Jewish audio on Chabad.org. Today's shiur will be Shavuos דף מ\"ז, we will start on דף מ\"ו עמוד ב', 10 lines from the bottom of the amud. And the Gemara here quotes from the Mishnah where it says, ושהכנגדו חשוד וכולי, ואפילו שבועת שווא. The Mishnah there says that even though normally when there is an obligation of a שבועה, the defendant is the one that has to swear, and when he swears, he becomes פטור, if he swears that he doesn't owe, he becomes פטור, nevertheless, there are certain cases when the Chachamim said that נשבע ונוטל, that the person who claims swears and gets his money. And the Mishnah mentioned many cases, and one of the cases was שכנגדו חשוד. If his opponent is חשוד, if there is an obligation of a שבועה on a certain person, on a defendant, but the defendant is חשוד, we suspect that he could swear false, so then the one that's claiming would take the שבועה instead of him, and after he swears, he gets his money. And the Mishnah said that this is whether this person who is the defendant had once sworn false a שבועת העדות, he once swore that he doesn't know a certain testimony for somebody, and later we found out that he was lying, or it was a שבועת הפקדון, or he swore that he doesn't have an object that somebody claimed that he was holding for him, and later we found out that he swore false, then it says ואפילו שבועת שווא, even if it was not a שבועה between him and somebody else that he denied money that somebody else claimed, even if it was just a false שבועה that he made between himself and Hashem, also the דין is that he is considered a חשוד על השבועה, that we suspect that he's able to swear false, and therefore we don't trust him. And the דין would be that his opponent, the one that's claiming, he would swear and get his money. The Gemara asks, מאי אפילו שבועת שווא? What do we mean even if he was caught swearing a false שבועה? Why is that אפילו? Why should we think that in this case he should not be considered חשוד על השבועה? And the Gemara says, לא מיבעיא קאמר. What he's saying is, not only. That לא מיבעיא הנך דאיכא כפירת ממון, not only if he was caught swearing שבועת העדות false or שבועת הפקדון false, that there the שבועה was a case where through the שבועה he denied somebody's money, אלא אפילו הא נמי, even this case where it was a שבועת שווא, he just swore false, דכפירת דברים בעלמא הוא, it is just denying words, he didn't deny money, he's just not keeping his שבועה, also לא מהימן, he's not believed. Because there would be a sevara to say that maybe this person is able to swear false when it doesn't involve any money, but how do we know that he would also swear false and cause someone else a loss of money? So we still say, since he once swore a שבועת שווא, we don't believe him again to swear. But then the Gemara asks, וליתני נמי שבועת ביטוי? Why doesn't it also mention שבועת ביטוי? שבועת ביטוי means a shevuah of utterance, a shevuah that you say that you will do something and later you don't do it, or a shevuah that you say that you did something and really you didn't do it. A שבועת שווא בפשטות is only that you swear in vain. And in the Mishnah it mentioned a שבועת שווא, why didn't it also mention a שבועת ביטוי? The Gemara answers, כי קתני שבועה, what kind of shevuah did he mention, דכי קא משתבע בשיקרא קא משתבע, a kind of shevuah that when you swear, you swear false. And that kind of shevuah we say, if we hear him swear such a shevuah, he is never again trusted to swear. אבל שבועת ביטוי, but concerning a שבועת ביטוי, דאיכא למימר דבקושטא קא משתבע, that it's possible to say he's swearing in truth, לא קתני doesn't say. Because what's a one of the cases of a שבועת ביטוי is when he swears that he is going to eat a certain thing. So even though later, when he didn't eat it, he was over, he transgressed his shevuah, but at the time of the shevuah, we didn't know, maybe he's going to keep it. That's not called a false shevuah. Maybe the shevuah is a true shevuah. He swears he's going to eat a certain thing, and he's going to eat it maybe, or he swears he is not going to eat a certain thing, and maybe he's going to keep his shevuah and not eat it. So therefore, we cannot mention a שבועת ביטוי, because a שבועת ביטוי could be true. And the Gemara asks, תינח, that is good, אוכל ולא אוכל, if he swears that I will eat, or he swears I will not eat, for the future. So then, at the time of the shevuah we don't know that it's going to be false, and therefore, even if later on he did not keep his shevuah, it doesn't mean that he is chashud, that we could suspect him of swearing false. Maybe what happened later was that there was an An ones, something forced him not to keep the shevuah, or, or even if nothing forced him, but he just couldn't come, overcome his yetzer hara, and he ate the thing that he wasn't allowed, or he didn't eat the thing that he was supposed to eat. But it doesn't mean that this is a person that could swear false. Because at the time of the shevuah, maybe he had good intentions, maybe he had in mind to keep his shevuah. So that is only if it's concerning the future. But אכלתי ולא אכלתי מאי איכא למימר? If he swore that I ate something, where really he didn't, or he swore I didn't eat something, and really he did, so then at the time of the shevuah, he's already swearing false. So that's also a שבועת ביטוי, and it's a שבועת שקר. It's a false shevuah. So why doesn't the Mishnah mention that if he swore a שבועת ביטוי, he is also considered חשוד על השבועה? And the Gemara answers, תני שבועת שוא וכל דדמי לה. It learns שבועת שוא, and it means everything that is similar to a שבועת שוא. So any שבועה that you swear concerning the past, and it is not true, it is included in what the Mishnah says שבועת שוא. Then the Mishnah continued and said,

היו אחד מהם משחק בקוביא, if one of them played with dice, so he is pasul to be an ed, and he's also not trusted to swear. So the Gemara asks, הא תו למה לי? Why does the Mishnah have to tell us this also? Wouldn't it be self-understood? Since he is considered a gazlan, since משחק בקוביא is considered that he takes away money from other people שלא כדין, not according to the din, so he's like a gazlan, so certainly he is not trusted to swear. But the Gemara answers, תני פסולי דאורייתא וקתני פסולי דרבנן. It's teaching us פסולים מדאורייתא and פסולים מדרבנן. The previous פסולים that the Mishnah mentions, if he swore false, for instance by שבועת העדות or שבועת הפקדון, then he is פסול מדאורייתא. But a משחק בקוביא is not מדאורייתא a gazlan. He's only considered a גזלן מדרבנן. The reason we consider him a gazlan is because אסמכתא לא קניא. Since he plays dice, means he gambles, so he takes money that other people don't really intend to give it, because when they start playing, each one hopes that he's going to win. So doesn't really make up his mind to give the money away to the other person. So when the other person takes the money, he is really taking it שלא כדין. So מדאורייתא he's not considered a gazlan, because he's not stealing the money, the person is giving it to him. But the Rabbanan said, since אסמכתא לא קניא, since there is not a real kinyan, this is an asmachta, it is like a gazlan. But the Mishnah wants to mention that not only if you are פסול מדאורייתא then we say that your opponent swears, but even if you are only פסול מדרבנן, if the defendant is פסול מדרבנן, also we say that the claimer is the one that swears. Then the Mishnah said,

