Jewish Audio on Chabad.org. Today's shiur will be in Maseches Shevuos דף מ\"ו. We will start six lines from the bottom of דף מ\"ה עמוד ב'. And the Gemara here is in the middle of the sugya of what it said in the Mishnah, that even though normally the din is that when a person is מחויב a shevuah, so who swears? The one that defends himself and claims that he doesn't owe the money, he swears and he is patur from paying. Nevertheless, the Mishnah said there are certain cases where the Chachamim were metaken that the one that is claiming the money swears and gets his money, and one of those was a sachir, that if a worker tells his baal habayit that you didn't pay me the wages for my work, and the baal habayit says, \"I did pay you,\" so then the din is that the sachir swears and gets his money. And as the Gemara explained before, because we believe the sachir more than we believe the baal habayit, because we assume that the baal habayit is טרוד בפועליו, he is busy with his workers and it's very easy for him to make a mistake and think that he already paid, and therefore we believe the sachir more, so we tell the sachir, \"You swear and then you will get your money.\" But then the Gemara said that Rav and Shmuel both said that this din that we believe the sachir more and therefore he swears and gets his money is only if he hired him with עדים, in front of witnesses. But if he did not hire him in front of witnesses, so then the baal habayit has a migo, because the baal habayit could have said, \"I never hired you.\" And if he would have said that, he would have been believed. So since he could have said that, now that he says, \"I did hire you, but I paid you,\" he is also believed. And now the Gemara is going to go on concerning this statement of Shmuel and Rav. And the Gemara says, קרי רמי בר חמא עילויה דרב ששת: Rami bar Chama referred to Rav Sheshet this pasuk that it says, that \"וישם דוד את הדברים האלה בלבו\" or \"בלבבו\", that David put these things into his heart. There was something he took into consideration, he was thinking about. So Rami bar Chama referred this pasuk to Rav Sheshet, because רב ששת also took something into his heart, which means there was something and he put a lot of thought to. Where do we see that? דאשכחיה רב ששת לרבה בר שמואל, because רב ששת met רבה בר שמואל, אמר ליה he said to him, תני מר מידי בשכיר, did you learn anything concerning the דין of a שכיר? אמר ליה he said, אין, yes, תנינא, I learned that שכיר בזמנו, if a worker comes during the time when there is an obligation on the בעל הבית to pay him, before the time is up, because we learned before there are certain times when he is obligated to pay. If you are a worker of the day, then you have the whole night to pay. If you are a worker of the night, then you have the next whole day to pay. So till the time is up, it's called בזמנו. So if the שכיר, the worker, comes during that time and he says that you did not pay me, and the בעל הבית says, \"Yes, I did,\" נשבע ונוטל, so then the שכיר swears and gets his money. כיצד, what is the example? בזמן שאמר לו, \"שכרתני ולא נתת לי שכרי,\" if the שכיר says to him, \"You hired me, but you didn't pay me my wages,\" והלה אומר, and he answers him, \"שכרתיך ונתתי לך שכרך,\" \"it's true I hired you, but I did pay you wages,\" so then the דין is that he has to swear and get his money. אבל אמר לו, but if he said to him, in other words, if the dispute was not whether he paid him or not, but the dispute was that the שכיר says, \"שתים קצצת לי,\" \"you promised to give me two for my work,\" והלה אומר, and the בעל הבית says, \"לא קצצתי לך אלא אחת,\" \"I only promised, I only fixed the amount of one to pay you,\" המוציא מחבירו עליו הראיה, then the one that is trying to take out from the other, he has to prove it, which means he would have to bring witnesses. And in this case who's the מוציא? The שכיר. Since the שכיר claims that he owes him two, the בעל הבית says, \"I only owe you one,\" so then the שכיר is the מוציא, so we tell the שכיר, \"המוציא מחבירו עליו הראיה. You are trying to take the money out of him, so you prove it. You bring witnesses that he owes you two, and then you will get your two, but otherwise you only get one.\" And from this braita, Rav Sheshet wants to prove that we do not accept the sevara of Rav and Shmuel. Because in this braita we see two dinim: in the first din where the dispute is over whether he paid him or not, the braita פסק'ס one din, that the sachir swears and gets his money; in the seifa, where the dispute is over how much you promised to give him, the beraita says המוציא מחבירו עליו הראיה. So we understand that עמידי דסיפא בראיה הואי, since in the seifa the din is that he has to bring a re'ayah, he has to bring witnesses that saw him being hired and know how much he was promised, רישא בלא ראיה, so obviously the reisha, where the din is a different din, so then you don't have to bring a re'ayah, you don't have to bring witnesses. Because if the din would be that in the reisha you also had to bring witnesses that saw him hired, and that's the only time we believe the, believe the sachir, so then the beraita would have said that too. Since the beraita makes a difference and says that in the case where the dispute is over whether he paid him or not, he just swears; if the dispute is over how much you promised, he has to bring witnesses. So obviously in the first case he doesn't have to bring witnesses. Now if Rav veShmuel would be right, and even in the first case you would have to bring a re'ayah, would have to bring witnesses, you would have to bring witnesses that he hired him, so then we would say the din that he swears and gets his money. But if he doesn't bring witnesses that he was hired, so then Rav veShmuel say that we believe the baal habayit with a migo and he could have said I never hired you. But since in the beraita it doesn't say that, the beraita just says in the seifa that you bring a re'ayah, that you have to bring witnesses, obviously in the reisha you don't have to bring witnesses, and nevertheless the sachir swears and is believed and he gets his money, is a re'ayah that we do not say the sevara of Rav veShmuel, that if there are no witnesses that he hired him, then he doesn't swear, but rather we believe the baal habayit and he doesn't give him any money.

