we're going to start now at the top of י״ח עמוד א׳. Now, once again, just to refresh the the הלכה on the משנה, the משנה being on דף ט״ז עמוד ב׳ that we're focusing on right now. And once again that case is the case of שדה זו של אביך היתה ולקחתיה הימנו, which is the last case of that משנה, which we said, otherwise known as the פה שאסר. The פה שאסר case, where one who proclaims or claims to be a buyer claims he bought a piece of property from his friend's father: שדה זו של אביך היתה ולקחתיה הימנו. So the only information we as the בית דין have of the previous ownership was based on the word of the buyer himself. That's פה שאסר. However, if it is proven independently because we have witnesses that could attest to the fact that this piece of property once belonged to someone else, so you as a buyer have to prove that you bought it. So, the

גמרא now asks that after going through the previous סוגיא we tried to understand why did the why was the case about I bought the field from your father, why couldn't we say I bought the field directly from you? There was an argument between the buyer versus the original owner, did he sell it or did he not sell it? The גמרא got into all kinds of complications of the three years of חזקה, we're not going to go through the whole גמרא again, but the גמרא came out with a whole חשבון that there was some other חידוש involved in the משנה, and that's why we had to make a היכי תמצי where the buyer said he bought it not you, but from your friend, from his friend's father. So now the גמרא wants to suggest a more simple way of רבי יהושע or of the משנה being able being able to relate to us the הלכה of פה שאסר that we're trying to see here that רבי יהושע agrees to. And that is the top of י״ח עמוד א׳. וליתני מודה רבי יהושע. Let the משנה tell us if it wants to teach us הלכה of פה שאסר, we're starting here at the top of י״ח, if the משנה wants to teach us that רבי יהושע agrees that even though מיגו does not work, but a פה שאסר does work, so why didn't he say באומר לחבירו, draw up a new case, one who tells his friend, מנה לויתי ממך, I borrowed a מנה from you, I borrowed a hundred bucks from you, ופרעתיו לך, and I paid it back נאמן. So

here's a new case. Imagine one tells his friend that he borrowed $100 from him, and he adds to that that he paid up, he paid up the loan. So what would you say, is he believed or is he not believed? לכאורה, he's believed. It depends, he says, is it before the time, or after the time. So you're talking about the חזקה שאין אדם פורע תוך זמנו? תוך זמנו. So let's say we're talking about after the זמן, certainly he's believed, right? Now, I don't I didn't look into this שאלה, but I'm pretty sure that even if it was during the זמן, because the only information of the fact that there was a loan altogether was not based on witnesses, was based on the guy himself. I myself said I borrowed money from you, so if I if I didn't if I didn't pay back, and I was concerned that you might uh uh then why would I say anything? So far we believe him unless there's a claim, unless the guy says, \"Wait a second, oh, you reminded me that you...\" No, you didn't pay me. But we would believe him. So right now, בפשטות we'll go we'll go with רש״י's מהלך here. בפשטות we're talking about there's no claim here. אומר לחבירו מנה לויתי ממך, a מנה I borrowed from you, and I paid it back. So now the guy says okay, well, now now he starts arguing, he said, \"Oh, you didn't pay it back.\" So now what? Do we believe the borrower? So the the the גמרא is suggesting that לכאורה, we should we should we should be able to apply the same principles of פה שאסר. That the borrower here, the only way we know he's a borrower is because he said he borrowed the money from his friend, the מלוה, from the lender. We don't have any other information. We don't have any witnesses attesting to the fact that there was a הלוואה, that there was a loan. I'm the one making the claim that I borrowed the money, so believe me that I paid it back. That's the same פה שאסר. So the משנה could have told us this הלכה that מודה רבי יהושע by מנה לויתי, I borrowed money from you and I paid it back, so there we have a פה שאסר. And this way we could have a seemingly more simple case between a borrower, a lender. We don't have to get anybody's parents involved in the story here. We don't have to say they bought the piece of property from אביך. And that's the גמרא's קשיא. So the

גמרא answers the reason why this does not will not will not be able to be the case of the משנה is because in our משנה, if you remember, we also wanted to make a contrast. We had one case where there was a פה שאסר, that the either a borrower or the well we'll call him the defendant, was believed based on his פה שאסר idea that we learned about. We also want to contrast that with information that he provided us was not based on his word, but rather proven by עדים, and he loses that פה שאסר, which was the case of the משנה where it was independently verified by other witnesses that the piece of property belonged to the father, we did not need that information coming from the buyer. So if we try to apply the same case of הלוואה, borrowing and lending, into the second case of the משנה to be able to contrast, where do we have a case where there is a פה שאסר up against the case that you don't have a פה שאסר? So that would be if, for example, there were two witnesses that said that ראובן borrowed money from שמעון. And here's where your factors might come into play about if a person pays back during the time of the meaning usually a סתם generally, unless spoken out otherwise, a loan is generally for 30 days. And there are חזקות like Bernardo brought up that generally speaking a person does not pay off his loan until it is due, not what we call תוך זמנו, not during the time that he's allotted. So but that's those הלכות are not really the He does not pay it? Generally does not pay תוך זמנו, he waits till the deadline and then he pays it. So if we try to plug this into the סיפא, what should follow would be that if there were witnesses that witnessed ראובן lending money to שמעון and then שמעון came along and said, \"I borrowed money,\" well we don't need him to say that because we have witnesses that saw that he lent money, \"but I paid up.\" So what would you think the הלכה should be? Any suggestions here? לכאורה, we don't need him to say that there was הלוואה, we know there's הלוואה, witnesses were able to attest to the fact that ראובן lent money to שמעון. So לכאורה the הלכה should be that he's he's not believed, why should we believe the borrower? He should have to prove that he paid back. That's לכאורה what should follow if we want to contrast between a case where there is a פה שאסר versus the case where there's no פה שאסר.

