גמרא here on דף ה עמוד א comes בהמשך to the דין that the גמרא spoke about before on דף ג עמוד א, ג עמוד ב, which was the דין of רבי חייא. So what did we learn about the דין of רבי חייא? Normally we know that if you're a מודה במקצת you have to swear. That means if someone admits to part, he swears. If you're כופר בהכל, if you deny the whole thing, you don't have to swear. Like when a guy says you owe me a hundred dollars, and he answers I owe you 50, so obviously the 50 that he admits he pays, but he has to swear on the other he has to swear. But if he denied the whole thing, he doesn't, מדאורייתא. דרבנן he do. Came רבי חייא, רבי חייא was מחדש a חידוש, he said that this is not only if you admit, and also if there's העדאת עדים. That means you deny it, let's say he says you owe me a hundred dollars, he says I don't owe you a penny, but then you have two עדים who claim that he owes him 50, you also have to swear on the other 50. The 50 that they that they testify about, obviously you have to pay, the עדים say you owe, you owe. But the other 50 you have to swear. Even though the guy says I'm a כופר בהכל, I didn't admit to anything, but just like if you admit yourself, that's called הודאת פיו, if your own mouth admits to part, that is מחייב you, that obligates you to swear on the rest, so רבי חייא brings ראיה, same thing if עדים are מחייב you part, עדים obligate you to depart to swear on the rest. So in continuation to that, the

גמרא brings on דף ה עמוד א a story: ההוא רעיא, there was this shepherd, דהוה מסרי ליה כל יומא חיותא בסהדי, that people used to give him every day animals to take care of with witnesses. Obviously they didn't trust the guy, with witnesses. יומא חד מסרו ליה בלא סהדי, one day they gave him without witnesses. What happened then? לסוף אמר להו, later when they came to collect it back, he said to them לא היו דברים מעולם. Nothing, you never gave me. אתו סהדי אסהידו ביה דאכל תרתי מנייהו. Two witnesses came and said we saw two which we know were yours, he ate, he ate up, the animals, two of the animals he ate up. אמר רב זירא, so רב זירא said, אם איתא לדרבי חייא קמייתא, if we follow the דין of רבי חייא, ישתבע אשארא, this guy has to swear because it's exactly the same case of רבי חייא. Someone comes to him, the people who gave him came and said let's say I don't know how much, it doesn't say, but let's say they said we gave we gave you 10 בהמות. What did he do? Denied the whole thing. But there are two עדים for two. What does רבי חייא say in a case like that? He denied the whole thing, but two עדים say part, so you pay the part and you have to swear on the rest. So that's exactly what you have to do here. אמר ליה אביי, so אביי said to him, אי משתבע, what are you telling me? If רבי חייא is right, if we follow רבי חייא, then this guy will have to swear? והא גזלן

הוא! He's a גזלן, and a גזלן can't swear, you don't trust a גזלן. How do you know he's a גזלן? Because we have two עדים that he ate up. What's the difference between a גזלן and a כופר? Huh? What's the difference between a גזלן and a כופר? Okay, if there's עדים. In the other place, yeah, if there's עדים. No, but that's what Oh, you're asking the regular case of רבי חייא? Yeah. There it's משתמוטי קמשתמיט. Maybe טאקע the reason he denied it because he doesn't have the money. Why do we assume that's the reason? No, the סברא is ממילא he's not called a גזלן. He's not trying to steal, he's trying to push off, to stall for time he doesn't have. This guy can't say that, because the animals were there and he ate up the animals. He had no right to use them. אמר ליה, so רב זירא said you're right, שכנגדו קאמינא. I didn't mean he should swear. He is obligated to swear. Since he's a גזלן, he can't swear, so let the other guy swear and collect. Usually when you swear is when someone wants you to pay and you claim you don't owe, you swear, like a regular מודה במקצת. You say I owe you a hundred dollars, I claim I owe you 50, so the 50 I pay, the other one, in order for me not to pay, I have to swear. And if I swear, I don't pay. You don't find ever that you swear and collect. But in this case, because he's בעצם מחוייב שבועה, because he fits into the case of רבי חייא, so רבי חייא said you're חייב שבועה, but he can't swear, רב זירא tells אביי: you're right, he can't swear because he's a גזלן, but his the דין שבועה is there, so the דין is transfer the שבועה to the other guy, שכנגדו נשבע ונוטל, so the other guy swears. So really what I meant, there is a שבועה here, but not that he should swear and ממילא won't have to pay. Because we thought what he meant was the two that the עדים said obviously he has to pay, איי they claimed eight more, swear that you never took those you got those eight and you'll be פטור. That you can't do because you never trust him. Let the other guy, he's a גזלן, let the other guy swear. If the other guy swears, so if the other guy swears we gave you, that will force him to pay. If the other guy won't want to swear, then he won't pay. But you transfer the שבועה from him to the other guy. Why? Because he cannot swear. He gets the whole 10? If he if the other guy swears, yeah. paid all that. The two he swears because of the עדים, and the other eight because the other guy swore, and we accept the guy's שבועה. They saw he ate two animals, so how how do they know that this was the animal? I guess they asked him on him. That's a שאלה, א קשיא אויף א מעשה. It means that, yeah, it must be a case where they knew, for sure. Why did they have to swear? What what was He would be a מודה במקצת. No, but what was the What did he say? A רבי חייא. What does רבי חייא's case say? No, I mean what is this the סדר of the שבועה? What do you do? The wording of the שבועה? Oh, if he would swear, then he would swear, \"I swear that I do not owe you anything more than this.\" That's it? Simple שבועה? Simple שבועה. In this case, they will swear, the other guys will swear that, \"You do owe us more.\" Well, Rabbi, what is a מודה במקצת swear? That's what That the rest, he is פטור. That he doesn't owe all the other money. Right. If I say I owe you No, 50 I admit. A מודה במקצת admits to something. He has to swear that the other That does not. And the same thing when the עדים come and say 50, he has to swear. So, those 50 are out of the question, he has to pay them. But the other 50, he has to swear as like he was a מודה במקצת. This guy is in that situation, but he can't swear because he's a גזלן, so the דין by a גזלן is that he is שכנגדו, they transfer the שבועה to the other guy. Comes תוספות and תוספות asks a קשיא, תימא. No, ואם תאמר, מאי שנא, why is this different? דהא בחשוד על השבועה שכנגדו נשבע ונוטל, why is it that in a case where a guy can't swear because we suspect that he's gonna lie, so the other guy swears? אמאי לא אמרינן

