picking up where we left off. Yeah. Spoke about some of the background of the halachot of מודה במקצת, right? Torah's mechayev a shevuah. כופר הכל, תורה is not mechayev a shevuah. שבועת היסת and right, מעיקר הדין תורה there's no chiyuv at all. The defendant will will be completely פטור, המוציא מחבירו עליו הראיה. However we did mention, right, there is that שבועת היסת that we spoke about. So we left off with yesterday that there's a something called a משיב אבידה. So the example we find in the Gemara, I'm sorry, in the Mishnah in Gittin, is where one finds a מציאה, finds a lost item, finds a wallet and he returns it to the rightful owner, and his thank you is, \"Hey, there's only $100 in here. I left $200 in here.\" So he seems to be now put in a position of מודה במקצת, he's saying there's, \"All right, so $100 the claimant is another $200.\" But halacha is that he is patur from a shevuah. פשטות, the way Rashi explains there is because תקנת חכמים you can't have people returning doing the good thing of returning a lost object and then being put in a position where they have to defend themselves. So so not, yeah, so not to discourage honest people from So not to discourage honest people from doing the right thing and returning. Doing their best, yeah. Yeah, correct. \"You don't see me in here, uh...\" \"It's like I'm not here. It's like I'm not here.\" \"You can't be in every single picture, you know that?\" \"What?\" \"You can't be in every single picture.\" \"I can't be what what?\" \"You can't be in every single picture.\" \"Oh, it's just one, it's one picture.\" \"Last year Last year in Last year in the picture.\" \"Oh okay, I was good for this decade. I'm good for it.\" \"I'm the guy who wants to give you aliyot. You don't want them, okay? I'm the one who wants to give you כיבוד. No, you don't you don't. It's just just\" \"Oh boy, I'm getting embarrassed.\" \"Not so loud.\" \"There you go.\" So,

with that, we're going to work our way into the Gemara here. Right. Having that in mind. Okay, okay. So, so משיב אבידה, so how does that even, yeah, how does it come play according to Rashi doesn't play far? So according to Rashi, Kind of play? Right, right. So, so I mean this, that's where it applies by by lost objects. So let's see, where does that apply, or are there other times that this concept of משיב אבידה will apply also by another type of מודה במקצת where there's a loan? It's not actually returning a lost object, but is there a situation where there's an an הודאה on the part of the defendant, in which case his הודאה will be recognized as a משיב אבידה, which we'll see shortly. And then can I say in a way, I hear some like making sense that if כופר הכל, he could be he would be פטור דאורייתא. Oh, very good! So maybe he's a משיב אבידה by saying, oh, very good! \"I'm doing you a favor!\" There you go, on the money! \"Nothing.\" Okay. On the money. So we're going to see. So we'll have to We'll have to take it one step at a time because there are a lot of steps in this Gemara. Okay. And now

we'll take it from the top. It's about two, four, six, seven lines from the top of י״ח עמוד א׳. י״ח עמוד א׳. Now we're going to formally go through the Gemara. וליתני מודה בשבועה. וליתני וליתני מודה בשבועה. Right, וליתני מודה בשבועה. Okay, we're going back right to where we were. Yeah. Oh yeah. וליתני מודה בשבועה באומר לחבירו מנה לאביך בידי והאכלתיו פרס שהוא נאמן. So here is the last and final suggestion as to what the case of the Mishnah should have been where we have a פשי עשרה. You remember, Avner? We're looking for the פשי עשרה case? Yeah. Yeah. The Gemara suggests, why don't we talk about a case where the מלוה, so he lent money to his friend, and lent his friend $100. Yeah. And this is all before any anybody comes to court. Yeah. And sometime later, ah, how are you? All right. Groise oilam! Groise oilam! We're on י״ח עמוד א׳. Ready to roll, jumping right in here. I would never offer to chazer last night's shiur. Sure, I'll tell you the whole thing. Yeah, yeah, okay. On one foot, huh? רגל אחת. On one foot, literally, yeah. But not right now. There's time and place for it. So let's see if I can pull last night's shiur into one sentence. Yeah, I think you can. You think I can? That would be really really impressive. But I think I think maybe when you're explaining this We're going to We're going to be going through everything again Yeah, you're going to go through it. Last night was really a background. Right, because you're going to explain But

