focal point Yeah. of tonight's שיעור is, once again, about the case in the משנה Yeah. where רבי יהושע agrees Here's a folder. when there's a פה שאסר on behalf of the defendant. It's a ו עמוד ב. That says ו עמוד ב. Yeah, when the defendant has a פה שאסר he will be נאמן, he will be believed. It's it's it's ז עמוד א. Yeah. When he has a פה שאסר he will be believed. the case, if you recall, was where one says שדה זו של אביך היתה ולקחתיה הימנו. Which one? שדה זו של אביך היתה. Right. \"If I had my This field belonged to your father, ולקחתיה הימנו. Right. \"This field belonged to your father.\" The משנה went on to contrast But I bought it from him. where the information about the previous ownership was established by the self-proclaimed buyer himself. He by himself is saying that it was yours and I bought it. Right. Without that information from the buyer, we wouldn't have never known that it would have belonged to the other person, the original owner. That's where we have a פה שאסר, as opposed to the next case of that very same משנה where the information about the previous owner was already pre-established by two witnesses. Mhm. Mhm. And now it's just a question of, did he buy it or did he not buy it? With which he's not the buyer is not believed. The burden of proof is on him. So, the

גמרא is going to bring up one last suggestion. Who is? The גמרא. גמרא. We'll bring up one last suggestion as an alternative case Where we're holding? Where we're holding, yeah. that could have been used Where is nine? Where What could be used? An alternative case that could have been used Could have been used. instead to bring out the same point. Okay. This, we bring the point of that רבי יהושע is מודה where there is a פה שאסר. And as we'll see, it could have even had an additional חידוש in the case the גמרא wants to suggest. Ultimately, the גמרא rejects this suggestion. Okay. Now, But רבי יהושע at least Being that it involves a lengthy discussion. A lengthy שקלא וטריא about מודה במקצת, Mhm. I first want to start off by going into some of the background of the הלכה. Okay. And then we're going to go through the גמרא a little bit out of order at first, and then hopefully put it back in place, בעזרת השם. Okay. That's בבא מציעא, yeah? Yeah. Which you didn't want to go into when I asked you about it the other day. What did you ask me about? I asked about it, and you said, \"It's not for now.\" Not for now, wasn't wasn't for then. Right. I got it. For tonight's. So

מודה במקצת, Reb Abner, is one of three שבועות דאורייתא. Mhm. The רמב״ם says אין לך מחוייב שבועה מן התורה. There is no obligation of a שבועה מן התורה חוץ משלשה. חוץ משלשה These three. Three. מודה במקצת, במטלטלין, one who admits, מודה, במקצת, which is a partial claim of מטלטלין, means to say movable as opposed to like something that's קרקע. קרקע. So it could be money How about a How about a person? How how would it be They're קרקע, right? Person's like קרקע. Yes. Okay. Or עבד, really. עבד is קרקע. And we'll just, once we're at it, we'll mention the other two שבועות דאורייתא is a עד אחד, one witness, עד אחד. Yeah. that will be going against the defendant. What's the שבועה for? Which is שבועת עד אחד. שבועת עד אחד. And then we have a השומר which I think is generally referred to שבועת השומרים. So what, uh somebody who's a guardian, you're saying? Yes. He takes a שבועה that what? You deposit, if you uh deposit a uh שומר חנם, שומר שכר? שומר, so the הלכות depends, Right. depends. So, generally speaking, for example, a שומר חנם, Yeah. so he is פטור, means to say he doesn't have to pay if there's גזילה ואבידה. If it gets stolen, someone gets stolen from him. Only on on his negligence, פשיעה. Right. However, and I'm not really sure which שבועה's are דאורייתא, which ones are דרבנן, Take a look. but I do think that he has to swear that he was not פושע. He has to swear that If we know the facts that he's פטור, so we just need to clarify that that he was not פושע. Right, so he was not פושע. Okay. Those are the three שבועות in the גמרא Okay. binding שבועות. Yeah. So what we're going to discuss again, like I said before, we're going to discuss tonight is the שבועה swear, the oath, we'll call it, of of מודה במקצת. Right. Partial הודאה. You familiar with that halakha? מודה במקצת? You mentioned it before. Yeah, we mentioned it. So, hopefully tonight's agenda will be to first discuss the the facts, the actual הלכות that are at least relevant to tonight's שיעור. The source for these הלכות and then the reason for these הלכות. Of the of שבועה. Of שבועת מודה במקצת. So firstly, simply the simple הלכה here is that the main criteria for this שבועה is like we said, that there's a partial הודאה uh coming from the defendant. You have a defendant, you have a claimant who is making a claim from a creditor, and then you have the the defendant. And he says you owe me $100. So if the defendant says, well, it's true that I owe you $50. I did borrow $50. But the other $50 I never borrowed from you. I don't know what you're talking about. So that is what we call מודה במקצת. And the