היו שניהם חשודין, if they were both suspected of swearing false, the defendant and the one that's claiming, so we find in the Mishnah a machloket between Rabbi Yosi and Rabbi Meir. In the Mishnah it said that Rabbi Yosi said חזרה השבועה למקומה, the shvuah goes back to its place, and Rabbi Meir says יחלוקו, that they divide without a shvuah. And the Gemara is going to explain what we mean when we say חזרה השבועה למקומה, that the shvuah goes back. But the Gemara says, אמר ליה רבא לרב נחמן, Rava said to רב נחמן, היכא תנן? How did we learn? In other words, in this machloket between Rabbi Yosi and Rabbi Meir, who is of which opinion? Did Rabbi Yosi say יחלוקו and Rabbi Meir was the one that said that the shvuah goes back to its place? Or was Rabbi Meir the one that said יחלוקו and Rabbi Yosi was the one that said that the shvuah goes back to its place? אמר ליה, so he said to him, לא ידענא, I don't know. Then he asked him, הלכתא מאי? What is the halachah? Do we pasken יחלוקו or do we say the shvuah goes back to its place? אמר ליה, he said to him, לא ידענא, I don't know. איתמר, but we learned, אמר רב יוסף בר מניומי אמר רב נחמן, Rav Yosef bar Minyomi said in the name of Rav Nachman, that רבי יוסי אומר יחלוקו, Rabbi Yosi is the one that says that they divide it. Which means that even though לכתחילה Rav Nachman said he didn't remember who was the one that said יחלוקו, but obviously later on he reminded himself that it was Rabbi Yosi who said יחלוקו. וכן תני רב זביד בר אושעיא, and so did Rav Zevid the son of אושעיא learn, that רבי יוסי אומר יחלוקו, that Rabbi Yosi was the one that said they divide. איכא דאמרי, some say, תני רב זביד, that Rav Zevid learned, אמר רב אושעיא, that Rav Ushaya said that רבי יוסי אומר יחלוקו, that Rabbi Yosi said יחלוקו. Not like we learned before that Rav Zevid bar Ushaya himself said that Rabbi Yosi said יחלוקו, but according to the second opinion in the Gemara, Rav Zevid said in the name of Rav Ushaya, that he said that Rabbi Yosi is the one that says יחלוקו. ואמר רב יוסף בר מניומי, and Rav Yosef bar Menyumi said, עבד רב נחמן עובדא יחלוקו. Rav Nachman actually paskened the din that way, and actually made it happen that way, that יחלוקו, that a she'eilah came to him, and he actually said that they should divide. So not only did he remember that Rav Yosi was the one who said יחלוקו, but also concerning the second question that Rava asked him, who the halacha is like, and he said, \"I don't know\", later on he remembered, and he paskened that the din is יחלוקו. Then the Gemara says that one opinion is חזרה שבועה למקומה. In a case like that, where both of them are suspected of swearing false, the shevuah goes back to its place. The Gemara asks, להיכא חזרה, where does it go back? What do we mean it goes back to its place? אמר רב אמי, so Rav Ami said, רבותינו שבבבל אמרו, our rebbes of Bavel said that what does that mean? חזרה שבועה לסיני. The shevuah goes back to Har Sinai. Which means the shevuah goes back to the shevuah of Har Sinai that Hashem made the Yidden swear לא תגזול. Hashem made the Yidden swear that they accept the whole Torah. Now by Sinai, one of the things that they were told is not to steal. So therefore, if somebody denies money that he owes to somebody else, he is over on the issur of לא תגזול. So the Eibershter, Hashem, who was the one that commanded them לא תגזול by Har Sinai, he will take care of it. But beis din cannot do anything. Beis din cannot make him swear, because they are both chashud. To pasken the din without swearing, beis din can't either, because this is a din where you have to swear. So what do you do? The beis din doesn't get involved at all, so he doesn't collect. And Hashem, who was the one that commanded by Har Sinai, that's where the shvuah goes back to, and he will take care of it, because he was the one that said don't steal. But the beis din doesn't make him pay. רבותינו שבארץ ישראל אמרו, but our rebbes of Eretz Yisrael said, חזרה שבועה למחויב לה. The shvuah goes back to the one that's obligated. For instance, the case of מודה במקצת. So the defendant is obligated to swear. The defendant is chashud, so we say let his opponent swear, the one that claims. Since his opponent is also chashud, so it goes back to the one that is obligated to swear. But on the other hand, we can't make him swear, because he is chashud. So what do we do? We say that since you cannot swear, you must pay. Because the rule is, according to this opinion, that כל המחויב שבועה ואינו יכול לישבע משלם. And since you can't swear, you are obligated to swear and you cannot swear, so instead you have to pay. So this is a machloket between רבותינו שבבבל and רבותינו שבארץ ישראל. רבותינו שבבבל hold that in this case you don't collect, and רבותינו שבארץ ישראל hold that in this case you do collect, he has to pay the money, because since he is a מחויב שבועה ואינו יכול לישבע, then he is meshalem, he has to pay. אמר Rav Papa, Rav Papa said, רבותינו שבבבל, Rav uShmuel, who are our rebbes of Bavel that said in this case you do not collect? That is Rav uShmuel. רבותינו שבארץ ישראל, who are our rebbes of Eretz Yisrael that say in this case you do collect, he does have to pay? This is Rabbi Abba. And he's going to prove how he knows that. רבותינו שבבבל, Rav u'Shmuel, how do I know that our rebbes of Bavel that say in this case he doesn't pay, this is Rav u'Shmuel? Because דתנן, because we learned in our משנה, וכן היתומים לא יפרעו אלא בשבועה, that יתומים, when they come to collect a debt that is owed to their father, they only can collect with a shevuah. They have to swear first, and then they collect. And the Mishnah says what kind of shevuah they swear: they have to swear that they were not told by their father that this debt was paid, and they did not find a receipt among the documents of their father. והוינן בה, and we thought into this, we discussed this, ממאן? From whom are they claiming the money that we say that the only way they can collect is if they swear? אילימא מלוה, if we're going to say is from a borrower, that they bring out a document that a certain person borrowed money from their father, and we say the only way they can collect from that borrower is if they swear, the question is why should they have to swear? אבוהון שקיל בלא שבועה, their father would have taken without a shevuah! Just by producing the document that that person owes him the money, borrowed money from him, he would collect. ואינהו בשבועה? So they have to swear? Why should they have to swear? Why shouldn't this document be enough? Why should they have to swear that their father did not tell them that this was not paid or they didn't find a document saying it was paid already? If their father would have taken with that document, he wouldn't have to swear anything, so they shouldn't have to swear anything either. אלא הכא קאמר, therefore you must say, this is the pshat: וכן היתומים מן היתומים לא יפרעו אלא בשבועה, that when יתומים come to collect from יתומים, then they have to swear. Which means that the borrower is not alive, and the children from the lender come to the children of the borrower and show them a document that their father borrowed money from their father, so here we say that they have to swear, because the din is בכלל that whenever you want to collect from יתומים, you have to swear. So too when יתומים יתומים want to collect from יתומים, they also have to swear. דהא רב ושמואל דאמרי תרווייהו, and Rav and Shmuel, they both said concerning this din, that לא שנו, this din was not taught, this din that we said, that when יתומים want to