all you need to know for tonight is that there's an halacha in the Torah of מודה במקצת, which means the a defendant admits to part of a claim. I say, \"You owe me $100.\" You say, \"You owe me $50.\" There's an halacha that the defendant has to swear. A שבועה דאורייתא. The Torah puts a shvuah, a oath, on him. And if he does not swear, he has to pay. If he swears, he is exempt. However, if he was what we called כופר הכל, if he denied uh completely the allegation, \"You never lent me any money.\" I say, \"You did lend me money.\" \"I say you didn't.\" So, then מן התורה, on a Torah level, and I mean specifically on a Torah level, there is uh no oath put on the defendant, and he is exempt, completely without There's no If there's no proof for or against, just a claim alone is not enough proof. So, that's what That was the one sentence. In a nutshell. In a nutshell. Yeah, okay. Well, last night we just went into the the sources for it and the reasons behind it and all that. So, it's probably going to come up again as we go through this. So, here,

let's just start start again from ולתני. ולתני, מודה רבי יהושע, we're on י״ח עמוד א׳, right about ולתני right there. You see that ולתני five lines from the top? Once again, this is the final suggestion that, meaning to say, a a possible alternative to a הפה שאסר case, which we were looking for in the Mishnah. Just to remind ourselves quickly, the Mishnah earlier discussed how a self-proclaimed buyer says he bought a piece of property from your father. So, he's the one who offered the information that how it belonged to your father, so he's believed, הפה שאסר הוא הפה שהתיר, he's believed to say he bought it, okay. So, now the Gemara is trying to plug in a different story to be able to teach us that same halacha. And that story is I come over to someone and I say, \"I borrowed money from you.\" ולתני, מודה רבי יהושע, let us say that רבי יהושע agrees to a case, באומר לחבירו, one who tells his friend, \"מנה לאביך בידי,\" \"והאכלתיו פרס.\" I let I borrowed money from your father. I borrowed $100 from him. והאכלתיו literally means I ate, פרס is a measurement a certain amount, but in context here it means that I repaid part of the loan. So, I go over to my friend, and I tell him I borrowed $100 from your dad, from your father, however, I already repaid $50. So, that lichora, meaning seemingly, that should teach us the same הלכה, שהוא נאמן, that if we say he's believed, it's again a similar reason since I was the one who initiated and told the בית דין about the הלואה, about the loan, so believe me to say how much I paid back. I say I paid back 50%. So, you have to take This is You have to accept my whole story. That's similar to that הפה שאסר idea. The information about the loan is coming from me, so so as far as how much did I pay up, you have to take you also have to take from me. I I say I paid up 50%. So, that's the Gemara's question here. That could have רבי יהושע, the Gemara, the Mishnah could have taught us this הפה שאסר idea by a case of הלואה, by a loan. The borrower's doing what we call מודה במקצת. Well, it's only מודה במקצת if the guy, after he tells him, says, \"Wait a second, now I want uh you still owe a 100.\" Yeah, so what happened Right, so the rest of the story is \"I want the other half.\" the rest of the story is so now the uh son of the lender, who was just informed about his father's הלואה, so he challenges him and says, \"No, you didn't pay back.\" So so this is what נאמן would mean to say, that the borrower is believed to say that he paid back half. Because without him saying anything, we would never have known about the loan. Now, what Rashi says is that the reason why We're not just trying to come up with all sorts of funny cases to try to bring out this point that one who is a הפה שאסר Is believed. believed, but there's extra there's an extra חידוש, Rashi says, in this case, something teaching us new that we wouldn't have known otherwise, which is that although normally we have the section in the Torah, the פרשה in the Torah of מודה במקצת, Normally, a defendant that denies only part of the claim but agrees to part of the claim is מחוייב שבועה, does have to make an oath. But in this case, being that he has the פה שאסר, so not only is the פה שאסר reason to give him the מעות, but also exempts him from that שבועה דאורייתא, from that oath that the Torah puts on a normal מודה במקצת. Is there a difference if the claimant then says, not that you owe me the whole thing... but I just said, \"Okay, well I want the second half.