תורה says that he has to swear. Okay, thanks very much. If he wants to be פטור. It is. It doesn't matter if he said I paid you, or uh or I don't owe you anything, but there was only a loan of 50. Not sure. You asked me that last time that I did? I don't remember that. As, I don't think it makes a difference. If he said, I paid you or I didn't borrow That's not important now. Not right now, uh. If he completely denies the הלוואה, he says, \"לא היו דברים\", הד\"ם is an abbreviation, \"היו דברים מעולם\". I never had anything to do with you. I don't know what you're talking about. Who are you, anyway? Who are you, anyway? What's your Then, that's what we call, in גמרא language, כופר הכל. Completely denies the, in our case, the הלוואה, the loan. הכופר is almost like a heretic, isn't it? What? כופר. כופר, yeah. It's also כופר means because he could deny ה׳. Deny ה׳, right. Would be that, yeah, same same שורש. The word כופר means to deny, to begin with. So, the source for this הלכה I'll go with the, I think most simple explanation in תוספות that he seems to he seems to lead lead with uh here in כתובות, as well as in בבא מציעא. And it's simply a גזירת הכתוב. Meaning the source for this הלכה is that the תורה tells us that the שבועה will be placed on the defendant, \"אשר יאמר כי הוא זה\". When he says the words, \"כי הוא זה\". כי הוא זה. What does \"כי הוא זה\" mean? Do they explain it over there? What? Huh? Where? Who? Where? In the ArtScroll, it's not It's not quoted in the גמרא. Maybe it's quoted in the תוספות. Oh, could you repeat it? How did it go? The defendant tells the one who is trying to defend his right, claim the money from him, we'll call him the creditor. The creditor. The defendant's the guy who owes the money. Yes. He says, \"אשר יאמר כי הוא זה\". Huh? He says, \"אשר יאמר\". \"אשר יאמר כי הוא זה.\" \"כי הוא זה.\" So, these are the important words. \"כי הוא זה.\" This is what it is. \"כי הוא זה.\" Oh, this is what it is. This is what it is? Yeah, which is understood to mean that he's agreeing partially, meaning you are claiming from me 100, Yeah. but this is what it is. There's an amount that I do agree to, it's 50. It's not 100, it's 50. So, it seems like a simple גזירת הכתוב that there has to be what we call a כפירה במקצת, denying some of the claim, and a הודאה במקצת, and agreeing Two different things? Well, it's not two different things. It's It's in one uh one story. That mean this one defendant is doing two things by saying, I owe you 50. What he's saying is, I deny 50, but I owe you 50. So, there's a denial and it's Oh, that it's both in the same statement. in the same statement, exactly. There's a Half-full or half-empty. empty. Right. So, So, that's the criteria for a שבועה. It seems like a גזירת הכתוב. Meaning to say, It's only when he has what we call הודאה and a כפירה. He is agreeing to part of it and he is denying part of it. That is the מקור that that is the source תוספות explains for the הלכה of מודה במקצת. It's not important now we have to come up with a reason, right? I mean to say that, well, he could be lying, so therefore I want him to take an oath and so he wouldn't lie because if he takes an oath, which is a very serious thing, that would But usually the reason for an oath would be because there is some suspicion that he may be lying. But we don't really see right now yet any reason why there's more concern that he's lying if he is מודה במקצת versus if he is כופר בהכל. If you're concerned that he's lying, so make him swear regardless. What makes the difference if he said, \"Oh, I owe you 50, but I don't owe you the other 50\"? Or if he says, \"I don't owe you anything\"? Is there more or less reason to assume that he's lying? So כופר בהכל there's no שבועה? כופר בהכל there is no שבועה דאורייתא. דאורייתא. רבנן instituted a שבועה, which we're not going to talk about now. Why didn't they make him swear? Oh, why didn't they make him swear? The רבנן said to make him The רבנן make him swear. Because he might be lying, you just said. Yeah, but the תורה apparently wasn't as concerned. Meaning there has to be some reasoning behind the תורה's distinction between כופר בהכל and מודה במקצת. And could be the חז״ל saw fit to put their their level of a שבועה also on כופר בהכל, but it's not the same. What's the other recourse with כופר בהכל? The guy's still making a claim. The plaintiff is still making a claim. As a defendant, he's saying, \"I don't owe you anything.\" There has to be some recourse. If it's not a שבועה, Okay, so I told you that בעזרת השם we're going to discuss the facts, the source, and the reason. So now let's see let's see if we can engage you over here. What's the reason? Does this make any sense? Why is It'll stay awake. Stay awake, okay. Okay, good. No, אדרבה. Let's let it bother you first before we appreciate It's sitting on you like, what's the פשט? Yeah, weird. So, we have to get a little bit of understanding here. And before we see what the גמרא says about this, I want to back you up one step, Avner. And that is that we know, pull it around, that we know that generally, if one has a claim that his friend owes him money, an object, an item, what are the rules? המוציא מחבירו עליו הראיה. I want money from you, you I have to prove it. So, the burden of proof would be on the collector. We do find, however, that there's a חזקה. Now חזקה is not a proof. Kind of You want to be מוציא, you want to take money from your friend's pocket, you have to have a proof. But there is a חזקה going in favor of the creditor, the collector, which is that חזקה אין אדם תובע אלא אם כן יש לו. That a person only makes a claim, there's a חזקה meaning there's an assumption that generally most people don't just fabricate claims. Sometimes maybe they can justify things, but usually there's a basis for a claim. Someone has a claim, there's a basis for it. The person is not going to be תובע unless he really feels or believes that his friend owes him money. Now that's not a proof that his friend owes him money. But it's not a proof. But it's what we call a חזקה, which this is off the record, the גמרא uses to discuss the reason why the defendant would have to swear on a rabbinical level. Why the רבנן said that if a defendant is כופר בהכל, denies completely, I say you owe me $100, you say no. The תורה doesn't say I don't have to swear, you don't have a proof. You want money from me, you've got to prove it. No proof, goodbye. But חז״ל come along and say, well, there's a חזקה that a person is not going to make a claim unless he really has a basis for it. So they put what we call a שבועת היסת on the defendant. The רבנן. שבועה דרבנן, right? שבועה דרבנן, yeah. So, that's off the record, for now. Maybe we'll come back later. So, having this in mind, so we understand the things, Avner, simply כופר, meaning unless specified otherwise by the תורה, There's no reason to make a שבועה or do anything. Someone has a claim, so you have to have a proof. You want the money from your friend, you got to prove it. So, this brings us now, and I was מקדים before that we're going to learn this גמרא a little bit out of a little bit out of order and then we'll put it back in order because I think it will be better understood that way. And we're going to skip here to דאמר רבא, which is about two, four, five lines from the bottom. רבא

