They both came to beit din. The malveh says, \"My shtar, and I had it, and you never paid me, and I dropped it, and now you came and you khapt it, but it's really, it's mine, you never paid me.\" The loveh says, \"No, I did pay you, and I dropped it, and I really paid you, and now you came and you shlept it.\" So Rabbi says, יתקיים השטר בחותמיו, you have to be mekayem the shtar. You have to clarify, certify your shtar. And רבן שמעון בן גמליאל אומר יחלוקו. Rabban Shimon ben Gamliel says, you divide it. Now the Gemara thinks lechatchilah that what did Rabbi mean when he said you have to be mekayem the shtar, that if you find, if these two people come with a shtar, you have to be mekayem the shtar. And when you're mekayem a shtar, whenever we say in the Gemara, be mekayem the shtar, and then what happens? Then the shtar is a good shtar. And what happens if it's a good shtar? You collect with it. So the Gemara thinks that what Rabbi said was that if there's two guys that come with a shtar, the malveh and the loveh, be mekayem it, and then what will happen? The malveh will collect. So the

Gemara asks, why would you do that? וגבי ליה מלוה כוליה? The malveh will collect? ולית ליה מתניתין שנים אוחזין? Doesn't Rabbi hold of the Mishnah? The Mishnah says if two people are holding a talis, you say yichloku, because we have a safek, we don't know whose it is, so you divide it. In this case also, Naniach you'll takeh be mekayem the שטר, so we know the שטר is a good שטר, but we still don't know who it fell from. We don't know if it fell from the מלוה and he didn't pay, or it fell from the לוה and he did pay. So why shouldn't they יחלוקו? Why would you just be mekayem the שטר and give the benefit to the מלוה? So the Gemara answers, \"You are right. אמר רבא אמר רב נחמן במקוים דברי הכל יחלוקו.\" There is no argument here. Everyone agrees that if the שטר is a verified, a certified שטר, this has the same din like our Mishnah. Since they're both holding it, you say יחלוקו. That's not the machloket. The machloket is something else. The case is when you found a שטר that's not מקוים. So רבא, רבי סבר מודה בשטר שכתבו צריך לקיימו. The case is like this: It's a שטר, it's not מקוים. On the other hand, the לוה himself is, whether he likes it or not, he's mekayem the שטר. When the לוה says, \"Yeah, it's a good שטר, I borrowed the money and we had the שטר written, but I paid.\" So the לוה is באמת מודה that the שטר is a good שטר. So the

שטר is מקוים! What does a שטר מקוים mean? A שטר if you don't know if it's a כשר'ע שטר or not, maybe it's forged, so you bring עדים or whatever it is to prove it's not forged. Here we know it's not forged, because the לוה himself is modeh and he says the שטר is not forged. אלא מאי, his טענה is, \"I paid,\" but the שטר is a good שטר! So Rabbi holds if you're modeh on a שטר, if a person himself, the לוה is modeh, the שטר is not מקוים, but he is modeh, still צריך לקיימו, we still have to be מקיים the שטר, which means we do not look at the שטר as if it's a שטר מקוים. And therefore, we still look at the שטר that the שטר is not מקוים. What happens when a person brings a שטר that's not מקוים? If a person brings a שטר that's not מקוים, then the שטר is not really good enough. And ממילא, according to Rebbi, if you do not מקיים the שטר, then when this guy says, \"I paid,\" we believe him. Let's look inside. I mekayem lei takeh, if you're מקיים the שטר, the שטר was not מקוים, if you get עדים to be מקיים it, palgei lah, then takeh palgei, then you divide it like a regular case of the two arguing. Ve'i lo mekayem lei, what happens if the מלוה couldn't get the שטר to be מקוים? Lo palig, you wouldn't divide. And what would happen? We believe the לוה, the borrower, that he paid. Why? But how could you believe a guy that he paid against a שטר? When I bring a שטר that you owe me money, can you טענה that you paid? You're not believed! Against a שטר you're not believed that you paid. If a

person would be believed that he paid against a שטר, the שטר is worthless! I can have a שטר you owe me money, and you could always טענה you paid! Only thing is, when can you not טענה פרעתי against a shtar? If the shtar is מקוים! If the shtar is a כשר'ע שטר, the shtar is verified, certified that it's a good shtar, we will not believe you פרעתי. In this case the shtar was not certified, it's a shtar that's not מקוים. If the shtar is not מקוים, so in that case, you could טענה פרעתי! Only she'eilah is, but he was מקיים the shtar! So he continues, mai ta'ama, what's the reason why if the shtar is not מקוים and he says, \"I paid,\" we believe him, because the shtar is חספא בעלמא הוא, the shtar is worthless. What happens if a guy says, \"You owe me money\" without a shtar, and he says, \"I paid you,\" would we believe him? Yeah, we believe him. Here, it's exactly the same thing. He's טענ'ינג פרעתי against a shtar that's not מקוים, because the fact that he was מקיים it doesn't count. And he says, because חספא בעלמא הוא, this shtar is like a piece of of broken, broken חרס, it's nothing. Because מאן קא משוי ליה להאי שטרא, why do you think this shtar should be a good shtar? It wasn't מקוים. Why would you think it's a good shtar? Because the לוה is the one that says it. הא קאמר פרוע, doesn't the לוה say it's paid? So it's like a ממה נפשך, if you believe the לוה that the shtar is a good shtar, you want to consider the shtar a good shtar because of what the לוה said, believe him that it's paid. So therefore רבי holds like this: the shtar that they're both holding, if the שטר is מקוים, obviously it's a good שטר, it's a good שטר, in a case like that you say יחלוקו. Normally against a good שטר you cannot say פרוע, so if the guy טענ'ס, \"I paid,\" it's worthless. In this case, we're not sure it's no good, because when can't you say פרוע? If the מלוה is holding the שטר, and it's a מקוים'דיגע שטר you can't say פרוע, but in this case we're not so sure the מלוה is holding the שטר, because they're both holding it. Oh, so here, the שטר is definitely a good שטר, we don't know if we can say פרוע or not, so we say יחלוקו. But if the שטר is not מקוים, Rabbi says you could definitely say פרוע, and we believe you and you don't collect anything. That's what Rabbi meant. So when Rabbi said if they're both coming with the שטר, יתקיים השטר, he meant to say: יתקיים השטר, not then you'll collect, but then you'll say יחלוקו like a regular case. But what he meant to say is that if you're not מקיים the שטר, you don't collect anything because the guy claims, \"I paid,\" and he's believed, because you don't really have a שטר here. איי he said the שטר is good, Rabbi holds מודה בשטר שכתבו, even if he's מודה he wrote it and it's a good שטר, it's not called מקוים, צריך לקיימו, you still have to be מקיים it. And ר' שמעון גמליאל סבר: מודה בשטר שכתבו אין צריך לקיימו. If the guy himself is מודה, the לוה is מודה that, \"I wrote the שטר,\" even though the שטר is not מקוים, he's מקיים it. There's no need to be מקיים, he's מקיים it, and therefore if he's not, and if he's מקיים it, what are we dealing with here? We're dealing with a guy saying פרעתי against a שטר that's מקוים. Why is it מקוים? Because he was מקיים, it's not מקוים through other עדים, he was מקיים. We have a כלל, against a שטר מקוים you can't טענען פרעתי. So that's what he says, that we do not believe him that he's פרעתי. אף על גב דלא מקיים ליה, therefore to say you say יחלוקו because מודה בשטר שכתבו אין, פֿאַרקערט, אין צריך לקיימו, and therefore the שטר is considered a good שטר, so what would be if it's a good שטר, we say יחלוקו. This is the Gemara. The

