OPINIONS: Rebbi Aba rules that in a case in which a person is obligated to swear but he is unable to swear, he must pay the money that is claimed from him.

Rava proves Rebbi Aba's opinion from Rebbi Ami's understanding of the verse, "An oath of Hash-m shall be between the two of them" (Shemos 22:10). Rebbi Ami explains that the verse means that the Shevu'ah applies only when the dispute takes place between the litigants themselves, and not when it takes place between the heirs of the litigants. Rava explains that the verse refers to a case in which one person claims from another, "Your father owed my father one hundred," and the other person says, "I know that he owed your father fifty, but I do not know about the other fifty." Even though the son of the defendant is "Modeh b'Miktzas" -- he admits to half of the claim -- he is not obligated to make a Shevu'ah of Modeh b'Miktzas, nor is he obligated to pay, because the verse teaches that a Shevu'ah applies only when the dispute is between the litigants themselves, and not when it is between their heirs.

Rava points out that it must be that when the defendant himself (the father) makes the same claim (he admits to half and says that he does not know about the other half) he must pay, since he is obligated to make a Shevu'ah of Modeh b'Miktzas but he cannot make a Shevu'ah (since he claims that he does not know about the other half). If a person would be exempt from paying in such a case, then the verse would not need to teach that his son is exempt. This is the proof for Rebbi Aba's opinion.

There is a clear difference between a dispute involving the father and a dispute involving his heirs. The father presumably knew the amount and forgot (or so he claims), while it is likely that the heirs never knew about the transaction. What is the Halachah in a case in which the defendant himself claims that he never knew the amount of the transaction? Is he like a father (and he must pay, according to Rebbi Aba) or is he like an heir (and he is exempt from swearing and from paying, based on the verse, "An oath of Hash-m shall be between the two of them")?

(a) The RA'AVAD (Hilchos She'eilah 5:6, Hilchos Malveh v'Loveh 13:4), BA'AL HA'ITUR, and TOSFOS HA'ROSH explain that the verse, "An oath of Hash-m shall be between the two of them," teaches the difference between one who should have known what was in his hands, and one who was not expected to know what was in his hands. The most common case in which a person is not expected to know what was in his hands is a case in which the dispute involves heirs. However, if the defendant himself says that he received fifty coins plus a sealed bag to watch, all of which was lost, and the defendant claims that he is unsure what was in the bag, the defendant is exempt from paying or swearing, just as an heir is exempt. If the claimant wants to receive his money, then he must make an oath attesting to the value of the contents of the sealed bag.

The Ra'avad explains that the reason why, in a normal case, the defendant must pay if he claims that he does not remember how much he received, is that there is reason to suspect that he is lying, for he certainly should remember how much he borrowed. In contrast, where there is a good reason for why the defendant does not remember, he is not suspected of lying when he says that he does not know, and it would be unfair to require him to pay without at least making the claimant take an oath.

(b) The RAMBAM (Hilchos She'eilah 5:6, Hilchos Malveh v'Loveh 13:4) and the RI MI'GASH maintain that the only case in which the rule of "Mitoch she'Eino Yachol li'Shava, Meshalem" applies is when the dispute involves heirs. Even if the defendant himself accepted responsibility for an unknown sum of money (which was then lost), he is obligated to pay (since he cannot swear). They prove this from the Gemara itself. The Gemara says that in the case for which the verse teaches that the heirs are exempt, the father is obligated. The case in which the heirs are exempt is a case in which they say that they do not know (and were not able to know) about the other fifty that is being claimed. The identical case, involving the father, is when the father claims that he does not know (and was not able to know) about the other fifty that is being claimed. Hence, even in such a case the defendant is obligated.

The RITVA cites another proof for the opinion of the Rambam. According to the Ra'avad's view, the verse should teach this lesson without discussing heirs. It should state simply that a Shevu'ah applies only when a person was able to know about the amount he received, but he is exempt when he was unable to know about the amount he received. Since the verse teaches only that heirs are exempt, it must be that the defendant himself would be obligated in such a case.

The ruling of the TUR in such a case is not clear. In one place (see Tur CM 298), he codifies the opinion of the Ra'avad. In another (see Tur CM 72), he agrees with the opinion of the Rambam! How are we to understand the ruling of the Tur?

