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5.8.08

Learning Gemara notebook.There is a Hebrew version of this also that is on my other blog

[] Bava Metzia (97:b) Two people come to beit din. One says, "You owe me two hundred dollars."
The other says, "I don't know."
Rav Yehuda says, "Certainty is better." (It decides the case.)
The problem to this comes from Bava Kama. Tosfot (Bava Metzia pg. 97b Tosfot's first words: "Rav Huna"] asks what about in Bava Kama that Rav Yehuda says in the name of Shmuel that in a case of a cow goring an ox and one says he know and the other says he does not know that the certain one must bring a proof.
Tosfot answers the difference is a strong certainty decides case but a weak one does not. (A strong certainty is one in which the other party was there and is in a position to deny if he wants to.) The problem to this answer comes from Ketubot in which case a woman says to her fiancée that she is pregnant from before the engagement. That is a weak certainty and yet Shmuel says we believe her. And Abyee says there that Shmuel and Rav Yehuda are saying the same din: "Certainty is better." Then the Gemara throws out Abyee.
Then Tosfot says even without Abyee we have to equate Shmuel and Rav Yehuda. This is the bomb question (Kashe). Why?
[] I want to mention that the question (kasha) on Shmuel from Ketuboth to Baba Kama with both cases a weak certainty (bari) does not bother Tosfot. Though in Ketuboth, Shmuel believes a weak certainty (bari) and in Bava Kama he does not. [But this does not bother Tosfot. And in fact it should not for in Ketuboth there might be other reasons he says to listen to the weak certainty (bari) like he established fact of kashrut (chezkas kashruth). [Which is a reason the Pnei Yehoshua gives there] The kasha that bothers Tosfot is this: Tosfot says that Abyee connects Rav Yehuda and Shmuel. That means Rav Yehudah would say certainty is better (bari adif) even in a case of a weak certainty (bari) like Shmuel. Then he throws that out by saying Abyee could be irrelevant [by going with a different answer in the Gemara]. But then he says we would have to connect Shmuel and Rav Yehudah anyway. Because Shmuel here in Baba Metziah can't say like Rav Nachman the opposing force. So Rav Yehudah would [in Ketuboth] have to say like Shmuel. This makes no sence. First Shmuel would agree here anyway since it is a strong certainty (bari) and in Ketuboth there is no reason to think Rav Yehudah would say like Shmuel.
[] 11:00 PM at night I thought I figured out finally the answer to our big question. Here it is: The Mishna in Bava Metzia is a case of a weak bari. [Only the actual case of Rav Yehuda itself is a strong bari.] So Tosfot first shows that Shmuel has to hold here in MB in a weak bari that it determines the case since the answer of the Gemara to the opposite opinion is not availble to him. That is a kashe. Then the answer is that Shmuel can hold here that he is patur.
It was a simple misunderstanding of the Mishna. This hit me when I read Tosfot in Ketuboth. But I expect David will not like this for he will say, "But if the Mishna is a weak bari why did we just get done saying Rav Yehuda holds it is obligated (chayav)?"
[] I suggested the above answer to David. David answered: "I don't see how that helps. It is a good observation that the Mishna (in BM) is a weak bari but it does not help Tosphot. Let us back up a little. We said that Abyee is a kashe on Tosphot because he ties Rav Yehuda and Shmuel together in Ketubot which is a weak bari. Without Abyee, Shmuel might have had another reason to say the halacha is like RG (Rabban Gamliel). But Abyee says it is because of bari and it is a weak bari. Then we say the Abyee is not relevant since he might hold by the other answer in BK that forced Tosphot to make this difference between a strong and weak bari. Then Tosphot says even without Abyee, we have to say that Shmuel would say to believe a weak bari (here in BM). So what why is at a kashe on Rav Yehuda?"
Me: "But you admit that Shmuel is a problem?"