bottom line, what I'm trying to get to, the bottom line of the Gemara is that the מחלוקת between Rabbi and Rabbi' Shimon Gamliel is really nothing to do with our case. Has nothing to do with a case where two people come with a שטר. You know what they're really arguing about? A regular, normal case. If a guy comes with a שטר that's not מקוים, and the לוה says to him פרעתי, which means he is מודה that the שטר is good, is he believed פרעתי or not believed פרעתי? That's the שאלה here. The fact that they're both holding it, that's the result. The real מחלוקת is מודה בשטר שכתבו. Again, Rabbi holds מודה בשטר שכתבו צריך לקיימו, that means if a guy is מודה the שטר is a good שטר, but it has no קיום, but he is מודה, he's believed to say פרעתי? That's what רבי says. Even though you're modeh that you wrote it, we don't look at it as it's מקוים, צריך לקיימו, it still needs kiyum. So if it's not מקוים, a guy who says p'arati against a שטר that's not מקוים, you're believed. That's what Rabbi holds. R'' Shimon Gamliel says, \"No, מודה בשטר שכתבו אין צריך לקיימו, you don't need extra kiyum, this itself is kiyum.\" So when someone says p'arati against even if a שטר is not מקוים, he's not believed according to R'' Shimon Gamliel, because the fact that he says the שטר is a good שטר, he's mekayem the שטר, and the moment the שטר is a מקוים you don't believe p'arati. That's the machloket of Rabbi and R'' Shimon Gamliel. So the she'elah I'm asking is:

Why do they pick to argue in such a strange case? Why do they tshepe zich an in a case where they both come to בית דין holding it, and then the she'elah is do you have to be mekayem it or not, because if you have to, if you hold you have to be mekayem it, he is believed p'arati, if not, not. They should argue in a normal case, like everybody else argues. We find in the Gemara in Ketubot, we're going to talk about it, a machloket: מודה בשטר שכתבו, צריך לקיימו, אין צריך לקיימו. If a person brings a שטר that's not מקוים, but the other guy says yes, the loveh says it's good, but I paid, is he believed or not? That's the machloket. That's the whole machloket here in the Gemara. So why do they pick to argue in a case such a strange case, they come both holding a שטר, the מלוה and the לוה, and the שטר is not מקוים. Do we say in this case that יחלוקו or not? What's the base What's the machloket? Whether if a guy says פרעתי against a שטר that's not מקוים, is he believed or not? Nu, argue directly on that! Why argue in a funny in such a strange case which is only a result? Obvious, huh? I'm talking about the Gemara, I'm talking about Rav, Rabbi and Rabban Shimon ben Gamliel. Why do they argue over here? They shouldn't argue. They should argue מודה בשטר שכתבו. Then the Gemara would want to say, well obviously, according to that it will come out a result. But this is not a machloket. The machloket has nothing to do with שנים אדוקין בשטר. Huh? Yeah. Yeah. They don't argue anywhere in מודה בשטר שכתבו. This is what they argue. But why do they argue here? They should argue in a regular case: מודה בשטר שכתבו, צריך לקיימו, אין צריך לקיימו. That's That's what the machloket is. So why do they pick such a far such a strange thing? So to

explain it, let's get to this inyan of מודה בשטר שכתבו. What is the technical מחלוקת מודה בשטר שכתבו? If a person is מודה on a שטר that he wrote it, the שטר is not Again, I'm repeating it 100 times, because if you don't get this vort, then the whole thing is worthless. If a person that comes with a שטר that's not מקוים, and the לוה טענה'ס פרעתי, let's put it this way: had the לוה טענה'ד מזויף, what would be the din? Had the לוה טענה'ד the שטר, I never wrote it, forged, should be believed. We tell the guy, be מקים the שטר. If you're not מקים the שטר, then the שטר is worthless, you can't collect, the guy is right. He did not טענה מזויף, he טענה'ד פרוע, which means he agreed the שטר is good. The shayla is, if a guy agrees that the שטר is good without קיום, but the לוה agrees the שטר is good, can he טענה a פרעתי? Because against a good שטר, against a שטר מקוים you cannot טענה a פרעתי. In other words, do we look at this שטר as if it's a שטר מקוים because he was מקים it, and ממילא you cannot say פרעתי, or do we not look at this שטר מקוים? This whole thing depends, what is the reason why we, the one that holds מודה בשטר שכתבו is believed to say פרעתי, מודה בשטר שכתבו צריך לקיימו, means it still needs קיום and we believe פרוע, you could look at it two ways. And this will depend, and I'll explain two ways in a second, but starting off with the background of what will this depend on, it'll depend on the whole דין of קיום.

Let's go back to the whole דין of קיום. The Gemara says in more than one place this כלל, so listen to the כלל: מדאורייתא עדים החתומים על השטר נעשה כמי שנחקרה עדותן בבית דין. מדאורייתא, if you have a שטר signed by עדים, the שטר is כשר. It's mamash as if בית דין went through the whole investigation and the research and they found out the שטר is good. So when someone comes with a שטר to בית דין, doesn't need קיום מדאורייתא. The שטר is a good שטר, fine, and you could collect with it. Came the רבנן, and the רבנן saw that people are not so, how do you say, איי איי איי, not so honest, רבנן הוא דאצריכו קיום. The רבנן came and added the דין, and the רבנן said that if it doesn't have קיום, the שטר is not you can't collect with the שטר. The רבנן made a דין that it needs קיום, which means to verify it. And how do you verify a שטר in order for the בית דין to certify it? How do you do the equivalent to being a notary public, like we have in the legal law, lehavdil, you have to have a notary public and and the signature is not enough, you have to have someone who's accepted by the government, by the court system to verify that your שטר is good? So the way the government does it, that only you could, notary public, the notary could do it if you sign in front of him. You come into the notary and you bring your ID and the notary knows who you are and they sign, so the notary will sign that you signed. In the בית דין it's different. There are a few ways the Rambam says you can be מקים a שטר. בית דין gets the שטר, fine, בית דין has to certify. What do they do? One of the three things that Rambam says. Or the עדים who signed come to the בית דין and testify that we signed it, or other two עדים come and say to the בית דין, we recognize that this is their signature, or בית דין themselves find other שטרות that has the same signatures and was already certified, and they compare it. Huh? Yeah, but that's not קיום really, yeah. That's the fourth way in the shiur I mentioned. That's like a notary public. You sign in front of בית דין, בית דין on the spot gives you the קיום. But normally a שטר is not done in front of בית דין. That would be a fourth way. But that's really more It's even more than קיום, it's בית דין says, \"We saw it happen.\" Okay, yeah, that's definitely. That's closer to the notary public. But this I'm just saying the הנהגה of how you do קיום. So this דין that you need קיום in order to make the שטר כשר is a דין דרבנן. The שאלה is, what did the Rabbanan do? You