\" Is that not a problem because he's already Well, saying, \"Well, he paid half.\" That means he still owes half. He's admitting he owes the other half, too, right? He's admitting that he owes half, meaning he's agreeing that he doesn't have a problem. I know there was The claimant doesn't have to He has an outstanding loan. Right, he has an outstanding loan and he's saying that, and that's not a problem. The claimant doesn't have to enforce that, he's already saying it. He doesn't need an oath, then. Goes without saying, he's saying, \"I paid you half, obviously I owe you the other half.\" The defendant is saying, \"I owe you the other half?\" Yeah, the defendant's saying, \"I owe you the other half.\" Right, okay. Okay. Yeah, good? Yeah, because it's the second half that he has to pay, so... Maybe one day when we get to, maybe one day when we'll get to Bava Metzia I don't know if we'll get there anytime soon. I thought it might be this There's a lot of interesting הלכות about this מודה במקצת. It's very interesting, all these הלכות. Talks about is a case there, it just made me think of this while you were talking about the case of heilech. I don't know if you're familiar with that case. טלית? Heilech, that's a little different from a טלית, but heilech means, \"Here, this is for you.\" So it's a little different than מודה במקצת. A typical example where the Torah clearly puts a שבועה, an oath, on a defendant is where the defendant says, \"Yes, I owe you only half. The other half either I paid off, or I never borrowed,\" whatever the whatever the thing is. But the point is גזירת הכתוב is, the decree of the Torah is, if there's a כפירה and a הודאה, he's denying part and agreeing to part, that's where there's a שבועה. So the Gemara talks about what happens if the defendant he says that, \"I owe you only half, I only owe you 50, and here it is,\" and he gives it to him right then and there. So I'm not going to go through the whole סוגיא there, but the Gemara, at least according to some מפרשים, is suggesting that maybe we look at that differently because, \"I'm giving it to you right now at the time of the claim, so, so maybe we just now don't look at it as a claim of 100 and I'm agreeing to half and denying half, but rather it turns into just a claim of 50. Since I'm giving it to you right now, here, goodbye. I owe you 50? Now, now it turns into an argument over just 50, and the 50 I'm being כופר בהכל, denying completely.\" So when you deny completely, then there's no שבועה. So is there a שבועה by such circumstances or not? When he does heilech? That's not for now, that's for Bava Metzia. What did you call it? It's called הילך. ה-י-ל-ך. הילך. You say that on Pesach? We say, כל דכפין ייתי ויכול... No, הא לחמא עניא. הא לחמא, yeah. Yeah, okay. הא לחמא means here it is? הילך, yeah, here it is, or here it is to you, לך, to you. But anyway, so let's not get confused with those הלכות, but getting back to our simple case here, so the Gemara questions that it seems like it might be a nice alternative to the case that we were looking for of the peh she'asar. However, it does not seem to conform to any of the opinions in the Tannaim that we're familiar with. The Gemara is now going to introduce us to two opinions in the Tannaim. Okay? Now we're just going to have to halt kop vi m'zogt because because it's going to introduce us to them and then simply question what in the world they're talking about, and then bring us on a roller coaster until we get back to answering the questions. So hold on tight. Okay? You have any questions, just feel free to stop me. So the

Gemara says אליבא דמאן, that means to say that if that was what Rabbi Yehoshua, how the Mishnah was teaching us, that Rabbi Yehoshua's הלכה of of of of peh she'asar could be brought out by this case of מודה במקצת, אליבא דמאן, according to what opinion of Tannaim will that be able to fit with? And there's two Tannaim that we're aware of, which we're going to call, now the Gemara tells us, is Rabbanan, and we'll see soon Rabbi Elazar ben Yaakov. So what do they say? What do this Rabbanan say and what does Rabbi Elazar ben Yaakov say? So says the גמרא, אי אליבא דרבנן, if we incorporate the opinion of the Rabbanan here, הא אמרי, the Rabbanan say משיב אבידה הוי. משיב אבידה הוי literally means he's returning a lost object. So returning a lost object, returning a lost object כפשוטו seems like it's making a reference to the Mishnah that we spoke about earlier in Masechet Gittin. I find a wallet in the street, I return it to its rightful owner. Yeah, Jeff, and the rightful owner says there were 200 bucks in there, and we open the wallet, there's only a hundred dollars in there, so he says I stole it. I say, \"Well, I'm doing you a favor, don't get me in trouble.