Amar Rav Nachman bar Yitzchak, Rav Nachman bar Yitzchak said no, רישא וסיפא בראיה. The reisha and the seifa both the din is that you have to bring a re'ayah. Which means that even though in the reisha it says נשבע ונוטל, that the sachir swears and gets his money, this din is only if he brings a re'ayah. And the reason it doesn't mention in the reisha the re'ayah, because ראיה דמשלם קתני. The ראיה that you have to bring in order to get paid, that ראיה the ברייתא mentioned, and that's in the סיפא. Because in the סיפא, if he brings a ראיה that witnesses heard him being hired and know how much he was promised, and then he would collect how much he claims, so that kind of ראיה the ברייתא mentioned. ראיה דשבועה לא קתני. But a ראיה that even if he'll bring the ראיה he still won't get what he claims, he will then just have to swear, all the ראיה will do is that make him swear and then he will get his money, that the ברייתא doesn't learn. And in the רישא, even though you have to bring a ראיה, you have to bring witnesses that saw him being hired, but that won't help him to collect his money. He still will have to swear and then get his money, so that kind of ראיה the ברייתא doesn't mention. And that's why it's no ראיה from that ברייתא that we do not accept the סברא of Rav uShmuel. Then the Gemara says, אמר רבי ירמיה בר אבא, רבי ירמיה בר אבא said,

שלחו ליה מבי רב לשמואל, they sent a message from the yeshiva of Rav to שמואל, ילמדנו רבינו, our Rebbe, teach us the דין, what would be the דין if אומן אומר שתים קצצת לי, the worker, the craftsman says to the בעל הבית who gave him the work that you promised to give me two, והלה אומר, and he answers him, לא קצצתי לך אלא אחת, I only promised to give you one, מי נשבע, which of the two has to swear? אמר להם, so Shmuel answered, בזה נשבע בעל הבית ויפסיד אומן. In this case, the בעל הבית swears and he doesn't have to pay, and the worker, he loses. And it's not like the case of our Mishnah where it says that if there is a dispute between the שכיר and the בעל הבית, the שכיר says you didn't pay me and the בעל הבית says I did, so the שכיר swears and gets his money, and the בעל הבית loses. Here we say, since the dispute is whether he promised him two or one, so then this דין is that the בעל הבית swears, and the אומן loses, the worker loses. And the reason is, because קציצה ודאי מידכר דכירי אינשי. How much you promised to give him, definitely people remember. In other words, in the Mishnah where he claims that you didn't pay me and the baal habayis says I did, there we say that we assume the baal habayis forgot. Since the בעל הבית טרוד בפועליו, since he's busy with his workers, and he had to pay many people, so he thinks he paid him and really he didn't. So there is more reason to believe the worker, and therefore we say let the worker swear and get his money. But if the dispute is whether he promised to give him two or one, here we don't say the baal habayis suddenly forgot. Here we say that mistama he remembers, because how much you promise you remember, and therefore we cannot trust the שכיר, the worker, more than the baal habayis. Therefore we say let the baal habayis swear, and he doesn't have to pay him anything, and the אומן, the worker, he's going to lose. And then the Gemara says, איני, is it not so? והתני רבה בר שמואל, didn't Rabbah bar Shmuel learn, that's the baraita that we brought before, that Rabbah bar Shmuel told Rav Sheshet that if the dispute was קצץ, which how much he had made up lechatchilah, the din is המוציא מחבירו עליו הראיה, that the one that's trying to take out, which is the שכיר, has to bring a ראיה. ואי לא מייתי ראיה פקע, and if he doesn't bring a proof, then he loses. So the question is, אמאי נשבע בעל הבית ויפסיד אומן? So why do we say the baal habayis has to swear and that's how how the שכיר the worker loses. From the baraita it seems that he doesn't even have to swear. Even if the baal habayis doesn't swear, we say that the only way the שכיר will get his money is if he brings a ראיה, but if he doesn't bring a ראיה, then he loses his money. So how could Shmuel say that the baal habayis has to swear? אמר רב נחמן, so Rav Nachman said it's בצידין שנו. This baraita was learned to the sides, in other words the baraita is not a clear cut baraita. The peshat in the baraita is like this: או מייתי ראיה... So או if he brings a ראיה then he gets, so when the baraita said המוציא מחבירו עליו הראיה, is one option, one way he could do it. If the שכיר will bring a ראיה that he promised to give him two, then he will get his two. או, or if he doesn't bring a ראיה, so then ישבע בעל הבית ויפסיד אומן, so then the בעל הבית will swear and the אומן the worker will lose. So the beraita didn't mean that if he doesn't bring a ראיה he loses automatically. It means that if he doesn't bring a ראיה, then he is able to lose if the בעל הבית will swear. So the beraita only mentions one of the two possibilities, but then there is another possibility that the בעל הבית swears and the אומן loses. Then the Gemara does מיתיבי and would ask a kashya: We learned הנותן טליתו לאומן, if someone gives his garment to a worker, אומן אומר קצצת לי שתים, and the worker says later, \"You promised to give me two for my work,\" והלה אומר, and the בעל הבית says, \"לא קצצתי לך אלא אחת, I have only promised to give you one,\" the דין is that כל זמן שהטלית ביד אומן, as long as the טלית is in the hands of the אומן, so then the בעל הבית is considered the מוציא מחבירו, because the טלית is in the hands of the worker and the בעל הבית is trying to get his טלית out by paying only one. So then we say על הבעל הבית להביא ראיה, the בעל הבית has to bring a ראיה, because since the בעל הבית is considered the מוציא, so we say המוציא מחבירו עליו הראיה. The one that's trying to take it out, he has to bring a ראיה, which means he has to bring עדים that he only promised to give him one. But if נתנה לו, if the אומן already gave the טלית back to the בעל הבית, and now the אומן is claiming that you owe me two זוז and the בעל הבית says, \"I only owe you one,\" so בזמנו, if he's claiming within the time limit of when the baal habayis has to pay the שכיר, so then נשבע ונוטל, then the שכיר swears and gets his two זוז that he claimed. עבר זמנו, if he claimed it after the time passed, so then we say המוציא מחבירו עליו הראיה. Then, since the אומן the worker is the מוציא, he's trying to get two זוז out of the baal habayis and the time passed, so we say המוציא מחבירו עליו הראיה, and the only way he will get his money is if he brings עדים that he was promised to get two. But in the meantime we see here that בזמנו, he נשבע ונוטל. But if he claimed, even if the talis was given back already to the baal habayis, but if the worker claims that he is owed two during the time before the time limit is up, then נשבע ונוטל, then the worker swears and gets his two זוז. Amai? Why would the din be like that? ישבע בעל הבית ויפסיד אומן! Why doesn't the baal habayis swear and let the אומן lose? Didn't Shmuel say that before, that if the dispute is whether he promised to give him two or one, so here we say that the baal habayis is more believed, so the baal habayis swears and the אומן loses, because here we say the baal habayis definitely remembers how much he promised? So there is no reason to believe the worker more than the baal habayis. But here we learned that if he claims in the middle of the time before the time is up, so then he swears and gets his money. Why shouldn't the din be like Shmuel said, that the baal habayis should swear and the אומן should lose? אמר רב נחמן בר יצחק, so Rav Nachman bar Yitzchak said, הא מני רבי יהודה היא. You know who said that din? This was Rabbi Yehuda, דאמר, he says, כל זמן ששבועה נוטה אצל בעל הבית, that whenever the שבועה inclines towards the baal habayis, which means that whenever על פי דין the baal habayis is supposed to swear, which would mean a case of a מודה במקצת, so then a baal habayis would have to swear. So since it's concerning a