מתוך שאינו יכול לישבע משלם? Why don't we say the rule like we say in other places that if you are a מחוייב שבועה and you can't swear, you got to pay? Where is the example? כדאמרינן, כדאמר like we say, גבי חמשין ידענא וחמשין לא ידענא. The דין is like this, what happens if he tells him, \"You owe me a hundred dollars.\" He says, \"50 I owe you, the other 50 I don't know.\" Don't you remember? \"I don't know, maybe I do, maybe I don't.\" Now, this guy is a מודה במקצת. So, he's a מחוייב שבועה, but he can't swear, because he always says, \"I don't know.\" So the דין is מתוך שאינו יכול לישבע, can't swear, you got to pay, משלם. Or נסכא דרבי אבא, the famous case of the silver, that רבי אבא's case, where the guy grabbed a piece of silver out of his friend's. There was an עד אחד. Normally an עד אחד makes you swear, so in this case, he brought him to a דין תורה and he brought him to the to the בית דין, saying, \"This guy grabbed my silver.\" What did the guy answer? \"It's mine. I admit I grabbed, because it was mine.\" Now here is a strange case, why? Had there been two עדים that he grabbed, he would have to pay. That's the דין, because if you grabbed it, המוציא מחבירו עליו הראיה. Since he had it, חזקה is it's his. I grabbed it, so I have to give it back. If you want to prove later, prove, but I have to give it back. If two עדים would come, there are no two עדים here. Usually when there's a case where two עדים make you pay, עד אחד makes you swear. So in this case, if there'd be two עדים, he'd have to give it back. Since there is one עד, he has to swear. But the גמרא says they didn't know what to do. What's he gonna swear? You, when you have an עד אחד that you have to swear against him, you have to swear to contradict the עד. Like a regular case, if I say, \"I don't owe you any money,\" and you bring an עד אחד that I do owe you, so I have to swear. The עד אחד says I owe you, I have to swear I don't. What's gonna happen here? What does the עד אחד say? \"You took it.\" \"You took it. I admit I took it, what am I gonna swear?\" \"Mine.\" \"Well, it's mine! But I can't swear that it's mine, because there's no עד אחד saying it's not mine. I only have to swear against the עד אחד.\" So, what is here? So he is a מחוייב שבועה, because there is an עד אחד against him, which means had two עדים would have made him pay, so an עד אחד is like a two, but make him swear. So he's a מחוייב שבועה, he can't swear. משלם! You got to pay. So תוספות asks, so the same thing here also. This guy is a מחוייב שבועה here. He cannot swear, because he's a גזלן. Pay! Why is the דין that the other guy has to swear? Which means the other guy has to swear, if the guy swears, I pay. But what happens if the other guy says, \"Ah, I don't want to swear\"? Then I'll get away with it! Why? Why shouldn't it be the דין, דין מתוך שאינו יכול לישבע משלם? ענטפערט תוספות, two תירוצים. יש לומר that הכא, here in this case, אי אמרינן משלם, had we said by a גזלן that every time he has to swear and he can't because he's a גזלן, he has to pay, לא שבקת חיי, can't exist that way. כל העולם יביאוהו לידי שבועה, everybody wants could come and make him a שבועה, ויטלו כל אשר לו, and take everything away. Anybody wants money from him will come and say this, \"You you owe me a hundred dollars.\" And let's say, not that you You owe me 50, I'll come and say, \"You owe me a hundred.\" What's gonna happen? And he's gonna be a מודה במקצת, but he can't swear, he's gonna have to pay! Why can't he swear? Because he's a גזלן. See if he'd be a regular guy, I say a hundred, he says 50, swear! אדרבה, if you're saying the truth, swear! But he can't swear. Once you're a גזלן, it's always? Yeah, unless you do תשובה. Good, so yeah, but till he does תשובה Where he did תשובה? No, but you you can't make such a דין, he says, that a גזלן can't cannot swear, ממילא he should pay, because it'll, a קנס he'll be paying. See, when a guy could swear, people try to get money out of him. But if the דין is that he swears, so he'll swear and get the, and be פטור. But this guy can't swear, so he'll always take away money from him, so you can't make מתוך שאינו יכול לישבע משלם. ועוד, another תירוץ, דהתם, by the other cases, אמר ליה, we say to this guy who has to swear, let's say the guy who says, \"Half, 50 I know, 50 I don't know.\" So we tell him like this: שבועה דאורייתא רמיא עליך, you have to swear. אין ברירה, תשבע. You have to swear, but you can't swear. The טענה you're טענינג is a kind of טענה that doesn't allow the שבועה. So, if you can't swear, you got to pay. אבל הכא, הוא ברצונו נשבע. But in the case of a גזלן, it's not the פשט he's טענינג a טענה that doesn't allow a שבועה. He could swear, and he screams, \"I'm ready to swear!\" אם נניחנו, if we let him. We don't let him swear, so why should he pay, למה הוא ישלם? He could swear. No, it depends why he can't swear, because we don't trust him. Because we don't let him. We don't let him, we say, \"You have...\" But לפועל, מצד his טענה, it's a טענה that he could swear. In this case, he could swear. He says, \"I'm ready to swear that I only took, that if it's more than two, I don't have. And then I'll be פטור.\" Why can't he swear? Because we don't let him. We don't say מתוך שאינו יכול לישבע משלם. We only say מתוך שאינו יכול לישבע משלם in a case where what he's טענינג is a טענה which is מחוייב שבועה, but he can't, like \"I don't know,\" or the case of an עד אחד where he says, \"I grabbed mine.\" So whatever you're saying doesn't allow the שבועה to take place. So then we say, good, so it's no one's fault, but לפועל, pay me up. But if what you're טענינג, the guy says, \"I'm ready to give you the שבועה, you're not letting me, so I have to pay?\" So we טאקע don't say pay. So what's the case of a גזלן? We say instead of מתוך שאינו יכול לישבע משלם, and he has to pay, we say שכנגדו נשבע, the other guy swears. The bottom line here, we have two תירוצים in תוספות. Not only two תירוצים, there's a big difference between the two.

