Bava Metzia 2b: Rebbi Yosi, Division of Disputed Property, and the Obligation of Shevuah

Transcript

This shiur is brought to you by the Lev Aharon Foundation. For more, visit levaharonlibrary.com. See, there's a she'eilah. There's a problem maybe that I can't make a shevuah. That's a separate sugya, in sukkah. And that could be the Gemara's teretz, that even if there would be able to be a shevuah for sukkah for other reasons. ... There's no chashash mayna, chashash shevuasa. There's no kashya. There's no kashya, chalak kashya. If you learn like the shitah mekubetzes, that the whole sugya here is chashash mayna, chashash shevuasa, you don't have a problem from our Mishnah. Our Mishnah is not chashash mayna, chashash shevuasa, because the Gemara hadter. Clear in the Mishnah, huh? In the metzius, the Gemara before. I'm not saying more than what the Gemara says. Metzius, that comment, the Gemara hadter. So quickly, one more time, because like I said, this to me is the most important part of the shiur. The lomdus, all right, to me the main thing is learning Gemara. In sukkah, sukkah gives a teretz, d'oraisa mamona. You have to know what is sukkah's teretz בכלל, and also why is our Mishnah not called the d'oraisa mamona. First, that's not Choshen Mishpat's kashya. Why is our Mishnah not called the d'oraisa mamona? And the second, in the first kashya I'm asking you, what's the teretz on sukkah? That's the Maram's kashya. Maram gives a teretz that the cheshbon of the Gemara of d'oraisa mamona was there's a meira heter, or there's no meira heter. The shailah is, is there a meira heter? This is a d'oraisa mamona, there's no meira heter. You can't make a shevuah. But I tell you, first, wait a second. Didn't the Rishonim tell me that the kashya on sukkah was based on not meira heter? We don't learn that whole sugya. And bichlal, it becomes a big problem, because then what was the kasha? The סמוכס not holds of the מאירי heter; come out from what he holds of the מאירי heter. So what, he give me a new klal in דיני? That's not what you should tell me. Just come and say he holds of the klal of a patur, that's all. I mean, we knew a patur from the start. The question is if סמוכס agree with it, and the teretz is he סמוכס agrees with it. משמע תנוי יסייעי, גרר דממונא. I'm telling you, bichlal, you have to know there's another side in the Rishonim. When it says סמוכס, גרר דממונא, it's not because of the מאירי heter. סמוכס, when he speaks גרר דממונא, is because of the מיגו דחשש ממונא חשש שבועה problem. Maybe he can't make a shvua because of that. When there's גרר דממונא and a chanami, מיגו דחשש ממונא חשש שבועה. So you could come and say that the Gemara asked the kasha because he argues on the reason for the shvua, that it's not מאירי heter. But now we still have to deal with the problem, l'maaseh he can't make a shvua. The teretz is, you're right, it's a גרר דממונא, he can't make a shvua. אי אמיתתא, is not a גרר דממונא, l'gabei חשש ממונא חשש שבועה, because since there's a מאירי heter in our Mishnah, you could make the shvua. That's what the Gemara says clear on top: מאי לאו נחלוקתא? קשיא, not a kasha. Problem. So what was the Gemara's kasha then? The Gemara asked a kasha: is it not a קל וחומר? If it's a מיגו דחשש ממונא חשש שבועה, so the Gemara's right. Here is a מיגו דחשש ממונא, and here it's not. What's the קל וחומר then? I don't understand the Maharam, I don't understand the whole sugya. The way the Maharam and Rishonim learn the sugya, גרר דממונא, חשש ממונא חשש שבועה, מאירי heter, so what's the Gemara's kasha? Not a קל וחומר. About what? It's not a ... it's not a ... in the Mishnah. What are you talking about? If the shaila was the reason for the shevuah, then you could come and say, סמוכס, the reason is ... But laf kabal chaima, isn't the svara pashut that you should make less in our Mishnah's shevuah? But if the problem is the migo d'chashud meina chashad shevuahsa, and ... is a teretz, that it's a migo d'chashud meina chashad shevuahsa, so what's the lav kal vachomer? I don't see the ... I don't have the teretz to the kasha. So what's the lav kal vachomer? How did the Rambam learn the next Gemara's kasha? I don't know. The kasha I saw in the Shitah Mekubetzes, the third pshat, Rashi. We have a pashut kasha: if you learn the migo d'chashud, what's the lav kal vachomer? What are you asking בכלל? The Mishnah shouldn't be a shevuah because it's a kal vachomer. That's not the shaila. The shaila is, is the migo d'chashud meina or not? I mean, our Mishnah is not because of the chashud meina, because the meina ... So what are you asking lav kal vachomer? Unless maybe it's a ... and a ... I don't know what the Gemara is saying. I don't know. According to the Rambam, what's the next Gemara's kasha? Haklal is a third pshat from the Shitah Mekubetzes, the Rashi, very geshmakke pshat. Since there's a chisaron mamon ...

Why is there no shevuah? Because it's not fair to be mechaser mamon and be mechayev him a shevuah. Since the person who is taker telling the truth is losing half, on top of that you want him to swear also. Famous pasuk, ... v'gam yerashta. You kill him, you also want to yarshen the guy too? It's the whole story, a guy who wants to kill the parents. He came to court, and he's a Yid; he wants to collect. So that's the joke in the Zohar. It came from a pasuk, ... v'gam yerashta. ... says that that's the same reason that there's no shevuah here, because there's a chesaron mamon, and you want the guy to also, besides having a chesaron mamon, make a shevuah. I don't understand. What's the question of fairness? It's not right. Either mechuyav shevuah or not mechuyav shevuah. What's he saying? It's not just, we're working with chesed over here. It's not chesed, it's not the right thing to do, it's not yashar. It's a very, very watery svara. D'varim shebalev is a din. Where d'varim shebalev shouldn't be a shevuah. The way the shibudim kubetzes works it out, it's not a fair thing, it's not right. That's the pshat in the Gemara's teretz of d'varim shebalev. The mother teretz, we'll get back to it. Eventually I'm going to say pshat in this shibudim kubetzes. What is Rashi, chesaron mamon in d'varim shebalev, and that's the reason not to make a shevuah? Because the guy who's telling the truth not only loses the money, he wants to swear also. It's not right. It's really not fair. Very funny svara, d'varim shebalev. Shibudim kubetzes brings down. What's the pshat in this ta'nis of shibudim kubetzes? What's the pshat in Rashi? What's the Gemara? Kashya in Taisis. So let's read Taisis a little bit. It says Taisis: Darda memaina, peirush, sheloi taini saymei sofek l'beis. V'yesh lecha chaviro b'loi taini sayhem, ... shenagachta parah. So firstly, you have to be medayek in Taisis. Taisis never says that it's a safek be'etzem. Taisis doesn't say b'loi taini saymei means it's a safek be'etzem. What? Taisis never said that it's a safek be'etzem, but he says b'loi taini sayhem means tvi'ah anyway. It's a very important diyuk in Taisis. Pashut you learn sheb'loi taini saymei is a safek l'beis din. That's how the velt. ... it's a safek be'etzem. It has nothing to do with the tainus; it's a safek here anyway. L'maaseh, that's not the lashon of Taisis. It's really not the lashon of Taisis. And I teach you how to read Taisis, and I'm medayek, Baruch Hashem, I was mekabel from my rabbeim, Reb Meir, Reb Moshe Refael, ... You have to learn the words. The words doesn't say that. The word says, V'yesh lecha chaviro b'loi taini saymei, which means the tvi'ah is here anyway. The tvi'ah is here anyway. He didn't say that there's a safek be'etzem, and there's like a safek be'etzem without the tainus. He doesn't say that. V'yesh lecha chaviro, which means that there's a tvi'ah anyway. Not that the safek is a safek without the din Torah, that there's a tvi'ah without it. Without you saying anything, you still have a tvi'ah. The nusach. We'll get back to the nusach haTaisis. V'kol panim, Taisis brings the raya from the Gemara בבבא קמא. מאי כלה פרה בחמר, אחר שהספק נולד מעצמו, דינו שיחלוקו אפילו בלא שבועה, and that's where they get it from. That's where they get the nusach of safek without. Like that's not Tosafos to begin with. Tosafos began, they gave a tefillah without, with your taanah. Tosafos didn't say that there's a safek without your taanah. It's a different nusach of Tosafos. He likes it. You know why he likes it? Someone learned Tosafos a hundred times, and you never medayek this Tosafos. You are medayek the Tosafos. Okay, you're a good talmid, you're learning from me. Tefillah means you do have a tefillah without saying anything. Tefillah, you said. It's a different geder of the way the Vilna learns. The way the Vilna learns and medayek from the last line of Tosafos, it's a safek even without saying anything. Don't say that. Even without saying anything, you still have a tefillah. I'll get back to you, a very important nekudah in the Tosafos. You'll soon see the real pshat in Tosafos. Al kol panim, he brings a raya from Bava Kama, that you see from Tosafos it's not that shema lo ta'ani is saying, yehei safek, and safek meilev me'atzmo, but rather tefillah, you have a tefillah anyway. You have a tefillah even without saying a word. You have a din to be tovea without saying one word. Pashut, you learn it's a safek, so tefillah is a din Torah over here. It's not a pesak if you need a shevuah.