dispute between the baal habayis and the worker, so we say שכיר נשבע ונוטל. The worker is the one that swears and gets his money, even though in normal dispute between two people, so the one that is מודה במקצת, the one that's admitting to part and denying the other part, he is the one that has to swear. But if it's a case of a שכיר, if a case of a worker, then always the worker swears, even if the dispute is concerning how much money they made up, not, not only if the dispute is whether he paid him or not, for instance the שכיר says, \"You didn't pay me,\" and the בעל הבית says, \"I paid you part,\" then the בעל הבית is a מודה במקצת, but even if he's a מודה במקצת concerning how much they made up, that the שכיר says, \"We made up that you will pay me two,\" and he says, \"I only made up to pay you one,\" so here is a מודה במקצת. But רבי יהודה said that even in a case like that, the שכיר has to swear. And the reason is because we assume the בעל הבית is busy with his workers, and therefore he doesn't remember, so the שכיר has to swear. So we see that רבי יהודה holds this סברא that we believe the שכיר over the בעל הבית because we say the בעל הבית is busy with his workers, we say that even if the argument was over how much they made up. Because before, we said in the גמרא that there is a difference. If the argument is whether he paid him or not, we say the בעל הבית is busy with his workers and doesn't remember. But if the dispute is how much they made up, there the בעל הבית does remember. But רבי יהודה holds that in all cases, we say that the שכיר is the one that has to swear. וממילא, when it said before that if the שכיר, the אומן, is claiming his money, saying that \"We made up two,\" and this was after he gave the towels back to the בעל הבית, but it was before the time was up, so then we say the worker swears and gets his money, this goes according to רבי יהודה, because רבי יהודה holds this opinion. But then the Gemara asks, \"הי רבי יהודה? Where do we find that רבי יהודה is of this opinion? אילימא רבי יהודה דמתניתין, if we are going to say it's the Rabbi Yehuda of the Mishnah, because it said in our Mishnah that תנא קמא holds that whenever the שכיר claims to the בעל הבית that 'You didn't pay me,' and the בעל הבית says, 'I did pay you,' so the din is that the שכיר swears. Comes רבי יהודה and says that if it is a din of מודה במקצת, that the בעל הבית is a מודה במקצת, that's when we say the דין that we transfer the shevuah from the בעל הבית to the שכיר, and the שכיר swears and gets his money. So maybe this is where we find the opinion of Rabbi Yehuda that we mentioned before, that whenever the shevuah is נוטה to the בעל הבית, then the שכיר swears and gets his money, because this is what he said in the Mishnah, that if there is a הודאה במקצת, if the בעל הבית is מודה במקצת, then the shevuah is transferred to the שכיר, so this is where we find his opinion. And we assumed that this opinion is not only if the argument is that the שכיר says, 'You didn't pay me at all,' and the בעל הבית says, 'I paid you part,' but also if the argument is when the שכיר says that 'You made up to pay me two,' and he answers, 'I only made up to pay you one.' But how can we say that? אחמורי קא מחמיר. On the contrary, Rabbi Yehuda is מחמיר over the חכמים, not מיקל. דתנן, because in the Mishnah it says, רבי יהודה אומר, רבי יהודה says, עד שתהא שם מקצת הודאה, that the only time we say that the שכיר swears and gets his money is only if the בעל הבית is a מודה במקצת. Which comes out that Rabbi Yehuda is מחמיר over the רבנן. Because in the case where the רבנן hold that the שכיר swears and gets his money, nevertheless, Rabbi Yehuda says he doesn't. Rabbi Yehuda says that when does the שכיר swear and get his money? Only if the בעל הבית is a מודה במקצת. But the חכמים say that even if the בעל הבית is not a מודה במקצת, nevertheless the שכיר is believed, and swears and gets his money. And Rabbi Yehuda says in a case like that where there is no מודה במקצת, the שכיר does not swear, which means that Rabbi Yehuda is מחמיר over the חכמים, that in a case where the חכמים hold that the שכיר swears and gets his money, Rabbi Yehuda says, 'No, the שכיר does not swear and get his money.' So we have to understand that in a case where the חכמים are even מחמיר, certainly Rabbi Yehuda is מחמיר. So therefore, in the case where we find the חכמים hold that the שכיר is not believed, and that is the case where the שכיר claims, 'You made up to pay me two,' and the בעל הבית says, 'I made up to pay you one,' so there the חכמים also hold the שכיר doesn't swear, so certainly Rabbi Yehuda should hold the שכיר doesn't swear. Because in our Mishnah we see that even in the case where the חכמים hold the שכיר swears, still Rabbi Yehuda holds that the שכיר doesn't swear, he only swears in a certain case of מודה במקצת, but otherwise he doesn't, so he's מחמיר over the רבנן, so wherever the רבנן are מחמיר, wherever the רבנן also hold that the שכיר doesn't swear, so certainly Rabbi Yehuda should hold the שכיר doesn't swear. So how can you say that in our Mishnah we see that Rabbi Yehuda holds that if the argument is over how much they made up, then the דין would be that the שכיר would swear? Because if the חכמים hold that the שכיר doesn't swear there, then certainly Rabbi Yehuda should hold that the שכיר doesn't swear there. So we're back to the question, where do we find that Rabbi Yehuda is of that opinion? אלא, the Gemara says, Rabbi Yehuda דברייתא. It must be Rabbi Yehuda that's mentioned in the ברייתא. דתניא, we learned in the ברייתא, שכיר, the worker, כל זמן שלא עבר עליו זמנו, as long as the time limit for when he should be paid did not pass, and he claims that he didn't get paid, הרי זה נשבע ונוטל, then he swears and gets his money. ואם לאו, if not, if it's already after the time limit, אינו נשבע ונוטל, then he doesn't swear and get his money. אמר רבי יהודה, and רבי יהודה says, אימתי, when is this דין that if he claims his money within the time limit he swears and gets his money? It's only בזמן שאמר לו, it's only if he says to the בעל הבית, \"תן לי שכרי חמשה דינר שיש לי בידך, Give me my wages, fifty דינר that you owe me. והוא אומר, and the בעל הבית says, התקבלת מהן דינר זהב, I gave you already one דינר זהב. So therefore, he is a מודה במקצת. או שאמר לו, or if he says to the בעל הבית, שתים קצצת, you made up to give me two דינר, והלה אומר, and he says, לא קצצתי לך אלא אחת, I only made up to give you one, so there the דין is that the שכיר swears and gets his money. אבל אמר לו, לא שכרתיך מעולם, but if the בעל הבית says to him, I never hired you, או שאמר לו, or he says to him, שכרתיך ונתתי לך שכרך, I did hire you, but I paid you already, which means he is a כופר הכל, then המוציא מחבירו עליו הראיה. The din is that the one that is trying to take the money out, he has to bring a re'ayah, he has to bring edim, which would mean that the שכיר would have to bring edim. So here in the beraita, we see clearly that Rabbi Yehuda holds that if the dispute is over how much they made up, it has the exact same din as if the dispute was whether he paid him or not. That just like he says, if he claims that he didn't pay him at all, and he says, I paid you a little bit, so therefore he is a מודה במקצת, and in a case like that we say that the שכיר swears, the same din is also if the argument is that the שכיר says we made up for two and the בעל הבית says we only made up for one, he is also considered a מודה במקצת, and the שכיר has to swear and get his money. So here we see that Rabbi Yehuda is of this opinion that in a case like this, even if the argument is over how much they made up, the שכיר swears and gets his money. So this is the answer that we gave before, when we asked a kashya on Shmuel: How could Shmuel say that the din is that if the machloket is over קציצה, so then the בעל הבית swears and the אומן loses? And we asked a kushya, that we learned that if he claims before the time of the payment is up, that you promised to