According to the first תירוץ, באמת, you could have said here מתוך שאינו יכול לישבע משלם. According to the first תירוץ, what's the first תירוץ? If we're going to make him pay, then there's no end to it, so always he'll have to give money. So that's what we're saying is that even though באמת, this is a case where you could have said מתוך שאינו יכול לישבע משלם, there's a practical, technical reason why we don't do that. But the second answer says that the whole כלל of מתוך שאינו יכול לישבע משלם doesn't apply here. We're saying here it's a case where it doesn't apply, because he's טענינג a טענה which he could swear, אלא מאי, we don't let him. So, but the שאלה is, not a קשיא, the שאלה is what is the מחלוקת, what are the two sides here, whether in this case בעצם you could say מתוך שאינו יכול לישבע משלם or not? How does the second one hold that you don't say מתוך שאינו, and the first one says, well, you would say, but for some reason you don't. So just understand the two sides to go a little bit deeper. Then there's another שאלה. The גמרא in שבועות says like this: what happens if you have an argument, two people, and this guy is a מחוייב שבועה, but he can't swear because he's a גזלן, but the other guy is also a גזלן? א גנב פון א גנב פטור. Which can even, a גנב is חשוד too! So normally, if the guy, the guy who has to swear is a גזלן, we say שכנגדו נשבע, the other guy swears. The other guy can't swear either. So the משנה says חזרה שבועה למקומה. The שבועה goes back to its place. Which place? There's a מחלוקת. רבותינו שבארץ ישראל אומרים, חכמי ארץ ישראל said, חזרה שבועה לסיני. Who made Who made the concept of a שבועה? The אייבערשטער. Turn to the אייבערשטער and say go back to הר סיני. You give the שבועה back to this. There's no שבועה here. And if there's no שבועה here, you can't blame the guy. He can't swear, but he's, and therefore you don't pay. You don't swear and you don't pay. רבותינו שבבבל אומרים, they say no, חזרה שבועה למחוייב לה. It goes back to the place to the first guy. But the first guy can't swear, so we say מחוייב שבועה שאינו יכול לישבע משלם. So the second פשט says that because he can't, this can't, the other guy can't swear either, so we take it back to the first, and the first is the one that be- that stays מחוייב, and we say and actually we say מחוייב שבועה שאינו יכול לישבע משלם. The קשיא is, according to the second תירוץ of תוספות, how do we say that? The second תירוץ of תוספות says that in a case where a guy is ready to swear, אלא מאי we don't let him swear, we do not say you pay. So how come over there you do? The fact that the other guy is also a חשוד, he screams, \"Why do you make me pay? I know the דין, the דין is that if a person is חשוד, you can't make him pay, because he's ready to swear, we just don't let him.\" So he says, \"Why should I pay now? Because the other guy is also a חשוד?\" So we see from here that בעצם you could say even by the case of a חשוד. But that doesn't fit with the second פשט of תוספות. So how does תוספות work? Then there's another קשיא. The גמרא here on דף ה' עמוד ב' has a whole סוגיא Looking into this שאלה. Is חשוד אממונא חשוד אשבועה or not? If someone is suspected, we're afraid he's stealing, he's ready to steal, do we also suspect that he's going to swear false? And ממילא we can't make him swear, or not? He's חשוד אממונא, he's we're afraid he's going to steal, but it doesn't mean he's going to swear false. The גמרא wants to bring a ראיה that חשוד אממונא is not חשוד אשבועה. If you suspect a guy for ממון, for money, you don't suspect him אשבועה, from the case of מודה במקצת. Regular case. A normal מודה במקצת, what is the פשט? We make him swear. Why do we make him swear? Because we're afraid that when he says, \"I only owe you 50,\" he's lying. Really he owes him the whole thing. And the 50 that he's denying is because he wants to steal it. So the reason we make a מודה במקצת swear because we're חושד אממונא. How could the תורה say make him swear? If חשוד אממונא חשוד אשבועה, how could the תורה? And the גמרא answers he's not חשוד, whatever it is. Comes the קצות, and the קצות asks, brings a תוספות, where תוספות says that this whole דין, even if we hold חשוד אממונא חשוד אשבועה, that if you suspect him on money, you suspect him on a שבועה, it's only מדרבנן, not מדאורייתא. If the whole thing is מדרבנן, then how does the גמרא bring a ראיה מודה במקצת? מודה במקצת is חייב a שבועה from the תורה. According to תוספות, at the time of the תורה, for sure חשוד אממונא was not חשוד אשבועה. The whole שאלה in the גמרא whether yeah or not is now. So how could the גמרא bring a ראיה from a מודה במקצת which is a דין דאורייתא? In the time of דאורייתא, for sure if someone was חשוד אממון, was not חשוד אשבועה, that's why even the תורה made him swear. So he's asking a קשיא, how does the גמרא bring a ראיה from this? Okay, so to answer these three things, so we have three things to understand. Number one again, in תוספות we have two פשטים. One פשט seems that by a person who's חשוד, that he'd swear false, we could בעצם say משלם, there's a technical reason why we don't. And the second side it says we בעצם cannot say it, doesn't apply there. What's the סברא? Then the second thing what he asked, if according to the second תירוץ of תוספות, that in the case where a person is ready to swear, we just don't let him, we can't say you pay, how come when they're both חשוד we do say that he has to pay? And the third one, well how does the גמרא bring a ראיה from מודה במקצת, that a person who's חשוד אממונא חשוד אשבועה, so the קצות says, well if it's only מדרבנן this whole thing of bringing a ראיה מודה במקצת? To explain that, I have to go into another פרט here. What's the פשט חשוד אשבועה? A person who's חשוד, we say a person who swore false can never be believed for a שבועה, till he does תשובה. What's the פשט swore false? The שולחן ערוך has a דין like this: if a person swore false, and we caught him that he lied, he swore false, so from then on he can't swear. But he says what happens, but this is only לשעבר. The guy swears, \"I never borrowed the money,\" or something. What happens if it's for the future? A guy swears tomorrow 3:00 I'm going to... do a נדר. No, a שבועה. There's a דין of a נדר and of שבועה. He makes a שבועה, \"I swear I'm going to do this and this,\" and comes לפועל he doesn't do it. The bottom line, he swore false. Is this guy also called חשוד אשבועה? No, that would be לבטל. But you could make a שבועה like that. Tomorrow I'm going to... Good, no, but לפועל, looking tomorrow, he swore, he's עובר on an איסור שבועה. This guy is definitely עובר on an איסור שבועה. So the שאלה is like this, do we look at this guy he's חשוד to swear false? You could say no, you could say when he swore, it wasn't false. All that happened was since he swore, he became אסור to do something. So what is he עובר? On an איסור, not on a שבועה. Or you could say no, the bottom line is that he swore, and now he didn't keep the שבועה, so it's a שבועת שוא. So שולחן ערוך brings two דעות. That's only because he swore something negative. If he swears I'm going to do something positive... Same thing, no, and you didn't listen. So you swore false. It's false, but not because of a sin. No, or you didn't keep, or you didn't keep what you said, but it's not that you swore false. You could say the שבועה was a good שבועה. You're allowed to swear I'll do this and this. And later you didn't keep what you, but it's not that you swore false, you didn't keep what you swore. So the

