Heilakh - 4a

  • Rav Ezra Bick

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In memory of Rebbetzin Miriam Wise, Miriam bat Yitzhak veRivkah z”l,
whose yahrtzeit is on 9 Tevet.
By Rav Yitzchak and Stefanie Etshalom
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Please daven for a refua sheleima for YHE alumnus
Rav Daniel ben Miriam Chaya Rut
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Sources:

  1. גמ' דף ד'. "אלא אי אי תמר..." עד ד: "...וש"מ דהילך פטור"
  2. ח' הר"ן ד"ה והילך
  3. רמב"ם הל טוען פ"א ה"ג
  4. בעל המאור
  5. ר"ן ד"ה והא

Questions:

  1. Compare the different definitions of “heilakh” found in Rashi, the Rambam, and the Ran. Define “heilakh” for each.
  2. What is the basis for the gemara’s comparison of “heilakh” to our mishna? See Rashi, Tosafot (technical answers), the Baal HaMaor and the Ran (logical answers).

 

            The gemara's second version of R. Chiya's statement concerns the halakha of "heilakh."  Accordingly, R. Chiya asserts that heilakh does not preclude an obligation of shevu'at modeh be-miktzat.  R. Sheshet, however, differs and exempts one from taking an oath in the case of heilakh.

What is heilakh?

            The case is one of modeh be-miktzat.  The defendant admits to half the suit, and adds "here it is" (heilakh).  According to R. Sheshet, in such a case there is no shevu'a obligation, because "since he said 'heilakh,' the money which he has admitted to is considered to be held by the creditor."

A.  Which cases are heilakh?

1.  Rashi writes: "heilakh - here it is - and I have not spent them, and they are yours wherever they are."  The very utterance of "heilakh" results in the money or object being immediately in the possession of the plaintiff, even though the object is not present ("be-khol makom she-heim" - wherever they are).  The Ran asserts that this can only take place regarding a pikadon, that is an object owned by the plaintiff (which is in the possession of the defendant) rather than a debt owed him. (However, Rashi himself claims that returning a loan can also be considered a form of pikadon – if the money of the loan was never spent and the borrower returns the same coins he borrowed). If one owes money, simply admitting to the debt does not transfer the money to the creditor.  Only if the object is already owned by the plaintiff can we say that a full admission results in total possession immediately, even if the object is still physically located in the house of the defendant.  The object is "HERE" in the sense of possession, even if it is not here geographically.  Hence, the Ran concludes that Rashi's understanding of heilakh, should be restricted to cases of pikadon.

2. The Ran disagrees and states that even a loan can be considered heilakh.  In the case of a loan the money is not "here" in any sense, unless he not only admits but also brings money and presents it before us.  The Ran states that heilakh means that the defendant has the money, ready ("mezuman") to deliver to the plaintiff and expresses his willingness to do so.

3. The Rambam (Hilkhot To'ein 1,3), like the Ran, defines Heilakh for loans and not only pikadon, but he explicitly states that the case requires that the defendant immediately hand over the admitted money to the plaintiff.  "Ready" (mezuman) to be disbursed is not sufficient; the money must be paid "immediately."

B.  What is the explanation of this disagreement?

1. Rashi - restricting heilakh to pikadon has the following effect.  As soon as the defendant says "heilakh," the object has already been delivered, legally speaking, to the possession of the plaintiff.  Once this has been done, there is no longer any suit (for that object), since the suit has been totally satisfied.  Hence, the remaining suit relates only to the other object (the other half), which is completely denied by the defendant, so this is a case of "kofer ha-kol" and not "modeh be-miktzat."

            This process is one of "siluk" (removing the suit) - when the suit for the double amount was put forth, it made sense; but it is immediately rendered meaningless by meeting and fulfilling it.  Technically, this takes place immediately after the suit has been brought, and some question may be raised whether it is not too late - there has been a suit brought, and it has been met by a partial admission.  Rashi's answer apparently is that the siluk is IMMEDIATE; in fact, it is simultaneous with the partial admission (viewing the admission and the "heilakh" as one continuum).  This is only true for pikadon, where there is no need for actual transfer of payment.  Hence, a merely verbal "heilakh," contemporaneous with the admission, has already eliminated the suit and consequently the admission as well.  Since this takes place simultaneously, we may say that there has never been a partial admission.