The SHACH (CM 72:51) proposes that the Tur compromises between the two opinions. The Ra'avad's opinion is definitely understandable in the case of a deposit. While it is true that the person watching the sealed bag was negligent in losing it, he was not supposed to use the deposit for himself, and, therefore, it is understandable that he did not open it to check its contents. However, in the case of a loan (or a security given for a loan), we may assume that the recipient knows the value of what he receives. One does not usually borrow money or take a security without knowing its value. In such cases, the Ra'avad's opinion is less logical than the Rambam's, and, therefore, the Tur rules like the Rambam. The Shach states that this is also the explanation of the MABIT (Teshuvos, vol. 1, She'eilos Sheniyos, ch. 133). (Y. MONTROSE)

QUESTION: The Gemara discusses a case in which one set of witnesses contradict another set of witnesses. Rav Huna says that each set of witnesses may return separately to Beis Din and testify in a different case, even though one set definitely was lying in the earlier case (and, if the identity of the lying set of witnesses would become known, those witnesses would be disqualified from testifying in all cases). Since the identity of the lying set cannot be proven each witness retains his status of a valid witness. Rav Chisda disagrees and rules that neither set of witnesses may testify in any future cases because one of the sets certainly lied in the earlier case; out of doubt, Beis Din may not accept the testimony of either set.

RASHI explains that Rav Huna specifically says that each set may come and testify. Rav Huna agrees that one witness from one set cannot join with a witness from the other set to testify, because one of the two witnesses certainly is guilty of testifying falsely in the earlier case.

The SHACH (CM 31) records a question in the name of the CHOCHMEI BRISK with regard to the case mentioned by Rashi. What is the Halachah in a case in which a single witness testifies and is contradicted by another single witness? Is each witness treated like a separate set of witnesses, such that each one may testify in future cases?

What is the meaning of their question? What difference does it make whether a set of two witnesses contradicts another set of two witnesses, or whether a single witness contradicts another single witness?

(a) The SHACH explains the question of the Chochmei Brisk as follows. When a single witness contradicts another single witness, does the law assume that since one of the two witnesses is definitely lying, they may not testify together, or since neither of the single witnesses was shown to be lying by two witnesses (since each one was contradicted by only one witness), neither one is disqualified from testifying, and they may even join together and testify?

(b) The KEHILOS YAKOV asserts that the Shach's explanation cannot be the logic behind the question of the Chochmei Brisk. It is known that one of the single witnesses testified falsely. How, then, can Beis Din permit them to testify together, when one of them certainly lied in Beis Din in the past?

The Kehilos Yakov instead explains that the question of the Chochmei Brisk involves a more fundamental issue: what disqualifies a person from being a witness according to the Torah? If a single witness testifies about a subject that, mid'Oraisa, requires two witnesses, it could be that his account is not considered testimony at all, and thus his falsification of the facts is not considered false testimony. Only one who offers what the Torah considers testimony can transgress the prohibition against testifying falsely. Perhaps, therefore, the single witness may join the other single witness and testify in a different case.

(c) The VILNA GA'ON and other Acharonim explain that the question of the Chochmei Brisk may be understood based on the Gemara later. The Gemara (48a) questions the opinion of Rav Chisda from a Beraisa which discusses witnesses who testify about the sighting of the new moon. When asked how high the moon was when he saw it, one witness replied, "Three Marda'os," and the other replied, "Five Marda'os." This is not the type of error in judgment that people normally make, and thus Beis Din must assume that one of the witnesses is lying. The Beraisa continues and says that although they may no longer testify together, they may testify separately in other cases (see RITVA and RI MI'GASH there). The Gemara answers that this is no proof against Rav Chisda, and it explains why. It is apparent from the Gemara there that in a case in which two single witnesses contradict each other, they may no longer testify together! What, then, was the question of the Chochmei Brisk?

The Kehilos Yakov suggests an answer to this question. He first introduces another question: why does Rav Chisda rule that Beis Din may not accept the testimony of any of the witnesses? The law is that only a Rasha is not allowed to testify. These witnesses, however, cannot be categorized as Resha'im, since none of them has been indicted for any definite wrongdoing. It must be that Rav Chisda understands that Beis Din cannot accept their testimony because they are suspected of lying, even though they are not Resha'im. This is similar to the law that Beis Din may not accept testimony from people who eat in the marketplace; such people are suspected of lying because they are lowly people who conduct themselves uncivilly, and they have nothing to lose by giving false testimony.

The Gemara attempts to disprove the view of Rav Chisda from the Beraisa (48a). Since Rav Chisda disqualifies any suspected liar from testifying, he should also disqualify these two witnesses (who contradicted each other in their testimony about the new moon) from any future testimony. According to Rav Huna, however, who maintains that the witnesses remain valid for other cases, perhaps the Beraisa means that these two witnesses may join together to testify in another case. Perhaps the question of the Chochmei Brisk is how Rav Huna understands the Beraisa. (Although this approach may explain the question of the Chochmei Brisk, it must be noted that the Ritva explicitly states that Rav Huna would agree that the two witnesses may not join together and testify in future cases.) (Y. MONTROSE)