says, מפני מה אמרה תורה מודה במקצת הטענה ישבע? We translate that literally, that means that what reason did the תורה say that a מודה במקצת should swear? So תוספות points out that the גמרא's question is not simply what we call טעמא דקרא, like reasons behind the תורה, but the גמרא is asking really a stronger question. Not just why does he swear, but rather when we compare a כופר הכל up against a מודה במקצת, he says like this: let's take our story where ראובן goes over to שמעון and says, שמעון, my good friend, you owe me $100. שמעון says, ראובן, we're friends, that's true, but I don't owe you $100, I only owe you $50. Now if we take a look at the הלכה here, the תורה is telling us that now שמעון has to swear that he's saying the truth. Now, had שמעון been a real שקרן, a real liar, and he really wanted to to to mess over his his friend, why why wouldn't he just have said, I don't owe you anything? Could have said, I don't owe you anything. And then we say he's believed. So the question is, why does a מודה במקצת, why does he make a שבועה, he should be נאמן, we should believe him when שמעון is actually being honest, or at least closer to being honest? Why doesn't he Why isn't he נאמן? It's what we call a מיגו, he could have been כופר הכל. If he was really lying, he should have denied completely. And there there, given the facts like we said before, the facts are כופר הכל, you deny completely, מן התורה, there's no שבועה, there's nothing, you don't have to pay. Now, I'm being honest, I'm saying I I owe you half. Now you're going to penalize me with a שבועה? If he were to be lying. If I was lying, I should have just Right, denied everything. Does that come up in the גדר of a מיגו by chance? Yeah. Okay, fine. מיגו. So that is how תוספות explains the גמרא's קשיא. I'm going to be mixing in some רש״י, תוספות, just to try to have one coherent, hopefully, פשט in the גמרא here. It's just a complicated סוגיא. Bring in משיב אבידה? Yeah, we'll bring that, too. Okay. What's the answer? You hear the קשיא? You hear רבא's קשיא? Why doesn't he have a מיגו? The the the guy, the plaintiff, whatever, claimant comes and he doesn't bring any proof for anything, so why does he have to admit to half? Right? Simple logic. Why's he have to say, I owe you half? Well, I'm sorry, רבא's question is just why, no? I mean what The rest is where it's from. But the rest is with תוספות's commentary. It's not simply why does he swear. תוספות says תוספות elaborates, right. תוספות elaborates, he says that That what he means to say. Right. It's not simply asking why, but he's saying, why is there a מיגו? That's his real question. Whatever the reason, תורה decided that someone מודה במקצת should swear, doesn't make a difference what the reason is. For whatever reason, we don't trust him. You're saying if you're not trusting him, but תוספות תוספות is explaining that the question is, well, one second, you should have a מיגו according to that. He could have been כופר הכל. And מיגו and הפה שאסר are sometimes crossover, no? Okay. Okay. Sometimes, yeah. So this is a basis now for our ר' יהושע agreeing? Well, the way תוספות would suggest possibly you could twist the question is maybe this could be a source, in fact, that we don't we don't work with a מיגו. Because if the תורה obligates a מודה במקצת to to swear, and he really could have been כופר בהכל, so he really had a מיגו, and nevertheless the תורה says there's a שבועה, so so, you could really work the the the גמרא's question, רבה's question in two ways: either why isn't there a מיגו? מאי טעמא there is no מיגו, or תוספות twists it, you could say that maybe this should be the source that a מיגו is worthless. So, that's the גמרא's question. So, says the גמרא: the reason is like this, he loses the מיגו. There is no מיגו here, says the גמרא. You know why? חזקה אין אדם מעיז פניו בפני בעל חובו. There's a חזקה that a person does not have the עזות, the חוצפה, or the brazenness to to to to deny to deny the the the the claim, meaning if he was lying, like this: the whole מיגו was that if he was lying, he should have denied completely. But, now the