collect from יתומים they have to swear, but after they swear, they do collect, that was only said אלא שמת מלוה בחיי לוה, if the lender died in the lifetime of the borrower, which means that the lender died before the borrower. So what happened here was, the lender died, so now the borrower is obligated to pay to the children of the lender, but then, when the borrower died, so his children are now obligated to pay to the children of the lender, so we say that they have to swear, the children of the lender have to swear, and then they get their money. אבל מת לוה בחיי מלוה, but if the לוה, the borrower, died in the lifetime of the lender, which means the borrower died before the lender, so then the din is different, because כבר נתחייב מלוה לבני לוה שבועה. Because as soon as the לוה died, the borrower died, at that moment, the only way the מלוה was able to collect from the לוה's children, was only if he would swear. So then, when he died, when the מלוה died, so now his children take his place, and the din is ואין אדם מוריש שבועה לבניו, a person cannot make his children inherit a shevuah. In other words, if a person was able to collect money just through a shevuah, and he dies, his children cannot collect that money at all, because since he was only able to collect with a shevuah, so his children definitely can't collect unless they have a shevuah. On the other hand, they cannot swear the same shevuah the father would swear. The father would swear, for instance, that the money is owed כך וכך. They can't swear that. The only shevuah that they could swear is that their father never told them that this was paid, but that's not the shevuah the father was obligated. So they can't swear the shevuah the father was supposed to swear. And since the father could not have collected unless he would have sworn, so they also can't collect unless they swear that shevuah, and that shevuah they can't swear, so therefore, they can't collect. So therefore, in the case where first the loveh died, and the malveh at that moment became obligated to swear to the children of the loveh that they owe him the money, because the din is you cannot collect from yetomim unless you swear, so the malveh became obligated to swear to the children of the loveh. Then the malveh died, so now his children are obligated to swear to the children of the loveh, but the shevuah that their father was supposed to swear they cannot swear, so therefore, their shevuah won't help. On the other hand, let us say in that case, since the children of the malveh cannot swear, let the children of the loveh swear that their father already paid? They can't swear that either, because they don't know, so neither of them could swear. So what do Rav and Shmuel say? Therefore, no one collects. So we see here that according to Rav and Shmuel, when there is an obligation of a shevuah, and neither of them could swear, so what do we say? No one swears, and no one collects. So we see that they hold that in a case where there's a חיוב שבועה, חזרה שבועה לסיני. The shevuah goes back to סיני, which means the shevuah goes back to Hashem, and the beit din cannot do anything. They cannot make anybody swear, and they also can't make anybody pay. So therefore we said that when we know that רבותינו שבבבל said the peshat in the Mishnah, that when both of them are חשוד, חזרה שבועה למקומה means חזרה שבועה לסיני, and no one swears and no one collects, this must have been Rav and Shmuel, because we see in this case that Rav and Shmuel hold that even though there was an obligation of a shevuah here, but since no one could swear, so the din is that no one swears, and no one collects, and it stays the way it is. And then he says, רבותינו שבארץ ישראל, that when we said that our rabbanan of ארץ ישראל say חזרה שבועה למחוייב לה, which means that the shevuah goes back to the one that must swear, and since he can't swear, he has to pay, that was Rabbi Abahu. How do we know that this is the opinion of Rabbi Abahu?

דההוא גברא דחטף נסכא מחבריה, there's a story that there was this man that grabbed away a piece of silver from his friend. אתא לקמיה דרבי אמי, he came to רבי אמי, ויתיב רבי אבהו קמיה, רבי אבהו was sitting in front of רבי אמי, and watching this case. אייתי חד סהדא, so he brought one witness דמיחטף חטפא מיניה, that saw that he grabbed that piece of silver out of his hand. אמר ליה, and the person who grabbed the piece of silver said, אין, yes, חטפי, I did grab, but ודידי חטפי, I grabbed my own. It was my thing and I grabbed it. אמר רבי אמי, so רבי אמי said, היכא נדיינו דייני להאי דינא? How could the judges judge this din? It's a very complicated case. נימא ליה זיל שלים, let us say to him, go pay. לית תרי סהדי, there are no two witnesses. On what basis can we make him pay? If there would have been two witnesses that would have said they saw him grab the piece of silver out of somebody else's hand, then he would have to pay, even though he claims it's his, but we know the klal and the חזקה, כל מה שיש תחת יד אדם שלו הוא. Whatever a person hands has in his hands, we assume it's his. So, if we know for sure that the other person had it in his hands and he grabbed it away, so we say you have to give it back to him. The chazakah is it's his. If you have some claim, bring witnesses that it's yours. But as long as you don't bring witnesses that it's yours, המוציא מחבירו עליו הראיה. You have to bring a re'ayah and it stays his, because we know for sure that it was originally in his hands, because two witnesses said that you grabbed it. But in this case there are no two witnesses. So on one witness you can't make a person give money on the testimony of one witness, so we can't make him pay. נפטריה? Should we make him פטור completely and say hold the silver and don't do anything? איכא חד סהדא, but there is one witness. And the din is that when you have one witness against you, that is מחייב a שבועה, as we learned earlier in the Gemara that even though one witness is not believed to collect money, but he is believed enough to make the person swear. So in this case, to say that he shouldn't have to do anything and he should be פטור we can't either, because there is one witness that does say that he grabbed it away. נימא ליה זיל אישתבע, to tell him that he should swear because of that one witness we can't either, because כיוון דאמר מיחטף חטפי, since he says I did grab it, he admits he grabbed it, הוה ליה כגזלן. He is considered like a גזלן. Now, the peshat here is, according to the way Rashi learns, it doesn't mean he's like a גזלן, what it means is he cannot swear just like a גזלן cannot swear. And the real reason why he cannot swear is because why should he swear because of the עד אחד? When you have an עד אחד, one witness against you, you have to swear to contradict the witness. For instance, if you say you don't owe the money, and the witness says you do owe, then you have to swear that you don't owe against the witness. But in this case, he can't swear against the witness, because the witness doesn't know whether it's his or not. The witness says, I saw you grab it. He admits he grabbed it. He can't swear against the witness to say I didn't grab it, he admits he grabbed it. The only thing is, he says that it's his. To make him swear that it's his, we can't, because there is no reason to make him swear. The whole reason we should make him swear is because of this one witness. The one witness does not say it's not his. If the witness would say it's not his, he would