It's a suffix anyway. That's not what it says here. See, I'm going to say like this. I'm going to explain the type. Hakol modim, the raya is from the Gemara Bava Kama. If you take a look at the Rashba, the Rashba says that the raya of Tosafos is a good raya. What does Rashi do with it? Rashi agrees to the raya of Tosafos, that there is a d'varim b'maina all over Shas like Tosafos, that the way Tanai saymei safek l'beisin. Just in this sugya, Rashi didn't want to learn like that. Just in this sugya, Rashi didn't want to learn that the pshat of the d'varim b'maina is should the way Tanai saymei safek l'beisin, but rather he wanted to learn chesaron mamon. Why? Because he had a problem with the kavachomer. The Gemara asks a kasha on kavachomer, that's a different shverkeit to Tosafos kavachomer, should the way Tanai saymei safek l'beisin, which means what? Safek, and you're not creating the safek, so there's no makom for a shevuah, so then what's the kavachomer? I mean, it's a svara hafucha. What does the Rashba mean? You're contradicting yourself. If d'varim b'maina was a svara, then what's the kavachomer, the opposite? The hainu, the kasha I asked on the Rambam, the kasha of the Rambam. What was your havamina? Teretz is, your havamina is that if there's a d'varim b'maina, there should be no shevuah, so then what are you telling me kavachomer? Nachon. So the Rashba says that Tosafos proves his halacha. Tosafos proves his halacha from the Gemara Bava Kama daf mem-vav. Tosafos proves his halacha from the Gemara Bava Kama daf mem-vav. What does Rashi do? Zogt the Rashba, he's maskim that in Bava Kamma daf mem-vav, itakka means shelo .... So what's over here? Over here, bedavka Rashi didn't want to learn like that, because over here the kavachomer is not mashma like Tosafos pshat. Shelo ..., there shouldn't be a shevuah, so what's your kal vachomer fakert? What are you asking? It means, what would you have me, what was your maskana, which is really what I asked you on the Maharam. What was your maskana? That means you held that drosh d'maina is a good reason, so don't ask me kal vachomer fakert. Now this is not a drosh d'maina. It's a beautiful Rashba. But the Rashba's saying is that be'emes Tosafos is right, in kol haTorah kulah and in Gemara Bava Kamma. Why over here does Rashi not say like Tosafos then? Zogt the Rashba, because the kal vachomer doesn't fit into Tosafos. What's the kal vachomer according to Tosafos? What's bothering him? So he says it's not drosh d'maina on this. The svara is drosh d'maina on this, not drosh d'maina. But taka pshat then in Tosafos, the kal vachomer. The Rashba is right. If drosh d'maina was the reason not to make the shevuah, so what was the kal vachomer of the Gemara? What does the Gemara mean? I was thinking, pshat, here's the lomdus that the machlokes Rashi and Tosafos in our sugya is, d'hainu, for some reason in our sugya Rashi held, I don't want to learn Tosafos pshat, meaning, hagam drosh d'maina can mean like Tosafos, here I don't want it to mean like Tosafos. I have to come up with a new yesod, a new pshat in d'Rabbanan. Tosafos says, No, I like the old d'Rabbanan. אי הכי, ... Rashi's kashya, so what's the machlokes? What are they arguing? I think the machlokes is like this. Remember we spoke, what's the machlokes in the Mishnah? Psak sofek u'psak vadai. Tosafos, we were medayek from Tosafos that each one is mamash a muchzak. Each one's mamash holding. And since each one is mamash holding, so it's vadai. Ah, it's not vadai; whatever, it's vadai. We said Tosafos, it's not vadai in the beginning, but whatever it is, they're both muchzak, and that's gorem the machlokes. In Rashi, he was clarifying. He could say it's a psak sofek. That's the machlokes rishonim: is it psak vadai or psak sofek? On the side that you learn it's psak sofek, could you be mechalek Tosafos and Cheshbon? Make a cheshbon. Should the ... say yesafek l'beis din, so what's the nafka mina? סוף סוף, our ... is a psak sofek. What's the nafka mina? What's gorem the safek? If you learn Tosafos that it's a psak vadai, you can be mechalek and say that where the machlokes was, b'loi tani seifa sofek, then it's a psak sofek. See the difference? In other words, once you learn our Mishnah is psak vadai, then you can come and say, you know the chiluk of ...?

Anything is suffix, so the whole psak is going to be a psak. It's not going to be a psak; something's a psak. There was no she'eilah. But if you learn our Mishnah anyways to be safek, then anyway our Mishnah is meisafek. So then what's the chiluk between Sukkah and our Mishnah? What? Say it again. Rashi learns that the drachim of ma'ayan is chasar mamon, and that's the reason for not having a shevuah. Tosafos learns that Reb Eliezer's ... is safek. And l'chorah the way the Velt learns, the way the medayekim Tosafos, it's a safek without the beis, safek anyway. L'maaseh it's up to the Rashba, that Tosafos is writing kol haTorah kulah, and all of Shas Tosafos is writing. Pumki Rashi didn't want to learn that way. He had a raya from the Gemara. Why tacky does the Gemara not want to learn like that? And the teretz could be very pashut. In our sugya, it doesn't fit to say Tosafos pshat if you learn that the whole psak of our Mishnah is safek. If the machloikes in our Mishnah is mi'safek, so the machloikes is not a real psak; it's a safekdige psak. So then what's the chiluk between that and Sukkah? Rashi learns could be that the whole machloikes in our Mishnah is mi'safek. And if the machloikes in our Mishnah is mi'safek, could you answer Sukkah doesn't have a shevuah because beis din it's a safek? Our Mishnah is also a safek; it's not a real psak. So what's the chiluk between our Mishnah and Sukkah? Tosafos could have learned that the machloikes in our Mishnah is a vadai. Mainly, you can come and say, so sumchus is different because it's misafek. What is Tosafos? Sumchus is, b'loi taanisei, yei safek l'beisin, and the way the velt learns the pshat in Tosafos, safek mamon l'atzmoin v'libeisin. So then you can come and say, achloikah b'loi shvua. Why do you think I'm saying the shvua for? Why do you think I sit here for? If you learn, if, if, if you learn Rashi that it's a psak safek the whole thing, then a chrami. So what's your teretz? Sumchus doesn't have a shvua because it's a safek. What do you answer me? It's the same thing. What, the chiluk is if it's safek with the taanis, safek without; it's all safek. But the difference, why it's a safek. And when there's a safek, it's a shvua. Mah she'ein kein Tosafos. Tosafos could have learned that it's psak vadai. And since it's a psak vadai, sumchus is different; it's a psak safek. Then the Gemara has a very nice teretz. Now listen to Cheshbon a little bit. What did we speak yesterday? We spoke yesterday, so what exactly is mechayev the shvua? Is mechayev the shvua the achloikus, or is the mechayev the shvua the taanis? If you learn that the mechayev the shvua is the achloikus, so you mamash can't answer, sumchus is b'li taanisei, yei safek l'beisin. What's the geir? What's the b'li taanisei l'beisin? Doesn't help you anything. Just like the chalukah here is misafek, and a chalukah misafek is mechayev a shvua, so here's two sumchus. A chalukah misafek is mechayev a shvua, and there's no teretz; it's a memona. The way I explained to you yesterday, avada, Tosfos, Rashi could have learned that d'roza d'ma'ina is tofes. Meaning, l'maaseh, in our Gemara, in Sukkah, it's a safek without a taanis, and in our Mishnah, it's a safek with a taanis. Maybe that's the chiluk. But the way we learned, the whole yachlokes was based on—not have a yachlokes based on the—I'm sorry, the whole shmuah is basically a yachlokes b'safek. So d'roza d'ma'ina is not going to help you anything in Sukkah. If you learn like I explained to you yesterday, that the shmuah is based on every yachlokes needs a shmuah, so what's the difference between our Mishnah and Sukkah? The Bnei Tani say with a taanis is a safek, pasak safek. I'm just trying to explain to you, אי למעשה you're going to come and see there is a chiluk. Sukkah is without a taanis, and in the Mishnah it's with a taanis. Yeah, but what's the reason for the shmuah? The reason for the shmuah is a pasak safek. What's the difference, with taanis, without taanis? If the Mishnah is a pasak safek, you don't have a teretz. You don't have a teretz to d'roza d'ma'ina in Sukkah. This goes back to the chakirah I told you yesterday also. Was the Gemara's kasha the Mishnah, or was the Gemara's kasha Sukkah? If you learn that the Gemara's kasha...

