Question: Also here, he evades!

Answer: Rav Nachman obligates Shevu'as Heses even when he claims and says "this item in your hand is mine", in which case evading does not apply.

Support: Rav Hai Gaon explained that we impose Shevu'as Heses about land, even though evading does not apply.

Question: In Shevuos (40b), it connotes that he obligates Shevu'as Heses only because he evades!

It asks "Just the contrary! A person is not brazen [to deny, if he really owes]!", and answers that he evades.

Answer #1: Since when it is not intact, he evades, even when it is intact, Rabanan did not distinguish.

Answer #2: He relies on the question of [the Beraisa of] R. Chiya below (both the grocer and the workers swear).

Question (Rashi): Why don't we bring the Mishnah of Shevu'os?

Answer: Through R. Chiya, Rebbi taught that Mishnah, like is proven there (Shevu'os 47b). (Ran, Shevu'os 30a (Dapei ha'Rif) - initially, Rebbi thought that the first Tana holds that the workers swear to the grocer, and they take what he collects from the employer through his Shevu'ah. R. Chiya taught him that also the workers swear to the employer and collect from him.)

Explanation (Rashi): If he was Shole'ach Yad, even if Ones occurred, he is liable.

Implied question: Once he returned it, he is exempt [for Ones that occurred afterwards], like it teaches below (40b)!

Answer: In any case, perhaps Ones occurred before he returned it.

Question: Below (83a), it says "v'Nishbar Oh Nishba Ein Ro'eh" - this implies that if [witnesses] saw [the Ones], he is exempt. Perhaps he was Shole'ach Yad!

Answer #1: He is exempt from the Shevu'ah that Ones occurred, but he swears that he was not Shole'ach Yad.

Answer #2: He swears "I was not Shole'ach Yad" only through Gilgul of "I was not negligent" (once one is obligated to swear, the claimant can impose additional Shevu'os on him). When [witnesses] saw that Ones occurred, he is totally exempt.

Answer #3 (R. Tam): He does not swear through Gilgul when it is dead in front of us. We are Megalgel only with something that seems [that there is reason to say that it is true]. Why should we say that he was Shole'ach Yad?!

Only regarding partners who divided, and he was obligated a Shevu'ah from elsewhere, we are Megalgel, for he rationalizes (justifies taking more than his share).

Explanation (R. Tam): The Shevu'ah "I was not Shole'ach Yad" means that he did not eat it. It is not included in the Shevu'ah that he was not negligent, or that it is not in his Reshus.

Explanation: In the teaching that we impose three oaths on him, and also [in our Mishnah, in which] both of them swear and receive, we are concerned lest he has a [claim for] an old loan against him;

Therefore, we do not exempt him without a Shevu'ah, and also he may not receive without a Shevu'ah.

Distinction: However, a Vadai Gazlan, and one who denied a deposit, we are not Machshir him due to the possibility that he has a Safek loan document against him.

Explanation: If he does not remember, he will return it, and he will not keep it due to Safek.

Suggestion: Perhaps it means that if he remembers that he does not owe him, he will return it, but if he does not remember, he will keep it, even though he knows that he will not remember afterwards.

Rejection: If so, also a Safek Shevu'ah, he would not refrain from it!

Implied question: He should be believed through a Migo! If he wanted, he could have said "he grabbed it from me!"

Answer: This is a Migo against witnesses. (He actually claimed that he rented it to him, and we can testify that this is false.)

Explanation: Also here, the case is that he was silent at the time that [the other] was Makdish, and afterwards, when the Gizbar asked him, he screamed.

He asks, [do we say that] since saying to give to Hekdesh [is like handing over to a commoner], making Hekdesh is like grabbing it. Since [his opponent] was silent, he admitted, and it is Hekdesh;

Implied question: Why is this unlike one who stole, and the owner did not despair? Neither can be Makdish - this one (the Gazlan) cannot, because it is not his, and this one (the owner) cannot, because it is not in his Reshus!

Answer: Since he admitted to him, it is like a deposit in another's hand, which he can be Makdish, like is proven in Bava Basra (88a) regarding Reuven who brought gourds [to sell, and people grabbed them, with intent to buy. Reuven thought that they were stealing.] He was Makdish them.

If the price was not fixed, [the buyers did not acquire them. They still belonged to Reuven, so] they are Kodesh.

Or, perhaps making Hekdesh is unlike grabbing it. Why should he scream due to the other's words?

We bring [a proof] from the bathhouse. One was Makdish it, and the other was silent.

Conclusion: The conclusion is that it is not Hekdesh: This shows that his silence is not like an admission.

Explanation: We ask as follows. Regarding a bathhouse, since it is land, and the law is Kol d'Alim Gavar...

And since if one of them seized it and was Makdish it while it is in his hand, presumably [the Kedushah] does not leave it, even if his opponent seized it from him...

Also when he was Makdish it without seizing it, it is Hekdesh.