could learn two ways. The Rabbanan came and said that a שטר that doesn't have קיום is not a שטר. מדאורייתא it's a שטר, and you could collect. Came the Rabbanan and said it's not a שטר. שטר without קיום is no שטר. Or the Rabbanan said, a שטר is a שטר, but we need something in addition to the שטר. They weren't מבטל the שטר. They said, in order to collect, there is something else we added that you have to do. You have to add קיום. The first way is they were מבטל the דין דאורייתא, which שטר is a שטר. Now, can the רבנן do that? Is this such a hava amina? Can the רבנן come and say See, the רבנן could make דינים, they could add all kinds of תקנות. So they could say that מדאורייתא is good, we added a תקנה. To collect, you have to be do קיום. Can they make that a שטר is no שטר to begin with? Can the Do the רבנן have a כח to add a דין in such a way that what they said before, that the Torah says is is not will not be? Can they do that? Can anyone answer that? Huh? No, I'm Why Why am I stopping Why am I stopping to ask you if anyone could answer that? Not because I need I want to hear your סברות. I want to hear if you listened to what Rabbi Zinner said two days ago. Rabbi Zinner brought a Tosafos from Sukkah, where Tosafos says that when the רבנן added a דין to the דאורייתא, they could make it that if you don't do their דין, you're not מקיים the מצוה מדאורייתא either. Remember? I'll remind you. He brought the Mishnah where it says there's a מחלוקת whether Beis Shammai uBeis Hillel by Sukkah. A Sukkah you have to eat, that this table that you eat on has to stay in the Sukkah. מדאורייתא, who cares? The table could be outside the Sukkah, and you eat inside the Sukkah. The רבנן made a גזירה that if you're going to have your table outside the Sukkah, you might bend over and eat outside, so you will not be מקיים סוכה. And the Gemara The Mishnah tells a story that they came to this Rabbi Yochanan and they saw that he was eating with the table outside, so they said to him, \"לא קיימת מצות סוכה מימיך.\" If you always ate like this, you never did the מצות סוכה. You were over on you you weren't מקיים מצות סוכה. So this is a Gemara later on, but Tosafos on דף ג׳, the Gemara brings this דף ג׳ in Sukkah, so Tosafos doesn't ask בלשון קושיא, but it comes out like this: what do they mean, you didn't do the מצות סוכה at all? They should have said you weren't mekayem the מצות סוכה מדרבנן. Mide'oraita, you don't have to have a table inside, so mide'oraita, they were mekayem the מצות סוכה. So they should have said, \"לא קיימת מצות סוכה מדרבנן מימיך.\" You never did מצות סוכה מדרבנן. מדאורייתא, taka you fulfilled מצות סוכה, because mide'oraita you were yotzei as long as you ate it inside. The Rabbanan added that you have to have the the table also, so miderabbanan you didn't do it. That's not what they said! That's not what the Mishnah says! They said, \"לא קיימת מצות סוכה מימיך.\" So Tosafos says that when the Rabbanan added this din to the מצות סוכה, that you have to have your table inside, if you eat in the Sukkah with your table outside, you're not mekayem the mitzvah mide'oraita either! In other words, according to Tosafos, the Rabbanan have a right to take a דין דאורייתא and add a perat to it, for whatever reason they have, and turn and make it a de'oraita you're not mekayem. And this is נוגע למעשה, I mentioned this many other times. It's נוגע, not directly, but similar to other cases. When the Rabbanan said that you're not allowed to blow shofar on שבת ראש השנה, if a person did blow shofar on שבת ראש השנה, he definitely did an איסור דאורייתא. An איסור דרבנן I mean. Rabbanan said you're not allowed to. But was he mekayem a מצוה דאורייתא? But מדאורייתא you're supposed to blow. But the Rabbanan have a right to to stop you from doing a מצוה דאורייתא, that's true. יש כח ביד חכמים לעקור דבר מן התורה בשב ואל תעשה. The Rabbanan have a right to tell you: Don't do a מצוה דאורייתא. The Chachamim have a right to that. So you're not so you shouldn't do it. But if you did it, in other words, did the Rabbanan make a din that now there is no more מצוה דאורייתא, and ממילא you didn't do anything? It's a nafka mina למעשה בפועל. If a person, let's say, is sick, and the doctor says that in order to cure you, you have to blow shofar today, I don't know, I'm giving a far-fetched example. So, he's allowed to blow shofar on Shabbos, on Rosh Hashanah, because the doctor said it's sakanah, you have to you have to listen. Should he make a berachah? If מדאורייתא there's a mitzvah, ela mai you're not allowed to because the Rabbanan said no, but in this case, you are allowed to, so he's mekayem a מצוה דאורייתא. There was a she'eilah like that about 80, 90 years ago in Yerushalayim. There was a rav, Rabbi Shlezinger, and Rabbi Shlezinger פסק'נט that by the Kotel you have to blow shofar on ראש השנה שבת. Just like in time of the Beis HaMikdash, it says, we all learned from from the ma'amarim we know it: יום טוב של ראש השנה שחל להיות בשבת, במקדש היו תוקעין אבל לא במדינה. The Beis HaMikdash they blew on Shabbos, not במדינה. So he had his re'ayot that it doesn't mean davka inside the Beis HaMikdash, and מקום המקדש is by the כותל you have to blow on Shabbos. So he went and said he's going to blow on Shabbos there. B'foal, I think he didn't. I think they stopped it,