have to swear it's not it is his. But since the witness did not say that, the witness doesn't know, so he has no reason to swear that it is his. On the other hand, to swear against the witness that he didn't grab it he can't either, because he admits that he grabbed it. So what should we do here? אמר ליה רב אבא, so Rav Abba said, הוה מחוייב שבועה. Be'emet he is מחוייב שבועה, since there is one witness that says that he grabbed it, which normally according to that one witness means that he has to give it back. So he be'etzem here is obligated to swear against the witness, but ואינו יכול לישבע, but he cannot swear, because the witness doesn't say it's not his, the witness just says that is he grabbed it, and he admits he grabbed it. So he's a מחוייב שבועה and can't swear. כל המחויב שבועה ואינו יכול לישבע, anybody who is obligated to swear and cannot swear, משלם, he has to pay. So we see that Rav Abba is of the opinion that anybody who is obligated to swear and cannot swear for whatever reason, he must pay instead of the shevuah. So from this we understand that when we said that רבותינו שבארץ ישראל said that the פשט in the משנה, חזרה שבועה למקומה means that it goes back to the מחוייב שבועה and he has to pay, this is Rav Abba, because that's exactly what רבותינו שבארץ ישראל said in the Mishnah, that when both of them are חשוד על השבועה, so both of them can't swear, so חזרה שבועה למקומה, it goes back to the one that is supposed to swear, and since he can't swear, he must pay. So this is exactly the same logic as Rav Abba said it. But Rav Abba said it concerning the shevuah against an עד אחד, and in our Mishnah it's concerning a different kind of shevuah, but the logic is the same. So that's how he knows that who is the one that said that the פשט in the Mishnah is that since he both of them cannot swear we say that the one that is מחוייב שבועה has to pay, this is Rav Abba. אמר רבא, so Rava said, כוותיה דרב אבא מסתברא, the logic seems to show like Rav Abba said, דתני רמי בר חמא, because Rami bar Chama learned, the pasuk says שבועת ה׳ תהיה בין שניהם, that the shevuah of ה׳ should be between them, that when there is a dispute, for instance in the case of a shomer, when he says you have my object and he says it was stolen, or whatever the case should be, the pasuk says that the shevuah should be between them, between the two, so we darash from the פסוק, ולא בין היורשים. not between the יורשים, which means if the בעלי דין, the ones that are involved in the dispute are not alive, and then there is a dispute between the children of them, then the pasuk tells us that they don't have to swear. That's why the pasuk says בין שניהם to teach us this דין, only between the two, but not between the יורשים. Now the question is, היכי דמי, what is the case? In other words, what is the case that there could have been a shevuah between the yorshim, and the pasuk says that they don't have to swear? אילימא if you're going to say, for instance, דאמר ליה, says to him מנה לאבא ביד אביך, your father had a מנה, had a hundred of my father, and I want you to pay me, ואמר ליה, and he answers him, חמשין אית ליה וחמשין לית ליה, fifty he owed and fifty he didn't owe, so there is a dispute here between two yorshim concerning the debt of their fathers, and he is a מודה במקצת. So if he wouldn't have been a yoresh, he would have been obligated to swear. But we learn out from the pasuk that if it's a dispute between the yorshim then you don't swear. But the question is מה לי הוא מה לי אבוה, what is the difference between him and his father? Since he claimed he knows for sure that his father only owed fifty, not a hundred, since he claims ברי, so why shouldn't he swear? We don't say it's a גזירת הכתוב that the pasuk just makes a din without any logic that if it's between the yorshim then you don't swear. There must be some logic to it. Now, since the yoresh says that I know for sure that my father only owed fifty, so he's a regular מודה במקצת, so why shouldn't he swear? אלא לאו, therefore you must say that the case is דאמר ליה, that he says to him מנה לאבא ביד אביך, your father owed my father a hundred, אמר ליה, so he says to him חמשין ידענא וחמשין לא ידענא, fifty I know he owed, the other fifty I don't know. So here we say the din, that he does not have to swear because the pasuk says only בין שניהם ולא בין היורשים. Now the question is, why do we need a pasuk for that? What would have been if he wouldn't have been a yoresh? If the same case would have happened not between yorshim, but between the people themselves. ואי אמרת בשלמא, if you're going to say that אביו כהאי גוונא מיחייב, that the father in such a circumstance would have to pay, because since he admits to part, he is a מודה במקצת, and therefore the din is that he has to swear. On the other hand, he cannot swear because he says himself he doesn't know. If he says I only owe you fifty, so he swears that he doesn't owe him the other fifty. But since he says that other fifty I don't know, so he can't swear. But if you're going to say that in this case he has to pay because he's a מחוייב שבועה ואינו יכול לישבע, מחוייב to swear and can't swear, משלם, he has to pay, so I understand איצטריך קרא למעוטי גבי יורשים, so we need a pasuk to tell us that if the same thing happened concerning yorshim, then he is patur, only if the father is a מחוייב שבועה. So we say since he's obligated to swear, he has to pay instead because he can't swear. But the yorshim don't fall under this category of מחוייב שבועה ואינו יכול לישבע, we learn it out from the פסוק שבועת ה׳ תהיה בין שניהם ולא בין היורשים, and that's why they are patur. אלא אי אמרת, but if you're going to say אביו כהאי גוונא נמי פטור, the father in such a case also would have been patur, which means that if you're going to hold that מחוייב שבועה ואינו יכול לישבע doesn't pay, and therefore if a person says fifty I know I owe you, fifty I don't know, so he doesn't have to pay, קרא גבי יורשים למה לי, so why do we need a pasuk to tell us that the yorshim are patur if the father also would have been patur? If the person, the בעל דבר himself, is patur in such a case, then the yorshim are also patur. So since we do need a pasuk to tell us that the yorshim are patur, obviously the father would have been chayav to pay, and that shows that the din is that a מחוייב שבועה ואינו יכול לישבע משלם. So this is a re'aya from the pasuk to Rabba. And then the Gemara asks: ורב ושמואל האי שבועת ה׳ מאי קא דרשי ביה, but Rav and Shmuel, what do they use this pasuk of שבועת ה׳ תהיה בין שניהם, רב and Shmuel who argue against Rabba, and they don't hold that if you're מחוייב שבועה ואינו יכול לישבע you have to pay. They hold that in the case where you can't swear, so Beit Din doesn't get involved, you don't swear and you don't get paid either. So obviously they don't need the פסוק שבועת ה׳ תהיה בין שניהם to teach us that yorshim don't have to pay, since the father also wouldn't have to pay in such a case. So what do they use this pasuk for? And the Gemara answers: מיבעי ליה לכדתניא, they need it for what we learn in a beraita. We learn in a beraita that Shimon ben Tarfon אומר, Shimon ben Tarfon says, שבועת ה׳ תהיה בין שניהם, that the pasuk says the shevuah of Hashem will be between them, melamed, it teaches us שהשבועה חלה על שניהם, that the shevuah falls on both of them. Then he darash's another pasuk that said ותרגנו באהליכם, Moshe Rabbeinu was giving mussar to the Yidden and said that you murmured in your tents. שמעון בן תרפון אומר, Shimon