him a Korban, even if witnesses contradict him, witnesses do not obligate him a Korban if he contradicts them.

According to the other version [in Kerisus] that explains the reason for Rabanan because he explains his words [afterwards], and says "I did not eat b'Shogeg, rather, b'Mezid" (therefore I am exempt)...

The case is, when he said "I did not eat", we did not check his intent.

However, he is not believed to contradict the witnesses. If so, witnesses are greater than his mouth, for they obligate him a Korban even if he contradicts them, but he does not obligate himself a Korban if they contradict him.

[According to this,] R. Chiya is even like Rabanan.

Question: If so, we should say R. Meir's Kal va'Chomer! If two [witnesses] can bring him to be executed, can they not bring him to a Shevu'ah, which is [more] lenient?!

Answer: We can challenge this. Regarding execution, he is killed for what they testified about. Will you say so about a Shevu'ah, in which he swears about what he denied? We say like this below.

Explanation: According to the version that one is believed about himself more than 100 witnesses, "if he wanted, he could say..." is said to R. Meir, according to his reasoning, like it says in Kerisus (12a);

Suggestion: According to the other version, that they gave their own reason, we can explain "if he wanted, he could say..." that he is believed to say "I did not eat", Migo he could say "I was Mezid."

Rejection: This is a Migo against witnesses! (We do not say such a Migo.)

Rather, even what he says "I did not eat", he can explain his words to say "I did not eat Shogeg, rather, Mezid."

The case is, when he said "I did not eat", we did not check his intent, and later he says that he was Mezid;

Rabanan hold that this that he said "I did not eat", he means that he did not eat Shogeg, rather, Mezid;

According to R. Meir, even though later he says "I was Mezid", his words have no effect;

Source (Toras Kohanim - R. Meir): If initially he said "I was Mezid", we heed him. If he was judging with him the entire day, and at the end he said "I was Mezid", we do not heed him.

Question: How is he believed to say "I was Mezid"? One cannot establish himself to be a Rasha, like it says in Sanhedrin (9b) regarding a man (Dasan) who said "I willingly let Reuven have Bi'ah with me"! (Dasan can join with another witness to kill Reuven, for we do not believe Dasan's admission that he consented.)

Answer: He is not believed to disqualify himself. However, here he repents, and he does not want to bring Chulin b'Azarah (a Chatas that he has no obligation to bring).

Explanation: According to R. Meir, witnesses can obligate him to bring an Asham.

Question: A Mishnah (Shevu'os 49a) teaches that if Reuven asked "where is my ox?", and Shimon said "it was stolen", and Reuven said "I impose a Shevu'ah on you", and Shimon said "Amen", and witnesses testify that Shimon ate it, he pays Kefel (twice its value, like a thief);

If Shimon himself admitted, he pays principal and Chomesh (an added quarter of the principal) and [brings an] Asham (Gezeilos);

Inference: Through witnesses, he does not pay Chomesh and Asham!

Also a Mishnah in Bava Kama (108b) says so, and we establish it (Bava Kama 106b) like R. Meir.

Note: According to our text, the Mishnah on 108b discusses a deposit. Bava Kama 106b cites the Mishnah in Shevuos, which mentions an ox. Why did Tosfos mention the Mishnah on 108b? Perhaps it is not like R. Meir! Perhaps in Tosfos' text, both Mishnayos discuss an ox. On 106b, we establish the Mishnah to be when he ate the ox without Shechitah. We did not say that he slaughtered a Tereifah, or a Ben Paku'a, because R. Meir obligates four or five for these.

Answer: The Sugya here, which holds that according to R. Meir witnesses obligate him an Asham, would not establish that Mishnah like R. Meir, rather, like we wanted to establish it there, when he ate a Tereifah;

The Sugya there, which holds that according to R. Meir witnesses do not obligate him an Asham, because regarding Asham it says "v'Hisvadu", does not hold like the Sugya here, that Asham is like a Korban [Chatas];

It must learn from a Tzad ha'Shavah of his mouth and one witness, like we conclude here.