other rabbanim argued, they didn't let him do it. But there was a whole she'eilah: He's going to blow because he holds you're allowed to, you have to. Should everyone go and listen? Because b'foal he's going to be blowing. Coming right back. L'maaseh, you're going to he's going to be blowing, so even according to us that we're not allowed to blow, but b'foal, it could be that the rabbanan that d'oraita still exists. So, it's a real she'eilah: Did the rabbanan did they take away the דין דאורייתא? למשל, מדאורייתא לילה זמן תפילין. At night, d'oraita is a time of tefillin. The Alter Rebbe it's a machloket, but the Alter Rebbe paskent like that. The rabbanan said you're not allowed to put on tefillin at night. So if a person puts on tefillin at night, is he mekayem the mitzvah d'oraita, or since the rabbanan said no, they made that there's no mitzvah d'oraita? So if a קרקפתא דלא מנח תפילין put on tefillin at night once, is he no more קרקפתא? Could be that when the rabbanan said you can't do it at night, shouldn't do it at night, they have a right to make no more d'oraita, there's no more מצוה בכלל. That's a she'eilah. A

woman who is a niddah, so d'oraita she doesn't need שבעה נקיים, the rabbanan said she does. What happens if she didn't have the שבעה נקיים and she went to the mikveh? Does it take away the איסור כרת? Is it only איסור דרבנן, or is it a because a niddah is an איסור כרת. The she'eilah is, did the rabbanan make that the דין נדה now mid'oraita doesn't work if she doesn't have שבעה נקיים, or they just added it in, so she can't go to the mikveh unless she has שבעה נקיים, but if she did? And this is also נוגע למעשה בפועל. I know from שאלות מעשה בפועל, from she'eilot what people ask. Certain shluchim asked that there's a woman that she's ready to go to the mikveh, she doesn't want to keep שבעה נקיים. Should they say, 'Okay, go better without שבעה נקיים, at least to take away the איסור כרת?' And I asked this she'eilah many big rabbanim, and no one wanted to give an answer. Guess why they didn't want? Because they didn't know. I don't know. I'm all saying this just to make it more interesting, it has nothing to do with our sugya. It has to do just with this nekudah. Because I asked, how did we have an hava amina to say that the rabbanan when they said, like it's mid'oraita the שטר is a good שטר. De'oraita is a good שטר. Came the rabbanan and said, 'No, you must have קיום.' So

I'm saying one sevara is that when they said you must have קיום, know what they said? If you don't have קיום, the שטר is worthless. Can they do that? They could say, 'We don't accept it, but mid'oraita it is.' So, I'm... ah? Yeah, it is lichorah. It's possible. I'm trying to bring, farker, I'm bringing that case to show that what I said is not is not stupid. I say I say there's two ways to learn. Lichorah, how could you? So I'm saying it's not a peshat, you could learn like that. There is a possibility for the chachamim to say that if it doesn't have קיום, the שטר is no שטר בעצם, like like like he didn't have signatures. No, I'm saying I'm trying to bring a re'ayah from there that you could, doesn't mean that that's what they said. All from there we see that the rabbanan could do it, so maybe they did it here, too. That's one way to learn, so one way to learn. No, by worthless I mean as long as you're not mekayem, then it's mid'oraita you would need קיום, what would be the din? That this is no שטר unless you have קיום. I know, it's a שטר, but it has no value, no validity. No, I don't mean value money. Has no validity, there's nothing until we get קיום. Or you could say no. The second way to say is that even mid'rabbanan, all they did, they added, they didn't say that it has no validity. Has validity, but they added something that you have to do, and the דין שטר remains like before. לכאורה mai nafka mina? Mai nafka mina how we look at it? The

bottom line is the same: you cannot collect with a shtar unless the shtar has kiyum. Whether we'll say d'rabbanan took away the דין דאורייתא that it's no shtar, or they left it to be a shtar and nevertheless they said you have to... The mai nafka mina? The nafka mina would be in a case of מודה בשטר שכתבו. That will be nafka mina. What's the pshat? The pshat is like this: the shtar has no kiyum, but he came and the loveh is mekayem it. If we hold that we do not accept the loveh's kiyum, let's say, according to the one that says מודה בשטר שכתבו צריך לקיימו, you still need kiyum. The loveh's admittance when he admits that the shtar is a good shtar, we do not accept, for whatever reason we'll see later. But let's say we hold according to the מאן דאמר מודה בשטר שכתבו צריך לקיימו, so we do not accept the kiyum. If we not accept the kiyum, what is this shtar? It's not a מקוים'דיקע שטר. Well, that depends. If it's not a מקוים'דיקע שטר, if you hold a shtar without kiyum is no shtar, basically, if the guy is modeh, it's still the shtar is no shtar, because מודה בשטר שכתבו צריך לקיימו means it's no kiyum, so we're dealing here with a shtar which is not a shtar. If you learn the other way, a shtar is a shtar. It just still needs kiyum, but the shtar is a שטר. And the difference is like this: if you say the

שטר is no שטר, then this guy, when he says פרעתי, why is he believed? You know why he's believed? Because he's saying פרעתי when there is no שטר. Imagine a guy comes to somebody, says, \"You owe me money, I have no שטר,\" and the guy says, \"פרעתי.\" We believe him. On what basis do we believe him? Because we always believe. A guy who says פרעתי and the other guy has no שטר, he's believed. So here in this case, מודה בשטר שכתבו צריך לקיימו, which means the שטר is not מקוים and we believe him by saying פרעתי, so why, again, I'm repeating again, why do we believe him saying פרעתי? Because he's saying פרעתי against a טענה without a שטר. There is no שטר here, and you're always believed. If you hold the other way, that the שטר is a שטר, it's missing קיום, so לפועל there is a שטר here. If there is a שטר, but it's a lack of קיום, so why in this case, where it is a שטר, it's not like a guy who claims without a שטר. A guy who comes without a שטר and says, \"You owe me money,\" and he says, \"I paid,\" he's נאמן because there's a פרעתי versus nothing. In this case, when he says פרעתי, it's not versus nothing. The guy has a שטר. So why is he נאמן פרעתי? The שטר is not מקוים. You know why he's נאמן פרעתי? I'll tell you why: because of a migo! He could have said מזויף! So because it's... because of a migo, he could have said מזויף, so he's believed. So

both ways the guy who says פרעתי against a שטר that's not מקוים is believed, that's for sure. If you hold מודה בשטר שכתבו צריך לקיימו, you believe him. But for two different reasons, and that depends. It's for two different reasons: one, if you learn that the שטר is no שטר, it's no קיום is no שטר, the guy is like פרוע, why not? פרעתי itself is believed. You don't need anything, you don't need a migo. He's believed because there is no שטר here, so he's believed saying פרעתי. The other way, the שטר is a שטר, and the שטר is here, אלא מאי, you're missing a certain element of the שטר. Why is he believed? לכאורה סוף כל סוף, without קיום, but the שטר should be something. Why is he believed פרעתי? Because he has a reason, he has a migo. Like any migo, you believe a guy with a migo. He could have said מזויף, and had he said מזויף, the דין would be he wouldn't have to pay, because the שטר is not מקוים. And if a guy says מזויף, בית דין says, \"Don't pay.\" He didn't say מזויף, he said the שטר is good, but he could have said מזויף. So as a מיגו, פרוע, a מיגו דמזויף. Again, mai nafka mina? Okay, so now we came to a nafka mina between these two ways, why he's נאמן פרעתי if it's a שטר that's not מקוים. But who cares? Okay, or we'll say it's פרעתי because it's, פרעתי is נאמן itself, פרעתי against such a שטר which is worthless is נאמן, or we'll say he's נאמן because... Migo, fine, mai nafka mina? And this, we're getting to the bottom line. So the