גמרא is saying, but that's not a a claim that he would feel comfortable with lying. Because then, he's what we call being מעיז פנים בפני בעל חובו. And והאי בכולי בעי דלוכפריה, והאי דלא כפריה, כפר ליה משום דאין אדם מעיז פניו. Good. Once again, meaning to say that could be he really would have wanted to lie, but you can't allow that to work as a מיגו for him, once again, like we just said, because of this idea of אין אדם מעיז פניו בפני בעל חובו. Now, I'm just going to pause for a moment to share with you a couple of reasons behind this חזקה. What is the reason why חזקה אין אדם מעיז פניו בפני בעל חובו? You just ask, suppose he didn't owe him the money at all? Meaning, someone lent his friend $100, we're saying that the borrower will not have the חוצפה, the brazenness to say that you didn't lend me anything. A Jew has this quality of being embarrassed, or whatever. ובשנים, what's the three things? Okay, ביישנים, רחמנים, גומלי חסדים. גומלי חסדים, and humble? Compassionate. רחמנים. Yeah, compassionate. I don't know what the words are. Yeah. So, So, let's see. The There's רש״י, not here, but רש״י in בבא קמא, so he adds a little bit more to what you're saying, and he says the reason why a person will not feel comfortable making that claim is because the lender did a favor for him. You It's one thing to lie, okay, but he did me a favor, he lent me the money, and now I'm going to deny it? Yeah, wouldn't it mean It's הודאה? Yeah, יהודי. Very good. I don't know. Yeah, well, in Aramaic there's an אלף in there, but in Hebrew I don't think there's an אלף. It's What, in יהודי? יהודי, there's no אלף there, but maybe, I hear, this is I don't know, I heard It's It's not my חידוש. I don't know, I don't know my source. I mean the name יהודה, that's like Yeah, that's Leah, הפעם אודה את ה׳. \"This time I will thank.\" So יהודי's from יהודה? I think, I think Rav Schwab has a connection by by מודים. In Davening, מודים אנחנו לך. Yeah. So, קיצור, it's connected with that word like תודה, thanks, to Hashem, הפעם אודה את ה׳. Where Where is the first part that is written יהודי the the actual word? איש יהודי? In מגילה or before? יהו- יהודי maybe. The actual word יהודי. יהודי? Yeah, I don't know if I don't know if in In the מגילה. The מגילה is the place I remember. I don't know if there's someone You can do a check. Nice. How that? Anyway, so so so רש״י explains once again that that someone does you a favor, then you don't have then you don't have that brazenness to to in his face tell him that no, you didn't lend me, it's all the money. A Jew does not have that brazenness. A Jew does not have that brazenness. That's one explanation. תוספות has קשיות on him. We're not going to get into it, but he proves that that it seems to hold true even under circumstances where there was not a favor being done, rather like a שומר פקדון, where where I was, you know, protecting your item for you, and then It's a general bias? So, he's bringing a קשיא from that? Yeah, so you get involved in that, so I'm not Who is? תוספות. So I'm not going to get into that now. I'll just share with you the other two explanations תוספות brings from רבנו תם. And this needs a little more הסבר. It's not so clear that maybe it has to do with what you were saying before, but it says you want to see the

last two lines from the bottom תוספות, אלא אומר רבנו תם? It's the א ו ר ת, bottom of the עמוד א' there. עמוד א'? Yeah, אלא אומר רבנו תם. Oh, you have a different Different דף here. Yeah, אלא אומר רבנו תם, right there. You have that אלא... Right, right. ע״ח? Yeah, אלא אומר רבנו תם, you have that there? אמר רבא... עוד אומר... Yeah, right there, אלא אומר רבנו תם. Oh. אלא אומר רבנו תם דהיינו כגון חזקה שאין האשה מעיזה פניה בפני בעלה. We find a חזקה that a woman does not have also the עזות to to say to her husband, or that he that he divorced her. That he divorced her? Meaning meaning she would not have, again, the brazenness. If he did not actually divorce her, she wouldn't say that he divorced her. And it says שאין אדם פנים לכפור הכל. Similarly, a person doesn't have the פנים to be כופר הכל. And it doesn't really clearly explain why. Why he doesn't have that that that that עזות, that פנים? Is she's denying that he divorced her or the opposite? She's claiming that he divorced her? She claims you divorced me. She doesn't have that עזות. So right, so we will believe her, we'll accept it because if he didn't divorce her she wouldn't have it. Because she doesn't have a גט? I was about to say. So she doesn't have a גט to prove it? I don't remember the circumstances of that case, but whatever reason, it's her word. It's likely. Yeah. She's got a גט, yeah. Now,

ריב״א פירש, and we'll see in a moment maybe the difference between the ריב״א and רבנו תם, the ריב״א פירש: אין אדם מעיז היכא שחבירו מכיר בשקרו. He says when it is The point is that if your חבר, if your friend, knows that you're not telling the truth. Meaning, maybe someone will lie, maybe not everyone is such a good איד, like you were saying before, but if the other person knows you're lying, he's מכיר בשקרו. You're the lender, you lent me the money, and I'm telling you I didn't borrow it? That can like the extreme, totally brazen. Now, who can't do what? Sorry. A person will not lie if he's lying to someone who he knows recognizes and realizes that he's lying. Yeah. So, ואין להאריך, ואין להאריך, and here's not the place to elaborate. So I saw רב אלחנן וסרמן points out that it's משמע that רבנו תם that said, he equates it with the עזות of a woman, and he says that שאין אדם פנים לכפור הכל, similarly, a person doesn't have the פנים, maybe the gall to כופר הכל. Gall. Gall, gall. G-A-U-L? G-A-L-L. G-A-L-L, gall. Like your gall? G-A-L-L, gallbladder. Yeah, like gallbladder, yeah, G-A-L-L, that's where it comes from. חוצפה maybe, חוצפה. The gall. So, רב אלחנן is מדייק that it's משמע even if he's lying in a way that the person who he's lying to doesn't realize that he's lying. It's only the ריב״א that has that point that that the ריב״א adds that if his friend will be מכיר בשקרו, his friend will realize that he's lying. However, רבנו תם, it seems like even if no one realizes that he's lying, but you still don't have that חוצפה to lie. To the face of the one, no, see, he doesn't have this thing about to the face of the one that lent him. So, it's not right. So it could be It's not right. I don't really understand, it's not so clear to me what exactly the the point is. Meaning why does What about it? Does a person not have that that פנים לכפור הכל? Is it because maybe it's to the person's face, even if the person doesn't realize? The