ben Tarfon said, and what does it mean? חתם וגניתם באהלו של מקום. Which means that you spied out and you put to shame the tent of Hashem. It's Hashem who has a Shechinah between you, so your tents actually have Hashem in them. So by you going out and spying the land, what you did was you embarrassed the tent of Hashem. Then he continued, the pasuk also says, עד הנהר הגדל נהר פרת, when it gives the borders of Eretz Yisrael. So it says that on one side it'll be till the big river, the river of Perat. So שמעון בן תרפון אומר, Shimon ben Tarfon says that this pasuk teaches us קרב לגבא דהינא ואידהן. If you get close to a man who is anointed, you will also get anointed. Because really this river Perat was the smallest one. And the pasuk mentions four rivers. And it says והנהר הרביעי הוא פרת, that the fourth one was Perat. And this was the smallest one of all three. So how come here he called it הנהר הגדל the big river? And the reason is because here it's mentioned next to Eretz Yisrael. Since it's mentioned as a border of Eretz Yisrael, so therefore it's called the big. Since Eretz Yisrael is big, which means Eretz Yisrael is very chashuv, is very important. So if you are together with an important thing, you also become important. So from here we know that if you will be close to somebody who is anointed, who is smeared with oil, then you will also get smeared from it. ובבי ר' ישמעאל תני, in the yeshiva of Rabbi' Yishmael they learned עבד מלך כמלך. That it means that a servant of a king is like the king himself. Since he is very close to the king, so he is like the king. And therefore this nahar, even though it was small, but since it was next to Eretz Yisrael which is a king, so it was also like a king, and the pasuk refers to it as hanahar hagadol as the big river. Then the Gemara continues, it says in the Mishnah,

והחנוני על פנקסו וכולי. another example of a person who swears and collects, not like usual when you swear and you're patur from paying, was the חנוני על פנקסו, the storekeeper with his booklet. And the example given in the Mishnah is that if there was a person who said to his workers, go and get your pay by getting some food from the storekeeper on my account. And later on the storekeeper comes and he says I gave them the food on your account, now pay me. But the workers say we never got it. So the Mishnah says that they both swear and both collect. The storekeeper swears that he gave them and the בעל הבית has to pay him. The workers swear that they never got and the בעל הבית has to pay them too. But Ben Nanas said in the Mishnah that how can you say that? אלו ואלו באים לידי שבועת שוא, one of them is definitely going to swear false. Because one of them is definitely lying. So therefore Ben Nanas holds that they don't swear and the baal habayis has to pay them both without a shevuah. But the Gemara says תניא we learned in a Beraita, אמר רבי, רבי says טרח שבועה זו למה? The bother of this shevuah is what for? Which means Rabbi also said that how can you make them both swear when we know for sure that one of them is going to swear false. That's all Rabbi said. He didn't finish off, so we don't know what Rabbi meant. Whether he meant that therefore they should both collect without a shevuah like Ben Nanas holds, or the workers swear and they get paid from the baal habayis because he owes them, and the חנוני, the storekeeper, loses out. But anyway אמר ליה ר' חייא, ר' Chiya said to רבי תנינא, didn't we learn this in a משנה שניהם נשבעין ונוטלין מבעל הבית, they both swear and take from the baal habayis? And since Rabbi was the one that was מסדר the Mishnayot, he was the one that wrote the Mishnayot, so ר' Chiya asked him: What do you mean that you don't know why you have to swear when you yourself wrote in the Mishnah that they both swear and collect from the baal habayis? The Gemara asks קיבלה מיניה או לא קיבלה מיניה? Did Rabbi accept it from ר' Chiya and therefore he changed his mind from what he said before that they shouldn't swear, or he did not change his mind, and Rabbi still continue to hold that they should not swear? But the Gemara says תא שמע, come here, I will answer your question. תניא we learned in a Beraita, רבי אומר, רבי says פועלין נשבעין לחנוני, that the workers swear to the storekeeper. In other words, in this Beraita רבי did explain what he held. In the Beraita before all Rabbi said was what is the reason for the shevuah, in other words they shouldn't swear. But what he actually hold, we said before we don't know. But in this Beraita it says clearly that Rabbi said that he holds that the workers swear to the storekeeper and that's all. And when they swear, they collect. ואם איתא, if it is true that he accepted what Rabbi Chiya told him, that they both have to swear, לבעל הבית מיבעיא ליה, he should have said they swear to the baal habayit. If what he meant was that the פועלים swear and they collect, and the חנוני swears and he collects, so the פועלים have to swear to the baal habayit. What do the פועלים have to do with the storekeeper? The פועלים, the workers, they're claiming from the baal habayit, they swear to him and he has to pay them. The חנוני, the storekeeper, claims from the baal habayit, he swears to him and he collects also. Now, since it says that Rabbi holds that the workers swear to the חנוני, obviously, what does that mean? That only the workers get, and they swear to the חנוני that he never gave them. So the חנוני doesn't get anything because the workers swear, and the workers, on their other hand, collect from the baal habayit. So we see that Rabbi did not accept the סברא of Rabbi Chiya, and Rabbi still holds that we can't say that both of them should swear. אמר Rava, so Rava said, it's no ראיה, באמת maybe Rabbi did accept it from Rabbi Chiya. And when he said that the worker swears to the חנוני, it means פועלים נשבעים לבעל הבית במעמד חנוני, they swear to the baal habayit in front of the חנוני. היכא דליכספו מיניה, in order that they should be embarrassed of him, that if they are lying, so it'll be hard for them to swear that the חנוני never gave them if the חנוני is standing there. Therefore, we make them swear in front of the חנוני. But really it's possible that they swear to the baal habayit in front of the חנוני and they get, the חנוני also swears and he gets, and maybe Rabbi did accept it from Rabbi Chiya. And the Gemara continues, איתמר, we learned, שתי כתי עדים המכחישות זו את זו, we have two groups of witnesses that they contradict each other. For instance, if two people come and say that this and this time Reuven killed somebody, and another group of עדים come and say at that time Reuven did not kill, so we have witnesses to each side. אמר רב Huna, so Rav Huna said, זו באה בפני עצמה ומעידה, this group could come by itself in another case and testify, וזו באה בפני עצמה ומעידה, and the other group could come in another case and testify. In other words, that since we don't know which one is right, so none of these edim are considered פסולי עדות. When we know for sure that they're testifying false, so from now on you can't trust them anymore. But since in this case we don't know which one is false, so each one is a safek. So next time if they want to testify, so each group separately could come and testify. But it's only if each group separately testifying, but if you would have, lemashal, one person from the first group and one person from the other group together come and testify on something else, then you wouldn't