nafka mina will be in the case where there is no migo. What's pshat no migo? A case like this where there is no migo, in a case where there is, what's a migo? You could have טענה'ד a better טענה, and you didn't, mistama what you're saying is true. If you'd be a liar, you'd say the better טענה. What happens if the better טענה has a certain חסרון? The better טענה has a problem! Then there is no migo. So what happens in a case where if, in this case, if we're saying he's believed because of פרוע מיגו דמזויף, what happens if it'll be a case, and I'll tell you the case in a second, where he'd rather not טענה מזויף? טענה מזויף will be worse in a certain aspect. If טענה מזויף will be worse, then he'd rather not טענה מזויף, he has no more migo. So if he's believed because פרוע itself is believed because there is no שטר, then even if there is no migo he'll still be believed. If the whole reason פרוע is believed because of a migo, in this case there is no migo, you'd say he's not believed. What's the case? You know what the case is? Our case. Believe it or not, our case! Let's look at our case, they're both coming with the שטר holding it. What would be if he enters מזויף? He could have טענה'ד it מזויף לכתחילה. What would be if he were to טענה מזויף and the guy will go and be מקים the שטר, what's gonna happen? There won't be יחלוקו! He'll have to pay! Because he טענה'ד it מזויף. If you would טענה פרעתי, and the guy's מקים the שטר, and you're מקים... What happens after you're מקים the שטר? The שטר is good, we don't know if he paid or not, he says, \"I paid and I lost it,\" he says, \"You didn't pay and I lost it,\" you say יחלוקו. Had he טענה'ד it מזויף, and then he's מקים the שטר, and he admitted he didn't pay... What's the klal? כל האומר לא לויתי כאומר לא פרעתי. The guy says, \"This שטר is מזויף, I never borrowed any money, it's forged.\" So he's מודה that he didn't pay, cuz you don't pay if you don't borrow. The guy will come and be מקים the שטר, then we know the שטר is good, and it's not מזויף, and he borrowed, and he admitted he didn't pay. So what will happen? He'll have to pay the whole thing! If he says פרעתי, what will happen? You're מקים the שטר, what will happen? The שטר is good, but we don't know if he paid or not, so he'll pay only half. So this guy here has no migo. In this case, the guy has no migo, cuz like I said, a migo is a pshat only if the other טענה you could have טענה'ד is better, and there is no chesaron in the other טענה. So we say, \"You guy, why, if you're a liar, why didn't you lie the other lie?\" So you have a migo, we believe what you say. But if you have a good reason why you didn't טענה the other lie, there is no migo. And that's the nafka mina. So the nafka mina between these two ways is again this case: If you learn that without קיום the שטר is worthless, or the שטר is not a שטר, then the guy is believed פרוע because he's believed פרוע. If you say the reason why it is is because a שטר is a שטר, but it's still missing something, then why is the guy believed פרוע? Cuz of מיגו דמזויף. And the nafka mina will be, how will it apply in the case where there is no migo. Okay. In our case where they're both holding it, where the guy has no migo of saying מזויף, he would rather not say מזויף. So lefi zeh, we understand why Rabbi and Rabban Shimon ben Gamliel are arguing over here. Had they argued in a regular case פשוט, מודה בשטר שכתבו, a guy comes with a שטר that's not מקוים, the other guy says, \"I paid,\" which means he's מודה that the שטר is a good שטר, and that's where there'd be the מחלוקת, we would say Rabbi holds מודה בשטר שכתבו צריך לקיימו, and he's believed by saying parua. Rabban Shimon ben Gamliel says he's not believed saying parua. You know what I would think? Probably the reason is could be the reason is the first way! The reason is because of... I mean because of a migo, sorry. The reason could be because it's a migo, cuz he holds there is a migo of parua of mezuyaf, and he holds we don't accept the migo. So if the machloket is by the case of a migo, then when it would come to our case, which there is no migo, we would feel that both of them will agree that you don't believe him parua! Cuz here there is no migo! Come they argue davka in our case, to show you that that has nothing to do with migo! That even in a case where there is no migo, they still argue! He still says he's believed parua. אי there is no migo? So that's how he's teaching us what his reason is! The reason is not because we believe him פרוע מיגו דמזויף. You know why we believe him parua? Because when the shtar is not mekuyam, the shtar is no shtar! And there is no shtar, a person is believed parua. Not because of a migo, so he's believed here too. Mah she'ein ken he says that you're not. But had they argued in the case, in a regular case, we would not know this. We would not know how far they go, because there's a possibility to say that the reason is because of the migo. So they come to teach us, that's not the reason that Rabbi says that he's believed saying parua, not because of the migo. Why is he believed parua? Because the shtar is no שטר בעצם, ממילא there is no shtar. So, anytime he's to'en a parua against against no shtar, because we don't accept his words, his being modeh that the shtar is a good shtar is not acceptable, we don't say it's מקוים, ממילא there is no shtar, and if there is no shtar, there is enough to say parua. To explain this even further and deeper, and go into something which will make it even a כללותדיקע, not only in our Gemara, a כללותדיקע understanding in the whole inyan of migo, this will get us a whole, cuz we're talking about migo, and migo is one of the famous sugyot in Shas that everyone talks about, it's a יסוד, it's a ישיבישע סוגיא that you always have to talk about migo. I mean how could you be a a few shiurim pass without talking about migo? Yeah, migo is a So, let's get into the inyan of migo, which will explain more deeper of what I was trying to say. And this is the Gemara in Ketubot דף י״ט עמוד א׳. That's where we have the sugya of מודה בשטר שכתבו, the same as we had here. So