point is not if the person realizes or not, but maybe that you can't bring yourself to lie to his face? Maybe it's implying that he has another reason for for denying the other half, not not to lie outright, for another reason. What would be the other reason? We'll come to the end of it. Yeah? Tampon? Like he's trying to buy some time to pay off the other half. So is that a question or a statement? Both. I just, you know, you asked a question about, you know, why what is this that he wouldn't have the face to lie? So maybe it's implying that, yeah, it could be. Go on. That it's not that he has the face to lie, he really has another reason, and it's not lying that's on his mind, so he doesn't have the face to lie, because he's not it's not his intention. Why would he lie? Does he have a מיגו? Okay. If he's saying if he's doing מודה במקצת, so, again, are we saying that that he could have denied the whole thing? This is where the גמרא is saying, \"No, he wouldn't have denied the whole thing, because you don't have that חוצפה.\" תוספות is just going through the different reasons why it's considered a חוצפה: either because you're not going to lie to someone who knows you're lying, or, like רש״י was saying, because he did you a favor, you're not going to lie to him completely, or this רבינו תם, or simply a person does not have the פנים to be כופר הכל. So that is this חזקה of אין אדם מעיז פניו בפני בעל חובו. There there's a claim against him. I don't understand, because there's a claim against him. The plaintiff is saying, \"You owe me the other half. You owe me a hundred, not only fifty.\" So if he doesn't have, then he's not saying מודה במקצת. מודה במקצת. If he's not going doesn't doesn't have the face to lie, so why are we even talking about מודה במקצת? What did he say? He said, \"I only I I pay you fifty. I don't have the other half.\" Okay, so if I ask you, \"Why not we believe him with a מיגו, that he could have said,\" and had he been lying, he would have said, \"I don't owe you anything.\" Tell a bigger lie. A better bigger better. Bigger better lie. What's the answer to that? He doesn't have face to lie. He doesn't He doesn't want to say the bigger better. It's one thing if he could have said the bigger better, but what we're saying is it's not something he feels comfortable saying. מיגו is only that's מיגו is only מיגו is only when you feel comfortable saying the bigger better lie. Ah, that's what you mean by doesn't have the face to lie, not by the מודה במקצת. Right. Good. Now, that's why my question didn't make sense. Okay. Valid. Yeah. Not that it didn't make sense, but you No, it didn't fit, because I was connecting it to מודה במקצת and not to Yeah, no, it was Yeah, so hang on with מודה במקצת. We're going to get back to that. Okay, so that's that's where we're holding now in the גמרא. So now the

גמרא asks, well, one second here. And I'm going to go with רש״י's explanation in בבא מציעא. רש״י's explanation in בבא מציעא the גמרא's next question is that, okay, so here we have an individual Go back to our שמעון over here. Again, what did he say? \"I owe you fifty.\" So, it seems like we're suspicious. Maybe he's lying. We say he doesn't have a מיגו, because he wouldn't have denied the whole thing. He wouldn't have that kind of חוצפה, so he's denying half. But we're still afraid maybe he's lying. Maybe he really owes everything. So what do we do? We put a שבועה on him. רש״י understands the גמרא's next question is, well, one second here. We have someone who's credibility here is in question. We're not sure if he's honest. We don't have proof yet against him, but right now he's up in argument. We doubt him. So if he's ready to steal money, don't we need to be concerned that he'll lie falsely? What is it going to help to make a make a שבועה? To swear falsely, yeah. To swear falsely. You're going to put a שבועה on it? Wouldn't go that far. As they word it,

מיגו דחשיד אממונא Don't get confused מיגו here. Here it's literal sense, \"since\". Since he's חשוד, we are suspicious about his honesty, אממונא, about his money, חשיד נמי, we also have to be suspicious, אשבועתא. To believe him on a שבועה? On a שבועה. Whoa, that's another level, though. That's another level. So it's a big argument in רש״י תוספות about that. Even if someone is not so honest with the money, when it comes to a שבועה, maybe then they they'll they'll be more careful. שבועה is something very חמור, something very severe. I thought like that's the reason for the שבועה. That is the reason for the שבועה, yeah. What's the punishment for a שבועה? I never asked that question, but I'm curious. Well, we'll see according to רש״י, that's not really According to רש״י, we're going to see in a moment. It seems like there's a big מחלוקת, which we're not really it's not really our סוגיא. It's more בבא מציעא. There's a big מחלוקת, seems like, if you do say this what we call מיגו דחשיד אממונא חשיד נמי אשבועתא. Meaning, if we are suspicious that you're not honest with your money, we also might be suspicious about your honesty with taking an oath, which is what רש״י seems to understand is the גמרא's question. And that's Now the גמרא's asking, \"So how how what does it help to put a שבועה? Why does the תורה מחייב him a שבועה?\" We're going to see, according to רש״י, the גמרא's answer is that really, yeah, we really think someone is a real dishonest person, then we we will not make them swear, because No, it doesn't help anyway. but it says here, the person's got to come up with a reason to justify. Maybe he's really a good person, and he really wants to pay back his loan. Right now, he doesn't have any money, like what either you mentioned earlier. Buy time. He wants to buy time, so really maybe he would have denied everything. Like you said before, but that he can't do, so he comes up with this like halfway thing. So that's where we have this מחלוקת here. Again, רש״י seems to say that you do have this מיגו דחשוד אממונא חשוד אשבועתא. תוספות is not happy with that, he says, \"No, שבועה, that's a whole new thing.\" If someone, if we're חושד, it's one thing if we know someone's a thief, but if you're just חושד that he's a liar with money, so it does not give us reason to assume he'll make a false שבועה. So just to wrap this up, so once again, working with רש״י here, so again the גמרא says The גמרא doesn't even ask any questions. It's all spoken out in רש״י, we don't see him. Right? Between flipping the page here and between the lines here, that the question is that why aren't we suspicious that he'll swear falsely, and on that the גמרא's answer is דבכולה בעי דלוודי ליה, really he wants to be honest and admit to all of the הלוואה, והאי דלא אודי ליה, and this that he was dishonest was כי היכי דלישתמיט ליה, just to buy time, to push him off. וסבר, and he's thinking, עד דהוו לי זוזי ואפרענא ליה, when I have my money then I'll pay him back, and therefore what the תורה does is רחמנא אמר רמי שבועה עליה, the תורה says we will put a שבועה on him כי היכי דלוודי ליה in order that he should admit right now, be honest and tell us the actual truth right now. So that