\" So that's what we call משיב אבידה. We have to ensure that people will want to not be hesitant to perform the mitzvah of השבת אבידה, and we're not going to penalize him for doing the right thing, returning the lost object. He's put in a position where he has no way to defend himself, and all he's doing is returning the lost object. So the הלכה is משיב אבידה is פטור. פטור from a shevuah. So what the Gemara seems to be saying is that similarly in our case we should apply this reasoning: that I'm going over to someone and telling him that I borrowed money from his father and I paid up half. If I didn't say anything to him, then there certainly is no shevuah, and he would never get any money back. So by me being honest and just saying that I happened to have borrowed money and I returned it, so I'm nothing more than like a משיב אבידה. You can't penalize me for saying the truth. Even though I'm not actually giving him anything, I'm saying I paid back, but once again, I'm just being honest, saying that I borrowed money, which no one would have known otherwise. Nobody would have known it seems like no one would have known about this loan, not for the fact that I came forward. So for that, you we're not going to place a shevuah, an oath, on the we'll call him again the defendant here, the one who's coming forth and informing us about this loan. אי, so the Gemara says okay, so it's not going to work according to the according to the Rabbanan. So אי אליבא, so it's not going to work according to the Rabbanan. So

אי אליבא דרבי אלעזר בן יעקב, and if you're going to want to try to work it in to רבי אלעזר בן יעקב, הא אמר שבועה בעי. Why isn't it like the Rabbanan? Doesn't he take a oath? Oh, I was waiting for that question. Better late than never. So correctly pointed out there that that that I seem to be getting away with pulling a fast one over here. Well, before when we said that if if if the guy comes and says, \"I borrowed from your father, but I paid and I paid back half,\" he doesn't have to take a he doesn't have to take an oath, right? That's what Rabbi Yehoshua says. And the rabbis is saying that it's like one who returns a lost object, he also doesn't have to take an oath. So it sounds like the same thing. So it sounds like the same thing, so that's a great question. And Rashi explains. So let's see, we'll see Rashi now, once you stopped me here. So let's see Rashi, אליבא דמאן. See that? אליבא דמאן, right there. So

Rashi explains, what Abner is asking is that the Gemara is trying to say that had Rabbi Yehoshua told us by the הלואה, where I admit that I borrowed money and paid up, paid paid back half of it, so so then Rabbi Yehoshua is saying that I'm נאמן. Believe me that I paid up half, and now I'll have to pay the other half. Which I I just want to make a correction, I said I think I said before that the lender is not getting anything out of it. Let me correct that, the lender will be getting something out of it, because he's getting the other half that I say I still owe. So I'm being honest, I'm saying I borrowed a hundred dollars, I paid back 50, but I'm saying I do owe you another 50. So in that case, I'm telling you now that Rabbi Yehoshua could be teaching us that here it's like a it's like a hapeh she'asar. I'm the one who said I borrowed the money, believe me that I paid back half. Today you'll get back half, the other half I paid back already. Now the Gemara seems to be saying, well, that will not fit with the opinion of the Rabbanan, The Rabbanan say: oh, when someone's משיב אבידה, when he's returning a lost object, then there's no shevuah. So, one second, so here also, it's like a משיב אבידה, so there's no shevuah. So, what's the question? It should be very good, meaning to say that the Mishnah should work out with the Rabbanan, just like the Rabbanan are saying when I come with found a wallet in the street, and I come to you and I say, \"Here, take back your wallet. It's got $100 in it.\" And you say, \"No, there should be $200.