2. The Ran - Since according to the Ran, heilakh applies to loans as well as pikadon, and since the money does not have to be handed over at the time of the admission, it is difficult to see the debt as having been paid off (siluk).  The simplest explanation of the Ran's understanding of heilakh is that by appending the heilakh to the admission, the defendant is saying, in effect, that there was no need to have brought the suit at all.  By saying, "here it is," he is saying, "you do not need to sue me, the money was ready ("mezuman") and present here all the time.  We therefore see this answer as obviating the suit "le-mafre'a" - it is as though the plaintiff has never SUED at all.  In light of the response of the defendant, we realize that a suit was not called for.  Since there was no suit (for that portion included in the heilakh), there is no partial admission, and consequently, no oath-obligation.  (An alternative explanation of the Ran, along the lines presented for Rashi, namely siluk, will be suggested below.)

3. The Rambam, like Rashi, holds that heilakh is "siluk."  However, it is sufficient that the siluk take place "immediately" after the admission, and need not be actually simultaneous with it. If he pays off the debt immediately, we apparently see the admission and the payment as being part of one continuum, and the internal time sequence is not relevant.  Practically speaking, this is considered simultaneous.  The result is that it is possible to have heilakh for loans and not only pikadon.  The limitation of heilakh to pikadon is designed to ensure that the siluk be literally simultaneous with the admission; by allowing siluk to take place after the admission - albeit "immediately" - we are able to widen it to cases of loans as well.

4. There are at least two other explanations of heilakh that I am aware of.

            The Ketzot (87:5) suggests that heilakh does not eliminate the suit, as I claimed above according to both explanations (siluk and obviating the need for it), but rather it nullifies the significance of the admission.  If the money is handed over immediately, or is at least ready to be handed over immediately, the admission is meaningless. The Ketzot suggests that (partial) admission only engenders an oath if the admission is the cause of obligation (hoda'a ha-mechayevet) - if the money is being turned over anyway, the admission becomes irrelevant.  [Interestingly, R. Peretz (4b s.v. Ela) does not distinguish between eliminating the suit and eliminating the admission.  Explaining the answer of the gemara, "deka mesaye' lei shtara," he concludes, "Therefore he did not SUE HIM for the two, and he is not CONSIDERED TO BE ADMITTING IT at all."  The two approaches, that which we suggested above and that of the Ketzot, may be, at least in the eyes of R. Peretz, two sides of the same coin.]

            The Meiri (in his second explanation) gives a simple explanation of heilakh.  The oath is based on "ishtamuti ka mishtamet" (3b - he is suspected of using a partial admission to escape pressure to pay the entire debt immediately).  The defendant is really willing to pay the rest as well, but since he does not have the money available he lies in order to gain time.  The Meiri claims that heilakh is based on the assumption that one who pays part of the debt could easily obtain an extension for the rest, and hence a denial is unnecessary.  Therefore, the basis for the oath is eliminated, since this is not a case of "ishtamuti ka mishtamet."

C.  Shtar

            Rashi limits the applicability of heilakh to pikadon. Yet, the very next section of the discussion of the gemara discusses heilakh in a case of "shtar," a loan covered by a deed.  In fact, the gemara claims that every case of shtar is one of heilakh.  How can Rashi maintain his opinion in face of such an explicit passage? After all, the case of shtar is one of a loan.

            Carefully considering the explanation of Rashi's opinion which we advanced above indicates the necessary direction of the answer to this question.  Rashi limits heilakh to pikadon because he apparently demands that heilakh result in the immediate "siluk" of the debt.  There was never an admission to an existent suit, since the admission immediately removes the suit.  In the case of shtar, it would seem that by definition there is heilakh, to the extent demanded by Rashi, implicit in the suit itself.  Apparently, the power of the shtar is so great that the suit is considered to be "removed" as soon as there is admission.