David: "Then let Tosphot ask on Shmuel. Here there whole problem is Rav Yehuda. And you can see this by the answer of Tosphot. For they say that we could say Shmuel agrees with the other opinion here (of Rav Nachman and Rabbi Yochanan) which has nothing to do with Ketuboth which is still a weak bari. So the kashe is on Rav Yehuda. So what is the kashe?
And besides what does Tosfot do with Abyee? Is this an argument between Tosfot and Abyee? For the entire core idea of Tosfot is in direct contradiction with Abyee! They say Shmuel and R. Yehudah would not say bari adif in a weak bari. Abyee says point blank that they do.
Me: " Perhaps it means that R. Yehudah has to have a source for his statement. So far we have only one case of Shmuel mentioning anything about a bari and that is in BK where he says we pay no attention to it. So unless the fact that Shmuel says the halacha is like Rabban Gamliel (in Ketubot) means something about bari, where would R. Yehuda have gotten it from? And Tosfot says that this is not just a guess because we have a strong proof Shmuel would say bari adif in BM. So Tosfot suggest that the source for R. Yehuda is Shmuel in Ketubot. Then they answer that even in BM Shmuel might go with the answer bari is not adif so there is no where any reason to imagine Shmuel holds of bari strong or weak. (This is not a good answer. It is just the only half baked answer that I can think of.)"
[] The next Tosfot on the page --- says that R. Elazar goes by "mitoch" (lit. "because") and that is why the yorshim (inheritors) of the loaner must pay? But why? When were they ever required to take an oath in the first place? What does the subject of R. Elazar, Rav and Shmuel about inheritors have to do with mitoch?
[] The next Tosfot. The Ri proved that Rabbi Aba can't hold by Rav and Shmuel. But why not like Rav Nachman that they divide in a case of two people that are suspected on a shavu.
[] Whether to the Rama or the Shuchan Aruch we have a problem. Two are suspected on oaths. One loans ten cents to the other, then comes to beit din. He can take all the other person's money without an oath. How can we poskin like Rabbi Meir, or R. Aba at all? Why does not the Gemara notice this? And the Rema who did notice this why does he say that then the guy can only take half the other guys money. We are talking about a character who we recognize has nothing better to do all day than to think up ways of defrauding and stealing all the money he can from his neighbors.
[] Tosfot [BAVA METZIA 97:b]. "Hachi nami". The Ri (R. Isaac) proved that Rabbi Aba can't hold by Rav and Shmuel. But why not like Rav Nachman that they divide in a case of two people that are suspected on a shavu?
[] Here is a little background information to understand this previous note. If you have an employee that wants to be paid and the employer says, "I don't know you," there is no payment. [I.e. when there are no witnesses.] But if the employer says "I paid," [and there are no witnesses] we come to an argument between Rav Gamla and Rava. Rav Gamla says there is no payment. Rava says the employee takes an oath to get paid. [I want to mention that to Rava that if the employer had said, "I don't know you" he would have been believed but in fact he did not say that so we don't theorize that he could have said it.]
Now the whole idea of this previous paragraph presents a problem to a certain idea of Rashi. For let's say we have a case of a guard of a object and also there are no witnesses. The owner of the object says, "Give me my object." The guard says, "It never happened." Rashi says the guard takes and oath or pays. Rabainu Tam says there is no payment-- just like in the case of an employee.
[] Baba Kama 107 [10:25 PM 3/22/2007] Rashi: The need for "mode bemiktzas" (admission in part) is by loans. So if there is no proof nor "mode" there is no oath. But for a pikadon (deposited article to watch) there is no need for it. If one person says there was a pikadon (deposit) and the other says, "I don't know you," and there are no witnesses, he still takes an oath.
R. Tam: The need for it is also on pikadon. If the guard says, "I don't know you," there is no oath.
The Mishna in Shavuot says an employee says, "I did not get paid and the employer says I paid you, the employee takes an oath.
Rav Gamlai bar Zavid says in the name of Rav that is only where there are witnesses that he was employed. Without witnesses we believe the employer since he could have said I don't know you.
Rava asked, "We know a shomer takes an oath when he says the animal was stolen. If we have a migo that he could have said I don't know you, we don't we say it by a shomer?" So obviously we do not say migo for a shomer.