\" So, there's no shevuah, cuz I didn't have to come. I mean, they shouldn't You know, what Not gonna penalize me for that. So, too here, same idea. So, Rashi explains that this opinion of משיב אבידה that we find by borrowing and lending seems to go a step further. And we'll see in a moment, let's go through the Rashi and we'll explain. אליבא דמאן? תנאי פליגי בהא מילתא. There are מחלוקת תנאים, two תנאים argue about this. The Shevuot in Masechet Shevuot. ואי אמר רבי יהושע הכי, and had רבי יהושע said the way the Gemara was suggesting, then לא כחד מינייהו. He will not be following either of the two opinions. So, Rashi explains, this is the first part, the Gemara tries to say: דאי כרבנן, if he was trying to work in the opinion of the רבנן, הא אמרי, they say, אפילו תבעיה, זה מודה במקצת, משיב אבידה הוא. Even if there's a claimant and there's a הודאה במקצת, there it could still be considered a משיב אבידה. דתנן, as we learned in Shavuos: שמנה לאבא בידך, אין לך בידי אלא חמישים דינר, פטור משום שהוא כמשיב אבידה. So, this is the case that Abner brought up before. When we talk about משיב אבידה, so the Rabbanan say this concept of like returning the lost object concept, we'll call it, they say it applies according to the Rabbanan even where there's a claimant. For example, Rashi quotes a Mishnah: that you have a lender that asks for his I'm sorry, the son of a lender rather, okay? He approaches the borrower, and he says, \"My father lent you\" Now, his father, I think, is not alive anymore in this story. \"My father lent you money, which should now be mine. But my father lent you money, and he lent you $100. Please pay up.\" There, the borrower says, \"No, he only lent me 50.\" Or \"I paid back 50.\" Point is that \"I only owe 50.\" So, the

Rabbanan take this משיב אבידה concept one step further, and they say that this lender or the son of the lender, he's coming with a claim. But once again, he's only the son of the lender. So, if he's the son of the lender, we're going to now go into the borrower's mind for a moment, and he could've, what we call, been כופר הכל, meaning to say he could've completely denied the loan altogether. And he wouldn't have had, like we spoke about last night, there's a concept that a person does not have the עזות, the חוצפה, or the I think you, Drew, taught me \"gall\", however you pronounce it, to to The way Rashi explains it, is someone does you a favor, lends you money, you're not going to have the חוצפה to go say, \"No, you didn't lend me money.\" So, that holds true when it's borrower lender. But borrower borrower going against lender's son, the son didn't really do him a favor. His father did him a favor. So, therefore, the borrower wouldn't necessarily have that uncomfortable feeling of lying straight out and saying, \"I didn't borrow anything from you.\" So, the Rabbanan therefore say that the borrower has a similar like a משיב אבידה kind of idea here. He could have said, \"I don't know who you are. You never lent me any money. Your father, I don't know what you're talking about.\" And

had that been the case, what do we say? Min haTorah, on a Torah level, the borrower doesn't have to pay. The burden of proof is on the lender. Now what does he do? He says the truth or what he claims is the truth that \"I did borrow, but not the amount that you claim I I borrowed. I only borrowed half of that.\" So, since if he If he really was lying, if he really was lying, he could have been a lot smarter and lied in a way that the Torah would not have put a shevuah on him. Just completely deny the whole thing. And you can't say, oh, he wouldn't have been comfortable making that claim. He would have been very comfortable making that claim. Had he been a liar and a ganav and a dishonest person, he would have just denied the whole thing. So that indicates that he's not dishonest, that he's really telling the truth. So if so, why penalize him? Why make him why make him have a shevuah? So, getting back to what does this have to do with our Gemara here? And now it's not a question of lying, now it's a question of a interpretation of the facts. Well, it's when we are choshed, we are suspicious that he may be lying, would be the reason why the Torah put the shevuah on him. But where where he So where he really Had he been lying, he really could have lied and done it better financially, meaning he would have got himself off the hook. So this is similar to like דמשיב אבידה, which maybe maybe the way I'm wording it was like it's a proof of his credibility, but maybe that's not so much the point. It's more of the the the משיב אבידה factor that that we're not going to like penalize him with a shevuah for for for being honest. And it seems like he's honest based on the circumstances. So all we want from all this is that Rashi is showing us is that this idea of the משיב אבידה, it even goes a little further. It