However, the גמרא tells us, but that's not true though, we have a הלכה דקיימא לן. This is a הלכה brought down in שולחן ערוך. How do you translate קיימא לן? קיימא לן we means it exists by us, which means that we פסק'ן in plain English. Three words? Two words, or? וה, we, קיימא, לן. Ah, וה קיימא לן. Sometimes it's made into one word, דקיימא לן, right, we have that, or וקיימא לן. Anyway, וה קיימא לן המלוה את חברו בעדים, the one who lends money to his friend with witnesses, the הלכה is אינו צריך לפורעו בעדים. He does not have to pay back his loan with witnesses, which is an interesting הלכה to know. Meaning certainly when there's a שטר, if there's a document written up, a lender lent someone money, lent them $1,000, they write up a שטר, so as so long as the lender has that paper to prove the הלוואה, the borrower is pretty much stuck, there's no way out. So either when he pays off, he's either got to make sure the שטר gets ripped up or he has to get a receipt. However, if there was a הלוואה that was not written, not documented in any kind of שטר, but it was only proven, was only done through witnesses, עדים, so the הלכה is that the borrower could pay off his loan even in private, even without witnesses proving the fact that he paid off. So what would you think would happen now if there's a dispute amongst the borrower and lender? Lender says, \"I lent I lent you $100,\" and he has witnesses that he made a הלוואה. Borrower says, \"Well, I paid up,\" and let's say we're talking about at the end of the, it was a 30-day loan, on the 30th day he says, \"I paid up.\" No receipt. So, so what do we say? So our גמרא teaches us that we פסק'ן that he is believed to have said he paid up. He does not have to pay up with witnesses. Now, the reason for this הלכה I had a hard time pinpointing, if anybody knows exactly the reason behind this. Now,

when I say that he does not have to prove it, I'm talking on a דאורייתא level. I mean, מן התורה, there the burden of proof is completely on the on the lender. However, there is there is a הלכה דרבנן that he will have to swear. Meaning, the the borrower who says he paid up, he would have to swear what we call a שבועת היסת. It's called what? It's called a שבועת היסת: ה י ס ת. Rabbinical שבועה. Rabbinical swear. Swear in court. So there is one reason that I saw brought down in the ראשונים, I don't know if I don't know if it fully explains the reason behind this הלכה. You have a reason? No, no, I'm waiting. Very curious. So so we're going to get to that soon, but I haven't seen I was looking through רש״י's, this גמרא is brought down in a number of places. And could be it's a פשוט reason, I just couldn't find a clear reason why for this הלכה that המלוה את חבירו בעדים, even though the loan was with witnesses, the borrower is not obligated to pay back with witnesses. It seems like the reason, I mean, there's a certain either trust between the lender and borrower, if he did not document it on a שטר, maybe there's some kind of trust that he trusted him. But there's a little bit of a different סברא that I'll share with you soon in the ראשונים. I I would draw the the קל וחומר from מודה במקצת. A קל וחומר from מודה במקצת? See, מודה במקצת is a little different. There, they're talking about denying completely the loan. Here here is partial denial. If he does not have the חוצפה to deny a loan... So he won't have the חוצפה to to say that he repaid the loan either? Meaning, if he did not repay... If he did not repay, he's not going to have the חוצפה to say, \"I paid it.\" So you want to say a similar סברא to to עזות, what we call עזות, he does not have the עזות. Maybe. You know, keep in mind... Why is מודה במקצת only denied the loan? He denied paying him completely. Wait, I don't want to talk about מודה במקצת yet. It's not really It's going to come up later. Because that would tend to be a different שבועה. You have to remember, there's a difference between denying a loan or admitting to the loan, but you paid up. There's one thing to say, yes, I borrowed the money, but I paid up already. Now, if you want to know if the guy said, \"I paid up half,\" is that also מודה במקצת? So we're not learning בבא מציעא now. Sorry. Yeah, what? \"I paid up half the loan.\" And the guy says, \"No, you didn't. You didn't pay up anything.\" Denied the whole thing. So that We're not going to learn We're not learning בבא מציעא now, I do apologize, but we're going to learn a little bit about... Well, it is applicable possibly. I don't I don't remember. I think it's a סוגיא in בבא מציעא. I don't remember how it came out. In our case... Well, right now we're not talking about that. Right now we're talking about simply lender says, \"I lent you the money. Pay up.\" Borrower says, \"I did already. I paid up.\" So בדין תורה, בדין תורה, the the borrower is he's that's it, he's off the hook. Doesn't have to prove himself. He could say he paid up. He did not have to prove himself. He did not have to pay up with witnesses. He does not have to pay up. He does not have to prove himself. The only time he has to prove himself is if there's a שטר. If the lender comes with a document, says, \"Look, I have signatures that say you owe me money,\" then then the borrower will have to pay up unless he could somehow disprove the authenticity of the שטר or challenge the... המוציא מחבירו, עליו הראיה. Well, the ראיה is a שטר. A שטר is a ראיה. Right. I mean, because there is no שטר, so... If there's no שטר, then just the mere fact that there was a loan is not a ראיה, because he's not obligated to pay back with witnesses. Could have paid back between him and himself, בינו לבין עצמו. So So, what's the answer for what the the הלכה here? Oh, so so getting back to Again, the outline of the גמרא before we we get a little bit more involved here in in some of the reasoning behind this, but the outline of the גמרא, once again, is that we can't really plug in a case of lending, borrowing, talking about, you know, the borrower saying he did pay up, lender saying he did not pay up, because it won't be able to conform to both cases of our משנה. We have two cases of our משנה: case number one, or the פשיטא case, so that, לכאורה, seems to be able to work out, because there the borrower is the one who's informing us that there was a loan. So if he's informing us that there was a loan, therefore we believe him that he paid up. But the second case, the contrast case where there's no פשיטא there, that that doesn't follow the הלכה, because the contrast should be that If there were witnesses that there was a loan, and you don't need to come on to the borrower's information that there was a loan, so if we're trying to say that there's no פשיטות, the the משנה's הלכה should be telling us that the borrower is not believed, and he's got to prove himself. But we know otherwise. That's what the גמרא says, דקיימא לן we פסקן that the הלכה is even if there was other information coming from witnesses that there was a loan, you don't have to prove that you paid up. You could claim you paid up, and מדאורייתא we believe you that you paid up. עד כאן דברי הגמרא. It's a פה שאסר. It's a rabbinic, I mean we learn it out from חכמים, we don't say that it's דאורייתא, it's not a A פה שאסר, um I mean this משנה this הלכה definitely outweighs A פה שאסר could be דאורייתא. Maybe. סברא. Certainly the הלכה is stronger, all right? The possibility for a פה שאסר. Stronger than what? I mean, this this this הלכה that the borrower is not required to repay the debt with witnesses makes it even if it was a פה שאסר, and he was Okay, since there's no wit- since there were witnesses, he's not believed, so the פה שאסר falls off, right? In the case of the משנה or the case of loan? In the case of loan. In the case of the loan, our גמרא is saying that the הלכה is that he is believed, even if there's no פה שאסר. And that's and and the משנה's trying to contrast between a פה שאסר where one is believed, versus a no פה שאסר where he is not believed. So we can't conform these הלכות that we find by הלוואה to uh pairing and contrasting with a פה שאסר. So, I just want to preface, uh even though we started tonight's שיעור, but I did want to preface that these גמרות are are a bit hard, so so bear bear with me here. If If If I lose you, please please stop me. Okay? Try try not to get uh make things more complicated than necessary, but I try to stop you, but you you don't stop. No, just kidding. So these are hard גמרות, so we have to try to uh understand them here the best we could. It's mostly because there's really a lot of חשבון, it's a lot of, you know, steps of one thing based on the next. So what I wanted to get into here tonight was uh an interesting שאלה that comes up in the ראשונים, and there are proofs and דחויים of the proofs from our סוגיא. דחויים? דחויים means uh rebuttals, rebuttals, I guess. And the question is like this, and we'll see how it applies to our סוגיא. We just mentioned a הלכה that the גמרא brought in to uh to our סוגיא here, which is what we say again in the גמרא language: המלוה את חבירו בעדים אינו צריך לפרעו בעדים. That one who borrows money from his friend, even if he borrowed it with witnesses, there were witnesses there at the time, when he pays up, he does not have to pay off with that same proof of witnesses. He can pay up between him and his friend, and he would thereon be believed to say that he paid up. Now, the question that the ראשונים discuss, Why did you I didn't say anything yet. No, I just said that last part. But why would he be believed? Just cuz he he he can pay in private doesn't mean that he automatically Well, the גמרא says if you can pay, it means to say that he's believed to say that he paid in private. Yeah? Yeah. Okay. Why? I said. Rashi say, what does he say? That's what the גמרא says. Well, that's the implication. It doesn't see It doesn't Doesn't say it outright. No, there's no other way of understanding the גמרא. Unless if you could figure one out, let me know. Uh-huh. Okay? So