So, in a chanami, you could come and say the chiluk is tainus and not tainus. In other words, yesterday I told you two nekudos. Reishis kol, you have to know that the chalukah needs a shevuah. And the second nekudah I told you yesterday was the kasha wasn't from shevuah; the kasha was on the Mishnah. How could the Mishnah say you need a shevuah? Chalukah b'safek doesn't need a shevuah. What are you going to answer me, that there's a safek? That's gufa the kasha. Wherever you have a chalukah mi-safek and you don't need a shevuah, so what's pshat in our Mishnah you need a shevuah? What's the teretz? Over there it's to drive the memuna that that's gufa the kasha. Every pasak safek needs a shevuah. Every machlokes mi-safek needs a shevuah. Which means if you unravel it, reishis kol, if you weren't that it's not the chalukah that's mechayev, it's the tainus that are mechayev the shevuah, then you can say very nafka mina: here it's with tainus, here it's without tainus. Tosafos is cheshbon is only a cheshbon if you work with the tainus. You want to know what's mechayev the shevuah, the tainah? Here there's no tainah. Beautiful. But if you learn like we told you yesterday, that it's the chalukah that's mechayev the shevuah, and the kasha was never from shevuah, the kasha was on our Mishnah: how can you have a machlokes mi-safek and need a shevuah if shevuah is never ... you need mi-safek? So what's the teretz ...? So safek we do that. That was gufa the kasha. That's gufa the kasha. So what, Tosafos? Tosafos is geshmak now. Tosafos was learning psak vadai. So what's mechayev the shevuah? About the psak, the tainus are mechayev it. But Tosafos is geshmak: b'loi tainus, ... mi-safek ... There's no tainah. There's no reason to be chayav shvuah by sofek. See, he learns the derashah of the ma'ot without the taanis. The derashah of the ma'ot is without the taanis. There's a safek anyway, so there's no reason for a shvuah. Ah, you'll ask me a kasha: so what's the kavachomer according to Tosafos? It's not a kavachomer anymore. Once you're telling me that without taanis there's no shvuah, so now a Mishnah where there's taanis there should be a shvuah. So what became the kavachomer then? Which is whose kasha? It's not this kasha. It's saying that's what Rashi did when we learned like Tosafos. So what was Tosafos then? What was the kavachomer according to the way Tosafos learns the Cheshbon? I'm thinking maybe that's pshat in Tosafos. Tosafos is a Cheshbon like this: פירוש, שבלא טענתו הוי ספק לבסוף, דיש לאחד תביעה חבירו בלא טענתו. Tosafos doesn't say that it's a safek and he talks the psak, it doesn't do that. Tosafos says taanis, teviah. Tosafos is mechalek the teviah. Here the teviah is because you tevea; he has the teviah anyway. Pshat in Tosafos, because Tosafos learns that the nekudah is not safek or not safek. Tosafos learns the nekudah is you have a teviah; teviah mechayev a shvuah. But now where the teviah is memeila, that's why Tosafos speaks teviah. Rashi learns that whenever there's a safek b'etzem, so when there's a safek b'etzem, meaning there should be no shvuah. So if Rashi would bring Tosafos, that's how he would bring Tosafos: safek b'etzem. Tosafos learns that it's a psak. So what's the mechayev of the shevuah? Not the psak. What's the mechayev of the shevuah? Because I have a ta'ina, you have a ta'ina. So where they don't have ta'anos, so Tosafos, there won't be a shevuah. So does he have to go back to the chalukas misafek, or does he have to say that bedef, you don't have a ta'ina? So that's why Tosafos speaks that the tefiah is b'meila. Tosafos discusses the tefiah. Tosafos discusses the safek, the machlokes misafek, because it's not נגד Tosafos. Tosafos never behandled that the shevuah, not shevuah, depends on the safek. Where you have a ta'ina, there's a shevuah. אי למעשה, over here by somchus, the tefiah is b'meila with the tefiah. There's no chiyuv shevuah on a b'meila tefiah. Huh? So what? In our Mishnah, if you have a ta'ina, you have a ta'ina, כולי עלמא. Why do you need a ta'ina? You're not a muchzak without a ta'ina. Why do we? Also, what's the ...? One second, give me a second. I'll explain to you the ... There's a Tosafos. You can listen to me. Draws a ... Tosafos is based on a shita that—

Why? In our Mishnah is vadai. ממילא, what's the chiluk? סומכוס, ספק. So he asks, why does he discuss safek? Why does he discuss the tefiah? Let's discuss it as a safek beis din. And the teretz is very good. Because Tosafos learns that our Mishnah has a shevuah because of a tefiah. So Tosafos is learning, you know something? I want to be mechadesh that sumchus is a tefiah, but it's not a tefiah that you're tovea; you're b'meila have a tefiah. On a b'meila tefiah there's takanas shevuah. Since I'm learning the sugya is not about the chalukah, vadai and safek, but rather it's the shevuah because of the ta'ina. So I want a ta'ina that by sumchus, says Tosafos, I want to explain, says Tosafos, that by sumchus there is a tefiah, but it's not a tefiah that you're being tovea; it's a tefiah me'eileha. It's a tefiah me'eileha. A tefiah me'eileha is not mechayev a shevuah. Pshat? And what's the tam ha'davar? So let me tell you over, there's a geshmakke Tosafos. Tosafos learns that in sumchus's case, machlokes part of a chamor, so mefurash in Tosafos, tav tzadik tes, tav zayin amud beis, dibur hamaschil leima. It's a Tosafos, kuf tav tes zayin amud beis, dibur hamaschil leima, that the case of sumchus of drabimamona is ki'ilu shnei muchzakim. The machlokes of sumchus is based on the ki'ilu shnei muchzakim. One second, look at it. Tosafos learns in sumchus, ki'ilu shnei muchzakim. Meaning, the machlokes is not the issue, because מצד the machlokes they're both מוחזק. מספק they're both מוחזק. What does Tosafos mean? What's the difference if I'm both holding it tiny, or I'm both not holding it, misafek? Says, ki we both have, because we both don't know, we both have a lashon of tefirah. Teis says you do have a tefirah. It's not just a safek, we don't know what to do. Each guy is called a muchzak misafek. I said that once it comes an afkamina l'maaseh between simchas and a mishnah, a tefirah and a tefirah me'eilav. Where there's a tovea, there's a shevuah. Where the tefirah is me'eilav, there's no shevuah. Emes, emes, emes. Real pshat. This is real pshat. This is it. Pashut, everybody learns, the world learns, that what a Teis means, that there's a safek b'etzem. I ask you, why does Teis speak about the tefirah? Just say it's a safek b'etzem. B'maaseh there's a Teis. Teis on kuf tezayin tells me clearly that it's considered like they're muchzakim. Whatever yachloku of our Mishnah is, you should know is the yachloku of simchas. Don't think the yachloku of simchas is any different than the yachloku in our Mishnah. And then the Gemara has a good kasha: why is there no shevuah by simchas? The teretz is very geshmak, because true that there's a tefirah, and true you're muchzak because of that tefirah. Why do I have a tefirah? Because we both have a tzad that it could be mine. That's enough of a tefirah. Maybe it's mine. But the fact that it might be mine is a tefirah already. But was I tovea that tefirah, or it's a tefirah me'eilav? It happened by itself. B'eilam, on a tfei me'elav d'zo shvua. Al this is a tviah that you're tovea, and that's what Tosafos means. פירוש, דלאי טענתי מספק בבית דין, דיש לו אחד תביעה חברו, שלא יטעננו. That's what it is. You have a tviah b'meilo. On a tviah b'meilo, there's no shvua. Why does he not say it's a safek, a psak safek? Beis din's called tofes sheitasei, that al miskas sak vadai. So why does he just come in and say that sumchus is psak safek, and the teretz is we hold a psak is not safek? By sumchus they get it because each one has a claim. You know why it's a no shvua? The teretz is because he didn't claim. Only a claim can be mechayev a shvua. So what's the machlokes? The machlokes is Rebbi Shmuel. The machlokes now becomes matoch, where d'varim ha'ba'im. שלאו טענתי מספק לו בית דין. A tviah me'eilav is not mechayev a shvua. Yeah, but l'maaseh, you have a ta'ina, meaning, meaning, just like you have a ta'ina to keep it, he has a ta'ina against you that he should have it. So why is it no shvua?

That's the kavachomer. Kavachomer becomes, if you're going to tell me there's no shevuah where there's a draisa mema'ina, a tviyah me'eilav doesn't have a shevuah, so you say, fakert, the opposite. To where I am tovea, so avada there should be a shevuah. It's a svara afucha. Meaning, because sof sof every person has a ta'ina to forget, so I'm stronger ta'ina. Why do you look at his tviyah to be mechayev me? Why don't you look at my tviyah to keep it? On the tzad that I'm a tovea with a ta'ina to keep it, I'm stronger, so I should need a shevuah. That's the kavachomer of the Gemara. The kavachomer wasn't that, let's take a look: he has a doraisa mema'ina, and our Mishnah, there's no doraisa mema'ina. So what are you going to come and say? Since he has a doraisa mema'ina, he doesn't have to make a shevuah, which means there was no ta'ina to mechayev him a shevuah. Yeah, but where there's a ta'ina, there's a reason to mechayev a shevuah. Wait a second. With a ta'ina, that's the reason I should keep mine without a shevuah. That's the kavachomer. Pretty geshmake Gemara here. Each guy's ta'ina kula sheli, so where I don't ta'ina, I get half mivadai, on the mere fact that it's a safek I get. So where I have a safek plus I ta'ina, I'm a muchzak with a bari, which is what I spoke to you yesterday from the Kiveiger. Every time you're a muchzak and you're a bari, it's ma'alin the muchzak, makes the muchzak stronger, so I should keep without a shevuah. That's the maskana. Beautiful Gemara. One day you will appreciate. One day you'll understand that this is beautiful. פלא, it's gevaldig. I'm telling you, it's a gevaldige nekudah. Beautiful. What are you trying to know is, on the side of the Gemara, that every time you have a safek, you get it anyway, like Tosafos says over there further on, midin vadai ka'ilu, ka'ilu midin vadai. Which means that every time there's a safek, you have a tevia to get, and you get ka'ilu vadai. So if I taina kuli, with a tainas bari, how much stronger am I in my taina than who says I should even need a shevuah in the first place? Who says I should even need a shevuah in the first place? That's the Gemara's kal vachomer. If I have the kal vachomer that comes to tell me that I'm patur from a shevuah by sumchus, should kal vachomer tell me that it's my taina and a safek, I shouldn't have to make a shevuah to get? That's the pshat in the Gemara. Beautiful. Kasher the Gemara was, according to Tosafos, l'maaseh you see that in sumchus's case you're getting mitainas chalukah vadai. Tosafos held that even sumchus is chalukah vadai. The only thing is, there's no taina to mechayev a shevuah. Say, wait a second. Where I get vadai and I don't have a taina, I have to make a shevuah, so where I have a taina, why do you look at the other guy? Look at me. I have a taina. I shouldn't have to make a shevuah. Who says, look at him, look at me? That's the kal vachomer of the Gemara. Rashi. What did Rashi hold? Rashi held that the whole sugya was safek. The whole sugya was safek, which means the Mishnah is a chalukas... Safek. Drabanan means that it's also chalukah safek, right? Well, the thing is, you can't answer chalukah safek. You couldn't answer that. So what does he answer? He answers, drabanan. He answers drabanan because you can't answer, because it's also chalukah safek. So what's Chosar Mamon? What's the svara, Rashi, Chosar Mamon? I was thinking, on the side that it's chalukah safek, so then what's the ta'ana chalukah safek? That the yachloku is misafek, because we don't know what to do, and that yachloku is mechayev a shevuah. Then he's saying, devaldi gevora. You want that he should have a chisaron mamon and lose? That's not fair in the chalukah. If the shevuah is b'etzem, if the shevuah is takanah mechuyav, so what's not fair? That's the whole shailah, fair or not fair. But if the shevuah is based on the chalukah, which means that's a chiluk in the chalukah, yachloku b'shevuah. It's not a chiluk. It's ein hachlukah chiyuvies shevuah; it's not a fair chalukah. Because the guy who's losing, really, not only he lost, he has to swear shevuah also. That's the Gemara's kashya. The Rishonim ask, hey, what does Rashi mean, that the chalukah is eini...