To Rashi this Gemara in Shavuot is a problem since it says a shomer is believed if he says I don't know you. Only if he says they were nensu [died while at work] does he take a shavua.
Now everything looks good to R. Tam. To the Gemara if he says it never happened he is patur from a shavua.
But in fact the Gemara says he is saying the animal was neenas and he needs a shavua. Why? Normally A shomer sachar takes no shavua in such a case [to Rabbanu Tam]. Only a shoel pays for it being naanas.
So we have to say Rava is talking about a case where there are two animals so he is mode mikzas.
But then how can he try to patur himself from a shavua saying I could have denied the case of stolen completely and said it never happened. But to Rabanu Tam he is required a shavua in such a case.
But he could come to beit din and say true I admit to one and say the other was neenas. However I could have denied everything-- both the hodaahh and the neenas. Then I if fact would have been patur. So believe me now that I say one was neenas.
This sounds very good to R. Tam and David was bothered for a week on this for he thought of this and it seemed Tosfot was ignoring this possibility. But I looked at Tosfot and saw that he does say this but he says you can't answer this to R. Tam for it the normal case of mode mikzas. If this is a migo the all mode mikzas has a migo. I don't think David liked this for some reason. He said it sounds good but it is not what Tosfot is saying. But even I think something sounds strange here. After all is not this exactly what Rava asks -- that we would never have a shomer taking a shavua because he could always have a migo (where there are no witnesses).
[So in R. Tam] Rava says if we have a migo there is never a shavua (by two animals). The kashe of Tosfot is that the Gemara could simply have answered we still have a even if we have this migo by an employee, by a shomer it does not help since it is mode mikzas. (It is a gezera of the Torah for him to take a shavua. The employee is anyway only derabanan.)
David does not like this because Rava should have said not just by shomer but in general that we would never have a shavua by mode mikzas.
But I said that is exactly what he means for the whole shavua by a shomer is that of mode b'mikzas.
[] Mishna: An employee and employer come to beit din. The employee says, "I never got paid." The employer says, "I paid."
The employee takes a shavua (to get paid).
Rav Gamla Bar Zavid in the name of Rav: That is only where there are witnesses that he was an employee. But without any witness we believe the baal habait since he could have said "I don't know you."
Rava says, if there is such a thing as this migo [since he could have said...] then we would never have a shayua of shomrim for the shomer could say, "Believe me that it was neenas(stolen) since I could have said "Lo Hayu Devarim Maolam" [I was not a shomer for you].
The kashe on R. Tam is this. There has to be two animals to R. Tam since if there is only one and he says neenas he is believed with no shavua--since he is not mode mikzas. So there must be one of hodaah and the other of neenas. And he says believe me not to take a shavua since I could have said ladam [and denied both and have been believed.]
Tosfot says that if R. Tam is right, then Rava should have asked on every mode mikas that he could say ladam. (and we would then never have a shavua. For without mode mikas there is no shavua and now with a migo there would be no shavua even on mode mikas).
R. Tam could answer for general mode mikas Rava might have no wanted to use that as a kashe since Rav could answer that it is a law of the Torah (gezerat hakatuv) that you have mode mikas on milvah-- but it is the same gezerat hakatuv by shomer. -- Why does in fact Rav not answer that normally we have a migo but in a case of a shomer it is a gezera that he takes a shavua?
David is bothered here by a different kashe. Rava asked a specific kashe. He could have asked a larger question but so what. No one mentioned mode mikzas why extrapolate from Rava a whole shita ("world view") that from a question about a shita that he does not even believe in. He does hold from the migo so of course it makes no sense anywhere in Shas. He just asked about one specific place but he could have asked about a million places.
To the Riva,-- you need shavua for mode mikas on milvah or pikadon that is like milvah--i.e. hodah and kefira.
But pikadon that is just neenas he needs a shavua even without mode mikzas.