שבועה is like a like a kick in the pants for him, even though he's not a real גזלן, not a real liar, he's just trying to stall for time, but if he knows he has to swear, so then he will then he will tell the truth. But then he'll ask for some more time at the same and that is the Pushing him into a corner. first step of understanding the שבועה of מודה במקצת. And hopefully tomorrow night, we are going to then get into like we brought up before of the משיב אבידה, which we'll see later. There's a משנה in מסכת גיטין. Why is this He talks about how one who finds an object we may have mentioned this before. Imagine if you find a wallet in the street, you see the guy's name in it, you bring it to him, and you knock on the door, and he says, \"Oh, thank you very much, but there was $200 in here.\" And you said, \"Oh no, there was $100.\" You say מודה במקצת, he says, \"Hundred, not 200, a hundred.\" So, did you make a swear? So, it's a משנה, the way רש״י explains, a משנה that says something called a תקנת חכמים, that people are not going to return uh lost objects that they find if they know they're going to put themselves in a position where they have to swear. So, they want people to fulfill the מצוה of השבת אבידה. It's also for the benefit of the people who lost something, and they should be returned. Yeah. So, we're not going to be מחייב a משיב אבידה a שבועה. So, you're saying that the guy who says, \"I So, alright. So, I just want to conclude by saying tomorrow night we're going to we're going to take that idea and see if it goes any further about other times where someone's coming forth maybe on their own and had they not come forth, nothing would have happened. Now, they

come forth, you're going to start putting a שבועה on them. Does that fall into the משיב אבידה category? And then we'll try to go through some of the מחלוקת, hopefully put this סוגיא together Oh, more on So, that's without a claimant then. You're saying the guy comes on us with the with the 50 out of the 100, and he says, \"Here, take $50.\" Without That's considered משיב אבידה? In a sense? We apply that? We'll see tomorrow night, sure. All right, sure. But anyway, But, I just have was one question, only. Just one question. It's just that that's one without The he You You said is that he comes on his own. Because what is a What is השבת אבידה? It's to come on your own. You found something, you want to return it. That's it. In this case, there's a claimant. So, he's not really coming on his own. That's my question. Does this משיב אבידה apply even when a claimant says, \"You owe me\"? You're talking about the case of the גמרא? Okay. You have a good day. Thank you. Sorry for that. Rough hands. It's a rough life. All right. All right, take care. What happens? What's going on? You have any more קושיות for me? I don't know, I I want to I want to move it, I want to keep going. Or or go in more a little deeper, but, you know, you're on your break time now. No, I can I can still take questions. Well, no, I I don't I don't have any questions right away now. That was all pretty well well thought out and said, and well explained, and I think I understood it. Yeah, I don't know I don't know how much you appreciate this kind of שיעור. You're what? Now you're asking me that after how many? Most of the Well, this is different than usual. What's different about this? The most of the מפרשים, yeah? I didn't speak out as מפרשים. I tried to integrate it into the into the פשט. Well, I I I like it. Because because this סוגיא is a little different than the סוגיות we've been learning. Yeah? Why couldn't you just say that the מפרשים? I mentioned their names, but I think it's I think it's nice the way you do, especially in the same order, you know, it's nice. I know, I mentioned them in passing, but it wasn't like with the person, it wasn't a person's שיעור. Well, either either way, but I hear I hear what you're saying, you know, like רש״י, תוספות, and the ריטב״א, and the and the רמב״ם, and חידושי הר״ן, בבא מציעא. Now, we have There's a lot of מחלוקת. Every step of the way this סוגיא is מחלוקת, רש״י, תוספות, here, there, everywhere. So, you know, I