here's the שאלה, Reb Bernardo. Ready for this? Question's like this: what about גזילה? Now, generally, we don't steal. We're not allowed to steal. If someone does steal with witnesses, meaning to say we know for a fact, it could be proven that he stole from someone else, so the תורה tells us he has a way to uh to to uh to to do תשובה on his גזילה, the תורה tells us והשיב את הגזלה אשר גזל, he shall return the uh stolen object that he stole. And it's uh I guess what we בפשטות could consider a חיוב ממון, he has an obligation to return the money that he stole. Now, if there were witnesses that he stole the money, or the object, the item, whatever it may be, and then we come knocking on his door, \"Miami Beach Police Department, we see that you stole, we have eyewitnesses.\" He says, \"Oh, yeah, yeah, I stole, but I gave it back. I gave it back already.\" So do we apply the same הלכה that one who steals בעדים, מי שגזל את חבירו בעדים, so does he have to give back the object that he stole also in front of עדים to have as a proof in case there's a question down the line? Or, let me just speak out the other possibility. Or no, just like by הלוואה, if I borrow money I'm not obligated to repay my הלוואה with witnesses, and if there's a question later I can say I paid it back, so similarly by גזילה, if I stole something, even if there were witnesses, I also can say that I returned the item, and I did תשובה, and I don't have to prove it. What do you think? There's a difference between something that comes with permission and something that comes without permission. You stole, you're a גנב. Now why are you going to be believed? It didn't come to you with רשות. A loan comes to you with רשות. You cannot compare either one. I agree with him. Okay, we already have we already have 50% going in one direction. What do you say? Sure, he's a thief, why can you believe him? Probably lies, too. You're talking now about Miami Beach Police Department. I just said Miami Beach Police Department as a משל. What I meant was that גזילה... What I mean is when someone stole something, then then he has it's it's different. It's a lower level of crime, it's not a loan. You went into someone else's property, you took you took an item, that's a whole different ballgame here. Or are you calling a guy that borrows money a thief? What are you saying? Borrows money I would not call a thief, no, חס ושלום. Not at all. It's a it's a מצוה to lend money. Depends if he pays back. Not a מצוה to borrow, though. Depends if he pays back. That's a סברא. That's a סברא. Yeah, he borrowed, but did he have intention to pay back? Okay. Is anybody going to help us out over here? Is someone going to stick up for the other שיטה, sir? So there are there are two opinions here, as we will go through. Now, it happens to be that well let's see here. We're going to take this one step at a time. We're going to try to go through this a little bit כסדר here, and then we'll get to some of these סברות that everybody's mentioning. We have like this: the רמב״ן in בבא בתרא, so he seems to be of the opinion that the הלכה is the same just by a גזלן, not like the עולם here is claiming. That just like a borrower who claims he paid

back, even if the loan was a loan with witnesses, he can claim he paid back without witnesses, so too by גזל, so too when it comes to stolen property, same הלכה. רמב״ם, you said? רמב״ן, Nachmanides. Where is his commentary in the גמרא? Where does it come in the גמרא? No, no, in every גמרא. What's it called? What's his commentary in the גמרא? What is his? חידושי הרמב״ן. Right? The חידושים of the רמב״ן. He has other commentaries also known as מלחמות השם, The War of God, which are in the back of the רי״ף. I can't forget that name. He also has, and some other ones also. But anyway, so that is the opinion of the רמב״ן, and we'll see soon a possible reason. I don't have I'll get to the reasons shortly, hang on a second. Whereas the other ראשונים, in עליות עליות דרבינו יונה, which I'm not really sure if it's him or if it's coming from his תלמידים, in בבא בתרא, so he says no, and he says very similar to the סברא you were saying and the עולם here was saying. And he says like this: that there's a distinction between הלוואה, a loan, versus versus versus גזל. He