here we have like this. One opinion in the Gemara there is like over here, מודה בשטר שכתבו אין צריך לקיימו. That means that if a person comes with a שטר, again it's not מקוים, and the guy says, \"I paid,\" which means שטר is not מקוים, but he admits the שטר is good, \"but I paid.\" So we have an opinion אין צריך לקיימו. אין צריך לקיימו means that the שטר is מקוים, and therefore he's not believed to say פרוע. Okay. That's this opinion the Gemara goes starts here. Comes Tosafot, and Tosafot asks, ואם תאמר, ומאי טעמא לא מהימנא במיגו דאי בעי אמר מזויף? He asks the she'elah, why would someone say that the שטר is not מקוים, and therefore had he said the שטר is מזויף, he wouldn't pay? Befo'al he admitted that the שטר is good, but he says פרוע. But he could have said מזויף. So why is he not believed with a migo? That's Tosafot קשיא. ואם תאמר, אמאי מאי טעמא לא מהימנא במיגו, he could have said מזויף. Had he said מזויף, then he would have been right, unless the guy will מקיים, then fine, but as long as the as the שטר is not מקוים, and he has no קיום, so the שטר is worthless had he said מזויף. So who cares that he So why is this opinion, since he was מקיים it, the שטר is a good שטר because he was מקיים it, and therefore we don't believe him פרוע, believe him מיגו דמזויף. Tosafos gives two teirutzim. ויש לומר, שמא ירא לבו לומר מזויף פן יכחישוהו. A lack of migo. Like we said before, a migo is only when the other טענה you could have claimed is a better טענה, a person would rather claim that. Why didn't you rather claim that? For some reason, you're saying the truth. Here he says a person would rather not claim מזויף, because by claiming מזויף, you're taking a risk. What happens if the guy will go and be מקוים it? You're stuck, they'll find you a liar. But if he says פרוע, he's not taking a risk. What what could the guy prove that I did that I didn't pay? How can a guy prove I didn't pay? Unless he'll bring a guy that sat with me for the last three months from when I said I paid three months ago and sat with me from all this and and watched me. But normally you can't prove a guy that he didn't pay. So ממילא a guy would rather say, \"פרעתי\", פרוע rather than מזויף. So if a guy would rather claim this, therefore then it's not a migo. It's one teirutz. Then Tosafos says another תירוץ, פירש הקונטרס במקום אחר, רש״י someplace, doesn't say where. And there is no מראה מקום here so obviously the the the the people who learned and wrote הגהות, unless in the maybe over there they found if some מראה מקום to this, which I doubt. But he says Rashi writes someplace a pshat. The טעמא, what's the reason takeh why we do not this מ״ד holds we do not believe this guy who says, \"פרעתי\", the migo he could have said מזויף? משום דמדאורייתא אין צריך קיום, cuz מדאורייתא בכלל a שטר doesn't need kiyum. עדים החתומים על השטר נעשה כמי שנחקרה עדותן בבית דין. When edim sign a shtar, it's already as if beit din verified it, it's כשר בעצם. You don't need kiyum. ורבנן הוא דאצריכו קיום, and the Rabbanan said. So Tosafot says Rashi writes that when did the Rabbanan say that it needs kiyum? Only כי טעין מזויף הוא. Only when he claims מזויף. Only when he claims מזויף, that's when the Rabbanan make kiyum. אבל בשאר טענות, if he doesn't claim מזויף, if he claims something else, like he claims פרוע, לא אצריכוהו קיום. So what he's answering is Rashi that why he says מודה בשטר שכתבו אין צריך לקיימו, why do we hold it doesn't need kiyum and the shtar is called מקוים? Because be'etzem you don't need kiyum. Ai the Rabbanan said you need kiyum, that's only when the guy claims מזוייף, but if he doesn't claim מזוייף, you don't need kiyum. And therefore, what's the answer? So therefore he doesn't have a migo, you could have said מזוייף. How does that answer the kashya? So the Acharonim ask, what what is Tosafot answering? Tosafot is explaining why in a case like this, you don't need kiyum. Fine, because the chachamim never made kiyum in a case where you don't claim it מזוייף. So? But he could have claimed it מזוייף, no? If he could have claimed it מזוייף, and he claims פרוע, so he should be believed, that's a migo! How does this answer the kashya why there is no migo? A migo is a very technical thing. A migo is if you'd be a liar, you would lie a better lie, a different lie. Since you didn't, you're saying the truth. Could he have said a better lie here? Yes. He could have said mezuyaf. Had he said mezuyaf, what would have been the din? It would need kiyum. And it doesn't have kiyum, he would not have to pay. He could have done that. So why doesn't he have a migo? Tosafos says, you don't need kiyum to begin with. You don't need kiyum to begin with in a case where you didn't claim it mezuyaf. Good, fine, so you don't need kiyum, so the shtar is a good shtar. So, you're claiming parua against a good shtar. That's what Tosafos's pshat is, that's why you're not believed. But you still have a migo! But you could have said the shtar is not a good shtar. How does that answer? It's very not clear in Tosafos how this answers. So, the Acharonim, I mean Acharonim, I mean Acharonei Acharonim, who this whole migo business, of the whole shita discussion and and chakirah in migo, all comes from the very late Acharonim. I don't mean late the last 20 years. I mean late Acharonim, like the right before the war, not from going back from the Ketzos or these. And they say like this: a chakirah, what's the geder of a migo?

Two ways to learn migo: you can learn migo is a birur, like we said before, pashut, it's a very logical thing. Assume you're saying the truth, because if you wouldn't be saying the truth, you'd lie a better lie, and since you didn't say that better lie, mistama you're saying the truth. That's called a birur, it's a re'iyah. Then there's a sevara migo is a din. What's pshat migo is a din? It's a din, not that we have a re'aya that you're saying the truth, it's a din! That if you could have claimed another ta'anah, we believe you with this ta'anah. What's peshat? So this is the lashon they use, a famous lashon in all the yeshivos, all the ליטווישע ישיבות you'll hear, migo is זכות הטענה. What does זכות הטענה mean? זכות הטענה means you have a right to claim another ta'anah. Let's use this as an example just as an you had a right to say מזוייף, and if you'd have if you'd say מזוייף, you'd gain, you'd win. So

even though you didn't say מזוייף, you said פרוע, you didn't lose your right of winning this case. You have a zechut here, you have a right of claiming a ta'anah that would make you win. So even though you didn't claim it, you didn't lose that right. So if it's a ta'anah that you couldn't claim, then then you have no right. But since you, just like a migo, since you could have claimed the other claim and you would win, that right is transferred to the ta'anah you're claiming now. And therefore, they say this is peshat in Tosafos. If the whole inyan of migo is that the other ta'anah, the right of the other ta'anah is transferred to this ta'anah, in this case, you have no right of the other ta'anah, because be'etzem it doesn't need קיום. So the whole inyan of מזוייף is not a זכות הטענה. מזוייף is only if you claim it. See, זכות הטענה means there's a ta'anah you could have claimed it, and that's a a normal thing, so we transfer that right to this. In this case, that's what he says b'shem Rashi, you have there is no זכות הטענה. Why not again? But you could have claimed it anyway! It still doesn't answer it. See, we're going step-by-step, it doesn't explain it. How about it, be'etzem there is no need קיום. As a ta'anah, you could have said it, no? You could have claimed it. So even if you say זכות הטענה, it should transfer. So I want to explain it even more. I didn't see them writing it, but I think this is what they have to mean, otherwise it's, I'll tell you why. This whole gedank, the whole idea of זכות הטענה, with all due respect, doesn't make any sense, unless you're going to explain what I say. probably that's what they meant.