can't wait till one day that I can stop and think about this in a more general sense and understand everybody's different line of thinking. So, that's what's very interesting for me is to stop and contemplate how does this פירוש, you know, how this commentary come In other words, where is it coming from, what's his angle of thinking? What's his, we say, לשיטתו, you know, his שיטה and then understand how the שיטות kind of label that, so kind of categorize them, so to understand it as a as a line of thinking. That's another It's another level of understanding because then you can start to learn the גמרא with your own line of thinking, in the sense, you know, incorporating what you're And so, you know, when you want to understand, to argue about it, you start to feel it, you know, I mean it's in a sense like what makes sense to you? I had I had a hard time. Yeah? I had a hard time with this גמרא. Yeah, it's it's it's very dense and a little is a little A lot of the main מפרשים are on other are in other מסכתות, בבא קמא, בבא מציעא, right, right, בבא בתרא. And there's a is there's a general idea about how people act. And and then and then where the the תורה or the חכמים want to give precedence to being nice to people, and then they have to think about the כלל also, you know, about lending money or about anybody finding a lost object. So many things they have to think about. Then they have to think about is this defendant, what kind of personality does the defendant have? Where do we draw the line? Is he that much of a bad guy? How do we know? תוספות explains this what we call חזקה אין אדם מעיז פניו בפני בעל חובו. Right. And see and where does that come from, that חזקה? I didn't want to I didn't want to interrupt, but I thought about that question. חזקה, was the the חכמים came up with the חזקה. When we talk about חזקה sitting on a piece of land, use the same word. It's something else, right. חזקה, it means like or we we say that a woman is a virgin until the last moment before she's married. You know, that's a חזקה. Right? Also. There's different types of חזקה, that's a חזקת הגוף. It's חזקת הגוף, that's a that's a that's a חזקת כשרות. That's a כשר guy. Those are חזקות, חזקת כשרות. Generally, a person, okay, does not So there's an example where the חכמים are kind of nice with the people, they say generally a person does not, a איד does not, such a a רשע, is not צדיק ורע לו. צדיק ורע לו. Yeah. You're talking about how different levels, but תוספות brings a גמרא that talks about a שבועת היסת, that the גמרא says that if a תובע makes a claim, so we have what we call this חזקה, different חזקה, one of these חזקות, חזקה אין אדם תובע אלא אם כן יש לו. He's not going to make a claim, he'll only make the claim if he has if he has a basis for a claim. The claimant, he has claims. So, because of that, right, because of that, that puts pressure on the borrower, even though מן התורה he's not מחויב to swear and he's off the hook, uh-huh, the רבנן said because of this חזקה, we're going to make you do a שבועת היסת. Ah, that's the other angle. Listen to this. So, the גמרא asks, well, one second, just like you have a חזקה that a person is not תובע unless he has a claim, what about the opposing חזקה that a person doesn't deny completely? אין אדם מעיז פניו בפני בעל חובו. So, the claimant has a חזקה working for him, but the defendant also, asks the גמרא, has a חזקה working for him. Huh, that is a funny one. So, why should we put the שבועה on the defendant? He also, if he was, he wouldn't lie. He has a חזקה that he wouldn't be lying. That's why you have המוציא מחבירו עליו הראיה. Right, good job, see? The גמרא is trying to say that there's some reason that they used to make a שבועת היסת. Wait, wait. You're right. מדאורייתא, you're right, המוציא מחבירו עליו הראיה. Yeah. But still, the גמרא is asking, why did רבנן then put the שבועה on the defendant? Why is he like ידו על התחתונה? Why does he have the lower hand here? So, again, another way to ask it is why is it stronger for the חזקה of the the plaintiff? You could have You could have asked it that way, but the תוספות, the גמרא doesn't really ask it that way. You can see from the answer the גמרא says, well, really, yes. So, there's a חזקה that a person is not מעיז פניו בפני בעל חובו. The defendant also has a חזקה, that's true. But, says the גמרא, we have אשתמוטי קא משתמיט ליה. אשתמוטי אשתמוטי קא משתמיט. קא משתמיט, sounded Chinese or Japanese. You're fascinated. If I was to say domo arigato, that means how are you in Japanese. Doesn't that sound the same thing? Okay, so we have the how are you over here. I'm dead serious. That's all I know in Japanese. אשתמוטי קא משתמיט means he's postponing, he's stalling for time. Ah. That's why he needs a שבועת היסת. That's why we say, meaning you're right. Really, yeah, you don't not so much חוצפה. You're not going to say, a guy lent you $100, you're going to say, \"No, I didn't borrow anything\"? Really, but still I'll say I didn't borrow anything because I need another week to pay. So, תוספות asks, one second here, our גמרא said that you only have that push pushing off סברא if you're doing the חצי, you're doing halfway, מודה במקצת? Huh? Yeah, but כופר הכל, no. כופר הכל, no. So, here's what you reminded me of. תוספות says there's דרגות, there's levels. מדריגות, there's a certain Meaning to say that Yeah, there could be that someone

would be denying completely only because he's trying to push off for time. But that takes more חוצפה. What our גמרא is saying is that is that it takes less חוצפה, though, to deny halfway. Guy says, \"You owe me $100.\" He says, \"50.\" If you deny halfway, that's less חוצפה. Therefore, the גמרא is using that to say that's why on a תורה level, תורה says, okay, so so we're not going to Yeah, so since it takes less חוצפה, what's the logic that it's a שבועה דאורייתא? So, since it takes less חוצפה I thought it would be a שבועה דרבנן. It's less, less חוצפה. My my my logic is not right? I don't understand. No, so being that it takes less חוצפה for the claim, yeah, being that it takes less for the claim, so Is דאורייתא more lenient or more חומרא? Hold on, hold on one second. I have to I have to ask my... could be that This whole calculation only will be working in places is that's תוספות's way of explaining the גמרא, right? תוספות doesn't get the whole חשבון of שבועה דאורייתא. He denies the whole... it's like a separate גמרא. What he learns is that, maybe it works better his way, what he learns is that, is that the גמרא's next point is, well, person doesn't deny anything because it's a חוצפה. So, then wait does it make sense? That's also a חוצפה. This is how he learns the answers. Less of a חוצפה. But I have less of a חוצפה than denying the whole thing. Pretty sure that's how תוספות learns the גמרא. So, I ask the question again. Yeah. So that works. Yeah, go ahead. Just