says המלוה את חבירו בעדים אין צריך לפורעו בעדים. He says, כיון דלפריעה קאי נאמן לומר שפרעו. Which means since when he takes out the loan, when he takes out the loan, his intentions are to repay. And that might might be similar to what everyone was saying here was that he wasn't doing any anything wrong at the time that he borrowed, he borrowed the money he had in mind to pay back. Something popped up later and he had a hard time, whatever it was. But by the fact that he lent, that he borrowed the money, we don't question his his reputation over here. Especially because they're witnesses. Maybe that helps too. Okay, yeah, there Well, maybe. It's essentially like that. What's he going to do in front of witnesses? Okay. All they knew his כוונה was. But you hear the words of רבינו יונה? הואיל וכולי נמי למיפרע קאי. When he borrows the money, he's doing it so, rightfully so, and he's borrowing the money with the intention of paying it back. אבל גזלן, one who's stealing money, הרי אינו גוזל. He's not stealing על מנת לשלם, right? With the intention of paying back. And maybe we could add a little bit of what you were saying. Not only is stealing with the intention of paying back is also forbidden. But he's doing something completely אסור. And once he steals, he's being עובר an איסור and he is לפיכך, therefore he's not נאמן. לא יאמר החזרתי. He can't say he paid back. And therefore the responsibility is on him that if he does pay back, he has to make sure to have proper witnesses that will be able to prove it if there was a question later down the line. What is the understanding in the רמב״ן שיטה? What is that? What is the understanding behind the רמב״ן שיטה? So, I'm I'm I'm going to get to that in a moment. I don't really have a great understanding, but a few words I do have. Well, before I get to that, I just want to share with you that both הלכות are brought down in שולחן ערוך, I'm sorry. And the שולחן ערוך, it does acknowledge both שיטות here. הגוזל את חבירו בעדים, straight out. This is in

חושן משפט סימן שס״א הלכה ח׳: הגוזל את חבירו בעדים, one who steals from his friend with witnesses, יש אומרים, there are those that say, שאינו צריך להחזיר לו בעדים. He does not have to pay back with witnesses. ויש אומרים, and there are those that say, שצריך, he does have to pay back with witnesses. Says the סמ״ע, says the commentary on the side of שולחן ערוך, that again the he only seems to go to explain the opinion that says that גזילה is different. It says יש אומרים that it's different because they say דווקא במלווה את חבירו בעדים אין צריך לפרוע לו בעדים. He borrowed the money with intention of paying back. מה שאין כן בגזלן, whereas the גזלן did not take it initially bothering you and I still have not got to your question yet, which is what in the world knows the reason of the other opinion, the רמב״ן? And I'm under the impression that there are many other ראשונים that also are like the רמב״ן. They say that even if you steal, one steals with witnesses, he does not have to pay back with witnesses. Maybe the thief just wanted to also borrow the object, but he had to steal it, you know, and he had intent just to use it and then return it. Like I read recently, is it an איסור to buy something from the store with intention to return it? Just want to use it for a short time. Even if they have a even if they have a policy. Oh, so that's a good thing, a bad thing? Might be connected. Yeah. Doesn't doesn't usually make כשר. Depends on how much I need the the That's I don't think it's not a קידוש השם. Yeah, that's that's my opinion. And yeah, that's a whole a whole separate שמועס. Okay, so here is the שיטה מקובצת, here in in כתובות. He quotes the רמב״ן, I'm pretty sure it's the רמב״ן, it's רבינו משה בר נחמן דגרונדא ז״ל. And he adds some reason for the רמב״ן. Now, I'm not completely satisfied. I don't think you will, maybe you will be, if you are, please help me out. And he

says that the reason for the רמב״ן that one who steals בעדים, he's נאמן to pay back, to return the גזילה even without witnesses, he says like this: שאף על פי שגזל, even though he stole, שמא, maybe, עשה תשובה והחזיר. Maybe he did תשובה and returned it. How does that strike your thinking? So, help me out because he's a maybe? שמא? Maybe he did תשובה? A ייד, every ייד does תשובה. Every ייד does תשובה, so we're going to put some מוסר in here? What are we going to say here? I know, but when it comes to ממונות, when it comes to ממונות, we take that into account? We know he's a רשע. At the moment. So, he lost his credibility, didn't he? So, you're telling me maybe he did תשובה? Listen, if you have a listen, that's the רמב״ן. So, it's a גזירת הכתוב. מודה מודה קנס פטור. Right, but you know, there has to be also like an idea behind why that would... Yes, what's the idea? The words: they want to make it easy for the guy that's trying to make תשובה. The way to inspire the guy to come in to make תשובה. You're not going to make him do תשובה, \"Oh, you stole $100? You have to pay $200.\" Forget it. I'm not going to return anything. I'm not going to do anything. I'm moving to Canada. You want to make him, make it easy for the guy to make תשובה. There you go. Same idea. Same idea. You know, if you're not going to find me if you say hey look, you know, he's not going to do it. Very good. Make it easy, you know? Hey, look, the הלכה the הלכה was he has to pay כפל because he, because he did like he stole an object and he changed the object's status. Well כפל, that's I mean, that's a whole separate... I like your idea. I'm going to repeat it again. Make sure everybody hears it. So I'll share with everyone, Bernardo wants to say here, I think it's a nice idea. And I guess what the question will be here Bernardo wants to say like this, that we find we find the הלכה which is it's a general rule. We find קנס many times in the תורה, whether it's by stealing, paying back כפל, or four or five times by the sheep and the ox that you sell or slaughter, you find it even by one who מאנס, or נערה בתולה, it's also a קנס. Many times there's קנס in the תורה. And there's a

הלכה that מודה בקנס פטור, which means if he admits to his wrongdoing on his own, without being proven by first being proven by witnesses, then he's exempt from the קנס. So if I get your idea correctly, Bernardo wants to say over here is that Is that when he comes on his own? That's the הלכה, yeah, when you come on your own. When you come on your own. That's like a פשט in a sense. Well, but then, not really. Okay. It comes from a גזירת הכתוב. So, I think, what I remember. So, it says אשר ירשיעון אלקים, the בית דין has to make the person into a רשע for קנס. הגמרא learns out, only if בית דין is מרשיע him, פרט excluding one who on his own self-imposes the קנס or whatever. Anyway, so Bernardo is here דרשנ'ינג טעמא דקרא, the reasoning behind the תורה is because we want to make it easy for a גזלן or someone that did something wrong to admit his wrongdoing. So a קנס is not like a ממונות. A קנס is like a penalty, we call it. It's like a fine. There's no real hard damage. It's a penalty. That's why we, that's why we say מודה בקנס פטור. So what you're doing is a little bit of a חידוש, because you're extending it not only קנס is a penalty where there's no actual, gotta be a good English word for it, but there's no real no real damage, the real damages are being paid for, but קנס is the extra punishment, extra penalty, so if you come on your own and you admit, you're פטור. Punitive damages. What is it? Punitive damages. Punitive damages, thank you. So, very good. So when it comes though to our case here, it's a little bit of a חידוש, I'm saying you're extending the idea because here we're talking about ממונות. You stole an actual object, you're obligated to return it to him. It has nothing to do with it, you're מודה, you're not מודה, you have to give it back to him. It's not a question. It's ממונות. It's not punitive, it's, what's that other word? Monetary. Monetary. So if it's monetary, so even though, so what you're saying, if I have you correctly here, is that we still we