So Rava's kashe is if there is a migo of lahadam (first letters of the words "nothing ever happened" in Hebrew) then he could have walked into beit din and said, "Neenas but don't make me take a shavau since I could have said lahadam."
To the Riva there is only one animal.
To the world view of the Riva, there is a question from Savuot 45 to Bava Metzia 98. In Shavuo, Rava says we say "Mode miketzat" only applies to kefira [and we don't extrapolate to neensa [stolen by force] -- because neenas (accident) is required a shavua even without mode mikzas.] But in Bava Metzia, the Gemara says Rava would say we need "mode mikzas" even in a case of "lo hayu devarim maolam" (nothing ever happened).
This is a kashe because the Gemara in Bava Mezia uses Rava as a case of esek shavua (requiring an oath) and says the Mishna is a case where there is already a shavua because he says 50 I admit and 50 don't know.
So the Gemaras directly contradict. In Shavout there is a shavua for neensa and not in Bava Metzia.
For the case of the Mishna in Bava Mezia is a case of neensa [shema secchura mesa means neensa] yet the Gemara can't say it is an esek shavua until it says it is a case of mode mikzas. Direct contradiction to the Riva.
It seems to me, this Tosfot anyway on Baba Kama is not trying to answer for R. Tam. Gezara hakatuv he used for the Riva [hoda and kefira] but not for R Tam. But anyway something is fishy there. If you can say gezaras hakatuv on hoda and kefira (that he still needs a shavua though he could have said lahadam) then Rav Menashia also could have answered on neensa it is a gezeras hakatuv that a shomer takes a shavua even if he has a migo;-- yet on the other hand if we use gezaras hakatuv why not use it for Rabanu Tam also? But this is really not a question for to Rabanu Tam there is only one case hoda and kefira/neensa and we don't say gezaras hacatuv and if we would there gemara would have said so. Only to the Riva is gezaras hakatuv a good terutz what we don't ask on a different case.
[] [Bava Kama 107a] David said: the answer Tosfot's kashe on R. Tam (that for all taanot of shomrim to be chaiv a shavua you need mode mikzas. Whether a case of unavoidable accident ("onis") or complete denial ("kefira"). The whole problem is what Tosfot says ahya kai. On which animal does Rava ask on. Rava does not divide the pleas (arguments. "taanot"). If you could you could throw out every agreement in part ("mode mikzas"). And Rava in Bava Matzia 98a does not divide the taanot.
[] 4/17/2007 I said on that same Tosfot an argument that strengthens Tosfot's kashe. For Tosfot asks thus. [To R. Tam] The fellow walks into beit din and says hoda and neenas [two animals];-- and we say take a shavua. He says, "Believe me because I could have said lahadam (nothing every happened). There were no animals."
And if there was the migo of Rav that one can say lahadam then we would believe him. But we know the Torah does not believe him and says he must take a shavua. Tosfot asks if that is Rava's kashe why did he not make a better kashe --ask the same thing on every mode mikzas. I said that this is a fantastic kashe because on shavuat hashomrim Rav could say really there is a migo but because of gezarat hakatuv we don't believe him. It is a very weak kashe. In place of it he could have asked on every mode mikas -- even not shomrim -- and there would not be the answer of gezarat hakatuv. David said this makes no sense because R Tam is talking according to R. Chiya Bar Joseph that there is in fact a la of the Torah (gezarat hakatuv) on every admission in part (mode mikas). [Iruv parshiot means "ki hu ze" applies to milvah and pikadon.]
[] Rami Bar Chama and Rabbi Yochanon hold that every statement in the Torah means this and not its opposite. Chiya Bar Yoseph hold every statement in Torah means this and as far as its opposite goes it might or might not be so. It is wet outside. It might or might not be wet inside. To Rami Bar Chama it is not wet inside.
The Torah says "Ki Hu Ze"--i.e. he is mode on "this". To Rami Bar Chami he is kofer on "that" he completely denies it. And so when the Torah says shavuat hashomrim (oath of guards) for a case of neenas (stolen by force), it must mean three animals--hoda (admission), kefira (denial) and neenas.