Since you lost, you should make a shvua. Because how could you lose and make a shvua? I ask you, what do you mean? Either you have to make the shvua or you don't have to make the shvua. Tosafos learns that the whole sugya is misafek, the chalukah, and the shvua, like I explained to you, is because of the chalukah misafek. So he's saying it's not a chalukah then. What's the chalukah? The guy who lost, the guy who lost, not only he loses, he also has to make a shvua. That's what the Rishonim... Yeah. If you make shvua, you're going to divide half. Let's say we divide, right? That could be no choice. But on the side that you're really losing, so you're losing and you're making a makeh shvua, zog the Rishonim, there's a problem with the chalukah like that. That's not a fair chalukah. If you make shvua, you're going to divide half also. If you make shvua, you're not going to... Each guy is getting half. But the person who's telling the truth, not only he lost half, you make him get a shvua on his half too. Why am I saying this? This is in accordance I'm telling you. Who says we have to look at you, the one who's being mechayev the shvua? Let's look at the one who's getting, the one who's going to have to swear to get. Zog the Rishonim, that's not fair in the chalukah. So according to Tosafos, it's like this: why do we have to look at the shvua l'gabei the one who's making the shvua? Let's look at the guy who's ta'ining kulah sheli. Let's look at him, and when you look at him, what happens? Then there's no reason for a shvua, because he's ta'ining kulah sheli, he's ta'ining a bari, and he's a muchzak. Rashi learns the same thing in the pshat sofek. What's the sofek? The sofek is mechayev a chalukah. So why do we have to look at your shevuah l'gabi because he's mechayev you a shevuah? Let's look at the person who's getting half b'shevuah and when he was right. He's a muchzak. He's a muchzak. He's right, and he has to make a shevuah to get what he has to get. Can't be such a chalukah. That's not a fair chalukah. If you're a muchzak, so you should get what you have. Why should you make a shevuah also? You're right. If you look at the other person, so then you're mechuyav a shevuah. So why should you not make a shevuah? That's fair. But if the shevuah is anyway not needed, the shevuah is anyway because of the chalukah, so in chalukah, how can you make a shevuah? That's a special chiddush, ... especially yesaid. How could there be a shevuah where one is being mechusar mamon, where one is completely losing? I have a teretz in Nachlas David's kasha. What was Nachlas David's kasha? He's losing. He's losing. So could be you can come and say, maybe, maybe if it's not memona, it's not memona anyway. Ela mai, it's a sofek in the chalukah. If it's not memona anyway, so it's not so bad. This is a sofek who picked up the talis, the hilches sofek, who picked up the talis. We're not going to come and say that you're losing and how you can make a shevuah. If it's memoncha, then it's takkeh not fair. It's your money. It's takkeh yours. You're losing money. You're a muchzak, and you're still have to make a shevuah to get what you have to get. Maybe, maybe in such a case, there's no sofek, ... What do I have from this? Then we'll just ... What was the kasha of the sugya? Was the kasha of the sugya, סמוכוס, or the kasha of the sugya was our Mishnah? Remember I asked you that l'choira from the sugya, l'choira is mashma the kasha is the Mishnah, not necessarily. That's about the way we're learning. The kasha was never סמוכוס, how you tochen סמוכוס, d'varim b'ma'ino. The kasha is in our Mishnah. Our Mishnah applied d'varim b'ma'ino, so the sevara is for sure you should make a shevuah, even according to Tosafos, according to Tosafos and according to Rashi. The sugya, the Gemara was laying out, loi ka-sumchus. The kasha is not Sumchus. The kasha is, who says? D'varim b'ma'ino, we understood. Shema loi tani seifei sofek l'beis din, what happens? You don't have to make a shevuah. Zogt the Gemara, kavachomer, which means in our Mishnah, the problem becomes our Mishnah. How can our Mishnah be a machlokes b'shvua? That becomes the shakla v'tarya of the sugya, if according to Rashi, if according to Tosafos. Okay, this is it. I just want to—I thought I only want to do the last five minutes, so maybe I should repeat the last five minutes. Huh? Why? I explained to you in Tosafos what the kavachomer is. You know what the kavachomer is? The kavachomer is like this: if each one is getting, each one is getting by d'varim b'ma'ino, a machlokes vadai.

Clearly, ... so why is there no shvua? There's no shvua because it's a taina b'meila. He says that's the same chesron that in our Mishnah should be shvuah too. Why? Because you're right, if you look at the one who's making the shvua here, it's worse because he's saying a taina. But if you look at the one who is getting the shvua, much better, because he's taining also. If you get yachloku, mi'safek, without a taina, so when you're taining it's a surely should be yachloku. That's Tosafos. That's the kasha in Tosafos. What do I have to say? That the chesron of the Gemara was never the one who's being mechayev the shvua. The chesron of the Gemara could have been the one who's getting the shvua. We have to look at him. Even according to Rashi, the sugya is beautiful. What's the sugya according to Rashi? Rashi learns the whole thing is safek safek. What is d'ror d'mema'na? D'ror d'mema'na is a star mamon. Maybe Rishonim, is it fair that he should be mechaser mamon and make a shvua? What do you mean fair? What are you talking about? The whole shvua is mitzad yachloku. Hey, you have to know the yachloku has to be fair. Is that a fair yachloku? Is it fair that the person who taka is right should get half and he should make a shvua? So bishlama on the getting half, we can't stop it because there's no other way to pasken, so at least let's cut away the shvua, because the meileh each one's getting half. How can it be that a guy is right, he's a muchzak, he gets only half, and he still has to make a shvua to get his half? That's not a fair yachloku. Somechos holds it can't be such a thing. What do you mean fair? Just because it's shayach l'chalukah, that's not called a chalukah. A, B, because that's the chiddush in Gemara. We don't look at the mechayev of the shevuah; we look at the one who's swearing. That's the kabbal. The kabbal chayiv in the Gemara is don't look at the one who's mechayev the shevuah. Come and look at the one who's getting with the shevuah. The lav kabbal chayiv should make a shevuah. Rashi holds, like Tosafos, that's the kabbal chayiv. The kabbal chayiv was never the one who's being mechayev the shevuah. The kabbal chayiv, the kasha of the kabbal chayiv is the one who's getting with the shevuah. Why do you need a shevuah together? Tosafos learns because he's ta'ini. Rashi learns it's not what kind of chalukah. How can a guy get with a shevuah and he might be right? The chalukah is that he might be right. On the side that he's right, you want him not only to get half and lose; you want him to make a shevuah to get his half. In other words, the chalukah. In other words, the kabbal chayiv always is to turn the table to the opposite person. That's the kabbal chayiv. According to Rashi, according to Tosafos. According to Tosafos, it turns it to the opposite side of the table. Don't look at the guy who's mechayev the shevuah. Look at the guy who's going to swear. Why does he need to swear? He's a muchzak and he's a ta'inas bari, like in Kneges is ma'amid the ta'ina. What do you want from the guy? He doesn't need to swear. According to Rashi too, the kabbal chayiv is to turn the table. Don't look at the mechayev; look at the one who's swearing and keeping. Whatever he's telling the truth to you, and he's swearing to keep half of—it's all his. He gets half and he swears for that also. That's called a chalukah. If you want to make a chalukah, yachloku lo shevuah. That's the Rashi and the Tosafos. Ayein Munach. Our Mishnah tells us, shameichzin b'talis, there's a safek, yachloku b'shvua. The p'sak of the Mishnah is yachloku. Says the Gemara, אי אפשר למימר מתניתין דלא כרבי יוסי. The Mishnah is not like Rabbi Yosi. The ikar Rabbi Yosi, amar, אם כן, מה הפסיד רמאי? Im kein, what if the ramai? What did the ramai lose? So what exactly is the kasha? Is the kasha that Rabbi Yosi should be yachloku, or is the kasha that the Mishnah should be yehei munach? We spoke about this diyuk already. The Rashi is clear: והכא נמי יהא מונח. Rashi tells us the kasha was not, why does Rabbi Yosi not say yachloku, but rather the kasha is, why in our Mishnah does it not be yehei munach? You have to ask, pavos, why? Why does Rashi learn that the kasha is the Mishnah and not Rabbi Yosi? So, k'pshuto you could say, the lashon of the Gemara is mashma like that: למימרא, the question is the Mishnah. The question wasn't Rabbi Yosi's in there, hayitachen Rabbi Yosi paskens. L'maaseh, the lashon of the Gemara...