            What is it about "shtar" that gives a suit based on it the status of "siluk?"  There are two relevant factors to a deeded loan.  One is that it is nearly impossible to avoid paying it.  The shtar creates a lien on the landed property of the debtor.  Since land can not be hidden, and with the lien cannot be alienated, there is a near 100% chance that the creditor will be able to collect the loan.  Secondly, the lien – shi'abud - is itself a sort of partial ownership (and not merely a sure-fire method of collecting in the future).  The holder of a lien on property is in possession of the property - to a certain extent - even before he formally carries out the court procedure for collecting the property.  This meets the condition of Rashi - "it is yours (already) wherever it is."

            Rashi in fact bases the heilakh nature of shtar on shi'abud.  "The meaning of the shtar is equivalent to heilakh, as the real property is mortgaged (meshuabad) for it" (Rashi 4b, s.v. Ta'ama).  This accords with his condition that the payment belong to the creditor immediately with the admission.

            If, on the contrary, all that is necessary for heilakh is that the payment be "mezuman," as the Ran wrote, it is conceivable that a shtar is heilakh solely because of the first factor - that payment is practically guaranteed, even without an admission.  This point is the subject of a huge disagreement in interpreting the Rambam (Hilkhot To'en Ve-nit'an, 4:4; see the commentators ad.loc.; Rav Chaim, Hilkhot Ishut 16:25).

D.  The "proof" from the mishna to the law of heilakh

            All Rishonim are puzzled by the attempt of the gemara to base R. Chiya's rejection of heilakh on the mishna.  Since at the end of the previous attempt to base R. Chiya's first law (the oath obligation when two witnesses testifying to a partial obligation), the gemara had basically denied that our mishna can be viewed as a case of modeh be-miktzat (since there is an "anan sa'adi" in BOTH directions), how can it be a basis for anything having to do with heilakh.  There are a number of answers to this question, several technical (Rashi, Tosafot), and several logical.  We shall examine three of the latter.

1. Ba'al Ha-ma'or (also cited in the other Rishonim) - the Ba'al Ha-ma'or agrees that the mishna has nothing to do with modeh be-miktzat, and hence nothing to do DIRECTLY with heilakh.  However, he claims that R. Chiya is deriving a logical principle from the mishna which undermines heilakh as well.  This principle is that we do not say "heilakh keman de-nakit be-yadei" ('heilakh' is equivalent to his holding it in his hands).

            This phrase appears in the gemara (4a) as implicit in the opinion that heilakh is not obligated to swear an oath.  The Ba'al Ha-ma'or interprets it to mean that intrinsically the principle of heilakh is based on the interpretation of the suit as void because it IS AS THOUGH the creditor has already received his payment.  Were this to be true, then there could be no place for an oath in the mishna either, even though it is not a case of modeh b'miktzat.  The principle of "kman de-nakit be-yadei" states that the technical necessity to actually place the money or object in the hands of the winner of a suit or argument is not significant, if there is no impediment to do so.  Since in the mishna all that is necessary is to detach the two sides of the talit from each other, this should also be seen as "kman de-nakit be-yadei."  The result of adopting this view is that no oath would be imposed, since one does not swear over money which one has already received, albeit only theoretically..  (Rav Sheshet's answer is that the oath of the mishna is an exception, since its purpose is not to bolster the case of the one who swears, but to prevent violent assault in general in society.)

            The Ba'al Ha-ma'or's understanding of heilakh would seem to be closer to the understanding I called "siluk" - there is payment, in effect - rather than the explanation I attributed to the Ran, namely that heilakh shows that there was no need for a suit in the first place.  Since the Ran himself quotes the Ba'al Ha-ma'or, this forces us to advance an explanation of the Ran in accordance with this way of thinking.  The key is the rather extreme understanding of "kman de-nakit."  The Ba'al Ha-ma'or, and perhaps the Ran, understands this literally - the money in the hand of the defendant, ready ("mezuman") to be paid, is considered to be already under the control of the creditor, and his suit has been answered and fulfilled (siluk).  There is nothing for him to sue about, since nothing (significant) need be done.