To Chiya Bar Yoseph. "ci hu ze" means "this I am mode on --everything else I don't know" is a shavua. I.e. once he says I am mode on anything, then everything else he says is irrelevant. It is already a case of a shavua.

[] Tosfot Bava Metzia 98a Mashkachat [in explaining the world view of the Riva]. At first Tosfot has to say that "I don't know" in the Mishna is kefira -- because if not, then the guy would be obligated to an oath on the neensa alone without hodaah--and the gemara openly required two animals to make it a case of a shavua.. Then Tosfot says I don’t know is a case of naasa [i.e. I don't know if it was neensa] because the gemara say to Rami Bar Chama that to have a shavua there must be three animals hoda, kefira, and I don't know. If I don't know is kefira then you only have kefira and hodaah. Tosfot is draw into this contradiction because he is trying so hard to answer for the Riva, just like he was doing in Bava Kama. To R. Tam there is no need for this and I don’t know is simple forced [''neensa'].
The answer occurred to me on Thursday but I did not articulate it until last Friday. It is this [B.M. 98a Tosfot "Mashkachat"] in the beginning Tosfot considers "I don't know" to be denial [kefira because the statement itself does contain ones but not enough [about 40%] to say he is maiiz [arrogant] make him take a oath unless there is hodaah along with it. [There simply is not enough forced [''onis''] in it to make him take a oath.]
Later Tosfot considers I don't know to be onis to be considered different enough from point blank kefira. That is a case of three animals . There Rami Bar Chama requires three separate statements to be required an oath;-- (1) "ones"[accident] (2) "hodah"[admission] (3) kefira [denial that there ever was such an animal]. "I don't know" has some "onis" in it, and that is all he needs. I.e. to have three separate statements. [For "I didn't know" is "I don't know if it was neenas or neenas at a certain time."]
Another problem is in Bava Metzia to Rami Bar Chama we need three animals but in BK hoda and kefira alone was chayiv a shavua. Only "onis" needed "hoda" and "kefira" with it. But kefira alone required only hodah.
[] BM 99:a. There was a lot of time on the Tosfot there on meilah. First I was convinced that the distinction the Ri makes about gizbarim is that the gizbar thinks it is hekdesh and still is not intending to take it out of reshut of hekash since he thinks he himself is hedesh. David disagreed with this vehemently and showed me where Tosfot says as he explained about and in the Tosfot and in the parallel Tosfot in Kidushin the whole point of the gizbarim is that he thinks it is his and that is why he is not intending to take it out of reshut hedash--it is a mistake anyone could make but he just happens to hang out in the garage where they store hekdesh axes more that other people.
The last lines of Tosfot, David explained thus---there are three levels going on here. The ax is worth ten dollars. The amount he is mafsid to hekdesh is three dollars. That is the amount hedesh could have rented it out for. The tovat hannah is 2 dollars. That is the gratitude the borrower owes him for saving him from the trouble and expense of renting an ax. The amount the axe deteriorates is one dollar. The gemara says the loaner owes $2. Tos asks why. Isn't he mafsid hedesh $3? Tosfot answers: No. The ax comes back to hekdesh so the only real lose is the damage which is $1. Tosfot does not mind that he has to pay more than that. The only question was that it seemed he should have to pay more. This is how business is done in America. One says well he could have rented his boat to someone so by no doing so that is the amount he loses. Here Tosfot says that is not considered hard cash but only possible money. Possible money is not the same as real money.
[] BM 99b: Tosfot "shayminan". We have spent about two weeks on this Tosfot. Basically first to get what Rashi means. Then Tosfot's kashe then his answer and then the main problem to see how his answers answer his own questions on Rashi. First Rashi means take a 60 sah
[acre] field find out its selling price. Then take the same field minus one acre and find out its selling price. Subtract. Now you have the price for one acre. Now find the percent the animal ate of one acre and now the owner of the animal pays accordingly.