give me two, and the בעל הבית says I only promised to give you one, so then נשבע ונוטל, the אומן swears and takes, and we asked a kushya that this is a kushya on Shmuel, and the Gemara answered that that goes according to Rabbi Yehuda. And we asked, where do we find that Rabbi Yehuda is of this opinion, that if the dispute is over how much they made up, it has the same din as if the dispute is over whether he paid him or not? But now we found this beraita where it says clearly that Rabbi Yehuda says that the same din that we have if the dispute is whether he paid him or not, and Rabbi Yehuda holds that if he is a מודה במקצת then the שכיר swears and gets his money, the same din is if the dispute is over how much they made up, that if he says you made up to give me two and he answers I only made up to give you one, he is also מודה במקצת, and here too we say that the אומן swears and gets his money. But now the Gemara asks, that's just the opposite: מתקיף לה Rav Sheshet berih de-Rav Idi, Rav Sheishess the son of Rav Idi asks a קשיא, אלא לרבי יהודה ולא רבנן? So what did you say here? That this din, that if the dispute is over how much they made up, where we say that the din is that the שכיר swears and gets his money, this only goes according to Rabbi Yehuda we said, and not according to the רבנן. Now השתא היכא דמחמיר רבי יהודה מקילו רבנן, if we see that in a case where Rabbi Yehuda is machmir, nevertheless the רבנן are מקיל, היכא דמקיל רבי יהודה מחמרי רבנן? So how can you say that where Rabbi Yehuda is mekil, the רבנן are machmir? Because in our Mishnah we see that in a place where the רבנן are mekil, which means in the case where there is no מודה במקצת, so the רבנן nevertheless say that we believe the שכיר, so he has to swear and get his money. Nevertheless, Rabbi Yehuda is machmir. And Rabbi Yehuda says, \"No, we still don't believe the שכיר, and we don't say he should swear and get his money. Only if it was a מודה במקצת, that's when he says the שכיר swears and gets his money. But otherwise, Rabbi Yehuda is machmir and says the שכיר cannot get his money. Even if he will swear, he will not get his money.\" So we see that the רבנן are מקיל לגבי רבי יהודה. So how can we say that in the case of קצץ, where Rabbi Yehuda says that we believe the שכיר and we make him swear and he gets his money, we should say that this is only the opinion of Rabbi Yehuda, and the חכמים in this case hold that the בעל הבית would swear and he would be patur from paying, which means the רבנן in this case would be machmir over Rabbi Yehuda? Because Rabbi Yehuda says we do believe the שכיר, and the רבנן say we don't believe the שכיר, and therefore the בעל הבית swears and is patur. Now if we see in our Mishnah that Rabbi Yehuda is machmir against the רבנן, that where the רבנן are מקיל, רבי יהודה is machmir, so how can we say concerning קצץ, where Rabbi Yehuda is makil, that the רבנן are machmir? So if we find that Rabbi Yehuda holds by the case of קצץ that we believe the שכיר and he swears and gets his money, the רבנן certainly should hold like that, that certainly they should hold that in this case the שכיר swears and gets his money. So how can we say before that this is just the opinion of Rabbi Yehuda, but the רבנן argue, the רבנן would hold as Shmuel said, that the בעל הבית would swears and is patur from paying? So the Gemara asks back, ואלא מאי? So what are you going to tell me, Rabbanan? It goes also according to the Rabbanan. In other words, the Rabbanan also hold that if the dispute is over how much they made up, still we believe the שכיר, and the שכיר swears and gets his money. ואלא, if so, הא דתני רבה בר שמואל, so what Rabbah bar Shmuel learned, he brought a beraisa where it says that קצצה, if the argument is over how much they made up, המוציא מחבירו עליו הראיה, that the one that is trying to get the money, which is the שכיר, he has to bring עדים, otherwise he is not believed, we do not say that he swears and gets his money, מני, who does this go according to? לא רבי יהודה ולא רבנן, not according to Rabbi Yehuda and not according to the Rabbanan. Milah, as we said before, that only Rabbi Yehuda holds that if the dispute is over קצצה, then the שכיר swears and gets his money, but the Rabbanan don't hold that way, so that beraisa of Rabbah bar Shmuel goes according to the Rabbanan. But now if you're trying to say that if Rabbi Yehuda holds we believe the שכיר, certainly the Rabbanan should hold we believe the שכיר and he should swear and get his money, so when the beraisa says that in the case of קצצה, המוציא מחבירו עליו הראיה, it doesn't go not according to Rabbi Yehuda, not according to the Rabbanan. So who does it go according to? There must be some opinion that holds that in the case of קצצה we do not believe the שכיר, and we do not say that he swears and gets his money. אלא אמר רבא, therefore Rava said, בהא קמיפלגי. This is the machloket between Rabbi Yehuda and the Rabbanan. באמת, this din that by קצצה we say we believe the שכיר and the שכיר swears and gets his money is only Rabbi Yehuda and not the Rabbanan. The Rabbanan say that in this case we do not believe the שכיר. And therefore, in the beraita that Rabbah bar Shmuel brought, where it says that in a case of קצצה, המוציא מחבירו עליו הראיה, טאקע goes according to the Rabbanan. Ai, you ask a kashya, how is it possible? Because if Rabbi Yehuda is meikel and believes the שכיר, certainly the Rabbanan should be meikel and believe the שכיר, so he says the machloket is as follows: רבי יהודה סבר, רבי יהודה holds, בדאורייתא עבדו ליה תקנתא לשכיר, that if there is a חיוב שבועה מדאורייתא, in a case where he is a מודה במקצת, that means that מדאורייתא there is an obligation on the בעל הבית to swear, so that's when the Rabbanan made a takanah for the benefit of the שכיר, and they switched the shevuah, they took it away from the בעל הבית, and they put it on the שכיר. Since there is an obligation of a shevuah on the בעל הבית מדאורייתא, so that shevuah they made a takanah for the שכיר and they gave it to him. But ובדרבנן, in a case where the whole חיוב שבועה is only מדרבנן, in the case where there is no מודה במקצת, וממילא מדאורייתא there is no חיוב שבועה, as we learned earlier that מדאורייתא there are only three possible cases where a person would be מחוייב שבועה: שבועת השומרים, שבועת עד אחד, or a shevuah of מודה במקצת, but all other שבועות are only מדרבנן. In a case where the בעל הבית is not a מודה במקצת, but a כופר בהכל, so then there is no שבועה מדאורייתא. The only possible חיוב שבועה would only be מדרבנן. So אי בדרבנן, הא תקנתא, the whole shevuah is only a תקנת דרבנן, ותקנתא לתקנתא לא עבדינן. We don't make a takanah for a takanah, which means that after we make a takanah that there should be a חיוב שבועה, we should make another takanah to that takanah, that this shevuah that was put here, that belongs on the בעל הבית, because normally a shevuah is on the person who defends himself, and since that the בעל הבית is the defendant, so he would have to swear. So now the חכמים make another takanah and take the shevuah away from him and put it on the שכיר, that the חכמים don't do. לא עבדינן, we don't do it. A takanah to a takanah we don't do. ורבנן סברי, the רבנן hold, בדרבנן נמי עבדינן תקנתא לשכיר, and even if it's only a שבועה מדרבנן, we still make a takanah. They don't accept this sevara that תקנתא לתקנתא לא עבדינן, that a takanah to a takanah we don't make. So the רבנן hold that even though the whole shevuah here is a תקנת דרבנן, nevertheless, we are able to take that shevuah and make another takanah and switch it from the בעל הבית to the שכיר. וקציצה מידכר דכיר, and the רבנן hold that when does this takanah fit? Only in the case where he claims that you didn't pay me, and he says I did pay you, so then we say the בעל הבית might not remember because he's busy with his workers. But in the case where the dispute is how much they made up, the Rabbanan hold that a person remembers how much he made up. So the reason