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Shiur Supplement - Daf 2b

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A. Leima matnitin de-lo ke-ben Nanas... lidei shevu'at shav [lines 13-15] The gemara now debates whether or not our mishna is consistent with the rulings of various Tana'im elsewhere in Shas. In other words, would all agree that in the scenario described by our mishna, the talit should be divided equally after both sides take an oath to prove the validity of their respective claims?

 

            The first Tanna whose view is compared with our mishna is ben Nanas.

 

            BACKGROUND: Although, in general, one must bring PROOF in order to exact payment from another (ha-motzi me-chaveiro alav ha-ra'aya) nevertheless, under certain circumstances, it is sufficient for the claimant to take a shevu'a in order to receive payment. For example, a worker is believed that he has not been paid and after taking a shevu'a can exact payment from his employer. Similarly, a store-keeper is believed that he has supplied goods on credit for which he has not yet been paid, and after taking a shevu'a to this effect can demand to be reimbursed by his customer. [See Shevu'ot 44b-45a]

 

            The mishna (Shevu'ot 45a) deals with the following case: An employer owes wages to his worker. In lieu of payment, he organizes with a storekeeper (chenvani) to supply the worker with goods for which he promises to reimburse the store-keeper. The worker claims that he did not receive the goods while the chenvani insists that he supplied them as per agreement. According to the Tana Kama, both the worker and the chenvani take an oath that they are owed money and BOTH can exact payment from the employer/customer. Ben Nanas, however, objects as someone is obviously swearing falsely. It is unacceptable for beit din to create a situation where we are certain that a false oath is being taken.

 

            Similarly, in our mishna, we should not allow both claimants, who have contradictory claims to take a shevu'a. Thus, concludes the gemara, the author of our mishna cannot agree with the ruling of Ben Nanas. Rather, our mishna is consistent with the opinion of the Tana Kama.

 

B. Leima matnitin de-lo ke-Sumkhus... lo kol she-ken [lines 18-20] BACKGROUND: The mishna (Bava Kama 46a) discusses a case where one discovered a still-born fetus next to a cow that had been gored to death by an ox. It is uncertain whether the calf was born BEFORE the goring took place (in which case, the owner of the ox assumes NO liability for its death) OR whether the calf died as a result of the attack (in which case, the owner of the ox IS liable to pay). According to Sumkhus, the money under question is split between the two claimants; whereas according to Chakhamim - the onus of PROOF rests on the shoulders of the plaintiff who wishes to exact payment. Untill definitive evidence can be shown that the calf died as a result of the attack, the defendant is exempt from payment.

 

            Note, that according to Sumkhus, NO oath need be taken by the plaintiff to support his claim. This is in distinction to our mishna where an oath MUST be taken. Therefore, the gemara concludes that our mishna is NOT consistent with the opinion of Sumkhus.

 

 

 

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