שולחן ערוך brings two דעות. למעשה, what do we do? There's two דעות. So we have a מחלוקת in the אחרונים how we what to do בפועל. A מחלוקת between the כנסת הגדולה and the שער משפט. The כנסת הגדולה says like this: since it's a ספק, so we don't know if this guy is considered חשוד or not. According to one opinion, he's considered a חשוד, even though it was for the future, but לפועל, according to the other opinion he's not considered חשוד אשבועה. So we don't know if he's a, he's a ספק חשוד. So we can't make him swear, you can't make him swear מספק. But you can't make him pay money either, because by not making him swear and making him pay, based on what? A ספק? מספק לא מפקינן ממונא. You can't collect money on a ספק, you can only collect money if you owe the ודאי. We don't know, because maybe he could swear, and if he'll swear, he won't pay. So how could you tell him we don't want you to swear, and ממילא you'll have to pay? You can't do that. So the כנסת הגדולה says that the bottom line in a case like this, where the guy swore for the future and didn't keep his שבועה, later on, if a situation happens where he has to swear, we can't make him swear, because maybe he's a חשוד. But we can't make him pay either. The

שער משפט says, no. Since we can't make him swear, he's like any חשוד which can't swear. What's the דין by a חשוד that can't swear? שכנגדו. Nothing to shout about. What's the דין by a חשוד? שכנגדו! So the other guy swears. So in this case, yeah, we don't make him, we we the other guy swears, and if the other guy swears, we make him pay. So again, so the כנסת הגדולה learns that this is a case of a ספק, and by a ספק you can't make a guy swear מספק, and you can't make a guy pay מספק. So that's it. There's a ספק in the second one? No, the other guy is No, wait, there is a ספק. That's something else, but you have to on a regular case. This is not assuming the שאלה on why do you do that? If you make If you can't, if a חשוד, then you No, the דין is that we don't No, the דין is that שכנגדו. By a חשוד, the second guy, the other guy swears. That's the דין. The שאלה, do we do the same thing here too? Who's the other guy though here? The guy he's arguing with. No, but I mean if you swear you're going to do something tomorrow No, that's not this. If a guy swore, \"I'm going to do something tomorrow,\" and he doesn't do it. Later on, he has a dispute with somebody and we want to make him swear. It's a ספק, it's a מחלוקת, two opinions whether this guy is considered a חשוד or not. But since he's a ספק, two opinions and we don't know, it's called ספיקא דדינא. It's a ספק in the דין. So we can't make him swear. The שאלה, do we make him pay, because do we make the other guy swear or not? So one opinion says, why should you make the other guy swear? Because we're not sure, it's only a ספק. You can't make the other guy swear מספק. So then make him pay? You can't make him pay מספק either. According to the כנסת הגדולה, what do they do then? No, nothing, so you're פטור. Yeah, yeah, that's it. You're פטור and he doesn't pay, right. And according to the שער משפט, he says since he's a ספק חשוד He has to pay. so he's like a חשוד. It's not fair. And so that, so what do you do by a חשוד? He can't, the other guy swears. A guy can't pay בלי נדר? You always have to pay בלי נדר, that's for sure. Now, what's the סברא of the מחלוקת between these two שיטות? I'll tell you. He has to swear בלי נדר. We

have to look into, what's the גדר of a שבועה? What's the גדר of a שבועה? When we say that there's a certain case, whatever the דין is, you got to swear. You can learn that the ענין of a שבועה is a בירור. Since this is the מצב, the תורה says, here you need a verification of what happened, of the truth. When a person swears, what does it say? You say you don't Let's say Let's say מודה במקצת. מודה במקצת, I say you owe me $100, you say you owe 50. The תורה says, you're חייב a שבועה. What does that mean? The תורה says in this case, if you verify through a שבועה that you don't owe the other 50, that's a verification and and you don't owe the money. So that's a בירור. Same thing with an עד אחד. If you say you don't owe me anything and I have an עד אחד that you owe me, the עד אחד makes you swear. What does that mean? This עד אחד forces that we need a בירור here. If there wouldn't be an עד אחד, המוציא מחבירו עליו הראיה, you don't pay. But since there's an עד אחד, it needs an extra בירור, an extra verification, and by swearing, this will verify what happened. That's the ענין of a שבועה. There's another way to learn a שבועה. It's not that, it's not a verification. A שבועה is like this, that the תורה says that in this and this case, whatever the case is, we can't make you pay unless the guy doesn't swear. In other words, the guy who says, \"I don't owe,\" whether I don't owe the 50 or I don't owe against the עד אחד, doesn't have to pay. The only time he'll have to pay if he doesn't swear. It's like a דין of פירעון. It's a way of collecting. You want to collect the money from him? No, the תורה says in this case, if it's כופר הכל, you can't collect. So מודה במקצת, you could collect, but when could you collect? Only if the guy doesn't swear. That's what it is. The נפקא מינה באמת between these two ways is, I'll tell you what it is.

According to the first way, take for the case of a חשוד. According to the first way, you know why a חשוד doesn't swear? Because if the שבועה is a בירור, even if he swears, we will not have a בירור. Imagine a guy swears, but you don't know if you could trust him. The whole idea of a שבועה is that through this, we clarify, we figure out what happened. But later, the guy swears and we still don't know what happened. So that so you it's a waste of a שבועה. There's no שבועה if it's A בירור. No בירור, ממילא there is no שבועה. So the whole שבועה is nothing. According to the second way, no. The whole ענין of שבועה is because we can't make you collect unless the guy swears. By a חשוד, we just don't let him swear. But in theory, the שבועה could be a שבועה, because it's not a בירור. Even a guy who's a חשוד could swear, but בית דין will not let the guy swear because he's a חשוד, so we don't want him to swear. Something like that. These two ways will be the reason for the מחלוקת between the כנסת הגדולה and the שער משפט. If the reason is because שבועה is a בירור, and by a חשוד, it will not do the בירור, a ספק חשוד will also not do the בירור. If we, what's ספק חשוד? We don't know if we could trust the guy. So there's a certain case where we definitely can't trust him, and there are a certain case where maybe we can't trust him. But the bottom line is, if the guy will swear, will we know what happened or not? ספק בירור. So ספק בירור, no such thing as a ספק בירור. You ever hear of a ספק בירור? Either it's מבורר, and it's a ספק if it's מבורר. We learned when it comes to a שבועה people won't swear falsely. But this guy's a חשוד, that's the thing. That's by a regular person, but by a חשוד, not. So it comes out that a ספק חשוד is exactly like a חשוד. If the whole idea of a שבועה is it's a בירור. It's not a פושע. It's not a פושע. No, now you can say we don't know. Oh, ספק חשוד is a ספק, can be דאורייתא, דרבנן. No, the ספק בירור, there's no such thing as a ספק בירור. I always give the example of ספירה as the דבר אברהם says, the רבי brings it, and he says