for this takanah to believe more the שכיר and make him swear and take his money doesn't apply by קציצה. And therefore the Rabbanan hold that if the dispute is over קציצה, the baal habayis swears and is patur from paying. And that's where Rabbi Yehuda disagrees, and he holds that even by קציצה the baal habayis does not remember. So the whole kashya we asked before, that how can we say that if Rabbi Yehuda holds by קציצה that we nevertheless are meikil and we believe the שכיר and make him swear and get his money, the Rabbanan should still be machmir, when we know that normally the Rabbanan are meikil against Rabbi Yehuda, it is no kashya whatsoever. It is not the peshat that the Rabbanan are meikil against Rabbi Yehuda and Rabbi Yehuda is machmir. than according to the Rabbanan. That is not the reason why he holds that in the case where there is no מודה במקצת, the שכיר doesn't swear. The reason is because he holds you cannot make a תקנה לתקנה. But otherwise, it's possible that he holds exactly like the Rabbanan. And the truth is, he's even meikil against the Rabbanan, because in a certain case where the Rabbanan hold that the baal habayis remembers, that's the case of קציצה, and therefore there is no reason to believe the שכיר more than the baal habayis, Rabbi Yehuda holds that even there we say the baal habayis doesn't remember, and the שכיר is more believed than the baal habayis. And therefore, in the case of קציצה, Rabbi Yehuda holds that the שכיר swear and get his money, while the Rabbanan hold that the שכיר does not swear, the baal habayis swears and the שכיר loses. But the, so the קשיא we asked before, that in our Mishnah that Rabbi Yehuda is machmir, how can we say that Rabbi Yehuda is mekil in the case of קציצה? In our Mishnah he's not machmir, he just holds תקנתא לתקנתא לא עבדינן. And concerning the case of קציצה, the Chachamim hold that the baal habayis remembers, and that's why the שכיר does not swear and get his money, while Rabbi Yehuda holds that the baal habayis even there does not remember, and therefore, even in that case he holds the שכיר swears and gets his money. Then the Gemara continues, it's said in the Mishnah, another example of a case where the one that claims swears and gets his money is the case of נגזל, someone who got robbed. Case where the Mishnah says the example,

היו מעידין אותו שנכנס לביתו למשכנו וכולו, if two people testify that a certain person went into his house to take a משכון without permission, so the person of the house says that he took from me, and that other person who went into the house says, \"I didn't take anything,\" so then, the one that's claiming, he swears that he did take the כלי, and he has to pay him for it. And the reason is because since we have witnesses that saw him enter שלא ברשות, so there is like רגלים לדבר, there is like implication that he did take something. So therefore, all we need is the one that's claiming to swear that the other person took, and he has to pay him for it. But then the Gemara asks, ודילמא לא משכניה? Maybe he didn't take anything? Because he went in to take, is that proof he took anything? Why is this enough to say that all he does is swears and gets his money? מי לא אמר רב נחמן, didn't רב נחמן say, האי מאן דנקיט נרגא בידיה, there was this person who was holding an axe in his hand, ואמר, and he said, אזיל ואקטליה לדיקלא דפלניא, \"I'm going to chop off the palm tree of that person,\" ואישתכח דקציץ ושדי, and we found that a tree was chopped off and laying on the ground, לא אמרינן, we do not say, דהוא קצייה, he did it, he chopped it off. Why? Because by just saying that he's going to do it is no proof that he did it. אלמא, we see עביד איניש דגזים ולא עביד, that a person could exaggerate and not do it. A person could claim he's going to do something, and nevertheless not do it. And as long as we have no proof that he did it, by the fact that he just said, \"I'm going to do it,\" we can't accuse him of it. הכא נמי, so here too, דגזים ולא עביד, it's possible a person will exaggerate and not do it. And even though he says, \"I'm going in to take something,\" who says he took? Maybe he just said it, he exaggerated, and actually he didn't take. But the Gemara says, אימא, we have to say pshat in the Mishnah, ומשכנו. Not only we have witnesses that saw him go in to take something, but they saw him go in and he took something. And therefore, since we know for sure he took, so all we need is the one that's claiming to swear that he took a כלי, and he has to pay him for it. But the Gemara asks, if so, if there are witnesses that he actually took something, וליחזי מאי משכניה! Let them see what he took! In other words, the same edim that testified that he took, they will testify what he took, so he shouldn't even have to swear! They'll say they saw him take this and this kli, and he will have to give back that kli or pay the value of that kli. So why should he have to swear bichlal? אמר רבה בר בר חנה אמר רבי יוחנן, that Rabbah bar bar Chanah said in the name of רבי יוחנן, דטעין ליה כלים הניטלין תחת כנפיו, that what he's claiming is things, kelim, vessels that you could hide under your coat. Which means the edim just saw that he walked out holding something under his coat, so they didn't see what it is, and the baal habayit says that, \"I know that he took this and this kli.\" So he has to swear that that was the kli that he took, and he has to pay him for it. So we have everything here. We have edim that he went in to take, we have edim that he took something. On the other hand, we still have to have the baal habayit to swear, because we don't know what he took, so all he does is he swears that he took a specific kli, and he pays him for it. Then the Gemara says אמר רב יהודה, Rav Yehudah says, והוא שהטמינו כלים תחת כנפיו ויצאו, if witnesses saw that he hid כלים under his coat and he went out with it, ואמר, and the one that took it says לקוחין הן בידי, they are bought to me, in other words that I bought them from the baal habayit and they're mine, and the baal habayit claims no, I just lent it to him, he borrowed it from me and I want them back. אינו נאמן, then the person who claimed that he bought it is not believed, even if he's going to want to swear that he bought it from the baal habayit he is still not believed, but the בעל הבית swears and gets it back. ולא אמרן, this din was not said אלא בבעל הבית שאינו עשוי למכור כליו, that we're talking about a baal habayit that his custom is not to sell his vessels, so therefore we are pretty sure that he did not sell it because he doesn't usually sell his things, אבל בבעל הבית שעשוי למכור כליו, but if it's a baal habayit who is customary of selling his vessels, נאמן, then the one that claimed that he bought it is believed. And the Gemara goes on: ושאינו עשוי למכור כליו, and even in the case where we said that if it's a baal habayit who doesn't have the custom of selling his vessel, so we said before then the one that claims he bought it is not believed, נמי לא אמרן, this is only also not said אלא בדברים שאין דרכן להטמין, only concerning things that is not the custom to hide it, which means a person is not embarrassed to carry them in his hands in the street, so therefore he claims that he bought it, he is not believed, for two reasons: one reason is because we assumed that he probably did not sell it to you since he is a person who doesn't have the custom of selling his vessels, he's not a storekeeper, he doesn't sell his kelim, so therefore we do not believe you when you say you bought it. And the second thing, why did you hide it under your coat? If you would have bought it, you wouldn't have been embarrassed in carrying it in the street because these are vessels that people are not embarrassed in carrying. If you borrowed it from him as the other person claims, then we could understand why you put it under your coat, because you were embarrassed to show the people that you had to borrow things, that you don't have