Analytical Talmudic Thinking – Lesson 12

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[Rabbi Michael Abraham] If it’s standing to be harvested, right. And therefore that’s a good reason to say that the oath being discussed here really cannot be the oath of bailees. What Rabbi Meir and the Rabbis are arguing about—they’re arguing about whether this is land or not, and I’m asking: what oath is being discussed here? Before I discuss whether you’re liable or exempt, whether it’s land or not land—what oath is being discussed here? It can’t be the oath of bailees. It can’t be, because I’m not admitting that there was even a safekeeping contract on the other five vines. What do you want from me? After all, I’m swearing about the other five. Those five I’m giving you—I admit they’re yours. Our whole dispute is about the additional five, and regarding those additional five I claim: you never deposited them with me at all. So how can there be an oath of bailees here on that item? Okay? That’s a question—a question on that interpretation we saw earlier in the Ri Migash. Look at Maimonides in his Commentary on the Mishnah on this Mishnah in Shevuot: “The dispute of Rabbi Meir and the Rabbis is about grapes standing to be harvested, and the Jewish law follows the Rabbis. And specifically when he gave them to him for safekeeping. But regarding sale and purchase, and the laws of overcharging, and partial admission, if the main claim was not in the context of safekeeping, then the rule in Jewish law is that they are like movable property.” From his wording it strongly sounds like we are not dealing here with the oath of bailees; this is the oath of one who partially admits. It’s just that this comes by force of a safekeeping claim. “Specifically when he gave them to him for safekeeping.” He’s not talking about the type of oath, rather this is a claim of partial admission—but a claim of partial admission that comes by way of a claim involving a bailee and a depositor. I deposited it with you for safekeeping and you deny it, therefore you are liable for the oath of partial admission. Okay? Why do we have to get to safekeeping? So if this is an oath of partial admission, then what’s the problem? Because of the reasoning of the Ri Migash: when I give this to you for safekeeping, and that’s my claim, then what I asked of you was to guard it so that these grapes would not be harvested. So even though the oath is the oath of partial admission, not the oath of bailees, still the claim is rooted in your being a bailee and me a depositor. That claim turns the grapes into land, the Rabbis say, and then there will be no oath of partial admission on them. There’s no discussion here at all of the oath of bailees—only of partial admission.

Now, generally speaking, you have to know that there are quite a few strange things in Maimonides—not many, but a few strange things in Maimonides that people can’t find a source for or don’t understand, and the root of them lies in the Ri Migash. It’s known that the Ri Migash was the teacher of Maimonides’ father. Maimonides writes extravagant praise about the Ri Migash: “I saw the man, his appearance was like the appearance of the hosts of God,” something like that. It seems to me he actually met him when he was a very small child. He was a little child who still sat on his knees. But he was the teacher of Rabbi Maimon the judge, Maimonides’ father. In any event, much of Maimonides’ Torah is drawn from the Ri Migash. In some indirect sense at least, the Ri Migash is his teacher, and therefore there really are quite a number of things in Maimonides that are unclear, and you can find their source in the Ri Migash if you read the Ri Migash. The Ri Migash is an interpreter; Maimonides is a halakhic decisor. So it’s hard to know how Maimonides learned the Talmudic text. You know what he rules, but you don’t know how he learned the Talmudic text. In the Ri Migash, sometimes you can understand how Maimonides learned the Talmudic text, and from that you can understand his halakhic ruling. That’s happened to me several times—various things where people were left saying “this requires analysis” about Maimonides, and really, when you look at the Ri Migash, you understand where it came from.

In this context I want to use that in reverse. Meaning: the Ri Migash probably also does not mean the oath of bailees; he means the oath of partial admission. He’s just explaining why the Mishnah also set this up as a case of partial admission. Why is this a claim involving safekeeping? If we’re talking about the oath of partial admission, then why specifically a safekeeping claim? Because only in a safekeeping claim do the Rabbis say that the grapes are like land. For other kinds of claims—sale, loan, whatever it may be—no, the grapes are as though already harvested, as we know from other passages in the Talmud. So everything is in order. Right?