it's a שכל'דיגע סברא, you cannot count ספירה מספק. I mentioned it the other week, last couple of weeks. You can't count. Can't say, well, I'll count today two or three. The whole idea of counting is to know what happened, to know what it is. If I count and I still don't know, it's like it's like I didn't count. How does it help to you had a ספק counting? There's no such thing as a ספק בירור. I gave you the example of a שטר. The whole idea of a שטר is to verify what he borrowed money. If I have a שטר that's written in such a way that after I read it, I still don't know whether Tom owes, say, okay, so at least there's a ספק. It's nothing. There's no such thing as a ספק שטר. Same thing here, there's no thing as a ספק בירור. בירור means ודאי. If you don't know, it's not. So what's the difference if you're a חשוד for sure, or you're a ספק חשוד which we're still not sure, so it's no שבועה. But if you learn that the שבועה is not because of you're a בירור, there's a דין שבועה. So if there's a דין שבועה, in the case where there's a ספק, so there's a ספק דין שבועה. That's the מחלוקת. The כנסת הגדולה says that in this case, you can't collect at all. Why? Because it's a ספק. He holds the second way, that a שבועה is not a בירור. ממילא there's a דין you have to swear. In this case where there's a ספק, so it's a ספק if you have to swear. So there's a ספק, what can you do about it? You can't do מספק, you can't make him swear מספק. You can't collect money מספק. But the שער משפט will learn that it's a בירור. And if it's a בירור, so a ספק חשוד is exactly like a חשוד. What's the דין by a חשוד? The other person. The other person swears, so that's why he says in this case also the other person swears. Okay. So we have the two sides. There's another מחלוקת that we could explain with these two sides. The מחלוקת is like this, the the קצות brings the מרדכי, that the מרדכי says like this, that the רמב\"ם says, what happens if one of the the guy who has to swear is a חשוד? But the other guy, the other בעל דין says, I don't care, he's a חשוד, I'll accept the שבועה. I'll accept it. So the רמב\"ם says, too bad. Can't accept it, this this שבועה is for the בית דין, not for the other guy. That's right. The מרדכי brings other שיטות, no. The other שיטה says, no, good. If the בעל דין accepts it, געזונטערהייט, so he could swear. What's the סברא here? The סברא is very פשוט. If a שבועה is a בירור, what happens if, and and by a חשוד it's not a בירור, but if the guy himself says, I accept that בירור, געזונטערהייט. תשובה? No, what do you mean תשובה? He did תשובה like. No, the other guy says, not him. No, the guy who's, a guy against the guy. He wants to collect. And he says this guy has to swear, but בית דין says he can't swear, he's a חשוד. So he says, I don't care, I accept. If it's a בירור, I can, על דרך משל, if a עד is a קרוב, you can't accept him. What happens if the בעל דין says, I don't care if he's a קרוב? You're going to bring an עד, your brother's going to be מעיד that you're right. So beforehand, I said, you know what? I don't care who you bring. If you bring an עד against me, I'll accept it. Then why make, that's the דין, you're allowed to. But why make him swear? If he says, oh, because he holds he's not going to swear. He hopes he's not going to swear. But he says, but if he does swear, I accept it. So if it's a בירור, fine, you could do it. על דרך, look at another example. A דיין. A דיין can't be a קרוב, cuz whatever he פסק'נס doesn't count. But if you accept the דיין of, this, I accept the קרוב of, I accept two קרובים, you could do it. הקרוב of the other side. Any קרוב, even for his side, you know, קרוב to you and he can accept a קרוב of the other side. What about a קטן? You're allowed to give the same waiver to a קטן? No, קטן is not a It's not a מציאות. It's not, yeah, it's not a עדות. You could accept דיינים, ג' רועי בקר. If I say we two have an argument and we say, you know what, let's take three people who are not דיינים, don't know anything, but whatever they'll say we'll do. That's פסק דין. And whatever they פסק, and if they take a קנין, that's a פסק דין. Same thing here. So if it's a שבועה is a בירור, then we understand the שיטה, the other שיטה who say that if he accepts it, you accept that בירור. But for somebody who's a שקר Not a שקר, we don't know. חשוד. חשוד! We don't know if he's going to lie. And this, so the בירור is not a real בירור. ממילא, if it's not a real בירור, it's not a בירור at all. But if I accept that בירור, just like עדות, עדות is a בירור. A קרוב is not a בירור. I accept the קרוב, you're going to do it. So you're saying that when the רבנן say, \"No, we're not going to allow,\" can you do it So, no, they have no right not to allow. If they don't want, but no, the רמב״ם says you can't. Why? Because the רמב״ם I'm saying holds that it's not a בירור. It's a דין of שבועה. And if it's a דין of שבועה, so nothing to do with him, what do you mean not to do with him? It's a דין that we don't let you swear. What did we say before? That the other side is or it's a בירור, and a חשוד has no בירור, or it's a דין, and therefore a חשוד can't swear because, not because he can't swear, we will not allow to swear. So if it's not, it's up to us to allow or not to allow, what do you mean the guy accepts it? So who are you to accept it? If the problem is because it's a בירור and and you think it's not a בירור, I accept the בירור. So a person who accepts a בירור against himself, you could accept it, and if you say it, we accept it. But if it's a דין that בית דין makes, it's a דין that you swear you could, if you don't, if you swear in order to be able to collect if you don't swear, and by a חשוד we don't allow you to do it, so what do we care the guy accepts it? We're not allowed, בית דין doesn't allow. That's what the רמב״ם holds. So it comes out according to this that what is it the רמב״ם holds? That the גדר of שבועה is a בירור. Yeah, so there's a So it comes out that the רמב״ם holds that it's a בירור. Fine. And it's not a בירור, sorry, no, not a בירור, it's a דין. It's a דין. So דין is But this seems to contradict a different הלכה in רמב״ם. The רמב״ם says what happens if a guy swore? A dispute and a guy swore. Later עדים came and said that this guy is a חשוד. They testified this guy is a חשוד. It was found out later that he was a חשוד. After the שבועה. After the שבועה. So the רמב״ם says the שבועה is no good. למפרע? למפרע. Now the