As leima masnisin d'lo k'Rebbi Yosi, which means the psak of the Mishnah is what's bothering the Gemara. And understand what I want. L'chura, when you have this leima masnisin d'lo k'Rebbi Yosi, it could work both ways. Is the problem the psak of the Mishnah, or is the problem the psak of Rebbi Yosi in the case of im kein, mah הועלת לנו? Rashi says clearly the problem is the Mishnah. L'chura, why would we think that it's the Mishnah? Why should Rashi say that? Because the lashon is mashma that it's a leima masnisin d'lo k'Rebbi Yosi, that the Mishnah is not Rebbi Yosi. It's not a kasha Rebbi Yosi, but this Mishnah is not Rebbi Yosi. L'maaseh, you can't say that, because you see soon in the Gemara, line later, the Gemara wants to say that it's not Rabbanan either. And there Rashi learns clearly what was the kasha, like I showed you over there. How could the Rabbanan say by the manah shelishi, yehei munach, let them say yachloku? It's under the same nusach of leima masnisin d'lo k..., and the kasha is not the Mishnah, but the kasha is yehei munach of the chachamim. That's from Tosafos, why. Why did Rashi learn that the kasha on Rebbi Yosi is the Mishnah, and the ela mai Rabbanan is the kasha over there, manah shelishi shouldn't be yachloku? Why is it that way? Another ha'ara we asked in Rashi. Rashi says in Rebbi Yosi of the second pshat in Rebbi Yosi. The Gemara brings two pshatim in Rebbi Yosi. Hasam vadai ika Ramai, first teretz is vadai Ramai, and the second teretz is, i nami hasam kanis lei heichi d'lo... So l'chura the nusach of Mishna is the second teretz. The nusach of meid is the second teretz in Reb Yosi. And on that the Gemara says, Ela machvarta leshanina me'ikara, because we had a kasha from echa memka. The Gemara says, You're right. The second teretz isn't right; the first teretz is right. So why does Rashi speak about the loida in Reb Yosi? That's bechurah the second pshat in the Gemara, which the Gemara says, Ela machvarta leshanina me'ikara. Tosafos l'maaseh tells us that ela machvarta doesn't mean we fall away completely from the first teretz. Maybe that's what Rashi held. Rashi held that they're both emes. Ela machvarta, the better teretz. The Gemara didn't say that it's wrong. It's the b'di'eved lashon of the Gemara. The Gemara never said that the first teretz is wrong. Ela machvarta, the better teretz. But in emes, l'maaseh, say in English, reality, the reality is that both emes. They're both true. Say emes, they're both true. Ela machvarta, but the better teretz. Why am I saying this? You have to learn the Gemara. Very important to read the Gemara inside. All the peirushim, all the Torahs, that you could do on your own when you become bigger yeshiva. I'm not here to be a bigger yeshiva. I'm here to learn pshat. Machvarta, the translation of machvarta is what? Better. Did the Gemara say that the first pshat is wrong? Gemara never said that. If you look back in Tosafos, Tosafos says, We takkeh don't fall away from the first pshat. Mimeila, Rashi is not a kasha that he speaks loida, because that's also emes. Im kein, I said, Ramai, that he should be meidah. L'maaseh, you have to know why would Rashi takkeh speak the second teretz over the first teretz, meaning, where does Rashi see in the lashon, Im kein mah hifsid Ramai. If so, what did the Rambai lose? L'chura, the lashon of the Gemara is taka mashma the second pshat in the Gemara. Why? What's the lashon, Im kein, if so, mah hifsid Rambai? What did he lose? Just saying when it's vadai Rambai, there has to be a loss. You don't have to ask the kasha, Im kein, if so. What's the nusach? If so, mah hifsid Rambai? If so, what did the Rambai lose? Ki'ilu, haya tochen it could be that the Rambai shouldn't lose. What's haya tochen? And the answer is because he won't be modeh otherwise. So be'emes Rashi is not saying more than the nusach of Reb Yosi, which is be'emes where the Gemara gets the second teretz from. What's the lashon? Im kein, if so, mah hifsid Rambai? What's the lashon, if so? What do you mean, if so? Just saying it can't be because of Rambai. Don't say if so, what did the Rambai lose? Ki'ilu, if so mechtais is going to be modeh, which is really the second pshat in the Gemara. L'maaseh, Tosafos speaks about Reb Yosi, first pshat, and he says, l'kach kanis lei, they're both a knas. Even in the first teretz of Reb Yosi, it's also a knas. So you have to fatach, you have to understand what's the difference between the first teretz and the second teretz. The first teretz...

And the second teretz is knas. So what's the difference between the two? You have to say that the first teretz is knas. פירוש, מדין דצריך להיות a knas here. And the second teretz is it's only to get to what? ... And what he should be mevatel. That's how it's supposed to be a knas. Tosafos says it clearly: התם ודאי עיקר טעמא, לכך קנסו ליה, גם דמה שהוא שלו, דוודאי. אבל הכא אימת הווי בהדדי, it's also knas. You want to ask? Go ahead, quickly. Do you know what I want? The first diyuk, the first ha'arah is Rashi that learns that the kash is the Mishnah for Rabbi Yosi, and for the Chachamim it's their psak of v'yeimunach over there; it should have been what? Yachloku. And then the question becomes why. I tried to work, maybe it's in the lashon of the Gemara, leima masnisin, that it comes to leima masnisin. You know they ask, why say leima masnisin, which means it comes the Mishnah, not the psak. We do with the Rabbanan, though. Ela mai Rabbanan, there it is taka the kashes on the psak and not the Mishnah. So you see it can't be talui on the lashon of the Gemara. It's not because of the lashon of the Gemara that Rashi learns that the kash is the Mishnah, not the psak in Rabbi Yosi. So what is? So that's ha'arah number one. The second ha'arah you have to ask, in Rabbi Yosi, im kein, if so, mai heitzi Ramai? So Rashi explains the lamah yeitzei, why should he be mevatel? Now if you take a look... That is actually the second pshat that the Gemara says in Reb Yosi. And that second pshat the Gemara says that we have to fall away because of mekach ta'us. The Gemara says, You're right, that the first pshat is better in Reb Yosi than the second pshat. Why would Rashi bring l'chumra the second pshat, not the first pshat? So I tried to clarify with you, because Tosafos themselves says we don't fall away completely from the first pshat. And I'm saying, where does Tosafos get that from? Also the nusach haGemara is machlavta. What does the word machlavta mean? Better. It's a better teretz. Does that mean that it's mamash a ta'us on the first? It's not muchrach that it's a kasha on the second teretz, not muchrach. You could say that you have a hora'ah, which means you need still the first teretz, but avad the second teretz is also. Which means you don't have to fall away completely from the second teretz. You have to explain that also. What does that mean? The first teretz and the second teretz are saying two different reasons. Bichlal, you have to explain the machlavta, shenina mi'ikara. It means we have the first teretz and the second teretz. If you have the first teretz, you don't need the second teretz. What does it mean that we don't fall away completely from the second teretz? Those things have to be explained. Al kol panim, another question would have to be is, so why takke does Rashi bring the second teretz? Good, you're right. There's the first teretz and the second teretz, and we don't fall away from the second teretz completely. And the first teretz is machlavta, the better teretz. So why takke, when Rashi explains, he explains that it has to be... One step further, lemaaseh, lemaaseh, the lashon of the Gemara is takke muchach, that teretz. Why? Im kein... If so, I mean, if so, let's say that we can't pasken like a chacham because there's a Rama here. So the emes is, Tosafos is takkeh mistama bothered by that kasha, and that's why he learns in both terutzim it's a knas. So obviously both terutzim is not that, ika d'din it should be what? It should be yeimunach in Rabbi Yosi. But in both, side the first teretz, side the second teretz, it's a knas. The first teretz it's a knas because of Rama, and the second teretz it's a knas because of what? Because of kehicha d'loi. Punishment. I mean, again, I have to explain this, but again, does it say it here? Did you see this before I said it? Maybe not, and now you see it because it says it. I'm not saying more than what it says. U'maiseh Tosafos says, kasav meha d'ika Rama. So that's the first teretz, right? What is it? Mitach knas. So in both terutzim it's a knas. Where's the hochacha for that? Because takkeh the lashon, im kein. Im kein, mah hifsid Rama? Not because it's Rama. Im kein, mah hifsid Rama? If so, what did the Rama — which means if you leave this psak, which could have been, we're left with a problem that the Rama didn't lose. We have to — not because we can't pasken like this because it's Rama. Just saying, we can't.