Look at Maimonides, Laws of Hiring, chapter 2, law 4: “One who gives his fellow something attached to the land to guard—even if they were grapes standing to be harvested—they are considered like land in the law of bailees.” How do you understand this law? First of all, the placement of this law. The placement of this law is in the Laws of Hiring. Laws of Hiring. Let me maybe preface it like this: if the Mishnah deals with the oath of partial admission, then this law should have appeared in the Laws of Claims and Responses. Because in the Laws of Claims and Responses there is discussion: you claim this, I claim that—what do I owe you? It doesn’t matter at all whether you come by way of a safekeeping claim. One could say in the laws of claims and responses that if you come by way of a safekeeping claim, then the grapes have the status of land. But it shouldn’t appear in the laws of bailees; it belongs in the laws of claims and responses. Because it’s not connected to the law of bailees, it’s connected to the fact that your claim is against a bailee. And since he is a bailee, he has to see to it that the grapes are not harvested, and then they are like land. The fact that this law is placed in the Laws of Hiring already tells us that Maimonides is apparently talking about the oath of bailees and not the oath of partial admission. And more than that, also the wording: “they are considered like land in the law of bailees.” Not “they are considered like land regarding the oath of partial admission because the claim is a claim arising from safekeeping,” but rather: “in the law of bailees” this is considered land. Meaning, he is speaking about the laws of bailees, not the laws of claims and responses. So simply speaking, Maimonides is talking about the oath of bailees. That is, by the way, the reason that some commentators apparently also interpret Maimonides in his Commentary on the Mishnah as speaking of the oath of bailees, and they understand the Ri Migash that way too. In the Commentary on the Mishnah and in the Ri Migash it’s not clear at all—you can read it differently. But here in Maimonides it seems pretty clear. Here in Maimonides it seems quite clear that we’re talking about the oath of bailees.

Look, for example, at a parallel law in Maimonides. By the way, how does Maimonides rule here? “One who gave his fellow something attached to the land to guard, even if they were grapes standing to be harvested—they are considered like land in the law of bailees.” Does he rule like Rabbi Meir or like the Rabbis? The Rabbis, right? “They are considered like land.” But notice: he doesn’t bring the case of partial admission. That’s not the case of the Mishnah. In the case of the Mishnah, I claimed from you ten vines and you admit five. Maimonides doesn’t get into that here at all. When I claim from you something attached to the land, and you denied everything—it doesn’t matter what—it is like land in the law of bailees. Why doesn’t he bring the case of the Mishnah? In the case of the Mishnah it says: I delivered ten vines and you admit five. Because Maimonides explains this as the oath of bailees. And if he explains it as the oath of bailees, then indeed there’s no need to reach specifically a case of the oath of partial admission. The oath of bailees exists even in a case of total denial. So I actually understand why Maimonides does not bring this case. I’m only asking: how did he learn the Mishnah? Forget what he brings—the Mishnah, after all, does speak of a case of partial admission. If the Mishnah deals with the oath of bailees, then why does it set it up specifically as a case of partial admission? Like Maimonides himself, the Mishnah also should have spoken of a case of total denial. So it’s not clear. It’s clear to me what he writes, but it’s not clear to me what’s going on in the Mishnah.

Beyond that there’s the question Yosef asked: if in fact I deny my very status as a bailee, we saw earlier in Maimonides that in such a situation there is no oath of bailees. You claim from me something involving grapes standing to be harvested, and they are considered like land in the law of bailees. Fine—here one could perhaps say that I claimed against you and you said they were lost by unavoidable accident; you didn’t deny the contract, but rather spoke like in any litigation of a bailee, and then you are liable to swear that you did not put out your hand, and all kinds of things like that. But then it really has nothing to do with the Mishnah at all. In the Mishnah it is written as a case of the oath of partial admission, so we need to understand how Maimonides learned the Mishnah.

Look: Maimonides also brings a similar law in the Laws of Claims and Responses. And we said: if it’s the oath of partial admission, it should have appeared in the Laws of Claims and Responses. So indeed, in the laws of bailees—in the Laws of Hiring—Maimonides brings a case that is not one of partial admission but of total denial. Let’s see the Laws of Claims and Responses: “If one claimed grapes standing to be harvested or dry grain standing to be cut, and the other admitted part and denied part, he swears concerning them like other movable property—provided they no longer need the land, for anything standing to be harvested is as if already harvested regarding denial and admission. But if they still need the land, then they are like land for every matter, and one does not swear concerning them at all.” Here it is clear that we are speaking of the oath of partial admission, not the oath of bailees. And this really is in the Laws of Claims and Responses, not in the Laws of Hiring. So this is the oath of partial admission, right? Not the oath of bailees. So what? Grapes standing to be harvested are like movable property if they do not need the land. Okay? And if they need the land, then it’s something else. Yes? Then they are like land for every matter, and one does not swear regarding them. So this is not in the law of bailees. It has no connection to the law of bailees at all, right? It’s just the ordinary rule that grapes standing to be harvested, in every respect, if they need the land they are like land, and if they do not need the land they are like movable property. And is that connected to our Mishnah? No. In our Mishnah we are dealing with the oath of bailees, not the oath of partial admission.