tell me help me understand why why did the less of a חוצפה is a שבועה דאורייתא? Oh, because then he doesn't have the מיגו. As opposed to a שבועה דרבנן, he has it. No, let's talk about the דאורייתא for a second. Okay. If he says, I owe you 50%, so we have that חשש that he is lying. That he's lying, right? We are we're okay with obligating him with שבועה, unless there's a מיגו that he could have been כופר הכל. So, he's on a מיגו that he could have been כופר הכל, that we would say, no, you couldn't have, because that's a big חוצפה. To be כופר הכל, you wouldn't have done that. It's too big of a חוצפה. So, therefore, what you're saying now, it could be you're just stalling for time. If you're stalling for time, you wouldn't have denied the whole thing. If you if you If you were stalling for time, you wouldn't have felt comfortable denying the whole thing. That's a חוצפה. It's too big of a חוצפה. That makes the מיגו fall apart. However, תוספות is saying, but you still have a קיום, a fulfillment of the stalling for time, even when a guy is denying the whole thing, when he actually makes the claim. When he does actually deny the whole thing, then you're not coming as a מיגו. What I deny I have, I could have said the whole thing. But when he does actually deny the whole thing, so there תוספות explains, based on the גמרא, that there still is a lower level of maybe he's דקא pushing off for time. Enough enough so that we could say, okay, so the רבנן will put a שבועה on it. Here is where we have these levels. דקא דקא יש. Really? So so so a שבועה דאורייתא for sure is more חומרא. Right, a שבועה דאורייתא for sure is more חמור, yeah. Yeah. Even though it just seemed like that's the second Maybe I didn't understand it correctly, but the first way we explained it, it's a more less of a עזות עזות. But it makes sense, but less עזות means that, that The more עזות, the more proof that I'm saying the truth. If I'm if I If I was lying, I wouldn't have so much עזות. Oh, okay. So it's counter-intuitive. It's counter-intuitive, yeah. It's counter-intuitive. Yeah, yeah. So I'm trying to get my head around that. So that's why it is still a חומרא. Because I still have to work on understanding it. How did you say that word again? It's less עזות? Less עזות, yeah. Less reason to believe him. More עזות, more reason to believe him. Meaning, if he's saying it, he'd be taking such a חוצפה. Right, in other words, he's saying I wouldn't lie that much. I'm going to I'm going to lie. He is a liar. I'm a liar. How much am I going to lie? You know what, I'll make the little lie. I won't do the big lie. But for sure he's a liar. So you say if he does the little lie then we we catch him because Because you know he's going to It's okay. As opposed to as opposed to he's not really a liar. So when he does the little one, it's more likely to be true. Yeah, this is difficult. It's a complicated גמרא. Okay, thank you. That's good. Like a A lot a lot of pieces of a puzzle. But again again the כלל, everything דאורייתא is more חומרא, right? It's not it's not like I mean, are there exceptions to that? I'm I'm talking in in ש״ס in general or would sometimes when it's דאורייתא, is it is it Does the תורה have have more leniency or more רחמנות? Is it true that maybe sometimes it might have more רחמנות than than the רבנן? It might have appear that way, or they might, or the חכמים might learn it that way. They might learn that that they have to be What do you mean by more רחמנות? No, I mean to say that the Rabbis have to be more stringent. That's one of fences. Whereas as as the Torah is, it's cut and dried. It's black and white. You know, if it's not like this, it's like that. Therefore, there's some there are some gray areas. In the gray areas, the Rabbis are, the חכמים are covering the gray areas. Okay, I'm not being clear in my question. Is it

always that דאורייתא is more חומרא? That's all. Not necessarily, right? That's too much of a general question, you know. הלכות שבת. הלכות שבת? Yeah. Could say that rabbis are more חומרא. They're more מקל. Right! Right, okay, that's a good example. Okay. Right. So that'd be another way to learn this this שבועה, no? You couldn't say that on the שבועה. We couldn't say that the a שבועה דאורייתא is, that's why I asked before, do you know offhand what the punishment of swearing falsely is? Is it is it lashes? Is it excommunication? Do you have any idea? How dangerous is it? The world shakes. The world shakes, does it say? The world is מזדעזעת. Yeah? Where are we holding anyway? We're all we're all over the place. בשבועת שקר יש בה Oh, sorry. Yeah. שבועת שקר, false oath. יש בה עונש גדול, big punishment. Big punishment, as in what? וכתוב ולא ינקה, he will not be cleansed. He will not be cleansed. No תשובה. No, it wouldn't help. דשבועות, הענין, שכל העולם כולו, the entire universe, מזדעזע, shakes, כשאמר הקדוש ברוך הוא לא תשא. לא תשא means כשאמר הקדוש ברוך הוא לא תשא. לא תשא את שם השם לשוא is is is the is the אזהרה, the warning not to swear falsely. It's what? It's what? The אזהרה, the warning in the Torah not to swear falsely is לא תשא את שם השם לשוא. לא תשא means what again? Don't swear falsely. Don't don't bear My Name in vain or falsely. Oh, okay. It's one of the עשרת הדברות. Ah, I see, see, see, so it's actually like right. It's actually saying Hashem's Actually, it says the sounds like sounds like you're saying the whole world shook when Hashem said לא תשא itself. Oh, it's a חילול It's a חילול השם, it's חילול השם, His Name. That's the nature. You've got to remember that every time a person makes a שבועה, it also Because you're saying Hashem's Name on a שבועה, yeah? A שבועה דאורייתא. A שבועה דאורייתא, Hashem's That's what I'm saying. A שבועה דאורייתא. Right. יישר כח. Yeah. All right. Thank you so much for that extra. Appreciate it. Always happy to do it.

I'm a dedicated fan of the שיעור. You definitely have to put in extra time. Otherwise, I hope I hope I did a good job. We definitely crossed some chatter instead. Really want to get down to all all the different layers of the מסכת. Right. I Should I say anything? Huh? Okay, very good. יישר כח. I mean, just me and ישראל יהודה, I don't know if you could do if he did any better or what would happen. We'd explode. We can only get what we get, you know. I can't do more than I got. But you know, this is I just want you know the dynamic here is that I go back learning with Rabbi Rabbi יהודה לייב שפירא, Rabbi שפירא, and I come here with you and and and I like to exchange some of these ideas back and forth, and he gives me some ideas. And also the fact that if you're looking in a ספר, or if you heard his his שיעור at the שלושים, I let him know, because everybody likes that נחת, you know? It's very it's very important. It's a חיזוק for for Doesn't matter how many תלמידים he's had. Thousands, you know? But, you know, we we all still we live day by day. So, it's important. And he appreciates it. I want you to know that. In the heart, he likes it. Even if he gave us a ספר to give to you, and, you know, so it's He's disappointed that I don't use it as much? No, I wouldn't say that.