2. The Ramban - The Ramban takes a completely different approach to this question, by widening the definition of modeh be-miktzat to include the case in the mishna without falling into the trap of "anan sa'adi le-hai ve-anan sa'adi le-hai."

            In the "first R. Chiya," the mishna is understood to be a case of "ha-adat eidim;" that is, the "anan sa'adi" is considered to be the equivalent of two witnesses testifying that at least half of the claim of each one was justified.  If so, the gemara correctly notes that each one is not only under attack by the "anan sa'adi" of his fellow, but is supported by his own anan sa'adi.  Hence, this cannot be a source of an oath.  In the second R. Chiya, the Ramban explains the gemara is not basing itself on "anan sa'adi, which is considered as two witnesses."  Rather, there is a completely different definition of modeh be-miktzat.  The Ramban claims that there is no need for a partial admission for the modeh be-miktzat oath to obtain.  Rather it is sufficient that his denial not encompass the entire claim.  In other words, partial denial (rather than partial admission) is the cause of the oath we call modeh be-miktzat.  The Ramban then advances the claim that the part of the talit that is already in the hands of one of them (for our purposes, the plaintiff) is not subject to denial.  It is meaningless to deny that part of the talit belongs to the plaintiff, since he has it already.  Hence, legally the denial does not relate to this part of the claim, and is therefore a partial denial - which engenders the oath of modeh be-miktzat.

            The Ran has a similar approach, though the language is somewhat different.  Many Acharonim interpret the Ran to mean that the proper definition of modeh be-miktzat is a partially effective denial (rather than a partial denial).  In the case of the mishna, he is denying the entire claim - however, he loses part of the talit in any event (that part that is going to be given to the other one; namely the part that he is already holding).  Since his denial is only partially effective, he must swear to support it.

            I am not at all sure that this is the correct interpretation of the Ran, and suggest you examine the text yourselves and try and decide. One advantage of this definition, however, is clear - it includes in one definition the "standard" case of modeh be-miktzat, the case of two witness testifying against part of the denial (the first R. Chiya), and this new case - all are cases where the defendant loses part of what is claimed (for three different reasons).  This in turn weakens his position with regard to that part that he retains, and necessitates an oath to protect that part.  

 

Sources for "Ein Nishba'in 'Al Kefirat Shi'abud Karka'ot:"

1. בבא מציעא ד: ורש"י שם.

2. שבועות לז: "ר' יוחנן אמר .. תסתיים", תוספות בבא מציעא ד: ד"ה 'אין נשבעין'.

3. ר"י מיגש בבא בתרא קכח. (מצוטט גם בשיטה מקובצת בבא מציעא ד:), רמב"ן שבועות לז: ד"ה 'אלא', רא"ש שבועות ה', ג.

4. רמב"ם הלכות טוען ונטען פ"ד ה"ד-ה (עם מגיד משנה ולחם משנה ד'), פ"ה ה"ב (עם ראב"ד), הלכות אישות פט"ז הכ"ה (ראב"ד, מגיד משנה ולחם משנה), הלכות שבועות פ"י הי"א-י"ב ופ"ח הי"ג, חידושי ר' חיים הלוי על הרמב"ם בהלכות שבועות פ"ח הי"ג, אישות פט"ז הכ"ה, וטוען ונטען פ"ה ה"ב (בעיקר הפסקה האחרונה).

Questions to consider while learning the sugya:

1) How is the Halakha regarding shi'abud karka'ot related to the more general halakha of 'ein nishba'in al ha-karka'ot?  Specifically, is a shia'bud considered to be actual karka for the purpose of shevu'ot (a subcategory, governed by the same principles) or is it an extension of separate halakha?

2) What role does the existence of karka need to play in order for the rule to take effect?  Does karka need to be the source of the monetary obligation, or does it need to be the contested object itself?  Does karka need to compose the entire claim, a significant portion, or even the most minimal component?

3) Would different categories of shevu'ot be effected differently by the above halakha?