Tosfot asks, "Why two "shumot" (two measurings)?" He explains the Gemara like this. Keep everything Rashi said, but instead of a regular "beit sah" of seed [50*50 amot], rather find the amount of ground needed to produce one "sah" measure of food -- not seed. Then do everything like Rashi said. This we had a lot of problems with. [Both this peshat and the peshat in Rashi came from me. David is usually the one with the depth of thought.] David is the one to bring up the problems and there were many. My first idea was that Tosfot meant a sah of literal produce -- not the ground to produce that amount. David showed this could not be so form the Gemara in Baba Kama 58b. So then we came to my peshat written above. Then the question is how does this answer the kashes (questions). Why don't we ask all the same five kashes on Tosfot? For the one about two shumot the answer I forgot. Basically I answered it on Rashi by saying it is one shumah. To find the price of one sah you find the price of 60 and then 59 and subtract. For any subtraction you need two numbers. [We don't just measure the price of one sah by itself because that would be way too expensive---better the price of one field in 60 acres all together.]
Then Tosfot says reasons why this works well one thing was very hard to see. Today David explained that the gemra says what does it means one sah
We might have thought it meant one beit sah in that field i.e. of ground. Now we know it means one sah in 60. This made no sense to me. David explained it means we might have thought it meant one sah of seed 50*50. Now we know it means a sah i.e. of produce.
I asked David, "To me it is still unclear why the answer of Tosfot is better than Rashi."
David: "With Tosfot there is just one estimation find price of 60 sah of grain [acres] then 60 with one full sah eaten. Take the difference and you get the price of one sah. Then just take the % eaten of that one sah. With Rashi however you take price of 60 beit sah then 59 sah. Now you have the price of one "beit sah" (sown). Now find out how much less it would be worth if the amount of area the animal ate was in fact eaten. So it is two estimations."
I said, "That makes no sense. With the second estimation of Rashi who is going to buy it? Not the poor man because we already said he would be paying too much for the bit sah. So it is the normal farmer-- but he is only going to buy the whole 60 and then we said it would not make much difference if one little patch was eaten?"

[] BM 100:a the top Tosfot. Is the ownership of the seller a true ownership? Tosfot says it is for the case it is in his yard and he still is saying he does not know. But it does not work to give it to him if it was in the yard of the buyer. what is the difference?
Answer [David] it is given to him when it is in his yard. Tosfot only mentioned original ownership of the foetus because it shows the original owner is relevant. Otherwise why can't anyone come in who the animal happened to have walked into his yad come and say I don't know if the calf is mine. Similar to the case in bchorot, -- he had a live lamb so what so did the mafkid. Answer the ownership shows he is relevant to the parsha.
[] Same page (daf). Next Tosfot. (First words: "Who is it? Sumchus!") This Tosfot directly contradicts the previous one. It says for a "perhaps" plea, sumchos says they divide it even though the socer (renter) has his own money in his own reshut. Before we said to everyone "Perhaps" (shema) helps if I is in his result [the seller but not the buyer]. Maybe that is it? The next Tosfot is like the case of the buyer.
At any rate I suggested a different answer today that in page 97 it is both people says perhaps while here the seller says perhaps. David demolished this by pointing out the case in bechorot the mafkid is the one who is sure and we don't give it to him. And also our regular case is there is a valad the mocher says "perhaps" the buyer says "for sure" and we still give it to the mocher if it is his reshut.
[] BM 100:a. How is it "helach"? (Here it is. Take it.) He is not offering him his small slave. David explained the question it is two minim if you say not because you consider them both money the it is helach.
[] Question 100:b top Tosfot. Why does Tosfot make it a case where they can regret the deal? If they can, why does not the lokeah (buyer) say, "Okay, you don't want to give me the big slave let's cancel the deal and return my money?"
Answer: That is exactly what he says. We are dealing with the question of does he return the money of a big or small slave.
[] David asked, "How does Tosfot answer his own question? He says it is derarah dememona since there is a question how much money physically changed hands. But then it is simply a normal case of two people arguing about money. How is it any different than two people holding a garment (shnaim ochazin) which the Gemara says is not drarah demmona?"