even It It even applies in a situation we need a few a few criteria here to hold the place, but a situation where there's a claimant. Someone's making a claim against the defendant. He's saying, \"You owe me money, because my father lent you the money.\" So if משיב אבידה applies even when there's a claimant, so Rashi says, then that doesn't really have to do with our Mishnah of the פה שאסר, because the way Rashi understands the whole פה שאסר idea is that there was no claim at all. The whole idea was Rabbi Yehoshua is modeh, Rabbi Yehoshua agrees, I mean by peh she'asar, means to say that when Rabbi Yehoshua agrees that we'll believe the defendant, is when he initiated, and he was the one who first told us about a loan, or first told us that this piece of property belongs to someone else's father. Not when the information was coming from another source, or not when there was a claim against him, at least according to the shita of Rashi. So

here Rashi Rashi is telling us that that according to the Rabbanan, they say there is a משיב אבידה even when there's a claimant. So So therefore, as Rashi says, ומאי אשמועינן רבי יהושע דאין שור שחוט לפניו? What's Rabbi Yehoshua teaching us when you don't have the שור שחוט? שור שחוט, if you remember that's the expression about the slaughtered cow. Rabbi Yehoshua is saying, if you don't have a slaughtered cow in front of you, means there's no evidence, and you're just coming and offering information, that's where Rabbi Yehoshua says you believe him. But we see אפילו שור שחוט לפניו נמי נאמן, even if the cow is slaughtered in front, even where the child of the of the lender is making a claim in our case, so that's considered like the cow is slaughtered. We have already a question on you. I'm coming to you, where's my money? So and still the Rabbanan say משיב אבידה. Still exempt from the shevuah. So therefore, this is the reason, I hope that answers your question clearly, that that the Mishnah if it were to apply the case of the borrowing and lending, would the Gemara is saying would not have been appropriate for Rabbi Yehoshua to be teaching us this idea of a peh she'asar if he was working in the opinion of the Rabbanan, that seems to extend this נאמנות that we believe the the defendant, even where there's a claim against him. Rabbi Yehoshua's whole agenda was to show us that he's believed when there's no claim against him. But here, according to the Rabbanan, by borrowing and lending in the משיב אבידה, he's believed even when there is a claim against him. That's why it will not work in the opinion of the Rabbanan. Whereas in the opinion of So the Gemara that's that's that's the first step of the Gemara. Can I Can I Can I just So So, basically, what Rabbi Yehoshua first said, there was no claim. The The guy said There's no counterclaim. No what? No counterclaim. No claim Rabbi Yehoshua said there was no claim at all. I'm just repeating it for to like simplify it. And this and there were And by the משיב אבידה, there was a claim. The guy is say, \"I had 200, and where's the other 100?\" The other one, he's just telling him that, \"I have, I borrowed from your father, I paid back half, and...\" That's it. And no claim. But no lawsuit. No lawsuit. So why would you even have to say, \"I won't take an oath,\" if there is no lawsuit? Nobody is going to... Why would you say, yeah. Why would you have to conjure the idea of an oath if there's nobody saying counterclaiming, so to speak, claiming. Because the counterclaim comes after. And and and and by משיב אבידה, it comes what? At the same time? Before or... Before. The son came to the came to the borrower and said, \"You owe me money.\" Oh, of course. משיב אבידה, okay. Yeah, which is a which is a which is a It's the shady it's the shady point of the sugya, which Okay. Yeah. Seems to be There's halacha. Okay, whatever. I don't want to get too confused. So if

