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Daily Daf Dose
By: Reb Avi Lebowitz
In a situation where two witnesses would require someone to pay, one witness would require him to swear, but he is not completely denying the testimony of the witness and therefore cannot take the oath that is incumbent upon him, we apply the concept of מתוך שאינו יכול לישבע משלם – if he cannot swear, he must pay. Therefore, when a single witness testifies that Reuven grabbed something from Shimon, we assume that it belongs to Reuven since he was holding on to it. Had Shimon been willing to swear that he didn’t grab it from Reuven, we would believe him against the single witness. However, since Shimon admits to grabbing it, but is claiming that it rightfully belongs to him, he is unable to make the oath demanded of him, and therefore must return the item.
Tosfos asks that if Shimon would deny that he grabbed it and make an oath, he would be believed. Why don’t we believe Shimon to say that he grabbed it and swear that it belongs to him, with a migu that he could have said that he never grabbed it? If he would not make an oath that it belongs to him, it would not be a valid migu since he prefers to use the claim that would exempt him from a oath. But since he is now making an oath that it belongs to him, it should be a valid migu (assuming that he can use a migu even if the migu claim would require a Biblical oath)?
Tosfos explains that this is exactly the point of argument between Rav and Shmuel against Rabbi Abba. Rav and Shmuel (Shavuos 47a) hold that since he has a migu, we don’t require him to return the item. But Rabbi Abba holds that even though he has a migu, we require him to either swear to contradict the witness by saying that he didn’t grab it, or pay - no other options. Tosfos doesn’t clearly speak out the point of argument between Rav and Shmuel against Rabbi Abba.
It seems that the point of dispute is whether a single witness obligates Shimon to support his claim with an oath, or is he obligating him to pay with an option to exempt himself using an oath. According to Rav and Shmuel, a single witness obligates an oath - meaning, that he obligates Shimon to support his claim with an oath. By Shimon swearing that it is his, and using a migu that he could have sworn that he didn’t grab it, he is, in essence, using an oath to support his claim. But, Rabbi Abba holds that a single witness does not obligate him to merely support his claim with an oath. The fact that Shimon can prove he is correct by swearing it is his in conjunction with a migu isn’t sufficient. The single witness obligates Shimon to pay with the only option out of paying being an oath to contradict a single witness. Shimon’s only option out of paying is by making a oath to contradict the testimony of the single witness by swearing that he didn’t grab it. Since Shimon admits to grabbing it and cannot make this claim, we resort to the default that he must pay.
In a situation where two witnesses would require someone to pay, one witness would require him to swear, but he is not completely denying the testimony of the witness and therefore cannot take the oath that is incumbent upon him, we apply the concept of מתוך שאינו יכול לישבע משלם – if he cannot swear, he must pay. Therefore, when a single witness testifies that Reuven grabbed something from Shimon, we assume that it belongs to Reuven since he was holding on to it. Had Shimon been willing to swear that he didn’t grab it from Reuven, we would believe him against the single witness. However, since Shimon admits to grabbing it, but is claiming that it rightfully belongs to him, he is unable to make the oath demanded of him, and therefore must return the item.
Tosfos asks that if Shimon would deny that he grabbed it and make an oath, he would be believed. Why don’t we believe Shimon to say that he grabbed it and swear that it belongs to him, with a migu that he could have said that he never grabbed it? If he would not make an oath that it belongs to him, it would not be a valid migu since he prefers to use the claim that would exempt him from a oath. But since he is now making an oath that it belongs to him, it should be a valid migu (assuming that he can use a migu even if the migu claim would require a Biblical oath)?
Tosfos explains that this is exactly the point of argument between Rav and Shmuel against Rabbi Abba. Rav and Shmuel (Shavuos 47a) hold that since he has a migu, we don’t require him to return the item. But Rabbi Abba holds that even though he has a migu, we require him to either swear to contradict the witness by saying that he didn’t grab it, or pay - no other options. Tosfos doesn’t clearly speak out the point of argument between Rav and Shmuel against Rabbi Abba.
It seems that the point of dispute is whether a single witness obligates Shimon to support his claim with an oath, or is he obligating him to pay with an option to exempt himself using an oath. According to Rav and Shmuel, a single witness obligates an oath - meaning, that he obligates Shimon to support his claim with an oath. By Shimon swearing that it is his, and using a migu that he could have sworn that he didn’t grab it, he is, in essence, using an oath to support his claim. But, Rabbi Abba holds that a single witness does not obligate him to merely support his claim with an oath. The fact that Shimon can prove he is correct by swearing it is his in conjunction with a migu isn’t sufficient. The single witness obligates Shimon to pay with the only option out of paying being an oath to contradict a single witness. Shimon’s only option out of paying is by making a oath to contradict the testimony of the single witness by swearing that he didn’t grab it. Since Shimon admits to grabbing it and cannot make this claim, we resort to the default that he must pay.
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