still want to make it at least a little easier for you to, to, we want to protect you somewhat, and maybe give you similar הלכות like that of a borrower or a lender, and and this way you'll have an incentive to actually return it, because you know if you give it back you'll be believed. If you're afraid when you give it back to him, and you're not going to be believed, why should I bother giving it back to him? Maybe you don't have עדים at the time and you're inspired to give it back. So we don't want him to have that deterrent not to return it. Maybe we do give him that נאמנות. We're not exempting him. We're not saying you don't have to return it. Obviously you have to return it. But we'll take your word on it. That much That much we'll give you. Who's claiming ברוך תהיה, גבר. Huh? In this case, who's claiming? Claiming he didn't pay it back, or give it back. The owner, the original owner, yeah. I think he has more credibility, though. The owner has more credibility, why do you think so? Could be he does, but but we have to we have to know when when we consider who's the מוציא, who's trying to get money out of who. So that's where it's a little Tricky because, I mean, we know the guy stole it. On the other hand, the victim is trying to pull money out of the out of the גזלן, but maybe he paid it back. So it's a little it's a little it's a little sticky, that's why it seems like we have the different opinions here. Why does that seem like he has a lot of recourse though? Does that seem like he has recourse? This victim doesn't have a lot to do now, I mean. Well he, well he should do, well if you want to accommodate all opinions, he really should return it with witnesses. Yeah. No, no, that's what the victim does. What about the poor guy that's saying his stuff is not returned? What's his recourse? Oh, you mean the the victim, what is his recourse? Yeah. How to how to protect himself? Yeah, how to yeah, what is what is he to do about the the גזלן? So what does he do if the, meaning if the if the if the the the גזלן takes advantage of the הלכה? Yeah. A גזלן, meaning what if The guy's lying. The guy's lying, so what could he do? So, I don't know, cause what we're discussing now is really, I mean, on a תורה level. I'm assuming that there are, like we spoke about by the borrower and lender, there's a שבועת היסת, that we had in place by the borrower and lender even if we believe the borrower that we'll make him swear. So there's certain, could be there are certain measures that חז״ל put in place to to help to help ensure that the גזלן can't take advantage. If there are witnesses, maybe they'll check his property, maybe there are certain things that they will do. Might have to come on to מדרש מדרשא? Nothing to do with בית המדרש, right? That's the next גמרא. I don't think, unless you can connect it. We could work our way. So that is that. How does What does this have to do with our גמרא, you're probably wondering? It's not just we're talking about הלוואה with עדים, so let's talk about stealing together. How does it How does it come back to our גמרא? And this is what I'll leave you with tonight. Tomorrow we'll talk about the rebuttals. But the, I think that the ראשונים want to bring a ראיה for those opinions, like the רמב״ם, for those that want to say that the הלכה of גזלן is the same as the הלכה of borrowing and lending. Because they want to argue like this: If borrowing and lending was different than than גזילה, meaning to say by borrowing and lending, so if I borrow with witnesses, then I don't have to pay back with witnesses. When it comes to גזילה, I stole money, so I lost my credibility and I have to pay back with witnesses. If that were to be true, like that second opinion, that when it comes to stealing you have to prove your paying back, so ask the ראשונים, maybe here we could have plugged that into the case of the משנה. Here we could have come up with the case of of of of of of of פה שאסר of גזילה. Why did we say דף ט״ו ע״ב, hey, a guy goes over to his friend and he says, 'I stole your bike and I gave it back.' So פה שאסר, I said I stole it, I said I gave it back, you have to believe me. But if witnesses come and say that you stole the bike, so according to the ראשונים that say I have to prove that I gave it back, as long as I don't prove it, אינו נאמן, the burden of proof is on me, and I don't have a פה שאסר because the witnesses said that I stole it. And that could have been an example of the משנה where we could have dealt with a victim and a and a גזלן without getting a third party of a father involved, and between the between the the victim and the and the גזלן, and it would have fit right into the משנה! Why didn't the גמרא plug that into the משנה? אלא מאי, say the ראשונים, that if you if you go the other way and you say, 'Well, a stolen bike, if you have witnesses that I stole the bike, I'm still believed to say that I gave it back.' So then we understand why it didn't fit into the משנה, because then you don't have the contrast of the פה שאסר. And that's how they want to prove, like the opinion of the רמב״ם, that if you steal, משל, a bike with witnesses, you don't have to give it back with witnesses, and therefore it will not be a viable option to plug into our משנה that's trying to show a case where the either גזלן or borrower, whoever the person is, will have to prove himself, because here he doesn't. By stealing he does not have to prove himself, he can say he gave it back, and נאמן. And tomorrow, בעזרת השם, we'll talk about the counterclaims to this ראיה, why maybe it's not such a good proof. And stay tuned. All right. That's on everything? Sorry? Usually about This particular print, there's I think two three volumes. This one has בבא מציעא, בבא בתרא, not true, right here. He also has a whole ספר that talks about very other interesting things, called the Good. No, I like that part. I'm talking about the other And now we're going to say שחה, the whole שקלא וטריא. He has a whole whole other section of like that this stuff. Am I still on the air now? Huh? Am I still on the air? The last part a a גזלן that he's not believed Right. That's how you ended? A גזלן we said that we want to prove that, we're trying to prove that he is believed to say he paid back even though he can't prove it. He is believed that he paid back even if he can't prove it goes along with this a a Just Just like the הלוואה. Just like the הלוואה. המלווה את חבירו בעדים, אינו צריך לפרוע בעדים. And since the implication here comes from the רשב\"א in שבועות 41 עמוד א' in the ר\"ן, and I ask you, \"How do you know that?\" How do you How do you understand if that's what it implies? We'll translate the words. הלווה, Okay. הלווה, the borrower, את חבירו, and it said בעדים, Okay. in the presence of witnesses, his friend, אינו צריך, he doesn't need to לפרוע בעדים. לפרוע. Does not have to repay Does not have to repay in the presence of witnesses. What? So he has to repay, but he doesn't have to repay in the presence of witnesses. All right. He wasn't, And it's just, you know, understanding the logic. How does it How is it How are we going to learn How are we going to understand that possibly anybody who's just reading learning a גמרא reading the words doesn't know this? Now, you would figure it out by your own logic that the reason the the Gemara is saying this I'll figure it out by my logic because we're not talking about הלכות like איסור והיתר here, something כשר or פסול, how you have to do it, do you have to have כוונה or like a ברכה, we're talking about הלכות ממונות, money matters. Right. So, if you're telling me money matters that I don't have to pay back with witnesses, so that in money matters that translates into I don't need proof. I don't have to pay back with proof. So, think about that for a minute. What does it mean I don't have to pay back with proof? It means to say that that I don't have to prove that I paid back, meaning I If I go with the claim I paid back, I don't have to prove it. Right. Sorry, unless you have you have another way of getting to it. No, I I just don't you know just just the logic of not being not not having to prove that you paid back That's another question. Why don't that's what that I told you, that I'm not so clear. Why Why don't you have to prove you paid back? Yeah. It's uh so for the yeah, that's why you So in this case would you have to come up to שבועת היסת if there's still a claim against you? Yes. Yeah, this would be the שבועת היסת. Well, our גמרא is not talking about the the rabbinic the rabbinical שבועת היסת, we're talking about on the תורה level. Right. So It's well in this in this one, מדאורייתא? רש\"י points out. If you take a look at that רש\"י there. Yeah. נאמן, see נאמן?