it. But if you bought it, why were you embarrassed since these are kelim that it is not customary to hide? So therefore we don't believe him and therefore we give it back to the baal habayit. אבל דברים שדרכן להטמין, but if these are things which the custom is to hide, these are things that people are embarrassed to carry into street, נאמן, he is believed, which mean that even if the person is not customary of selling his kelim, so lichorah how can we believe the person that he bought it? But still we say maybe at that time he needed money and he sold it. In other words, what the Gemara is saying here is that in order to not believe the one that says he bought it you have to have two conditions: it has to be that the baal habayit doesn't usually sell his כלים, plus these are things that a person would not be embarrassed to hold. But if even if the baal habayit doesn't usually sell his כלים, but these are things that are customary to hide, people are embarrassed to carry it, then we believe him that he bought it, because it's possible that even though he normally does not sell his כלים and this time he did sell it. And then the Gemara continues: ושאין דרכן להטמין, and even when we said that if these are things which normally a person does not hide, so then he is not believed to say that he bought it, נמי לא אמרן, this was also not said, אלא באיניש דלא צניע, concerning a person who is not so modest, umemila we assume that he doesn't care to carry objects open, and since he hid it under his coat, obviously he did not buy it. אבל איניש דצניע, but if it's a person who is very modest, היינו אורחיה, so we could say this is his custom, that even if this is an object that is usually carried in the open, nevertheless, he carries it covered because he is more modest than others, he is more correct than others. Which mean that even if these are vessels that the custom is not to sell and even if they are vessels that the custom is not to hide them, but if he is a person that usually does carry things hidden, so then we believe him that he bought it. ולא אמרן אלא דזה אומר שאולין וזה אומר לקוחין, and this din also was said when don't we believe him that he bought it? If the dispute is that the owner says that he lent it to him and he says I bought it. So then we say we believe the baal habayit rather than we believe him who says he bought it. אבל בגנובין, but if he claims that it was stolen from him, לא, then we don't believe the baal habayit, because לאחזוקי אינשי בגנבי לא מחזקינן, we don't establish a person to be a ganav unless we know for sure he's a ganav. But if a person just claims that he is a ganav, we can't believe him on that basis, and therefore we would not believe the baal habayit. ולא אמרן אלא בדברים העשויין להשאיל ולהשאיל, and also, this din that we said that under the circumstance mentioned before we believe the baal habayit that he lent it to him, is only if the dispute is over object that it is customary to lend out, or to rent out. אבל דברים שאין עשויין להשאיל ולהשכיר, but if it's over things that the custom is not to lend out and not to rent out, נאמן, then the person who says that I bought it is believed. Because we don't believe the baal habayit who says that I lent it to him, because these are things which a person doesn't usually lend out. And the re'aya is, because ושלח רב הונא בר אבין, רב הונא בר אבין sent a message, that דברים העשויין להשאיל ולהשכיר, that if the dispute are over things that the custom is to lend out or to rent out, ואמר, and the other person says לקוחין הן בידי, that I bought them, אינן נאמנין, he is not believed. But if they are objects which the custom is not to lend out, not to rent, and he says I lent it to you, and the other person says I bought it, we believe more the person who says that I bought it, rather than the person who says that I lent it, because these are things that normally a person doesn't lend. כי הא דרבא, like in the case of Rava, that אפיק זוגא דסרבלא, he took away, he removed a pair of scissors that was made for cutting cloth, וספרא דאגדתא, and a sefer of אגדתא, מיתמי, he took it away from the yetomim, because they were בדברים העשויין להשאיל ולהשכיר, because these are things that the custom is to lend out or to rent out. And the case was that a person brought witnesses that these things used to be his, and he claimed that he lent it to their father. So Rava said that they have to give it back. Why? Because these are things which are עשויין להשאיל ולהשכיר, so we believe him that he lent it to their father. And even though the father wasn't alive here to say that he bought it, so how do we know from here that even if there is a dispute that one says I lent it to you and the other one says, no, I bought it, we don't believe the one that said I bought it? When in this case really there was no one here to claim that I bought it, nevertheless we have a re'aya from here. Because the din is that whatever the father could have claimed, we claim for the yetomim. טענינן ליתמי, Beis Din claims for the יתומים. So if the father would have been alive, and he could have claimed לקוחין הן בידי, that I bought it, and if he would have been believed with a shvuah, and he would have kept it, so then the din would be that we say the same thing to the יתומים, and the יתומים would be able to keep this, these things. And since Rava said that the יתומים cannot keep it, but the one that claims, says I lent it to them, he is the one that keeps it, is a ראיה that if there is a dispute that one says that I lent it to you, and the other one says that I bought it, we believe the one that says that I lent it, because these are things which are עשויין להשאיל ולהשכיר. And as Rashi adds, that this is only because we were talking about a sefer of אגדתא. Because that is something that a person doesn't always learn, but other sefarim, since people constantly learn in them, so these are not considered from the דברים העשויין להשאיל ולהשכיר. People don't lend it out, because since a person always needs it, and by lending it out it could get spoiled. Because we know sefarim could get spoiled. As the Gemara says in other places, that if you find sefarim, lechatchilah you are not allowed to learn in it, and you're not allowed to have another person learn in it, because it'll spoil. So we see that sefarim get spoiled. So since sefarim get spoiled, people don't lend out sefarim. So in a case with the object that people don't lend out, and the one says that I bought it, we would believe him that he bought it. And therefore, in the case of the יתומים, since we טענינן for the יתומים whatever the father could have טענ'ט, we would have טענ'ט for the יתומים that they bought it, and they would have kept it. The reason here that Rava made them give it back was because it was a sefer אגדתא. In a sefer אגדתא, people don't usually learn, and therefore this is a thing that people do lend out, because a person doesn't mind really if it gets spoiled. And therefore, it's considered from the דברים העשויין להשאיל ולהשכיר, and therefore we believe the one that said that I lent it to you rather than the יתומים who we could have טענ'ט for them that it was bought. This is the opinion of Rashi, and Rashi says וכן קיבלתי מרבי יצחק הלוי. That's how I received from Rabbi Yitzchak Halevi. Tosafos says that when the Gemara says that the case was concerning a sefer of אגדתא, it doesn't mean that davka a sefer of אגדתא is called from the דברים העשויין להשאיל ולהשכיר, but certainly other sefarim. If sefer אגדתא is a sefer that you lend out, certainly other sefarim is definitely lent out. As it says in the Gemara in כתובות דף נ', that when the pasuk says וצדקתו עומדת לעד, that a person could do something and his righteousness should stand forever, that means זה הכותב ספרים ומשאילן לאחרים, that someone who writes sefarim and lends it out to others. So we see that it's a very important thing to lend out sefarim to others. So therefore, sefarim are