question is why? If you hold it's a בירור, then we understand. Since it's a בירור, we didn't know it's no good, we thought this was a בירור. Now we found out that the בירור is not a real בירור because the guy who said it is not then I understand why it doesn't work. But if we're saying that the רמב״ם holds that it's not a בירור, it's a דין, so the שבועה is a שבועה, אלא מאי we don't let him swear, but if he swore, the שבועה is a שבועה, so what's wrong here, לפועל he swore? We didn't catch him, so therefore you know he swore. So yeah, but לפועל he swore. And if we're saying that the שבועה בעצם is a good שבועה even if he swore, even if he's a חשוד So it's a contradiction? Yes, it seems to be a So that's the contradiction in רמב״ם. Because before we said the רמב״ם says that it's not a בירור, and ממילא the שבועה is a שבועה, אלא מאי we don't let him, and therefore if the guy says, \"I accept it,\" we say, \"Who cares what you accept? We don't let him.\" And now we're saying that the רמב״ם holds that it's a בירור, because the רמב״ם says that in this case if we if the guy swore already, it's no good. Why is it no good? If we say that the רמב״ם holds that בעצם the שבועה is a שבועה, אלא מאי we don't let him, but in the case where we let him, by mistake we let him, but בפועל we let him Is there a ענין that it's a mixture of both, בירור and a שבועה? Because the whole point of the רבנן coming and saying we don't let him do it is bringing the ענין of בירור into the whole mix. Okay, I hear what you're saying. I will say something similar, yeah. I want to say this ווארט, similar, that אין הכי נמי the רמב״ם holds it's not a בירור, and therefore when a person when a person swears the the reason why a חשוד doesn't swear is because we don't let him, but the שבועה בעצם is a שבועה. But the רמב״ם holds another דין, which is a little bit what you're saying: The whole תוקף, the whole concept of a שבועה is only if it's through בית דין. Only through בית דין. There's a דין somewhere, where רבנו חננאל says that if a person had a dispute and then he swore, \"I swear,\" whatever, then he takes it to the בית דין, that שבועה doesn't count. What, there's a מודה במקצת, but he swore out of the בית דין, he has to reswear because that שבועה doesn't count. Why not? So he says because the whole concept of a שבועה, what you swear privately, that's another הלכה. The דיני שבועה where where we find by ממון, it's a דין that בית דין has to be מחייב you. Therefore, this is the פשט in the רמב״ם. It's like a combination of both. What is the פשט? באמת שבועה is not a בירור, it's a דין. And therefore when a person swears, even if he's a חשוד, the שבועה is a שבועה. The case where we said that we found out later, עדים came and said, we found out למפרע that had we had we known, we would never have let him. The שבועה was not a שבועה. So ממילא it's not a שבועה בבית דין. For a different reason. So it's not a שבועה through בית דין because it's a שבועה done with the false understanding of בית דין, ממילא בית דין didn't swear. So the whole concept of a שבועה comes if it's with the validation of בית דין, if בית דין makes you swear. In this case, so it's not because שבועה is a בירור. It's נוגע to another דין. It's too long to bring in another What happens? What happens if he swore in a בית דין, and then they find later that he was he was a cheater? That's what they're saying, no, that's the case it's talking about. But I'm saying, so למפרע, he did swear in a בית דין. Yeah, but that's not called in בית דין. I'll bring an example in a second. If we find out later that it's a case where we would not have wanted him to swear, so באמת in theory we never let him swear. We let him swear under false under false information. So really, looking back, we really didn't this guy we never make swear. We make swear somebody else. We didn't know he was a relative. Yeah, yeah. So we would never let him swear. So it's not like the שבועה is no good, we didn't want him to swear. I'll give you an example, I don't want to go into באריכות. There's a case: what happens if a guy brings two שטרות to a guy? I have a שטר that you owe me a hundred, another שטר you owe me a hundred. Each שטר has one one עד on it. Only one. One עד. So there's a מחלוקת. One שיטה is, put the two together so you have one you have two עדים on one, you can't collect two hundred, but together you have one hundred for sure. Then there's another שיטה that says, yeah, but you have two people saying one hundred. Two people say you owe a hundred dollars. Hundred each. Hundred each. He's claiming two hundred dollars. Oh, two hundred dollars. Yeah, I'm claiming two hundred. But I have one עד for each, so if they put part of the two things and you have and you have two עדים for a hundred. Collects one and then he has He collects a hundred. No, he collects a hundred, that's one שיטה. The other שיטה says no, he has a choice. He could say, what are you talking about? The guy could say, no, no, each שטר has one עד. What's the דין by one עד? You have to swear. I want him to swear for each one separately, hoping that the guy won't swear. Swear? Cuz he's Cuz the guy who's claiming claims that he's He wants two hundred dollars. No, not only he wants, he says it's true. He hopes the guy won't lie, won't swear false. I'm going to get my two hundred. So why should I accept it if I'll get a hundred? So comes the the ריא״ז, and the ריא״ז says, I think we don't do this. We don't do this. We make him swear, we don't let him choose. Combine. No, we don't let him choose between the two. What we do is we combine and he collects a hundred. But the question is why? Why can't he collect the whole hundred? What's the matter? Well, he can't collect two hundred. One on each. One עד on each. Why can't he collect two? Two hundred for sure not. Not without a שבועה. Two שבועות, two Oh, and let each one separately, and each one he swears, or he doesn't want to swear so he has Why? Because a hundred is for sure we know he owes.

How do you know he owes a hundred? Because you have two עדים for a hundred! Two different שטרות. We have two עדים for a hundred dollars. How is this a part of it? For this a hundred, for that a hundred. The חילוק is, even though they're two separate hundreds, but בפועל there's two עדים for a hundred. Right. We're מצטרף the two, so two עדים for a hundred. So we're or two עדים for a hundred or each one separate, and then you have to swear, hoping you'll get two hundred, but we don't let him. The ריא״ז says we don't do that. And the question is why? The guy screams, I'm telling you he's lying. I know he's not going to swear false. I I I I know the guy, he's not going to swear false, so I'll collect them all. Why don't you let me collect two hundred? So the answer they give is for this reason: because if בית דין has a right not to let, so there is no חיוב שבועה here. If בית דין feels that we want to combine the two because they don't want to they don't want to make him swear because it'll be שבועת שווא, possible, anyway, so if we have a ברירה to do this, so if בית דין doesn't allow him to swear, then it's no חיוב שבועה. The guy can't come and scream there's a חיוב שבועה, because בית דין has a reason not to let him. And the whole דין of שבועה is only if בית דין makes you swear. So the same thing we want to say over here, also, that the

רמב״ם says if we find out later that the guy was a חשוד, so his שבועה is off, the שבועה is not valid. Why? Not because the רמב״ם holds the שבועה is a בירור, and then we found that there was no בירור, because since didn't have the requirements since בית דין, we know now בית דין would not have let, so בפועל, בית דין didn't let. In theory, it's as if בית דין didn't let. בית דין let somebody else, בית דין let a guy who's not כשר, but the guy that they didn't know. I'll give you an example from the case of of of I mentioned this once before, the רב חיים's פשט in the case of עדים זוממים, that the דין is when two עדים come and say, you killed somebody, and then two other עדים come and מזים them, so the דין is ועשיתם לו כאשר זמם, you kill the first two עדים. But the דין is only if they wanted it to happen, but if they did it already, let's say two עדים said this guy מחלל שבת, and בית דין killed the guy, and then you מזים them, then you don't. ועשיתם לו כאשר זמם לעשות לאחיו ולא כאשר עשה, not if he did it. The רמב״ם has a strange שיטה that this כלל is only by מיתה, not by מלקות and not by ממון. If two people come and say this guy did an עבירה, he deserves מלקות, and בית דין gave him the מלקות, and then two other עדים came and מזים them, you will still give the מלקות. And we don't say here כאשר זמם ולא כאשר עשה. Why? Why? The ראב״ד says, I don't know what the רמב״ם is talking about, the רמב״ם is making a mistake, there's no such thing, it's a כלל by everything in any case that you find, you catch him. So regarding ממון, תוספות says it's not a problem, because ממון, there's no such thing done, you always get the money back. The question is by מלקות, why? So different סברות, why how about מיתה and so on. So