מדאורייתא בלא שבועה נאמן נאמן נאמן. Right there, נאמן. Right there, מדאורייתא בלא שבועה. מדאורייתא בלא שבועה. מדאורייתא there's no שבועה. מדאורייתא he's believed without a without an oath. Right. Oh, he's believed without a. But מדרבנן מדרבנן, he's got to take a. Right. Right, with without That's what you're saying. Sounds like here מדאורייתא is is is לחומרא and uh It's always more מחמיר, no, מדאורייתא? To to let him off the hook. A חומרא to let him off the hook. Goes in line with giving the guy a uh ability to do תשובה. It's hard It's hard It's hard to call it a חומרא a קולא here because Oh, yeah. there's two people. It's One person gains and the other one's lost so a person, you know what I'm saying? So Yeah. Yeah. it's not really about חומרא or קולא. It's more about who's So what's the viewpoint of דאורייתא to say it's believed without a שבועה is mean they're more they're more lenient It's more burden of proof on the lender. Okay. It's more burden of proof on the lender. So you can say it's stringent, מחמיר on the lender, yes. Right. Right. So you It's hard to call it a קולא or חומרא because depends who you're looking at, the borrower or you looking at the lender. Right, exactly. That would be the How would you say קולא or חומרא, so So usually uh is there a כלל on how the תורה who the תורה protects? Which I know, you know like in Miami, you know, Florida, it protects the renter, and when say somebody who The tenants more than the landlord. It's just a כלל, not all states are like that. But here the laws are set. It's very hard to litigate against people who are occupying your house, apartment, whatever you're renting. They make it more difficult. More there's a רחמנות, especially if they have children. Even if they didn't pay rent for who knows how many months and they totally destroyed the place, it's very hard to deal with it. Yeah. It's good to know. It is. You should know that ahead of time. Florida especially. So, so in this case, the the תורה is being more careful with the is being more protective of the borrower, the guy that needs the money,

yeah? He's he's believed without a שבועה. And he doesn't have to pay in front of witnesses. Whereas the rabbis say, wait a second, let's be a little more careful here. That's right. If you really want to tease your brain, you learn learn the רש״ש, but it's not really הלכה. Not so much you want to learn it, but you have other things to do first. No, I could go over it with you, but it's really It's going to be a real brain teaser. Just had a this חשבון over here. Yeah? He goes on a roller coaster. Okay, well, maybe he brings it down, I don't know. The רש״ש? Yeah, I don't see any רש״ש here. No? I don't see a רש״ש. Even so far, I didn't see any רש״ש. And I always wonder what's the סברא behind thinking that they're also giving the same, what do you say, I'm using the word leniency, but for the גזלן, the גנב, whatever, that he doesn't have to pay back in front of witnesses. It's an odd It's also an odd thing because logic-wise, the guy steals, and we want to know that he paid back. Everybody needs to know. As soon as a guy steals, it becomes a public knowledge. He stole in front of witnesses, right? So now we want to we want it back. And it's not just the guy who he stole from who has to get it back, there's people there that they're involved in the case. So that's that's a good That's That's a good That's a good סברא. That's a סברא we're going to get to tomorrow, hopefully. Oh, yeah? You know, there's a whole there's a whole crowd of people there, whatever. It's already It's already written down, you know. He's He has an obligation to society. There's a police report, so to speak. He has an obligation to society to pay back in a way that he will clear his conscience. Right. Right. And then, and and

also, he probably would care to help his reputation. Imagine that. Yeah, he would just be still Everybody still think he's a גזלן. He couldn't become an he couldn't become an עד, right? Right. He'd be פסול לעדות. Hopefully, we'll get to that tomorrow. Okay. So that's another thing. That's another סברא. So at least I At least I hit a track that That סברא is going to be used to help push off that ראיה. I see. Keep us here. Give us half of it. Give us half of it. Leave us hanging in the air there. Yeah, I'm sorry. So you've got to work hard for תורה, you know. It doesn't come easy. Right, that's the whole point. Let the קושיא sit on you overnight. Right. So that So that's a גישמאק. That's the whole גישמאק, because if you don't sit on it and work at it and You don't work at it, it's not I'm in and I'm out, and what happened? Did I do anything? Can't make it hurt a little bit? Someone said over yesterday from ר׳ משה פיינשטיין, he had he had a קושיא that בחקתי, רש״י says, שתהיו עמלים בתורה. In the תורה list the negative, if you don't go in the ways of תורה, and it seems that the start off point is that they're not עמל in תורה. They're what? Not עמל in תורה. עמל? עמל, toil. Toil. עוסק, yeah? Yeah. So why why say toil? The first step should be don't learn. Then the next step should be don't toil, and then whatever the rest is. But why does why is not learning doesn't seem to be mentioned as part of the list of where people could be going off? Starts right away with, and if one doesn't toil in learning, if you don't toil in it. He