we're good, we're good. Okay, so now the Gemara says, \"Okay, try putting Rav Elazar ben Yaakov in here. That's certainly not going to help because Rav Elazar ben Yaakov says that seems to be saying that there is no משיב אבידה. You leave it to רב אלעזר בן יעקב, והאמר שבועה בעי. He requires a shevuah, even this is simple meaning translation of the Gemara, even when you have a משיב אבידה.\" No claim. So, not only no yeah, no yeah, see, the peshat is no claim at all. So, here's where the Gemara is now just going to go off to try to understand this machloket. Rav Elazar, מחלוקת of Rav Elazar ben Yaakov and the Rabbanan. So right now Rav Elazar ben Yaakov needs a lot of explanation. He's very unclear. He just says הא שבועה בעי. So what we'll say is that this would seem to mean is that if you try to apply this case that the Gemara was suggesting that the guy going over to his friend and saying, \"I borrowed $100 from your father, and I paid him half,\" what the Gemara is saying is that according to Rav Elazar ben Yaakov, whose opinion we don't really know yet, but in that case he would actually require a shevuah, which therefore would not allow the the the Mishnah to to the Mishnah would not make any sense to be telling us that he's ne'eman. Because who is coming to say that he is believed, but according to Rav Elazar ben Yaakov he won't be believed, he would have to swear. So now the Gemara is going to go into this machloket here, Rabbanan and Rav Elazar ben Yaakov. Rabbi Yehoshua Tanna? Yes. So Rav Elazar bar Yaakov is a Tanna, too. So why can't he be a new opinion? That's a good question. Yeah, so so yeah, I decided to forget. No, so for for for whatever reason, I didn't really look into this, but for whatever reason, although a one Tanna could argue on another Tanna, but it seems like in this sugya, for whatever reason, our Gemara expects that Rabbi Yehoshua should match up with one of these other two Tannaim with regard to the halachot of מודה במקצת. For whatever reason, it doesn't want to create a third opinion here. Very good. So it's not that type of a machloket. Yeah, for whatever reason, the Gemara didn't want to create a third opinion about this. Okay, so now we could sort of put in the back of our mind everything we just saw that our Mishnah and the question and the answer. And now let's just try to focus on getting clear this machloket of Rav Elazar ben Yaakov and the Rabbanan. Then, hopefully, we will be able to better understand why the Gemara was not able to use these opinions to explain our Mishnah. So what is this machloket? דתניא, we have a Beraita. Okay, so now we're going to go to the source of the argument between Rav Elazar ben Yaakov and the Rabbanan. What are they arguing about? דתניא, רב אלעזר בן יעקב אומר, רב אלעזר בן יעקב says, פעמים שאדם נשבע על טענת עצמו. There are times that a person will swear על טענת עצמו, about his own claim. Now, that

seems a little cryptic. What does that mean, swearing about his own claim? So we're going to see. He's going to have to explain himself here. כיצד, how is that, what does that mean? Now, this sounds very much like the case the Gemara was trying to suggest earlier to maybe plug into our Mishnah, and that is מנה לאביך בידי והאכלתיו פרס. A מנה, let's just say a hundred dollars, לאביך, to your father, בידי is in my hands, which means to say, in plain English, I borrowed a hundred dollars from your father, והאכלתיו פרס, and I repaid him part of it. Let's just say that he paid back half. הרי זה נשבע, says Rabbi Elazar ben Yaakov, he swears. וזהו שנשבע על טענת עצמו. This is what we refer to of one who swears על טענת עצמו for his own טענה. So this seems like a carbon copy of the case that the Gemara brought up earlier, one who approaches his friend and tells him that I borrowed money from your father and I paid up half of it. Our Gemara was saying that according to Rabbi Elazar ben Yaakov he has to swear. And now Rabbi Elazar ben Yaakov, we see here him saying these words in a Beraita that he has to swear, and he concludes that with this is what we refer to as someone who swears about his own claim. וחכמים אומרים, and the chachamim argue, אינו אלא כמשיב אבידה ופטור. He's like a משיב אבידה. I myself am going over to you and telling you I owe you money, I owe your father money, I borrowed money from your father, I paid him back half, but the other half I owe. That's a משיב אבידה, like I'm returning the lost object. I come to you with a wallet, you can't start telling me there was more money in there. I'm not going to come back with the wallet. Again, here, I'm coming to you, I'm being honest, I'm telling you I borrowed I borrowed money from you, here, take back the money. I owe you still $50, the other $50 I say I paid up. That's משיב אבידה. So the chachamim say there is no shevuah by משיב אבידה, no shevuah, no no oath. Now the Gemara asks, okay, here's what I mean just, we now brought down the Mishnah, I'm sorry, the Beraita, and now the Gemara is going to analyze the Beraita because it doesn't seem to make much sense to the Gemara. \"דה? לרבי אלעזר בן יעקב,\" asks the גמרא, \"לית ליה משיב אבידה פטור?