accept it, because we know for sure one of them is pasul. And that's the reason the Gemara has such a לשון, זו באה בפני עצמה ומעידה, this separately, each group separately could come and testify. But if you want to mix the two groups together, some from here and some from here, or one from here and one from here, then you cannot accept it because we know for sure one of them is lying. ורב חסדא אמר, but Rav Chisda says, בהדי סהדי שקרי למה לי, what do we have to do with false witnesses? Since one of them is definitely lying, so we can't trust either of them, and therefore, even if they would come to a different inyan, a different testimony, we would not accept it. And the Gemara now explains what the machloket is. שני מלוין ושני לוין ושני שטרות, היינו פלוגתייהו, that is, later on, each group will sign on another שטר. And we said before that if each one comes to testify separately, according to Rav Huna they are both believed, and according to Rav Chisda they are both not believed. So let's say each one signed on a separate שטר, and each שטר is completely separate. In each שטר there is a different מלוה and a different לוה, a different borrower and a different lender, and they are two separate שטרות. That is actually the machloket. According to Rav Huna, each of the two שטרות are good because the two שטרות have no connection, and each one is only a safek being pasul, and therefore we assume that it's kasher. As long as we don't know for sure that they're pasul, they're kasher. And since the two have no connection to each other, so therefore we believe them both according to Rav Huna, while according to Rav Chisda we don't. מלוה ולוה ושני שטרות, what would be if we have two שטרות, but it's the same מלוה and the same לוה? For instance, Reuven has two שטרות that Shimon owes him money. So it's the same מלוה, that is Reuven, and the same לוה, which is Shimon, but they're two separate הלוואות, two separate loans, and two separate שטרות. And one group of edim signed one shtar, and the other group of edim signed the other shtar. So here we say Say יד בעל השטר על התחתונה. The hand of the one that has the shtar, which means the malveh, is on the bottom, which simply means that he only could collect with the shtar which has the smaller amount. And this does not depend on a machloket between Rav Huna and Rav Chisda, because here the two groups of edim are really coming together. Since the one that's claiming the money from the person that he is claiming is the same, so we can't say that we should accept both shtarot, because it's a contradiction. If this shtar is kasher, then the other shtar is pasul. If the other shtar is kasher, this shtar is pasul, because one of the two groups is definitely pasul. If they come to separate people, then we don't mix the two and each one is kasher separately. But here they act together because the same person is claiming with both shtarot. So we tell the same person, you can't use both shtarot, one of them is definitely pasul. And since we don't know which one, so we say he's obligated to pay for the smaller amount, because the smaller amount he certainly chayav. Let's say one is a hundred and one is two hundred, so a hundred is certainly chayav. If the hundred shtar is kasher, then he's chayav a hundred. If the two hundred shtar is the kasher'er one, so he's definitely chayav a hundred, he's chayav a hundred plus, but a hundred is certainly chayav. So therefore in this case, there is no machloket between Rav Huna and Rav Chisda. They both would hold that the din is that the hand of the בעל השטר, of the malveh, is on the bottom, which means that he only could collect the smaller amount. Now what would be with שני מלוים ולוה אחד ושני שטרות? Two lenders, but one borrower, and they're in two shtarot. So היינו מתניתין. This is the din of our Mishnah, which means as follows. Here the case is that you had two people that had two separate shtarot, that they're both claiming money from the same person. And on each of these shtarot is signed one of those groups of עדים that at one time contradicted each other. Now in this case, we have no safek what the opinion of Rav Huna would be, whether we look at it as if they are coming together since it's being claimed from the same person, or do we look at it that they're two separate עדים because two separate people are claiming? So here we have no question, because really this is the same case in our Mishnah. In our Mishnah, we have that the workers say to the בעל הבית, \"We never got\", and they claim the בעל הבית owes them, owes them the money. The חנוני says that he did give, and the בעל הבית owes him the money. So the Mishnah says that he has to pay for both. Even though definitely one of the two is lying, nevertheless, we can't make either of them lose, because we don't have a ראיה which one is right. So even though it'll come out that the בעל הבית is going to have to pay double, so he's definitely going to lose, but still, since on the other two we don't know which is the one that he really owes, so therefore he has to pay for both. So the same thing would be here. These two שטרות, one of them is definitely pasul, but on the other hand, we don't know which one is pasul, and they're two separate people who are claiming from the same one person, so we can't make either of them lose for the reason that this one person will have to pay to two. And even though we know for sure that one of the two שטרות is pasul, but in our Mishnah, we also know for sure that one of the two are lying. Nevertheless, since we don't know who it is, so he has to pay both. And the same thing here, this one לוה will have to pay to both מלוים, even though we know for sure that he only owes to one, but since we don't know to which one, and none of them have a stronger ראיה than the other, so therefore he has to pay to both. And this is not the same as in the previous case, because in the previous case, both שטרות were brought by the same person, so we tell this one person, you can't use both שטרות together because one of them is false, so you only collect the smaller one. But here, since there are two separate people, so each one could say, \"I don't care that the other person has a שטר which might be pasul, and mine might be pasul. I claim that mine is kasher, and the other one claims that his is kasher.\" So therefore, he has to pay to both. Now, what would be if תרי לוין ומלוה אחד ושני שטרות מאי? What would be the דין if you have two borrowers and one lender, and it's written in two שטרות? What would be the opinion of Rav Huna in this case? Would we say since it's one person that's claiming both, so we tell him that mimah nafshach one of your שטרות is pasul, and therefore he can't collect from either one, because each לוה is going to tell him that the שטר you have against me is pasul? If the case where it was one מלוה against one לוה, so the לוה has to pay him at least the smaller amount, because even if one of them is pasul, but the other one is kasher, and it's the same person that owes the money. But here where we have two לוין, so each לוה is going to say that the שטר you have against me is a פסול'ע שטר. And the other one is going to say the same thing. So therefore Or, or do we say, since there are two שטרות, and he's claiming the money from two separate people, so we consider this according to Rav Huna as if each group of עדים is testifying a separate testimony, and Rav Huna holds, when they testify separately they are