said over from ר׳ משה that בעצם, you know what בעצם means? בעצם, I know. It's like the beginning of a person Not toiling in learning is not learning is one and the same. Right. Because you're not really learning if you're not if you're not עמל. If not עמל, then it's not learning. Right. It's like It's like like it says What does it say? Is it פרקי אבות? The חזרה. What does it say? You could learn once, but if you don't do חזרה, it's like you didn't even learn. You didn't really learn. Learning the second time is like learning the first time. It's actually I've heard that. Is that from פרקי אבות? They say that's from the מלאך, it's a פירוש of פרקי אבות. Yeah, and not white, it's הלואי. הלואי he loses it. Yeah, but so then it's the third, but now it's the third time. There's another ווארט, I think it's brought from a גמרא too, about the פרסאות. You know, the guy, the driver, the taxi driver, so to speak, in the olden days. He can he can ride the wagon, he'll take you 100 פרסאות, right, for whatever, this a certain amount, 10 10 זוז. But if you want to go 101, it's 20 זוז. So, I the לימוד there is that when you learn beyond learn 100 times, you learn 101 time, then you break breakthrough to a whole new גדר, so to speak. Which, I guess, is something to do with the חזרה that you do with the עיון and Very good. Let me just give you a little sneak preview about the רש״ש. Okay. I don't think I'm going to go into the שיעור. sign? Too much too much חשבון. Yeah. Well, he wants to, I think, suggest, and then he knocks it out. Maybe you could say that really the משנה Well, I'm sorry. Let me preface this question. The ראשונים ask that the גמרא pushes away this whole borrowing, lending theory because of the second case in the משנה. Where there were עדים on the הלואה, משנה said we do believe Sorry, the משנה said we do not believe, we'll call the defendant. In the case of a borrowing, lending, הלכה is קיימא לן we פסקן that we do believe the defendant. Okay, so now I'm already lost. Where did we lost it? Yeah, because a lot of חשבון. No, but which defendant? Who are you talking? Who are you talking? Well, the actual case in the משנה, we'll talk about the the buyer. Oh, the father the father He's saying he's saying he bought it, but the witnesses, they belong to the parents. Yeah. So do we believe him that he bought it? Okay. Without any witnesses. No הפה שאסר then. not believed. No, with witnesses. Let's just call him defendant, okay? Okay. Not believed. But no, there's no witnesses, so he is believed. There's witnesses that it used to belong to that guy's parents. Oh, there are witnesses? It's not believed. So the We'll call it defendant, it's not believed. It's not believed. The buyer or defendant, we'll call not believed. Okay. Now if you try plugging in, instead of a piece of property, buying, selling, instead you plug in a loan, a loan, so the גמרא says, oh, there we פסקן you don't have to pay back with witnesses, so I am believed. All right. So we're not able to put it into the the second case of the משנה. The second case of the משנה is trying to say the defendant's not believed. Right, there's no connection. Here Here the defendant would be believed. So the fit. It doesn't fit. So the ראשונים ask, well, the גמרא's שקלא וטריא is that in the first case, it would fit in. The father. Dealing with the father. The first case in the משנה we're dealing with the father and a buyer. The buyer says there's no witnesses that it belonged to the father. Very nice. You're selling it? What? Are you selling it? קען איך שיקן דאָס ספר? א פֿאַרגאַנגענעם שבת האָב איך געזאָגט א גאַנצן ספר. You got a little book bookmark? You know what I'm talking about? Yeah. Very nice. Are you selling it or what? וואָס איז די שטיק? קען איך שיקן דאָס ספר? 20 דאָלאַר. 20. קען איך שיקן דאָס ספר? 20. קען איך שיקן דאָס ספר? Should be able to get a discount from my friend. א גוטע נאכט. Okay. Good. There's a bookmark, there's a bookmark that talks about showing the guy who's interrupting the שיעור. I don't think this should be It shouldn't be illegal, this this this stick. Shouldn't be? It's too, yeah, it's a little too much. A quick like handout, okay, is one thing, but the whole the whole שפיל of of standing in the back of... Yeah, it's not it's not it's not nice. Not not in the בית מדרש. Yeah, yeah. Okay, listen, that's what... We love our fellow Jews, I'm just saying. Should have a little more... Yeah, I wish we could do better for them. No, it's no question. I always give them a give them a dollar if I have it, but... Anyway, getting back to... Yeah, so so the last part was, we were trying to ask, that doesn't seem to plug into the first case either, even though it sounds very flowery and it sounds like you can fit it in to the first הלכה in the משנה about the buyer saying, \"Was yours, but I bought it.\" Right, and so, too, \"I borrowed money, but I paid back.\" Right. With With So, everything's consistent. Both times we'll call him, the defendant is believed. With witnesses? Without witnesses. Without witnesses, both times without witnesses. Right, without witnesses. The first time is believed by a פה שאסר, with a borrowed money, פה שאסר. We were trying to ask, but it still doesn't really fit into the רישא by borrowing money, because it's not רישא... Not because of the פה שאסר. Not because he said, as we see from this הלכה, that you don't even if there were witnesses. Being the same question that the גמרא is asking why it doesn't fit into the סיפא. Yeah. You believed even against, I wouldn't call it against witnesses, but where witnesses could could attest to the to the הלואה, you believe the the borrower, so it's nothing to do with פה שאסר. What's it doing in our משנה? The הלכה is, איש הלוה בעדים, אינו צריך לפורעו בעדים. Right? Right. Forget about פה שאסר. This is the first case of the משנה. Yeah, the הלכה will be true that will believe the borrower if there were no witnesses, that's true. But it's not because there were no witnesses. It's not because of the פה שאסר. מודה רבי יהושע, right? It's because It's because the רישא It's because you didn't need witnesses to repay. Because we don't care about whether there are witnesses or not. So, it doesn't fit with the משנה. So, that's with the רישא, either. Right. What's our רישא in the What's our רישא in the משנה? The buyer says, \"Was yours, and I bought it.\" Oh, was not Oh, buyer says, \"Was yours, but I bought it.\" Or was your father's. Father's, but I bought it. Okay, got it. What We still haven't figured out why'd they have to come on to talk about the father at all. Yeah, we did, we did. Oh, we did say that? When did we do that? The חידוש about חזקה. It's not a חזקה of a קטן. The two years by the father and one year by the kid. Oh, that was the whole point was... It's a very hard גמרא over there. It's kind of like the... That was the whole point to bring like the... So, the whole point of bringing the father was to to to accentuate the idea of חזקה by bringing the idea of the קטן, which helps strengthen the idea of חזקה? It was a חידוש by a חזקה. Yeah, yeah, but but it was related to the קטן. Okay, okay, and couldn't have a you didn't have a you didn't have a קטן, you didn't have a father. Okay, that's why the father had to come into play. Okay, alright, I got the basic idea. We'll get back I'll get back to that. חזר, חזר. Yeah, yeah, definitely. Yeah, yeah. Okay, so then you gave me a שטיקל רש״ש. That's That's what you gave me That's the קשיא. It's the קשיא of the רש״ש. Oh, okay. Rashash attempts to make an answer. Okay. Some ראשונים Oh, before let me just tell you, some ראשונים want to say that it's really included in the גמרא, when the גמרא knocked it out, they really it was one big knock out, even though it didn't really say it clearly. Like פסל the גמרא's קשיא, it's included, all included. Why is it all included? You know, the the one thing is The focus The גמרא focuses on the second case of the משנה. But, but... Second case meaning... Meaning the the עדים that was the father, right? Right. So, עדים on the הלואה, the גמרא knocked it out. The ראשונים want to say, so, what's included in that is knocking it out from that being possible to apply it on the first case of the משנה. Which is about the כתובה? No, about the שדה זו של אביך היתה ולקחתיה ממנו. פה שאסר case. Oh, the פה שאסר case. Of the farm. Threw me off. Sorry. When I say רישא, I meant there's a case of פה שאסר and there's a case of עדים. Oh, oh, that was two within the the רישא of the משנה. Two within the second Second part, gotcha. That's all That's all. That's where I'm trying to hold cup right now, just in the uh directions. The placement of things in the case. Okay, but the רש״ש wants to try a different approach, and say you know that there's also, even though a borrower is believed to say that he paid his loan, but there still is a שבועת היסת incumbent upon him. Okay. So, he wants to say maybe this is what the משנה could have meant in the רישא that if the borrower, on his own, said, \"I borrowed money,\" maybe then he spares himself the שבועה. Because it's all coming from him. I said I owe you money. Without So, there's no witnesses. You're right, if there are no witnesses, maybe that's what the פה שאסר could help for. Because the whole question was Nothing to do with פשרה there! And there's no... He believes, he believes, cuz even if there were witnesses, it's nothing to do with פשרה. In other words, you know, you're right. You're believed on a תורה level, but on a רבנן level would put a שבועה on you. So for that, פשרה. So, but then you would, you wouldn't call that a פשרה, so would you? Just say he does still have to make a, do a שבועת היסת. You don't have to say נאמן, he means to say without a שבועה. Without a שבועה, right. Without a שבועה. Without a שבועה. So that, that is how he wants to wiggle out of the ראשונים's question. But then he says, \"Sorry Charlie, but it doesn't really help, because if that were the case, then it's easy to get away with that.\" Oh, if that were the case, then we could actually