If pasken is to the Rambam, what's im kein if so? Being bad, then we could have paskened. Shaila is only, im kein if we will pasken so, mai saidanmai, we have to put a knas. So the first teretz is knas. The second teretz is knas keged haloydi. The shaila is, what's the two terutzim? Huh? The first teretz is that it's knas, the etzem, he can't be mechayev. In other words, hagam the fact should have been yachloiku, but it won't be because of the knas. So he won't get what he wants, though he won't get his chelek. It's not like that. That's not the Gemara. The Gemara says one in Tosafos, two. The first teretz, the second teretz, what's the difference? Why should there be such a thing as a knas, not keged haloydi? What's the maaseh? Okay, good, good, that's what we're sitting here for. Unless maybe you want to take over, no problem. So what do you see from Tosafos? That there's two dinim knas in Reb Yehoshua. There's a din knas b'etzem, and there's a din knas keged haloydi. But maaseh, Rashi doesn't say that. Peirush, Rashi l'chora is pashut in the im kein, and he speaks about keged haloydi. I thought that's the second teretz of the Gemara. Unless you learn Rashi learns that keged haloydi shayach in both cases of the Gemara. So what's the difference between the first and second teretz? What is the first and second teretz? Ela mai, you're saying it's paka all one teretz, and we don't fall away from the terutzim. So what is the Gemara's maaseh machlokes? That's the ha'arah in Rashi, l'chora. How did Rashi learn the first teretz? What is the first teretz according to Rashi, which is l'maaseh the Gemara says the ikar teretz? So what's the pshat in Rashi, keged haloydi? What is it? No, but you see that we're working hard. You know why it's beautiful? Because I'm learning with you simple kashas teretz. You have to learn the Gemara. It's not working right. Something's not working right here. Rashi tells me that it's kiheicha d'loi... I mean, is that not the second teretz of the Gemara? And the Gemara says that we don't have that teretz, so what happened to Rashi? He's saying, okay, mechlokes, we don't fall away completely. Okay, very nice. Yeah, but why would you say the second teretz, not the first pshat? And then the kasha becomes, even Tosafos is bothered by the im kein. Tosafos is bothered by the im kein, which means the pshat must be a kash. So you learn to Reb Yosi, it's both knas. So what's knas be'etzem and what's knas kech d'loi? I mean, what is it? What are the two knasos over here? Knas be'etzem and knas kech d'loi. What is it? What are these two dinim of knas? Before we get to the rest of the arich on the blatt that we spoke about, we spoke about many arich over here, let me be me'orer one more nekudah, because I think it's mamash a talmida zacher pshat. The Gemara says, Ela mai? d'Rabbanan. Ela mai d'Rabbanan. Says the Gemara, Ela mai d'Rabbanan, keivan d'amar Rabbanan ashaiyei emunah chad yomav l'Eliyahu, ha nami k'shar dami, the safek. Now, l'chora, the lashon of Gemara is like Rashi, not like Rashi, that the problem wasn't the machlokes that should be over there. The lashon of Gemara is, ha nami k'shar dami, and m'meila it should be heimunach. L'chora that's the pshat. So Rashi, be'etzem, is really sticking into the Gemara what's mashma got in the Gemara. And the Gemara is mashma that the promise, ha nami k'shar dami, the sfeiki. So what's the kasha? The kasha is that over here it's mamash like over there. I mean, the Gemara doesn't say that over there is like over here. If the kasha was there, the Gemara should have said that there is like here. If you learned that the kasha is here, so then you say here is like there. Rashi has to fix into the Gemara that we actually, actually what we're asking is there is like here. That's not what the Gemara said. L'maaseh, the Gemara gives a teretz. What's the teretz of the Gemara? אי אמרת בשלמא רבנן, התם דוודאי הימנוה חד מינייהו. It's definitely one of them, says Rashi, mameila what? Since it's the chad minayu, he says Rashi, אין כאן מחלוקת. Can't say machlokes. Over here, there belongs to לומר, can't say machlokes. Now what does that mean? The peshuto the Rishonim take on, the pashut of Tosafos's shitah, al kol panim, is that it's because of chaluki chelki yeser. Since if, bahadei d'ergusa, chaluki chelki yeser. Masha'en kein, over here, where it's by mamon shlishi, it's not a...

Reb Chiya ... Reb Yosi, the ... for the kasher. So what? Where do we say yehei munach when it's a machlokes, eini chalukin yehei? Reb Yosi, the Gemara is still bothered to Reb Yosi. The Gemara has to give two terutzim why Reb Yosi holds yehei munach: it's Rambai, and so on and so forth. Now, l'chora, why couldn't you answer to Reb Yosi the same thing? Because there's a machlokes, eini chalukin yehei. Why do you have to come and give a separate teretz for Reb Yosi? Reb Yosi learned that it's vadai Rambai, and therefore, because it's vadai Rambai, therefore it's yehei munach. Why'd you give the same teretz to the chachamim? Chalukin yehei. Second question now. So why— No. I understand what ... is also about the ... Why can't ... be a liar? The problem isn't the fact that one's a liar. The fact is that the chaluk is not a true thing, because ... can't pasken. Yeah, but I understand. So what's your question exactly? ... I understand it. It's not the same problem. It sounds the same. It's vadai Rambai, it's eini chalukin yehei. But it's not the same problem of vadai Rambai. It's a ... There's nothing to do with chalukin yehei. So the kasha becomes, why do you need Reb Yosi, a new piece of Torah, vadai Rambai? Just speak. You know, chaluk is eini chalukin yehei. I asked the kasha. What do you mean, chalukin yehei? But on the first hundred, there's a chalukah yehei. What's the case of Reb Yosi? The case of Reb Yosi is yehei munach on the whole thing. This line on the last hundred, if you would say, achlukes, achlukei nechelei yeshemis. But on the first hundred, it's not a machlokes, it is emes. So therefore maybe that's why in Rabbi Yosi the Gemara couldn't answer achlukei nechelei yeshemis, which leads me to a shaylah. Now listen carefully. In the case of mona shlishi, is the diyun on the last hundred, or is the diyun on the whole thing? And I'll explain to you what I mean. I'll explain to you what I mean. The Rashba and the Ramban ask a very nice kasha. By mona shlishi, let the nifkad have a din of modeh b'miktzas. Come and I claim that you're supposed to give me the two hundred, and I say no, I'm supposed to give you a hundred. And then you come and say you're supposed to give me the two hundred, and I say no, I'm only supposed to give you a hundred. I'm modeh b'miktzas. And l'maaseh I can't swear because I don't remember who gave me the two hundred. ... The Ramban, lamed zayin. The Rashba, Ramban is both. Okay, now here the shaylah is, shaylah is by mona shlishi, can you be ... modeh b'miktzas? Because I'm claiming you owe me two hundred, and you're answering to me now I only owe you a hundred. I come and I say no, you're supposed to give me two hundred. I say no, I only can give you a hundred, so I'm modeh b'miktzas. And because I don't know, ... let him swear on each one two hundred. That's the kasha the Rishonim ask. This is a big cheshbon, there's big reid in the meforshim about it. L'maaseh, Rav Chaim is another kasha, very famous Rav Chaim. The kasha, that the chiddush is halacha of chiyuv shomer, which means if you give me something to watch, something to hold, I have a chiyuv to return it to you. So why am I patur? Because we don't know, and it's a safek. But maaseh, I have a chiyuv to pay you. I have a chiyuv to pay to you, and I have a chiyuv, and I don't know, so what's there to talk about? Chiyuv to pay. I'll say, I told you to watch it. You don't remember. Well, it's your fault. It's your fault. Each guy should come and be able to collect from the nifkad. Chaim's kasha. Chaim's kasha. Chaim gives a very geshmake teretz. The teretz of the kasha is like this: first of all, the Rishonim ask, each one is a modeh b'miktzas. Each one claims two hundred, and the nifkad says, I only owe the hundred. So it's a modeh b'miktzas. Normally, a modeh b'miktzas could swear, but here's nothing to swear; you don't know. Same thing, the Ramban. Another question asked of Chaim: I don't understand, I'm a chayav to return it to you. How could I come and say I don't know? What's there not to know? So if you don't know, so pay me. What are you talking about? Did I make you a shomer on my money? Yes. Did I make you a shomer? Yes. And you don't know, so pay me. That's the Chaim, a geshmake teretz, a very sweet teretz. It's talking about that they were mafkid it all together.

Henech chinam, you're talking about together. He can't come and say, I don't remember. What those ... Michael, you don't remember? Talking about they were mafkir together. The emes is all one peidah, all one giving. And on one giving I come and say, okay, I don't know who gets what. Why you cannot say that? You should write down who gives. He should write down, but he didn't. That's not the point. The point is, since they gave me together, since they gave it to me together, there's one nesinah. I return it between the two of you. I don't know who gets it. So meila, I'm mechuyiv, the halacha of shomrim, to return it to you or to you. He gave it to me together. L'maaseh, you see from the Rishonim this thing, because the Rishonim wanted to ask a kasha on matanah. The whole kasah on matanah is based on the nekudah that each one has a tefiah, because if each one doesn't have a tefiah, I'm not a modeh b'miktzas. If together your money should be two hundred, meaning together each one is claiming whatever you owe me, together it's three hundred, so then what's your kasah modeh b'miktzas? Each one is claiming. But l'maaseh they put it together. They put it together as one nesinah and one chazarah. On one nesinah, one chazarah, you can't claim I'm modeh b'miktzas to both of you. You see from the Rishonim not like that. Choirah, Reb Chaim says a pelah. The Rishonim, you see that it would have been shayach a taanah modeh b'miktzas. L'choirah, according to Reb Chaim, you don't have a taanah modeh b'miktzas. I think there's a big yesod over here, but you have to pay close attention. In chiyuv chazarah, I'm machzir it between the two of you, says Reb Chaim, and therefore what's the halacha? Halacha is that there's no problem of chiyuv shevuah to return it to baalim. So the when is the safek, and where is the psak? Meaning, the safek is what? Who I owe to, or the safek is on the mamon? Chayav, Chaim, tell me a chiddush. The safek is on the mamon. Safek is not me, the safek is the mamon, right? So in the psak of Yehei Munach, when the Gemara speaks Yehei Munach in the Rabbanan, or Yehei Munach in Reb Yosi, how could there be a psak of Yehei Munach, Rabbanan, on the third hundred if the first two is part of the din of the chazarah? Where is the safek? According to Reb Chaim, the safek is everything. I mean, according to Reb Chaim, where's the safek? The safek is on the third hundred? The safek is on the whole thing. L'maaseh Rashi says in the Rabbanan, not like that. That al mah shehein danim, right? Rashi says it's the third hundred is the she'eilah. What do you mean? They're not dan on the maneh sheini? The din is on the whole money. So Reb Yosi is right, Reb Yosi is right. If there's a psak of Yehei Munach, the psak Yehei Munach should be on the whole thing. What's the Rabbanan according to Reb Chaim? You have to say, avada, avada, there's two things over here. There's one halacha legabei the etzem ma'os, the returning of the money. That's one din. Then, zokt Reb Chaim, in the returning of the mamon, there's no shailah here, because he's returning between the two of them. So then what's the mechayev over here, the psak? The mechayev of the psak has to be lefi ta'nei seinah. The din isn't so much now the machzir; the din is the safek on the mamon. In hilchos sfeikos mamon, where is the safek? The safek is on mamon shlishi. If you want to discuss what he's returning, avada then the safek is on the whole three hundred. But if you're learning, the safek is in the ta'anis, which means what's mechayev the halachah of yei'munah? The yei'munah comes because of the safek. Safek d'Rashi, mishumakishtikah. Because of the safek, the safek actually is on the mamon shlishi, not on the whole thing. So in other words, we have to split the psak and the safek. That's what Rashi is saying. You'll soon see the Chazon Ish. Again, he lost already. That means you lost. That's what it means. He's being a... The Gemara lemaaseh asks on the yei'munah of the chachamim.