\" This means to say that Rabbi Elazar ben Yaakov does not hold of this whole משיב אבידה theory? You're telling me Rabbi Elazar ben Yaakov says if I go over to you and I tell you, \"I borrowed money from your father, and I paid back half,\" you're going to now make me swear about it? And if I didn't say anything, I would have been completely exempt. He doesn't hold of this whole idea of משיב אבידה פטור, and as Rashi points out, there's a Mishnah in Masechet Gittin. Now, again, Rabbi Elazar ben Yaakov is a tanna, so he does have a right to argue on a Mishnah, but there's a Mishnah that he doesn't seem to clearly argue, the Mishnah says by השבת אבידה, by returning the lost object, the Mishnah says you don't swear, תקנת חכמים. So אמר Rav, Rav says, you know something? That case really is not talking about he came forth completely on his own. Rather, there was a דתענו קטן. A little child came over to him, said, \"I lent you money.\" And he says, \"You did, thank you. I only borrowed half of it, and now I'm paying.\" So it's not really considered it seems like it's not really considered a real claim because it's coming from a קטן, so maybe that's why he's considering it a טענת עצמו. And Rabbi Elazar ben Yaakov is saying so that you swear. You still swear. Okay. Why is a קטן taken important? I mean, why would we listen? Why do business with a קטן? So the Gemara says, oh, guess what, we don't listen to a קטן, דאמר מר: אין נשבעין על טענת חרש, שוטה וקטן. We do not accept the claim of a חרש, שוטה וקטן to impose a shvuah, to impose an oath on the defendant. Reason being, you have a suggestion why we don't accept it? With a קטן? I think the peshat is one explanation I saw is because no da'at. So therefore what? Therefore, he could say anything. He doesn't know what he's talking about. Yeah, so I think the way they say it is it's considered like a טענת שמא, it's considered like a maybe טענה. Oh, it's not a ברי. I come to you, maybe you owe me money, I think you owe me money. So if you say yeah, I say I think you owe me a hundred dollars, and you say, \"I owe you 50,\" so there's no shvuah because I'm not coming with certainty. So if it's coming from a חרש, שוטה וקטן, the claim is not coming with certainty. They don't have they don't have enough da'at, they don't have enough knowledge, they're not their minds are not developed enough. They talk like they do. Okay. six-year-old tells me, yeah, you know. That's what I was thinking about. They're very convincing. I would tell you that sometimes they got more than They act like they do. They remember more than we do. Yeah, but for halachah purposes, we don't recognize their da'at, their sechel to be developed, and therefore we can't take their word as this and this and that. So the Gemara says, okay, you know what? מאי קטן? What does קטן mean? This is about a shvuah. I mean, there are many halachot about a חרש, שוטה וקטן that apply. But for all practical purposes, they are considered people that are not בר דעת. They don't have complete developed knowledge, and transactions, and testimony, and everything about what they do is generally not recognized the same way as another person's. In almost all cases. Almost, yeah. So says the Gemara, and we'll have to end it with this, מאי קטן? גדול! What does קטן mean? What does minor mean? Minor means adult. What? You ever heard that? No. What's a minor? A minor is an adult. How do you like that? Sounds like an adult that grew up, I mean, a קטן that grew up, and it's like this this matter is before he, something happened before he grew up? So so we'll see here what it means, what it really means. It doesn't mean that it's an adult that acts like a two-year-old. An orphan? No. No, that's not interchangeable. Yeah, well, you know, or maybe orphan, but the point the point is here, אבל מאי קרי ליה קטן? דגבי מילי דאבוה קטן הוא. Which means I guess you could say orphan, but the point is that he, with regard to his parent's property, is like a קטן. Meaning he's not aware of his father's business dealings, and his father's investments, and his father's borrowing and lending. So he's he's an adult, he has sechel, he could be 50 years old, but he's a קטן, he's a minor with regard to his father's business. Makes sense. So he has to he has to swear. So then Rabbi Yehoshua ben Yaakov is saying he has to, sorry, Rabbi Eliezer, Rabbi Eliezer ben Yaakov is saying he has to swear. But how do you know he doesn't have How do we know that he's considered like קטן בנכסי אביו? I think we just assume that child who is making a claim on the