רב חיים בריסקער has an interesting סברא. He says like this: By מלקות specifically, there is a special הלכה of מלקות. There's a special דין how you give it, how much you give it, how the strap is, there's a דין of מלקות. When they came and said, \"This guy did, ate חזיר.\" For eating חזיר he deserves מלקות. They wanted the guy to get מלקות. בפועל, when you showed that they were false, so בפועל there was The מלקות was not, not כדין. If it's not כדין, it doesn't happen to be מלקות. So they never got the guy to have מלקות! So, what happened was they got the guy to get hit, but not מלקות. So it's not כאשר זמם. In this case no שבועה? So I want to use it as an example, just like over there. Since now we look back and we say that even though בשעת מעשה they gave him, it was על פי בית דין, and על פי בית דין, then it was a דין מלקות, but now that we found out that it wasn't, it was false, ממילא the whole דין of בית דין falls off, it's not a דין מלקות, same thing here by the שבועה. Because the שבועה we we let him swear, but now that עדים came and said he's חשוד, so we look back and say, \"Hey, we've never let him swear, so we didn't let him swear,\" and so ממילא טעו למפרע על השבועה. So it's not because it's a בירור. Okay, so it comes out like this, that

according to the רמב״ם we have these two things. We have when a person is חשוד, there's two things: number one, we don't let him swear, בית דין doesn't let him swear. But there's another דין we said, because בית דין doesn't let him swear, it's not a שבועה! There's two steps. See, according to that other opinion, it's בירור. So, one step: שבועה is a בירור. By a חשוד there's no בירור, so there's no שבועה. According to the רמב״ם, it's not like this. It's not because of a בירור, so by a חשוד there's also a דין שבועה, and just we don't let him swear. Now, as a result, if we don't let him swear, that makes it that there is no שבועה, because a שבועה is only על פי בית דין. But there are two steps here. So I want to say like this: when תוספות says that this דין of חשוד אממונא, חשוד אשבועה is דרבנן only, תוספות means the second step, not the first. That means like this: מדאורייתא, if someone is חשוד אממונא, we don't let him swear. Came the רבנן, and the רבנן said that because of that, there is no שבועה. That answers the קושיא of the קצות right away. The קצות asked: how does the גמרא want to bring a ראיה חשוד אממונא is not חשוד אשבועה from מודה במקצת? How could a מודה במקצת swear, isn't he חשוד אממונא? Why are we making him swear? Because we're afraid he's stealing. And nevertheless, the תורה says he swears, that's a סימן we don't suspect him someone who is חשוד אממון, חשוד אשבועה. So the קצות asks: מודה במקצת is a דין דאורייתא, this דין of חשוד מחשוד is דרבנן, תוספות says, so what's the ראיה? I'm saying, it's a דין דאורייתא. Even according to תוספות says it's דרבנן, תוספות doesn't mean that the whole thing is דרבנן. The fact that you don't let a guy swear if he's חשוד, that's דאורייתא! What did the רבנן add? They added another step, that even if he does swear, it's not a שבועה. That's the second thing. That's not It's to be מבטל. That's that's the רבנן. They're not obliged for a שבועה. And that's what the גמרא brings a ראיה: מודה במקצת swears, so the גמרא says, how do we let him swear? A סימן that we don't care. And if you do care, you wouldn't let him swear. And this דין that you do care is a דין דאורייתא, even according to תוספות. What's not דאורייתא is the second step. That's מבטל, the second step is מבטל it. The second step makes the שבועה is no שבועה. So when תוספות says that it's only a דין דרבנן, doesn't mean that the fact that we don't let him swear is a דין דרבנן. What the דין דרבנן is, that the שבועה is no שבועה. But the fact that if you don't let him swear if we hold חשוד על הממונה is חשוד על השבועה is a דין דאורייתא. If it's a דין דאורייתא you never get to the second step. Right, that's Then if the רבנן says, \"Actually, no, the רבנן made it so it's not a שבועה.\" In other words, this דין that if you found out later, it doesn't work, that's what the רבנן made a דין. But you could say that if it's דאורייתא that you're not allowed to swear, yeah, you couldn't But דאורייתא comes out, no, the דאורייתא says, no! We're saying the דאורייתא is that you don't let him swear, not that it's no שבועה. Ah, so According to the רמב״ם, that באמת the שבועה is, it's not a בירור, the שבועה is like the שבועה. אלא מאי? The תורה says, \"Don't let him swear.\" But the way it's מדאורייתא, don't let him swear, but if he כאפט אריין, somehow he swore, it's a good שבועה! Came the רבנן, said, \"Sorry, has to be through a בית דין, and if not a בית דין, there's no שבועה.\" Ah. So what the גמרא is asking here, if חשוד מחשוד השבועה, is it's talking about the דין דאורייתא, even though תוספות says it's דרבנן. דרבנן's the second step! And for that the גמרא brings the ראיה here. So the answer is the דאורייתא part is the active, is the Is a is a דין that you don't swear, that you don't let him swear, is דאורייתא. Only when we're making a conscious decision, that's the Yeah. Now according to this, it comes out like this. You're saying that's the רבנן's No, but because the רבנן are the ones that decide what's better for society. Yeah, yeah, but here also here the רבנן the תורה says don't let, but the תורה didn't go as far as saying that even if he swore it's no שבועה. That the רבנן didn't say, that the תורה didn't say. And the רבנן went further, and they took away all the שבועות, for whatever reason, for society, for whatever reason. Yeah, but here Yes, but here the גברא was already before. Yeah. And the רבנן, yeah, yeah, yeah, yeah, yeah, but if דאורייתא can make something into the גברא, תורה could make a lot of things into the גברא. Now according to this, it comes out like this: that מדאורייתא, if you learn this way, מדאורייתא the שבועה is a שבועה, even by a חשוד the שבועה is a שבועה. The רבנן said the שבועה is not a שבועה. That's the second step. So לכאורה it's like this: when we say מחוייב שבועה ואינו יכול לישבע משלם, that if you're מחוייב שבועה and if you can't swear you have to pay, you know when that is? That is when there is no שבועה. You're מחוייב a שבועה, you're a case where you should swear, but there is no דין שבועה here. Like the guy who says, \"Fifty I admit I owe, the rest I don't know.