What is the Gemara's answer to the eimurach of the chachamim? Because ein hachalukah yecholah lihyos emes, which is the way the Rishonim learn, al kaponim in Tosafos, that ein hachalukah yecholah lihyos emes. The chalukah is not emes, and when the chalukah is not emes, so then we could come and say yeimunach. But where the chalukah is yecholah lihyos emes, we're not going to say yeimunach. That's how the Gemara, kipshuto, answers the kushya. Which means, mamash, lishi is ein hachalukah yecholah lihyos emes. If I ask you a shailah: why does the Gemara not suffice with this for Rabbi Yosi? Why do you need a new teretz for Rabbi Yosi? Why in Niddah? Just say, you know why you don't see a machlokes? Because ein hachalukah yecholah lihyos emes. Rule out the chalukah yecholah lihyos emes, like on this; we'll say machlokes. What's wrong with that teretz? And kipshuto, the reason why the Rishonim don't say this, and the mefarshim don't want to learn, meaning the Gemara didn't—this is not enough of a teretz for Rabbi Yosi, because Rabbi Yosi holds that we don't say machlokes only on the third hundred. We say machlokes even where the chalukah could be emes, not only could be emes, is emes, because each guy did give a hundred, and still they take me away from it. So where's the klal of a chalukah yecholah lihyos emes? I mean, that's for sure. That's for sure should have been a chalukah yecholah lihyos emes, right? That's clear. So obviously we can't answer chalukah yecholah lihyos emes. But let's pay close attention to this: is the chalukah taka the third hundred, or it's all about the three hundred together? If it's all about the three hundred together, then it's ein hachalukah yecholah lihyos emes even on that hundred, even the first hundred. If it's nichlal in the second hundred, and it's all one psak in the meis, so the chalukah, eini chayli esem. I mean, why do we have to say a hundred and a hundred? Oh, that part is emes. The fifty percent emes, and the rest is not emes. Maybe it's all one psak. Maybe it's all one din of chalukah on this three hundred, and then it's eina chalukah, chayli esem, on the whole thing. Now you might say this, because you have to understand the sugya. If the sugya, a hundred, a hundred go off, and the last hundred is the safek, and still Reb Yosi holds, vadai, rami on that third hundred, is that the safek meaning on the first hundred, and we take it away? Or the pshat is the whole deal is paskened on the whole three hundred. Why am I saying this? Because Reb Chaim Brisker has a kasha, and the Rishonim have a kasha. What's the kasha? How could you come and say by money shlish that we behei munach? Why don't we say yachloku? Why don't we say yachloku? Since each one's claiming you owe me two hundred, and he says I only have to give you a hundred, she's a modeh b'miktzas. Because he can't swear because he doesn't know, because he can't swear because he doesn't know, meileh, halacha shehi he has to pay. Reb Chaim has another kasha. Hilchos chiyuv shomrim, I'm mechuyiv to pay you. I have to return the chefetz. So what's the pshat? Oh, I don't know. You know, who cares if you know, you don't know. I'm mechuyiv to pay. Reb Chaim gives a teretz, because they all put it together. As they put it together, it's one hafkadah, one giving. So he puts it down, and that's the end of the story, finished. So what is Reb Chaim saying? That be'emes, the nekudah is not I have to give you or I have to give you. I gave the both of you. I gave the both of you 300 dollars. Now you question whose money it is. If so, if so, the kasher Rishonim form. What was the kasha of the Rishonim? That each one has a claim on the maskil ma'ot of a miktzas. It's one claim. It's not two separate claims that he's modeh b'miktzas on half. They're claiming 300, and he's giving them back 300. Then what's the Rishonim's kasha? And even in returning all 300, there is a tvia and a tvia, which means each one has his own tvia. Otherwise, the Rishonim would ask the kasha, modeh b'miktzas. So how does this work? That באמת, I'm returning the whole thing between the two of you, and למעשה it's two different tvios for 100, for the 200, excuse me. It's two different tvios for the 200. How does that work? What does it say? I explain it to you like this. Let's understand what the psak will be. The psak is based on the chazarah, which means, should he give it back to both of them, or the ta'anis is, we take it, we say, hey, munach. Meaning, is it a she'eilah with the chazarah in the nekudah, or the she'eilah is now we have a din on the mamon, whose mamon it is. Understand that we're not dealing with—

Who to return it to? The din is only, the safek is lefi ta'ameihem. The safek is lefi ta'ameihem is only on the third hundred. The shailah is not the story, and I keep on telling you. If the shailah is the story, the question is, did he give him the two hundred? Did he give him the two hundred? Even the psak yachloku, I told you many times, is not because of what happened. The psak is mamon hamutal b'safek. Which is the mamon hamutal b'safek here? Actually, the third hundred is mamon hamutal b'safek. So the Rishonim are asking, Rishonim are saying like this: On the side that we look at the din of what happened, on the side that we look at the din of what happened, it's been a ma'aseh. Lemaaseh, what's the shitah of yachloku? The shitah of yachloku is not to look at the din, but to look at the safek. When you look at the safek, the safek is on the third hundred. The safek is not on the whole thing. So when Reb Yosi comes along and says that we can't use the teretz of a chalukah yehei liyaser, why? Because the ta'anah was never on the first hundred. The din of safek was only on the third hundred. So even Reb Yosi will not be able to say that we could come and say halachah of the emudach, and say, Oh, it can't be, I'm saying yachloku because of chalukah yehei liyaser. Okay, let me tell you what I am trying to understand: why ha-chalukah yehei liyaser is the teretz for the Rabbanan, and it's not a good enough teretz for Reb Yosi. That's what I'm trying to understand. Yehei yeshivah, the Gemara answers. What do you mean? Rabbanan? It's a kash, Rabbanan, because over there it's eina chalukah yecholah yoser, the way the Rishonim understand al kol panim the teretz of the Gemara. So then if so, Reb Yosi is also a kash. Also, it's eina chalukah yecholah yoser. Therefore, we'll come and say, we'll say yehei mudach. Why am I bothered to say this? Meaning, why is it possible that this is not a good enough teretz for Reb Yosi? Because Reb Yosi holds on the first hundred also yehei mudach, and that's zeh chalukah yecholah yoser. Not only a chalukah yecholah yoser, it's a chalukah emes. It's a true chalukah. I mean, each guy claims a hundred. They're modeh, there's nothing to talk about here. And if the Reb Yosi holds what? Yehei mudach, you see clearly has undone the chalukah yecholah yoser. That's what I would have learned pshutei pshat in the Gemara. You can't answer chalukah yecholah yoser Reb Yosi, because what do you do with the first hundred? This is only true if you learn that the chalukah of the first hundred, together with the second hundred, is two different chalukos. You learn that the hundreds go off, and on the second hundred there would be a yachloku, and on that we could say a teretz, a chalukah and yecholah yoser. If you learn that it's all one big chalukah, which means that we would take the three hundred and divide it, so the hundred is also part of what you're getting in the chalukah. The chalukah is eina yecholah yoser. It's a pashut cheftza. And if that's true, then it is a good teretz for Reb Yosi. This is the kasha that bothers. This is the kasha that bothers. If you learn that the hundred's full wall, and the last hundred, then you could say, Rav Yaisi, why are you taking away the first hundred? It's a chalukah. But if you learn it's all one package, chalukah, which means we take the three hundred and we divide it—not a hundred and a hundred, but rather the whole three hundred we divide it—so the kasha of Rav Yaisi is, eina chalukah chelya. So why am I saying? Because I'm clarifying the first hundred is also part of the deal, so the first hundred's fall away. Where do I get this from? Because then Mr. Shem has a kasha that if I'm moneying the tevea, the nizak, and I'm moneying two hundred and he's modeh the hundred, there should be halacha by the meik. This is the Rashba and the Ramban's kasha on lamed zayin amud aleph, that if I'm moneying the nizak, that lichora it comes out clearly that he's a modeh b'miktzas, he should be chayav. L'maaseh, what's the teretz for this kasha? Reb Chaim. Chaim comes along and asks a different kasha. Hilchos chiyuv shomer mechlifs to pay you. So how can I come and say I don't know? What do you mean to pay if you don't know? What's the not to know? The minute you don't know, you have to pay. If you make me a shomer and I don't know.