believed, and the שאלה is, according to Rav Huna, would he be able to collect with that שטר or not? Now, according to Rav Chisda there is definitely no question, because according to Rav Chisda, even if there are two מלוים and two לוים and two שטרות, completely two separate, different things, he says that you don't accept either of the שטרות, because since לכתחילה they contradicted themselves, so each one has a דין of פסולי עדות. So certainly in a case where you have two לוים and one מלוה. But according to Rav Huna who said that if they come to two separate things, then each one is believed, but the שאלה is, if you have two לוים and two separate שטרות, just one מלוה, do we look at it as two separate things, even though on each שטר signed one of these two groups, which one of them is definitely פסול, but that's only if they come together, but in this case we consider it as if they came separate, because they're two שטרות claiming from two separate people? Or do we say that since the same person is claiming, each one of these two could tell him that, the שטר you have against me is a פסול שטר, and therefore he can't collect from neither of them? And the Gemara says, תיקו, this remained a question without an answer. Then the Gemara says, מותיב רב חונא בר יהודה, רב חונא בר יהודה asks a question. We learned in Masechet Rosh Hashanah concerning the דין of עדות החודש. The דין is that in the time when they had a בית דין, so then they would be מקדש the חודש על פי ראיה. Witnesses would have to come to בית דין to say that they saw the new moon, and based on their testimony they would establish ראש חודש. If they saw the new moon on the 30th day, then that 30th day would be ראש חודש. It would not be the 30th day of the past month, but the 30th would turn into the first of the new month. If no witnesses would come, or if they would for some reason not accept the testimony of the witnesses, so then that day would remain the last day of the previous month, which means the previous month would have 30 days, and the next day would be the first day of the new month. And all the ימים טובים would depend on when the בית דין established ראש חודש. So when witnesses would come to בית דין to testify they saw the new moon on the 30th day, בית דין would investigate to see if they are saying the truth. So one of the questions בית דין would ask, how high does it seem to you from the horizon? So if אחד אומר גבוה שתי מרדעות, one of them said to me it looked two ox goads high from the horizon, ואחד אומר שלש, and the other one says that to me it looked three ox goads high from the horizon, עדותן קיימת, their testimony is still valid. Because we say they probably are not lying. Even though they are contradicting each other, but since they're only the difference is a very small between one and two, it's possible that they didn't know exactly, and to one person it seemed two ox goads high and the other one it seemed three ox goads high, but it doesn't mean that they are lying. But if אחד אומר ג' ואחד אומר ה', one says to me it looked three ox goads high, and other one says to me it looked like five ox goads high from the horizon, עדותן בטלה, their עדות is בטל because we know for sure that they are lying, because they are both not saying the same thing. And we do not say, well, maybe they meant the same thing and just made a mistake, because between two and five, people do tell the difference. And therefore their עדות is not valid anymore. But ומצטרפין לעדות אחרת, they could be combined to other testimony. And at this point the Gemara feels that what do we mean they could be combined to other testimony, that even though we assume that they were lying in this testimony, but since we don't know which one of the two was lying, so therefore each one separately is still considered כשר לעדות, and each one separately, when he will come to a different testimony, you could use him as an עד. מאי לאו, don't you think לעדות ממון, that when he comes to testify other monetary testimony, each one separately could be accepted? So this is a קשיא on Rav Chisda, because Rav Chisda had said that when you have two groups of עדים contradicting each other and we don't know which one is saying the truth, so both of groups are פסול for any other testimony. But here we see that we could use these two עדים, even though they contradicted each other and we don't accept the testimony in this case, we could use them for other testimony. The Gemara says, אמר רבא, Rava said, what does it mean הוא ואחר מצטרפין לעדות אחרת של ראש חודש? That he, either one of the two, could combine himself with another witness concerning the עדות of Rosh Chodesh. In other words, we're not talking here about using them for other types of testimony בכלל. That we're not speaking about at all. What we mean here that you could be מצטרף them to another עדות, that means that if another person will come and he will say that he also saw the לבנה And he will say that he saw it, the height as one of these two, let's say, he will say he saw it three ox goads high from the horizon, so then we combine him with one of the two that said the same thing, and we consider them a group of עדות, and the third person who said that he saw it five ox goads high from the horizon, he is pushed away and we establish that the new moon was seen by those other two. Even though one person is saying against them, דהוו ליה תרי וחד, it's two against one, ואין דבריו של אחד במקום שנים, and the words of one has no value against two. And that's what we mean there, that when they contradict each other and there's no third person, so then we can't accept either of them, and as far as we're concerned, we have no עדות that they saw the new moon. But if we have a third person who says like one of the two, so then we combine that third person to the one that he says like, and these two together become the עדות, and the third person who said differently, he is pushed away and his words are not considered. But we have no ראיה from there what would be the דין concerning other עדות. If you have the two contradict each other, whether where they still would be accepted to other testimonies. So we have no ראיה against Rav Chisda. Concerning what we learned in the Gemara before, there is a מחלוקת between Rav and Shmuel against Rav Abba, whether we use this sevara of מתוך שאינו יכול לישבע משלם. But if a person is מחוייב שבועה and for some reason can't swear, whether we say because of that he has to pay or we say that you don't swear and you don't pay either. So the way it says in different sefarim that the machloket is based on the whole concept of חיוב שבועה. When there is a din if a person is obligated to swear in order to become patur, which means obviously that if he said, \"I don't want to swear,\" then he must pay, there are two ways to learn. On one hand we could learn that in that case there is only a חיוב שבועה. The person is obligated to swear, that's all. He's not obligated to pay. Ai, why is the din that if he doesn't want to swear he pays? Because if he doesn't want to swear, obviously he's lying, so then he has to pay. There's another way to learn that it is if the Torah gives him two choices. Lechatchilah there is a din that you have to pay, and you have another choice that if you don't want to pay you're able to swear. Let's use the example of a מודה במקצת. That when a person admits to part and denies part, so you could learn one way, that this person is only obligated to swear, מן הדין there