plug the the borrowing, lending into into the witness case of the משנה, cuz we could say that the the the last part of the משנה with the witnesses is also talking about about the שבועת היסת. Yeah, let's say like this, that there were witnesses, but he stole, I'm sorry, that he lent the money. And if there were witnesses that he lent money, אינו נאמן, he's not, sorry, could have said... Yeah, the הלכה the הלכה should have been that, I mean, the משנה says that he's not, the משנה says that he's not believed, but the משנה could mean that he's not believed regarding the שבועת היסת. Then there won't be a contradiction to that well-known הלכה, and you needn't know this הלכה that he does not have to repay with witnesses, that's on a תורה level, but he still has to swear. So, the משנה says that if there are witnesses he's not believed, that could mean that he still has to swear, he's... Then we have a לכאורה a viable way of explaining our משנה with borrowing and lending, and the גמרא's קושיא seems to completely fall off. So that can't be, we don't want the גמרא's question to completely fall off, so now we're sort of sort of in a pickle there. So then he

brings תוספות ישנים, I think, somewhere, or somewhere else, who says that at the time of the משנה, they have not yet instituted the whole שבועת היסת altogether. So, we can't work these kind of סברות at all into the משנה, which then, which would actually make it all does not have any any resolution to any of the questions. Really? Because this all has to be at the moment, at the time they were they were learning this? Well, trying, but only, the גמרא is trying to explain the משנה, so it has to fit into the משנה. At the time the משנה was said. Or, there's a תוספות that says that at the time the time of the תנאים, they did not have this שבועת היסת. Really? Right, is this who, I see פה, did I, did I confuse you enough? Oh, see also רש״ש! There it is! שולחן ערוך, חושן משפט, right on this, see also רש״ש. Alright, did I confuse you enough? Definitely need a חזרה, but the last part seems to make sense, but I don't, what's what, what's the question of the גמרא again that we're left with? Cannot fall off? רש״ש, where are you? No, you said there's a question of the גמרא that, that we The שיעור or this our discussion? No, this this, this last thing you said, what was the question of the גמרא that cannot fall off? The

גמרא asks that it doesn't that we can't plug in borrowing, lending because of the case of עדים, so the ראשונים ask, well, you can't plug it in either to the first case of פשרה there. The רש״ש tried answering, well, it could help you for the שבועת היסת, and now that whole that whole theory gets knocked out because of the the the ראשונים that he himself brings that the תנאים did not have a שבועת היסת, take שבועת היסת, so they can't. By the way, so when it came to the whole lending, I mean the whole buying a father, buying a field, I mean the father owned it, yeah, but I bought it from him, that's there's no שבועת היסת by that anyway, even if there was, right? That doesn't come into play. I don't think so, not that I know of. So, Okay. Not that I know of. So the whole idea of bringing the שבועת היסת here, and understanding it as to apply is is kind of backup the idea of פשרה. In other words, it's kind of another another way to help the guy be believed, basically, if he's going to take this שבועה. Would he be afraid to take this שבועת היסת as as much as a שבועה דאורייתא? I mean, that's the whole point of a שבועה, right? You're not going to do it unless you're definitely telling the truth. That's what we assume. Should be pretty afraid, but he might personally might not be as afraid. As afraid, it won't spook him as much. But they don't, did they did they talk about that? Ever? I think the ראשונים talk about that, by a real שבועה דאורייתא it's... Yeah, but why? שבועת היסת