considered from the דברים העשויין להשאיל ולהשכיר. And the Gemara continues: אמר רבא, Rava says, when it said in the Mishnah that if two people saw somebody go into the house without permission, and he walked out with something under his cloak, and the בעל הבית says that he took a certain keli, so the din is that the בעל הבית swears and gets his keli back, so Rava said, אפילו שומר נשבע, even the caretaker could swear, which means if the בעל הבית wasn't there, but the shomer, the one that guards the house, the caretaker of the house, he was there. So he also could swear that he took the certain keli, and we believe him with the shevuah, and the person would have to pay back the keli. Even more than that, אפילו אשתו של שומר נשבעת, even the wife of the caretaker could also take the shevuah if the בעל הבית is not there. בעי רב פפא, but Rav Papa asked a question, שכירו ולקיטו מאי? What is the din concerning the case of a hired worker or a retainer? What is the din? If the בעל הבית wasn't there, can they swear instead? And these are people who were not hired to take care of the house, so can they swear or not? And the Gemara says, תיקו, this question remains unanswered. Then the Gemara says, אמר ליה רב יימר לרב אשי, Rav Yemar said to רב אשי, תבעו כסא דכספא מאי? If he claimed from him a silver goblet, what is the din? In other words, since we believe him with a shevuah whatever he claims, so he could claim a very expensive article, he could say that he took a silver keli, would we believe him then too? So he answers, חזינן, we have to see, אי איניש דאמיד הוא, if he's a rich person, which means that he is able to own such a silver goblet, או אי איניש דמהימן הוא, or he is a trustworthy person, דמפקדי אינשי גביה, that people hide by him things, and he claims that this goblet wasn't his, but someone gave it to him to watch, then משתבע ושקיל, then he swears and takes, then we believe him. ואי לא, לא, but if not, if he's not rich, so we don't assume that he owned that silver goblet, or he's not a trustworthy person and we cannot assume that people trusted him to let him watch their silver goblets, then if he claims that what the person took was a silver goblet, we do not believe him, since we assume that he did not own or have in his possession a כלי like that. Then the Gemara continues, it said in the משנה,

נחבל כיצד, that one of the cases where we say נשבע ונוטל, that he swears and takes, was a case of a נחבל, a person who was wounded. And the Gemara the Mishnah gave the example: If two people testify that they saw him enter the house when he was complete, he didn't have any wounds, and he went out wounded, and he says to that person who was in the house, \"You wounded me,\" and he says, \"I did not wound you,\" so since it is pretty obvious that the other person did wound him, so he swears that he wounded him, and the other person has to pay him for the wounds. The Gemara says, אמר רב יהודה אמר שמואל, Rav Yehuda said in the name of שמואל, לא שנו, this was not learned, אלא במקום שיכול לחבל בעצמו, in a place where he could have hurt himself. So then we say we are still not sure that the other person wounded him, therefore he has to swear, and after he swears, he collects his money. אבל במקום שאינו יכול לחבל בעצמו, but if it's a place where he couldn't have wounded himself, נוטל שלא בשבועה, then he takes without a shevuah, he doesn't even have to swear because it's obvious that the other person was the one that wounded him. But then the Gemara asks, ונחוש, let's be afraid, maybe דילמא בכותל נתחכך, maybe he rubbed himself against the wall and that's how he got hurt? תני רב חייא, so Rav Chiya learned, שעלתה לו נשיכה בגבו, that the case is where they saw a bite on his back, ובין אצילי ידיו, or they saw a bite between his armpits. So then we know for sure this didn't happen by itself, it must be it was done to him by somebody, and since that the other person was in this house, we assume that this other person did it, and therefore he doesn't even have to swear. But then the Gemara asks, ודילמא אחר עביד ליה, maybe someone else did it? The Gemara answers, דליכא אחר, there's nobody else there. So we know for sure it had to be done to him by somebody, we know for sure no one else was there but him, we know for sure he went in he didn't have the wound, so we're sure that this person was the one that wounded him, and therefore he doesn't even have to swear, and he collects his money without a shevuah.

Concerning what we learned before, the machloket between Rabbi Yehuda and the Chachamim is, that Rabbi Yehuda holds we do not make a תקנה לתקנה, and therefore, in the case where he was not a מודה במקצת, so the din is that the baal habayit swears and is patur from paying, rather than the שכיר swear and get his money, and the Rabbanan hold we do make a תקנה לתקנה. So there is a machloket between Rashi and Tosafot: What is the pshat in the words that we don't make a תקנה לתקנה? Tosafot learns, as we had learned the pshat before in the Gemara, that that means that since he was supposed to make a shevuah here, מדאורייתא, since he's not a מודה במקצת, there is no חיוב שבועה. So the whole חיוב שבועה is only that we made, meaning the רבנן made that. On whom should the רבנן have made the חיוב שבועה normally? On the בעל הבית, because he's a defendant. So the חכמים, in order to make the שכיר swear, would have to change that din and make it on the שכיר. So this would be two תקנות: One תקנה, the general דין שבועה, which automatically would fall on the בעל הבית, in addition to that, make another תקנה that that שבועה that should have fallen on the בעל הבית will go on the שכיר, is a תקנתא לתקנתא. And תקנתא לתקנתא לא עבדינן, and that's the שיטה of Rabbi Yehuda. But the Rosh learned that we're talking here about a שבועת היסת. Since he's not a מודה במקצת, so he's not מחויב שבועה מדאורייתא. He's only מחויב שבועה because the שבועת היסת of Rav Nachman. As we learned before in the Gemara, that Rav Nachman said that even a כופר הכל has to swear. And that is called a שבועת היסת. So that is a תקנה דרבנן that every כופר הכל has to swear. Nothing to do with this case. A general תקנה that every כופר הכל has to swear. And that's the pshat in the Gemara here according to Rosh, that we don't make a תקנתא לתקנתא. That means that since the whole שבועה here is only a תקנה דרבנן, it's a special תקנה that every כופר הכל has to swear, and that תקנה is always on the defendant. So in this case, too, the תקנה is the defendant should have to swear. Now the Chachamim want to make another תקנה and take it away from the Baal HaBayit and put it on the שכיר, that's a תקנתא לתקנתא, and that's what Rabbi Yehuda meant תקנתא לתקנתא לא עבדינן. But Tosafot says we can't say that peshat, that we're referring here to to the שבועת היסת of a regular כופר הכל, because that שבועת היסת was established in the time of Rav Nachman. In the time of the Mishnah, there was no שבועת היסת. So we can't say that the מחלוקת between Rabbi Yehuda and the Chachamim in the Mishnah is dependent on this דין whether we say תקנתא לתקנתא concerning the תקנה of שבועת היסת when there was no שבועת היסת. Therefore, Tosafot says we must say, as the other peshat they said before, that this שבועה that we wanted to establish in this specific case should have been on the Baal HaBayit, and in order to take it away from the Baal HaBayit is a special detail in this תקנה, and that we call a תקנתא לתקנתא. Concerning what the Gemara says later that Rav Nachman said if a person is holding an axe in his hand and he says, \"I'm going to chop down that person's דיקלא,\" and later we found it chopped down, laying on the floor, we don't say he did it. Why? Because we say a person exaggerates, and since he said it, doesn't mean that he did it. So Tosafot brings that it says in the Rif that this is only by סתם a person. But if a person is מוחזק, we know a person constantly does such things, then even if he just says it, and we found it's done, then we assume