Or, perhaps since even if one of them overpowered [and seized it], if the other can grab it from him, he acquires, the same applies when he was Makdish it without seizing it;

The Hekdesh does not take effect at all, since if the other would grab it from him, he would acquire, Hekdesh is no stronger than grabbing.

Explanation (cont.): Now, we bring that if a Kohen grabbed [a Safek Bechor], we do not take it from him;

Therefore, even if he did not grab it, one may not shear it or work with it due to Safek, for perhaps the Kohen has a share in it, and therefore he can grab it.

Inference: Even if he did not grab it, it is considered as if he already grabbed it and was Makdish it while it is still in his hand.

Rabah rejects this. There, if the Kohen grabbed, we take from him. Even though the Kohen has no rights in it, for even if he already grabbed, we take from him, even so, one may not shear it or work with it;

You are forced to say that this is because Kedushah that comes automatically is different.

Question: Why [according to Rav Hamnuna] don't we take from him? The owner says that he wants to give to another Kohen!

Answer #1: We discuss Makirei Kehunah (the owner always gives to this Kohen).

Answer #2: [The owner] can claim only his Tovas Hana'ah (what it is worth to him to be able to decide to which Kohen to give it), according to the opinion that Tovas Hana'ah is considered Mamon.

Suggestion: We can bring a proof from Chulin 133a, which says that a Kohen who grabbed Matanos (one who slaughters a Chulin Behemah gives the foreleg, jaw and stomach to a Kohen), this is uncouth. This implies that he need not pay!

Rejection: This is no proof. Perhaps this discusses when he ate them, like it says there (130b) that one who damages Matanos Kehunah or eats them is exempt.

Explanation: This is the conclusion. If the Kohen grabbed it, we take from him.

Question: Below (102b) and in Bava Basra (105a), regarding one who rented a bathhouse [for 12 Dinarim for the year, a Dinar per month, and it was made a leap year], Shmuel establishes [the Mishnah's ruling] that they divide the added month when they come [to Beis Din] in the middle of the [added] month;

However, [if he came] at the end of the month, the renter receives the entire month [without paying extra].

Here, we conclude that we take [from one who seized]!

Answer: There, he entered b'Heter. Therefore, his seizing helps. Here, he did not seize b'Heter, rather, amidst Safek.

Implied question: It says in Kesuvos (20a) that if two signed in a document, and others came and said "they were coerced..." they are not believed;

We conclude that two witnesses cancel the other two, and we establish the property in the Chazakah of its [original] owner;

Rashi says that "they are not believed" means that if the lender seized, we do not take from him!

Answer #1: We must say that he seized before the [latter] witnesses came to disqualify the document, i.e. before the Safek arose.

Answer #2: They are not believed, i.e. we do not tear [the document], and we do not collect through it. [They are not believed] does not refer to seizing.

Explanation: One need not join them to another Goren (tithing), for they were never Vadai obligated;

Only when there were 10 from the beginning, we need to join them to another Goren.

Explanation: We should say that it is Batel is the majority, and all of them are obligated in Ma'aser!

[You cannot answer] that something normally counted is not Batel, for that is only mid'Rabanan! (Here we exempt mid'Oraisa.)

[You cannot answer that the Isur] is fixed (so it is considered an even Safek, and we do not follow the majority), for this applies only when the Isur and Heter are recognized and known, but he does not know from which he took, e.g. nine stores [in the city sell slaughtered meat, and one sells Neveilah].

It is not a Beriyah (whole creation, which is never Batel), like we say (Chulin 102a) that if one ate a dead (Neveilah) Tahor bird, [he is lashed] for a k'Zayis. (One is lashed for a whole Beriyah, even less than k'Zayis. Rashi - it is considered a Beriyah only if it is forbidden from its creation.)

Suggestion: There is only one animal left in the pen, so there is not a majority [of regular animals].

Rejection: The word "Lesochan (amidst them, i.e. the herd)" does not connote like this.

Note: The Ritva cited Tosfos to say that Chachamim uprooted a matter from the Torah and exempted them from Ma'aser. He rejected this. He and the Rosh answered that the Drashah "v'Lo Asiri Safek" teaches that we do not rely on the majority. Both are cited in Shitah Mekubetzes.

Question: Here, b'Minyan ha'Ra'uy does not apply! It applies only when there are only 10, and he began to count, and one of them died, and there are not 10;

Even so, the ones that left [before one died] are exempt, and they do not join to another Goren, since when they began to leave it was proper to finish the count;

However, here that there are many in the herd, he finishes the count, and the 10th and 11th are Kodesh (due to Safek);

He calls both of them "10th", due to Safek, whether or not there is among them the one that was already counted.

He should do so to every 10th and 11th. (I.e. also the 20th and 21st, 30th and 31st... Each time, he is unsure if the 10th is Ma'aser (if the counted animal that returned to the pen is still in the pen), or the 11th (if that animal left again, so he counted it twice).) At the end, when only 10 remain, they join to another Goren!

Note: Shitah Mekubetzes answers that the one that was already counted interrupts the count.