is only a חיוב שבועה, and that's why if he swears he is patur. If he says, \"I don't want to swear,\" he doesn't want to fulfill his obligation, then the only way he can get out of it is by paying, but there is no חיוב מן הדין on him to pay. Or you could learn that מן הדין he has to pay, or if he wants to get out of the payment, then he swears. And the same thing with an עד אחד, when he says, \"I don't owe,\" and one witness says, \"You do owe,\" so he's מחוייב שבועה, so you could learn one peshat is that an עד אחד is only מחייב a שבועה, he has no way of being מחייב a person money, but if the person doesn't want to swear it means he is lying, so he has to pay. Or you could learn that when an עד אחד comes, he is מחייב money also, just like two עדים. The only difference is when two עדים come, they're מחייב money and there's no way out. When an עד אחד comes, so then the din is you have to pay, but since it's not so strict, you have a way to get out of the payment by swearing. And these two סברות are behind the machloket whether we say מתוך שאינו יכול לישבע משלם. If you hold that there is no חיוב ממון, there's only a חיוב שבועה, then if the reason he can't swear is not because he doesn't want to, but because על פי דין he can't swear, so then there is no reason to מחייב him money, because there is no חיוב ממון here, it's only a חיוב שבועה, and he says, \"I'm ready to swear, איי, על פי דין I can't swear, so that's why I should pay? There is no obligation on me to pay.\" And that's why he takeh doesn't have to pay. The one that holds מתוך שאינו יכול לישבע משלם, he learns that בעצם there's a חיוב ממון. There's only an option, another alternative here that you could get out of it by swearing. So if for some reason he can't swear, so there is no other alternative in this case, so what remains? The חיוב ממון, and that's why he has to pay. Concerning what the Gemara said later on, the machloket between Rav Huna and Rav Chisda, when we have two groups of עדים contradicting each other, that Rav Huna holds that זו באה בפני עצמה ומעידה וזו באה בפני עצמה ומעידה, each one could go separately and testify, while Rav Chisda says that we don't accept either of them, and they both become פסולי עדות. And here in the Gemara, the Gemara asked a kashya on Rav Chisda, and Rava answered that it's no kashya on Rav Chisda. Tosafot asked a kashya, it says in פרק מרובה in Bava Kama דף ע\"ב that Rava holds עדים זוממין חידוש הוא, that the din that we believe the second group of עדים by עדים זוממין is a chiddush. You know there is a difference between הכחשה and הזמה. הזמה means when you have one group of עדים come and testify, then you have another group and comes and says, \"How can ...you claimed that you saw this and this happen at that and that time in this and this place, when at that time you were with us in a different place. So when the second group of עדים says that, that is called הזמה. Any other thing they say, when they say that you are lying because it didn't happen or whatever reason, that's called הכחשה. But if they say that you were with us at that time, so you couldn't have seen this maaseh happen, that is הזמה. And the din is that we believe the second group of עדים, and we punish the first group of עדים. As the pasuk says, ועשיתם לו כאשר זמם לעשות לאחיו, we should do to them, to him, as he wanted to do to the others. If the first group of עדים wanted to be מחייב a person money, they have to pay the money. If they wanted to have that person killed, they have to be killed. But Rava says עדים זוממין חידוש הוא, that this din that we punish the עדים זוממין and we don't believe them is a chiddush, because really מאי חזית דסמכת אהני, סמוך אהני. Why should you rely on the second one, and say the first ones are lying, why don't you rely on the first ones? So the fact that we don't believe the first group of עדים is a chiddush. But l'chorah, according to Rav Chisda, and from our Gemara it seems that Rava holds like Rav Chisda, we don't believe by hachchashah either of the groups. So the chidush by עדים זוממין is not that we don't believe the first group, because if it wouldn't be זוממין, we wouldn't believe either group. So the chidush is why do we believe the second group? And Rava is saying that since עדים זוממין is a chidush, the fact that we don't believe the first group is a chidush, that's why a certain din comes out, when this din that we don't believe the first group is not a chidush at all. The whole chidush is that we do believe the second group. So how can Rava say that עדים זוממין חידוש הוא, that the fact that we don't believe the first group is a chidush? And Tosafot says we must say that Rava does not learn like Rav Chisda, but Rava learns like Rav Huna. And Tosafot taka brings that in the beginning of Chazakat Habatim, in Bava Batra דף ל\"א, the Gemara taka says that Rav Nachman and Rava both hold like Rav Huna. אי the question is in our Gemara, Rava explains Rav Chisda's דין, Rava answers the kushya that was asked on Rav Chisda. So l'chorah it's mashma that Rava does hold like Rav Chisda. But Tosafot says no, we must say that he only explains Rav Chisda to show that it's no kushya on Rav Chisda, but he himself does not hold that way. But then the kushya is, in that גמרא גופא, in Bava Basra, the Gemara first wants to say that maybe Rava holds like Rav Chisda, how could there even be an hava amina that Rava holds like Rav Chisda? When Rava holds עדים זוממין חידוש הוא, obviously he doesn't hold like Rav Chisda. But Tosafos says אין הכי נמי, the Gemara there could have said, ולטעמיך? The Gemara could have said, according to you who wants to say that Rava holds like Rav Chisda, how could that be, when Rava holds עדים זוממין חידוש? And לגבי הלכה Tosafos says the הלכה is like Rav Huna. Since the Gemara said that Rav Nachman and Rava hold like Rav Huna, and the ר\"ח, Tosafos says, also paskent like Rav Huna, why? Because Rav Huna was the rebbe of Rav Chisda, as it says in the Gemara אלו מציאות, so we pasken like him. And another thing, because the Mishnah the Gemara brings later on here, that one says it was high two מרדעות, and one says it was high three מרדעות, and the second case, one says three and one says five, lechora it's mashma like Rav Huna. Even though the Gemara answers that we could say it goes according to Rav Chisda also, but the pshat there is something else, but lechatchila the mashma'ut from the Mishnah is like Rav Huna, and therefore we pask'n like Rav Huna. Continuing what the Gemara said before, that from the פסוק שבועת ה' תהיה בין שניהם we learned out that the shevuah is חלה על שניהם, the shevuah goes on both, on the one that swears and on the one that makes him swear. So lechora we would think that when does the one that makes him swear get punished? If he was lying, and the right is the one that swears. Since he made him swear for no reason, if he would have admitted the truth, the other person wouldn't have to swear, and even though the other person swears true, but he caused a shevuah to be made, that's why he's punished. But Tosafot says it is not so, but it is like Rashi says earlier on דף ל\"ט עמוד ב', that even if he is right, and that person swears false, so he when he made him swear, he is saying the truth, nevertheless he also gets punished. And the reason is, as we said before, because he could have done something to avoid the shevuah, and the other person wouldn't be able to swear false, if he would have had עדים or if he would have had a שטר.