\" You're a מודה במקצת, so you're מחוייב a שבועה, but there is no concept of a שבועה here, בפועל. You can't swear, \"I don't know,\" that's not swearing, so there is no גדר שבועה. Same thing in חטפה דרב אבא: if the guy says, \"I grabbed it, but I grabbed mine,\" and the עד is not saying it didn't, it's not yours, there's no, that's where we say מחוייב שבועה ואינו יכול לישבע משלם. In a case where there is a דין בפועל, a דין שבועה, there you wouldn't say משלם. If there's a דין שבועה, how could you say pay? When do you say pay? When you're מחוייב שבועה, but the שבועה, well, fell away, there is no שבועה, so instead of that you got to pay. In a case where you can't swear, but there is a גדר שבועה, then you don't say משלם. Now by a חשוד, משלם is to pay. But in this case of a חשוד, let's see. In the case of a חשוד, is there a דין שבועה or not? Well, it depends. According to the רמב״ם, there is. According to the other שיטות, there isn't. So if you hold that by a חשוד there is no שבועה, because a שבועה is a בירור, and in this case there is no בירור, so this is exactly like every time you're מחוייב שבועה ואינו יכול לישבע. There's no, and he's משלם. If you hold that בעצם there is a דין שבועה, because like we saw, like the רמב״ם holds בעצם there is a דין שבועה, if there is בעצם a דין שבועה, then you can't say אינו יכול לישבע משלם. That's the difference between the two reasons. The first reason of תוספות says why by a חשוד we don't say משלם, בעצם you should say, תוספות says, because we're afraid that people will take away all his money. At least בעצם there is. בעצם what would fit here? It should be משלם. Why? Because the first תירוץ of תוספות holds that by a חשוד, not like the רמב״ם, by a חשוד there is no דין שבועה. שבועה is a בירור, and by a חשוד there is no בירור, so there is no שבועה. So this is exactly like the other cases, so you have to be משלם. אלא מאי, תוספות says people will grab his money. The second תירוץ holds like the רמב״ם, that there is a דין שבועה בעצם מדאורייתא, there is a דין שבועה even by a חשוד. If there is בעצם a דין שבועה, that's what תוספות says, the only reason he doesn't swear is because we don't let him. So then in that case we don't say אינו יכול לישבע משלם. Look in the words of תוספות. The second תירוץ says, right, התם אמר by there we say we have a שבועה דאורייתא, אי תשבע אי תשלם, you can't swear so there's no שבועה. אבל הכא, here, הוא ברצון יישבע, he wants to swear, ואין מניחין אותו, if we let him. In other words תוספות is stressing this point that the whole reason he doesn't swear by a חשוד is because we don't let him, but בעצם there's a, if there's בעצם a שבועה, you can't say the תירוץ שאינו יכול לישבע משלם. So the second תירוץ of תוספות holds like the רמב״ם. I will ask a שאלה, but the רבנן said there is no שבועה. So when the רבנן said there is no שבועה, so the bottom line there is no more שבועה, so why isn't it משלם? When the רבנן made דינים, they said לכתחילה by a חשוד we take away the שבועה, but we make the other guy swear. They never allowed, see if there would be two steps, they take away the שבועה, finished. Okay, now there is no שבועה. What happens if there is no שבועה? You're מחוייב a שבועה, but there is no שבועה, משלם! That's not what the רבנן did. At the same time when they took away the שבועה, they said let the other guy swear! So there's no step here of of of of of no שבועה, of of saying that there is no שבועה and then stop, so therefore משלם. So therefore, the פשט is that the רבנן, that the רבנן תקנה has no problem, because the רבנן said שכנגדו, that's what תוספות says. According to the second פשט, מדאורייתא there is a שבועה, so מדאורייתא you can't say משלם, and when the רבנן said that there is no שבועה, they together with saying there is no שבועה, they right away said let the other guy swear. What would be in a case where the רבנן said this, and it's not possible for the other guy to swear? Then the שבועה fell off! We'll go back to משלם! That answers the other קשיא. What was the other קשיא? If they're both חשוד, they're both חשוד, we said you can't make the other guy swear, חזרה שבועה, the other first guy is חייב, and since he can't swear, he pays. So we asked a קשיא, according to the second תירוץ of תוספות, anytime where you're ready to swear but the בית דין doesn't let you, you you you can't say משלם, because he claims, so what's the חילוק if the other guy is חשוד? But he is claiming, \"How could you make me pay when I want to swear?\" The פשט is different, because the the moment the other guy is also a חשוד, so there is no דין דרבנן that the other guy swears, so what remains? That this guy is חייב a שבועה, and there is no שבועה. Who said there is no שבועה? The רבנן said there is no שבועה. I'm saying there is no The רבנן took away the שבועה, there's nobody to swear, the רבנן took away the שבועה. When did the רבנן not take away the שבועה? They did take away, but when did they? בשעת together with taking away the שבועה, they came and said transfer. Transfer. So you say תא חזי מדאורייתא there is a שבועה, so he can't say משלם. But what did the רבנן do? The רבנן, when they said it, they said right away give back to transfer the שבועה. But in a case where the רבנן did not say transfer the שבועה, why did they not say? Because the other guy is also a חשוד. So what remains? It remains that there is no שבועה מדרבנן, but if there's no שבועה מדרבנן ממילא there is no שבועה, so you say משלם. No, but I know, now I'm saying that the reason is not because he just can't The reason is because there is no שבועה. When do you say משלם? When there is no דין שבועה. You're מחויב a שבועה and there is no דין שבועה. Remains no דין שבועה. According to the רמב״ם by a regular חשוד there is a דין שבועה מדאורייתא. No, that's what I'm saying. The כלל is when do we say משלם? When there is no שבועה. So instead of a שבועה, you pay. But if there is a דין שבועה, there is no instead, because the דין שבועה is still here. So according to the רמב״ם by a regular חשוד, there's still a דין שבועה, you don't say משלם. Either the רבנן took it away, the רבנן right away changed it to שכנגדו. But in a case where they couldn't change it, so it remains there is no שבועה. הלכה כרבותינו שבבבל. Yeah, the רמב״ם פסק that he has to pay, that it goes back to him, he's מחויב שבועה and you don't look at the other guy at all, he pays. The גמרא uses the לשון רבותינו שבבבל, רבותינו שבארץ ישראל. You pay 50. That's why?

Because for 50 you have for sure two עדים. Because יש בכלל מאתים מנה. You have a 100, you have 50 in 100. In the 100 you have 50. So the other 50 we don't know because we only have one witness. A cow? A cow is worth how much? Now you are also saying two different loans, what's the difference if it's a cow or not? Yeah, the value, yeah, money is the value. Yeah, money is value. Right, but סוף כל סוף you have two עדים. That's the whole חידוש that there's a צירוף of these two. Common denominator, it's the value, so we have There's a שאלה, הוא גופיה is a שאלה do we combine In some places you say דבר ולא חצי דבר. And each one is a חצי דבר. למשל if you have by two שערות is the שאלה. שערות, when a person has to be a גדול to be חייב. You have two witnesses. Two witnesses have to see that they have two שערות, two hairs. What happens you have one witness saw one hair, one on the other hair? They're attached. What happens you have one witness saw two hair, and another witness saw other two hair? See, you have two witnesses for a hair. Not everybody agrees with that. No, because each two witnesses see two hairs. Each עד is only It's the same, that's like analogous That's a צירוף, exactly the same thing. צירוף, we know a lot about צירוף. 231. יישר כח! Thank you, Rabbi. Thank you, it's not it's nothing without you guys, man. Just want you know, just ask Roz, it's nothing without you guys. Because I'm nothing.