What do you mean you have a זכות הטענה? Makes no sense. You had a right to ta'anah the other ta'anah, and had you ta'anah'd it you would win. So now that you didn't ta'anah it, but you could have ta'anah'd it, so you win also? What in the world does that mean? What in the world does that mean? You could have ta'anah'd, so I could have, big deal, so I could have ta'anah'd that, but I didn't ta'anah it. So why would I have a right, why would the fact that I would be זוכה בדין, I would win with that ta'anah is transferred to this ta'anah? What what kind of בבא מעשיות is this? Unless you explain it. I think I'll explain it. Remember once Rabbi Yaakov Kamenetsky was here by he gave a shiur here in the yeshiva, and he quoted a Ran, and he expressed himself, says, \"The Ran is not understood. It sounds,\" says the that's what he said, \"The Ran sounds like Purim Torah.\" And he explained it. This also sounds like Purim Torah. You mean you have a right for this and you have a right, so mimela it transfers? Explain what it means. And this I'll explain בהקדם something else. We

all know there's a din called טוענין ליתומים. If someone comes to יתומים who ירש'נד from their father קרקע, let's say, and someone comes and says, \"You know, your father owes me money, and the קרקע is משועבד.\" The child has no idea, so he doesn't answer him that you're wrong, or he comes with a shtar. A guy comes with a shtar, \"Your father owes me money, so I want to collect.\" What's the din? So normally if I come and say you I have a shtar, you have to pay me, unless you claim you paid, unless you claim it's a Whatever, you've got to claim something, but there's nobody to claim here. What happens? So לכאורה what should be, so any guy who knows that somebody just ירש'נד money could forge a shtar and come and claim and then he will collect. You know what will happen then? ולא שביק חיי לכל בריה. No one can live like that, you can't live, anybody can come and there's no one going to That's why the chachamim say there's a דין טוענין ליתומים. We ta'anah for the יתומים. We ta'anah for them whatever their father could have said. So if a guy comes with a shtar and he says, so we say, \"You know what? Maybe it was paid. Just like if he would be here and he could ta'anah you paid and you'd have to prove he didn't if you could, we're ta'anah'ing.\" So whatever the father could have ta'anah'd, טוענין ליתומים. Not only by יתומים, the same thing is by לקוחות. If someone sold a field to somebody and he left town, someone else will come to that לקוח and say a שטר, \"You see? This guy you bought it from owes me money. I have a שטר. So it's משועבד, I'm going to take it.\" The guy has no idea. What's he going to do? Should take it away? Because he doesn't answer no, he doesn't know, we're talking about honest people. So בית דין will טענה say to the guy, \"You brought this שטר? Prove that he didn't pay you. And as long as you don't prove,\" that is, if he'd be here, he'd be able to טענה that, so we're טענה'ing it for him, because otherwise ולא שביק חיי לכל בריה. Now, this gufa you could learn two ways. You can learn be'emet if a guy comes with a שטר or with a טענה, every Yid has a חזקת כשרות, so we believe him, סתם, יא? The רבנן came and make up ta'anot pashut to protect the guy. So they make up new טענות that the טענה nobody said such, nobody said it got paid, so why would we think it got paid? We takeh don't know, there's no reason to think so, but the רבנן are doing it pashut to save the guy. Otherwise the guy everyone will come, ירש'ן, anything you ירש'ן 100 people will come and take it away, because everyone will get it. Or you could say that's not the peshat. The פשט טוענין ליתומים is not we make up new טענות. טוענין ליתומים is because be'etzem there is a חשש. If a guy comes with a שטר or any other טענה, if he doesn't prove his טענה, בעצם we're not sure his טענה is true. We don't say the חזקת כשרות סתם is saying the truth. Any possible טענה that a guy could טענה is be'etzem there. So when the guy comes with a שטר, בעצם we tell the guy, \"You should know, it might be מזויף.\" And it's be'etzem a חשש. \"It might be פרוע. We don't know.\" Huh? It's it's just as like a technicality, we're saying the לשון ולא שביק חיי, the לשון ולא שביק is whether you טענה מזויף or פרוע, that's what Tosafot used the לשון. But be'etzem it's a shaylah, it's a חשש בעצם. If the guy is here himself, he ta'anah's פרוע, ah, so then we only deal with פרוע because he agreed that it's not מזויף or whatever other ta'anah. So we deal with that ta'anah, we tell him prove he's wrong. But when he's not here, any possible chashash that's there we come up with. That שטייט טוענין ליתומים. So in other words what we're saying, if you learn like this, the pshat is all the ta'anot that a person is able to ta'anah, which makes sense, is be'etzem there. If I come to a person with a ta'anah, \"You owe me money,\" any possible thing he could answer, he could answer, \"I paid you,\" he could answer, \"I never borrowed,\" he could be'etzem it's there. And we tell the guy, if the guy isn't here, we tell him, \"Prove, we don't know.\" If the guy is here, then we'll listen to what he says. But otherwise be'etzem is there. So in other words, be'etzem there is a chashash. That's the פשט זכות הטענה. Because we don't know that. Because because the guy comes, we don't give him the חזקת כשרות right away. Because a guy comes, anybody could come off the street. That's how What do we look at? A guy comes off the street and says you owe me money. And and the guy's not here to defend himself. We don't know if he's saying the truth. I mean, you could look at it both, you could say he's saying the truth and we would have to pay him. Or you could say, no, on what basis? The basis, it means like this, a guy comes with a ta'anah, you got to prove it. A ta'anah itself without proof is worthless. I come with a ta'anah, I could say anything, I say you owe me ten million dollars. I could say what I want. Because I said so, means anything? It's nothing. So anything that I ta'anah, I got to prove. I got to prove that I'm right. So u-mimeila, if you learn, and that's that's why we טענינן ליתמי, because we're just bringing out what be'etzem is there. That's the טייטש זכות הטענה. מיגו דזכות הטענה means since you could have טענה'ד other ta'anah, it's not a pshat since you could have טענה'ד, you didn't ta'anah. The fact that you could have טענה'ד means that that's a חשש בעצם there. Because if that chashash is not there, your ta'anah, you couldn't ta'anah that. The fact that you could ta'anah that ta'anah means that that's a חשש בעצם. Oh, if it's a חשש בעצם, that's why you win the din Torah. Let's apply it, let's say, in our case, פרוע מיגו דמזויף. The

fact that you could have טענה'ד מזויף means that when you come with a שטר, there's בעצם a חשש מזויף. If there's בעצם a חשש מזויף, so you don't win unless you prove that it's not מזויף. Ah, the guy טענה'ד it's פרוע, so we say we give him this זכות הטענה, not because the right, he could have טענה'ד this, so he would have won. We're giving him that זכות because בעצם it's there. בעצם we are חושש it's מזויף. We're בעצם חושש it's מזויף. And therefore, even though you're ta'anah'ing פרוע, but since you could have טענה'ד מזויף, meaning that בעצם there's a חשש it's מזויף, and you didn't prove that it's not מזויף, so we're saying, \"Prove it's not מזויף, as long as as long as you don't prove it.\" Ah, he didn't ta'anah it, that's the טייטש זכות הטענה. And this is what Tosafot means here, in Rashi. When Tosafot quotes Rashi that we do not give him the migo of פרוע מיגו דמזויף, I'll tell you, because Tosafot says that it says that Rashi learns that מזויף is not a חשש בעצם. That's what Tosafot means. The