Pay me. Hilchos chiyuv shevuah is mechayev to pay. Zogt Reb Chaim that the nifka is not an issue here. It was mufka to him together, 300. So he returned the 300 between the two of them. What's Reb Chaim's svara? Reb Chaim's svara is you're not moneying the tevea. I'm sorry, the nifkad. You're moneying your money, but not the nifkad. The sugya is not the nifkad owes the two of them. Nifkad's out of the picture. The question is, who's the nifkad holding money for? Different shailah now. So it's mamon hamutal b'safek, mameila is chalukin. Mameila, you could say like this: the whole shailah of the sugya is the sfeika mamon. What is the sfeika mamon over here? The sfeika mamon is stuck in the third hundred. So the din was never on the first hundred; the din was on the last hundred, which is demonstrated, Rashi says in the Chachamim, d'hasam mamon ha'sheni heim donin. Them is the first hundred go off. What does that mean? We're not discussing anymore the nifkad. We're discussing the money. The question is, whose money is the third hundred? Not who does the nifkad owe money to. Mameila becomes a shailah only of the third hundred and not the first two. So if so, we can't say in Reb Yosi, a chalukah eini yecholah lismeis, because what was the kasha? A chalukah eini yecholah lismeis, i Reb Yosi holds in the first hundred, but the first hundred wasn't a din. The first hundred was not a din. There was never a safek on the first hundred, and that wasn't what they're done. Unless you learn that's good for the machlokes. Rabbanan learn that the din only on the third hundred, but Rabbi Yosi holds it being done on the whole thing. Maybe that's the machlokes. רבי יוסי holds that the din is packed into the nitkan. Good, I hear him say, but that could be the machlokes, I'm saying. And then if so, you couldn't advance a chalukah ein yecholin l'yesemes in the Rabbi Yosi. Say if so, because otherwise you have a good teretz. Chalukah ein yecholin l'yesemes is a good teretz, Rabbi Yosi too. Teretz is Rabbi Yosi holds the din is on the whole thing. Maybe, maybe. I'm just clarifying Rabbi Yosi. What? That's what I'm trying to say. If it's on the whole thing— no, I'm saying, I'm saying Rabbi Yosi holds that it's not on the whole— okay, I'm saying, okay, the opposite too. Because it's not on the whole thing, then maybe you can't ask how can Rabbi Yosi holds, and then maybe you're back to the kasha. That's what I'm saying. Maybe you're back to the kasha. Why could you ask a chalukah ein yecholin l'yesemes in Rabbi Yosi? Next. The Rishonim tell us that Rabbi Yosi's takanah doesn't speak about in the Rabbanan of a chalukah ein yecholin l'yesemes. But maaseh, all he says was that over there, Chad minayu, v'ein loi meiachloiku. We don't say why you don't say achloiku. Says the Rashba that even the Ramban has to do vadai Ramai. But l'divreihem is a vadai Ramai. That's what the Rabbanan, according to Rashi. The teretz is that there's no vadai— there's a vadai Ramai, we can't say achloiku. That's how the Rishonim learn. The Rashba learns the Rashi. The Rashba says, the Rashi, that the teretz wasn't chalukah. The teretz was vadai Rambai. So why are you asking vaiter in Rabbi Yosi? So meileh, you have a teretz that's not a vadai Rambai in the Rabbanan, and that's why we don't say, What, yehei munach? That's a teretz רבי יוסי. So vaiter, what's Rabbi Yosi? The Rashba himself asks that. In other words, in the Rabbanan, if you learn a chalukah, you have to know why that's not a good teretz Rabbi Yosi. But the way the Rashba learns in the Rabbanan, that it's also a Rambai, it's l'divreihem, your Rambai, we can't say yachloku. So then the teretz is here it's vadai Rambai, there it is vadai Rambai, so then what's Rabbi Yosi vaiter? You don't need Rabbi Yosi. When do you need Rabbi Yosi for? The same thing, you don't need Rabbi Yosi. So the Rashba himself asks the first kashya. I wanted to ta'ina, this I told you before, that then there's two dinim of vadai Rambai. There's the vadai Rambai of the chachamim, and then there's the vadai Rambai of Rabbi Yosi. The vadai Rambai that yehei munach according to the chachamim is in psak halacha. It's in psak halacha. The vadai Rambai in Rabbi Yosi is in knas. Why?

My thing. Then Rashi himself says by vadai damai, what's the halacha? Vadai damai, anira ki, anira ki, lo yachloiku. The vadai chad amai. Churah, that's only according to Rabbi Yosi, not according to Chachamim. So Rashi's asking. No, vadai damai is only Rabbi Yosi. Right, so how could Rashi pasken Rabbi Yosi? We pasken like Chachamim. So Rashi's asking for a kasha. He's a Nachmani. Rashi's talking Rabbi Yosi. Why would Rashi talk Rabbi Yosi? Then it's the way we're learning it, if you shmak, because even according to Chachamim there's a vadai damai. There's a sugya of vadai damai according to Chachamim too. Maybe Rashi speaks vadai damai even in the Chachamim. So what's the pshat? Lo yachloiku, devadai chad minaihu Ramaihu. Tehei mineches ad sheyavo liyam. Pask. The psak halacha says vadai damai, we can't pasken yachloiku. And I told you then in Rashi, remember I spoke to you in Rashi, that when there's a vadai damai, it's ki'ilu we can't pasken. We can't pasken. I saw there's a machlokes Rishonim, I told you about this. Rishonim argue, what's the din of yei'ush munach? What is it? Rashi and Ramban learn yei'ush munach b'yado. Yes. Here, go ahead. Okay, right, go ahead. Rashi, that lo yachloiku is because of Ramai. That even the Rabbanan is about Ramai. Even the Rabbanan's Ramai. And the kasha is, so what's the next line with the more Rabbi Yosi? The teretz is there's two dinim of Ramai. There's one din of Ramai psak, yei'ush munach psak because of Ramai. And there's another one called misafik, or mitzad, that we say, vadai ramai yehei munach. Rashi l'maaseh speaks on irya tiyah. It's vadai ramai, so we don't say yachloku. I said that I told you Reb Yosi, and the two seem that Rabbanan too. It's a different reason. It's vadai ramai, and therefore we don't say yachloku; we say yehei munach. What's the pshat? That is the machlokes Rishonim. Rashi learns that if we say yehei munach, we leave it in the hands of the nifkad. Tosafos, Bava Kama, daf kuf gimmel amud aleph, argues and says that we take it out of the nifkad's hands and we give it to the beis din to hold. Whenever we say yehei munach, we take it away and the beis din has to hold it. Again, this is a machlokes, the mechaber and the Rema, halacha l'maaseh. When we say yehei munach, who holds it? The person holds it or the beis din holds it? If you look in siman shin, se'if aleph, machlokes the Mechaber and the Rema. Maaseh stirah in the Rema. The Rema himself speaks one time that it's yehei munach b'yad shlishi, and the other time he speaks yehei munach b'yad beis din. The Rema's she'eilah, perekei halacha daled, brings this din in one of shlishi. He says that it's munach where? In the hands of the shlishi. We leave it b'yad shlishi. L'maaseh, hilchos mechirah, perek chaf, halacha beis, the Rema speaks: v'lokeach me'echad, michameishah bnei adam, v'echad mehem tovea oso, v'omar, ani hu ba'al hamekach, v'hu eino yodea mi hu ba'al hamekach, v'niachsu mehamekach beineihem u'mistalek. V'yei adam munachim ad sheyavo Eliyahu. So where is it munach? The Mechaber says it's munach b'yad beis din. Why by money shlishi do we say that it's munach b'yad hanifkas, and why over here do we say that it's munach b'yad... The case of money shlishi, munach b'yad shlishi. The case of he doesn't know who he took the money from. He borrowed, he doesn't know who he took the money from. So there it's munach b'yad... What's the nafka? I hope it's a nafka mina. Money shlishi, the safek is not who he has to return it to. Money shlishi, the safek is who has the money, so he leaves it by him. What is he supposed to do? I don't know whose money it is. L'gabei chazarah, he returns it. Right? Because ... money is תמיד. But ... I'm מחויב to return it. So אי אפשר, can't keep it. What's it to keep? I'm מחויב to give it. Now there's a safek. So what do we do? Yehei munach. That's yehei munach b'yad... That's a different sugya of yehei munach. With this, I have to pay. Now the question is who gets it. So beis din holds, they know who to give it. I have a chiyuv to pay. But she'ein kein by the nifkad, the safek is not on the nifkad bichlal. The safek is whose money it is, so don't do anything. שב ואל תעשה, what are you supposed to do?

With this. Yeah, you got it? Okay, with this, we can say another nekudah also. Shach has a stirah in halacha. In fact, the Shach, siman ש״ח. הגוזל אחד מחמישה בני אדם, ואינו יודע איזה מהן גזל, כל אחד ואחד אומר אותי גזל, אף על פי שאינו משלם גזלה, הרי כל אחד מהם נשבע, וזה גוזל משלם גזלה לכל אחד ואחד. No pasken that you pay each one. I pay each one. In fact, the Shach doesn't understand why is it different than mamon ha-shlishi. Why by mamon ha-shlishi do we say yehei מונח? Answer: the Shach, the teretz. What's the teretz? Teretz is, how can the ... pasken back to pay every one? This is the same sevara. The way I'm learning is on a sevara. גזל מחמישה בני אדם, so five people. אינו יודע לאיזה מהן גזל, כל אחד ואחד אומר אותי גזל, he has to pay all of them. All of them. Come on, pay all of them. In fact, the Shach, I don't see why it's different than mamon ha-shlishi. Yehei מונח. Huh? Listen. He wasn't careful. He wasn't careful. If he wasn't careful, he has to pay to everyone. It's his fault. Yeah. So why by nitka? This is a very nice teretz of the Shach. But then, the way we learn, kana kashya. Because nitka is a ta'ana, he took you out of the picture. Mashenkein by gazal, you mechuyav, mechuyav to pay. The Shach is a different teretz. The Shach says that over here, here, דדווקא לאיל סימן ש״ח, דתבעי ליה ודאי חד מינייהו רמאי, אמרי הכי. מה שאין כן הכא, כיוון שאין ... יודעים שנגזלו, אם כן ליכא רמאי. Over there, there's a vadai ramai. Over here, mechtaisa. They don't know. Here, each one, הגוזל מחמישה בני אדם, we don't know. Where we don't know, we can't say yehei מונח. Huh? Right here, siman סמ״ח, sif katan gimmel. דדווקא לאיל סימן ש״ח, דתבעי ליה ודאי חד מינייהו רמאי, אמרינן הכי.