he did it, and we make him pay. And then Tosafot asks the kashya, why do we have to give the reason because a person exaggerates and really doesn't do things he says? He should be believed anyway when he says he didn't do it, even if not for that reason. He should be believed with a migo. He could have said that that person sold it to me, and he would have been believed if he would say he sold it to me. So meimaila now that he says that he didn't sell it to me, but I never did it, he should also be believed. How do we know that if he would have said he sold it to me he would have been believed? Because it says in Chazkat HaBatim Bava Batra דף ל\"ו: האי מאן דנקיט מגלא וטבילא בידיה ואמר אזיל ואגזריה לדיקלא דפלוני דזבניה ניהלי, מהימן. And if a person is holding these special כלים that you cut off fruit of a tree, and he says, \"I'm going to cut them off from that tree because that tree was sold to me,\" he is believed. Why? Because לא חשיד איניש למיגזז דיקלא דלאו דיליה. A person is not suspected of taking off the fruit from a דיקלא which is not his. So it comes out that if a person would say that he bought it, he would be believed. So in this case, too, if he would say that that other person sold me the tree, he would be believed. So then he has a migo. He could have said he sold it to me, and I chopped off my own. So therefore he should also be believed when he says that I didn't chop it off, but with a migo he could have said \"All right, I chopped it off, but it's mine because I bought it.\" And Tosafot answers that we can't compare the two cases. Over there, when it says a person doesn't have the custom would not really go take off someone else's fruit, and therefore if he says, \"I bought it,\" he's believed, we're talking in a case where he took the fruit off. And that's why the Gemara picked the lashon that is a person who is holding מגלא וטבילא, these are kelim that you use to take off fruit. And it says there also what did he say? אזיל ואגזריה לדיקלא. I'm going to be גודר. The expression גודר means to take off the dates. And that's why over there he is believed, because this is a custom that people do it. People sell fruit of a tree. So therefore if he says that person sold it to me, he is believed, because this is a normal thing to do. But here we're talking about chopping off the dikla. And that's why the Gemara picked the לשון נרגא, he's holding the axe, because an axe is used to chop off a tree. And it also says אזיל ואיקטליה, which means \"I'm going to chop off the tree.\" Here, even if he would have said that he bought it, he wouldn't have been believed, because it is not the derech for a person to sell a tree that gives fruit to chop it off. And here we're talking about a date tree. A person does not sell a date tree just to be chopped off. And therefore, even if he would have said, \"I bought it,\" he wouldn't have been believed. So that's why he has no migo. And Tosafot says we see clearly in Perek HaChovel in Bava Kama דף צ\"א that a person is not believed when he says that \"I bought this tree to chop it off.\" Because there the Gemara says when it says in a beraita, if someone says to his friend, \"שורי הרגת,\" you killed my ox, \"נטיעותי קצצת\" So, you cut off my things that grow, and he answers, \"You told me to kill him, or you told me to chop it off,\" he is patur, that he is believed. So the Gemara says that this beraita is only talking by an ox that was עומד להריגה, it was ready to be killed, or a tree that was ready to be chopped off. So we see that if it would have been a tree that's not ready for some reason to be chopped off, he wouldn't have been believed when he said, \"You told me to do it.\" So obviously he is not believed when this happens. So the same thing here, even if he would have said that it was his tree to be chopped off because he bought it, he wouldn't have been believed, and therefore he has no migo when he says that \"I didn't chop it off.\" And the only reason we do believe him because since we have no proof that he did it, we say that it is a custom of a person to exaggerate and not to do it. Concerning what we learned earlier in the Gemara, מחלוקת between Rabbi Yehuda and the chachamim, if the sachir says to him, \"You made up to pay me two,\" and he answers, \"I only made up to pay one,\" so Rabbi Yehuda says that the shevuah that the baal habayit was supposed to swear because he is a modeh bemiktzat is transferred to the sachir even in this case, and the sachir swears and gets his money. But Tosafot says we must say that this is talking in a case where he didn't pay him yet. In other words, before he paid him, he says, \"You have to pay me two,\" and he says, \"I only owe you one.\" But if the case would be that he paid him already the one, and he comes to him and he says, \"You owe me another one because you promised to give me two,\" then the din would be different, because Rabbi Yehuda holds that this din is only in the case of modeh bemiktzat. Bichlal he holds the whole din of a sachir swearing, whatever it should be, is only if there is a shevuah on the baal habayit because he's a מודה במקצת. Now, if the case here would be that he paid him already, but he claims the other one because he says, \"You owe me still one more,\" and the baal habayis says, \"I only promised to give you one and I don't owe you anything,\" so then the baal habayis is a כופר בהכל, because that one he gave him already. So now there is only an argument over the other one, and the baal habayis says, \"I don't owe you,\" and he says, \"You do owe me,\" so he's a כופר בהכל. So according to Rabbi Yehuda, there would be no דין שבועה. Therefore, we must say that the case in the Gemara is where he did not pay him that one yet, and therefore we consider him a מודה במקצת. But then Tosafos asks a kushya: We learned before that if עבר זמנו, if he claims after the time of payment passed already, and he says, \"You promised to give me two,\" and he answers, \"I only owe you one,\" so there even Rabbi Yehuda also holds המוציא מחבירו עליו הראיה, that we tell the שכיר, \"You bring עדים that he promised to give you two, and you will get, but otherwise he doesn't give him the second one.\" The question is: Why? Didn't the Gemara say before that when do we say this din of המוציא מחבירו עליו הראיה? Only because we have a chazakah the baal habayis is not עובר on בל תלין, and also there is a chazakah that a שכיר would not wait for his שכירות. We said there are two reasons why we should believe the baal habayis: because the baal habayis is not עובר on בל תלין, and therefore we say that when it comes to the after the time, so then probably he remembered that he didn't pay, and if it would have been true that he didn't pay, he would have remembered it, and we don't say he's lying, because a baal habayis would not want to be עובר on בל תלין; plus, since he's only asking for his payment after the time passed, we assume that probably he did get paid, because the שכיר would not wait with his payment. Now, in the case here, he definitely waited with his payment, because we said before that this whole case is talking where he did not get paid yet. Because if he would have gotten paid already, then it wouldn't have been a מודה במקצת, it would have been a כופר בהכל, obviously. So therefore, since he waited with his payment, and concerning one the baal habayis admits that he owes him, so here we're talking about a person who definitely does wait with his payment, and also we're talking about a person who is עובר on בל תלין, because that one that he definitely owes him, he didn't pay him either. So if here we're talking about a person who is עובר on בל תלין and a שכיר who waits for his payment, so the chazakah that a person is not עובר on בל תלין and that a שכיר does not wait for his payment does not apply here. So if so, why should we believe the baal habayis and say המוציא מחבירו עליו הראיה? And Tosafos does not answer this kushya.