רבנן said you need קיום, but when? כי טעין מזויף הוא. שאר טענות, כפרוע, לא צריכו קיום. What does that mean? That it's other טענות that you're able to טענה, the fact that you're able to טענה that means that there's בעצם a חשש. מזויף is an exception. Mid'oraita, there is no חשש מזויף, that's for sure. Came the Rabbanan, and they made a חשש מזויף. So Tosafot says that Rashi learns, the Rabbanan never made a חשש מזויף. They never said בעצם there is a חשש מזויף. They said, \"If the guy טענה's מזויף, then we are חושש מזויף.\" וממילא, there is no בעצם חשש of מזויף. If there's no בעצם חשש of מזויף, then you can't believe him for פרוע מיגו דמזויף. Because if we're learning migo doesn't mean a birur, you could have טענה'ד. If you learn like that, then it's, it's a good שאלה, לפועל you could have טענה'ד מזויף. We're learning it's a זכות הטענה. What does it mean זכות הטענה? That the חשש that's there בעצם is the one that we're paskening based on. If you טענה פרוע and there's a בעצם a חשש מזויף, so you win with the migo, meaning you win because of the חשש מזויף. But if you didn't טענה מזויף, רש״י says there is no חשש בעצם of מזויף. It's not like other טענות. פרוע is a חשש בעצם. A guy comes and says you owe me money, maybe you paid, בעצם is a חשש. But if מזויף is not בעצם a חשש, so מזויף you can't טענה. No, he could טענה, if he'll טענה then it'll be a, but if he didn't טענה, you can't say we give him the right, the זכות of that חשש. זכות הטענה means the right of the חשש that's there בעצם. There is no חשש בעצם. There's no חשש, that's what Rashi means. So it comes out like this, that the difference between these two תירוצים in Tosafos in Kesubos depends on how you learn meigo. If you learn meigo is a בירור, so the second תירוץ doesn't make any sense. Who cares that the רבנן said that you only need קיום if he could have said, if you say מזויף. סוף כל סוף, he could have said מזויף, had he been a liar. He didn't, so it's a סימן he's saying the truth. The second תירוץ doesn't make sense. The first תירוץ makes sense, it's a very פשוט'ע תירוץ. Since the whole reason it's a בירור, a בירור means you could have טענה'd a better טענה, and you didn't, סימן you're saying the truth, in this case he couldn't טענה a better טענה, because מזויף is something he wouldn't טענה, it's not better, he's afraid. Okay? But the second תירוץ makes no sense. But if If you learn that meigo is טייטש זכות הטענה, and the way I'm explaining זכות הטענה means there's a חשש בעצם, so the second teretz is a good teretz. If the whole teitch in migo is that we believe you, and we make you not pay because of the chashash of the other chashash that's there be'etzem, so in this case there's no חשש בעצם according to Rashi. Now, according to the way Tosafot brings the Rashi, this is the sevara of the one that says that we do not believe you with saying parua. So what is the other מ״ד that says we do believe you with saying parua? Obviously he will argue and say there is a chashash. Not like he says that the Rabbanan only said you need kiyum if you טענ'ט מזויף, the Rabbanan said be'etzem you need kiyum. In other words, the Rabbanan made be'etzem a chashash, so mimela you could give him the migo. So the machloket between these two, and in our case with Rabbi Shimon and the Rabbanan, would be a machloket whether we give him the migo or not. But you can go a step further. According to what we're saying the Rashi, the way Tosafot brings the Rashi, that the Rabbanan never made the דין קיום if you don't טענ'ט מזויף, so in a case where there is a safek, the shtar is be'etzem no shtar. It's not the pshat we don't give you because there is no chashash, because there is no din of kiyum. In the case where there is a safek, there is no Wherever there is a safek, we know, like I explained once three times before, there's no such thing as ספק בירור. So in the case where there is a ספק, then there is no דין of קיום to be, no דין קיום at all. It means there's no דין שטר at all. If you have a שטר which has a ספק, it's not a דין of a שטר. So this, I'm getting back to what we started, that there is a possibility to say that that's not the pshat we believe him because of פרוע, מיגו דמזויף, that's why we believe him when he says פרוע in the case where it's not מקוים. We believe him because he has no שטר. So if he has no שטר, and that's what we're saying in our case. Only thing, I want to give it one more minute: why takeh would a person say that if the לוה is מודה the שטר is מקוים, why isn't it enough? We're all saying because we don't believe him when he says מקוים the שטר, all these differences. Why would we takeh not believe him? Isn't the דין הודאת בעל דין כמאה עדים דמי? If a

guy admits, he admits the שטר is good, so we know the שטר is good. So why would there be a סברא takeh not to accept this? Well, it depends how we learn הודאת בעל דין כמאה עדים. You have the famous מחלוקת between the Mahari"l and the Ketzos, whether it's נאמנות or not, or it's התחייבות. If it's נאמנות, takeh we would believe him. Why not, if he says the שטר is good? But if you learn that it's not נאמנות, we don't believe it, הודאת בעל דין doesn't work to be believed. How can you believe a guy on himself? אדם קרוב אצל עצמו. אלא מאי? It's like a התחייבות, but not to believe. So even if the guy is מודה the שטר is a good שטר, that doesn't mean we believe him that the שטר is a good שטר. We only believe him because he's saying I have to pay. A regular guy says, you know, I admit I owe you money, I admit I borrowed. So we say הודאת בעל דין, you got to pay. According to Mahari"l, that doesn't mean we know that he borrowed, we don't believe him that he borrowed, but we believe him, we know that you said you have to pay, so pay. So we believe him in regard to the bottom line. In this case, does it fit? He's מודה that the שטר is a good שטר, but we don't believe the שטר is a good שטר. Only thing we believe is that he's מודה that he owes the money. But he claims I don't owe the money, he says פרוע הייתי. So there's no הודאת בעל דין here. הודאת בעל דין only works for the actual payment, but he says that he's not מודה. So there's no הודאת בעל דין. If there's no הודאת בעל דין, so the שטר is not a good שטר. If the שטר is not a good שטר, that's why he's נאמן on פרוע הייתי.