So what is he bringing here? He says: in the oath of partial admission, grapes standing to be harvested. What happens in our Mishnah? Why do the Sages say that this is not the oath of partial admission but the oath of bailees? Sorry—why do they frame it as safekeeping? Because there we’re talking about the oath of bailees, not about partial admission. Our Mishnah is not in the Laws of Claims and Responses. And that’s what he brings in the Laws of Hiring, what we saw. In the laws of bailees, in the oath of bailees, this is considered land. For other matters it is not considered land if they do not need the land—we’re dealing with a case where they do not need the land. When they do not need the land, then they are as though harvested. So in the Laws of Claims and Responses they are as though harvested; in the law of the oath of bailees they are not as though harvested.

The Raavad objects here. Look at the Raavad here: “Abraham said: the author rules like Rabbi Meir, whereas the Rabbi”—apparently the Rif—“rules like the Rabbis.” How did the Raavad arrive at that conclusion? That Maimonides rules like Rabbi Meir, that one swears concerning them. It has nothing to do with it at all. It’s simply a mistake. Maimonides is not speaking about our Mishnah at all. He’s speaking in the Laws of Claims and Responses. In the Laws of Claims and Responses there is no dispute between Rabbi Meir and the Rabbis. Their dispute exists only in the laws of bailees, not in the Laws of Claims and Responses. Therefore it is not correct that Maimonides rules like Rabbi Meir. In the Commentary on the Mishnah he also said that the Jewish law follows the Rabbis. Okay? It’s simply a mistake. And many people got tangled up in this. “And the rabbi of blessed memory did not see all this,” and maybe one cannot derive oaths to other matters because—whatever. In short: excuses. We don’t need all of that. He simply did not understand Maimonides correctly.

Good. So now we need to understand why in our Mishnah we are dealing with the oath of bailees. And if so, then why Maimonides, here in the Laws of Hiring, does not bring the case of partial admission like in the Mishnah. In Tosafot Yom Tov on this Mishnah in Shevuot he says as follows: “And the Rabbis say, everything attached…” The Bartenura wrote: “And the Jewish law follows the Rabbis, specifically in the law of bailees.” Notice: in the law of bailees, not by force of a safekeeping claim. This is the oath of bailees we’re talking about, okay? “When it was given to him for safekeeping. And if you say: why do we require partial admission? But ‘for this is it’—from which we derive that we require partial admission—I wrote at the beginning of this chapter under the heading ‘and the admission,’ that we shift it onto the section ‘If you lend money…’” There is intermingling of sections there. At the beginning of Sanhedrin and in Bava Kamma 106, there is this intermingling of sections. From where do we learn the oath of partial admission? “That which one says: ‘for this is it.’” “For this is it”—he admits part of what you claim. But that appears within the laws of the oath of bailees. So the Gemara says: this is an intermingling of sections. Inside the laws of the oath of bailees there is one verse dealing with the oath of partial admission that is unrelated to the oath of bailees. It belongs in the laws of claims and responses; it got mixed in there. For various reasons—not important right now—it got mixed in. Fine? So that’s what Tosafot Yom Tov says. So if that’s the case, the oath of partial admission was not stated in the laws of the oath of bailees. It’s a different oath—the oath of partial admission. It’s an intermingling of sections. If you say there is no intermingling of sections—that’s a discussion in the Gemara—if you say there is no intermingling of sections, then the oath of partial admission is part of the oath of bailees. Meaning: for a bailee to swear, he needs to admit part and deny part. But as Jewish law, we rule that there is an intermingling of sections. Partial admission is a different oath, and the oath of bailees does not require partial admission. Okay?

So he says: then why does the Mishnah set it up as partial admission in the context of the oath of bailees? And one could say—that is a question. On the Mishnah, not on Maimonides of course, according to Maimonides. And one could say that we do not uproot it entirely from the section in which it is written, which is the section of bailees. Rather we say there is an intermingling of sections, and the section “If you lend money” also applies, as Tosafot and the Rosh wrote, and so on. But this interpretation does not work according to Maimonides, because Maimonides explicitly rules in chapter 2 of the Laws of Hiring that none of the bailees requires partial admission. And there is discussion here how exactly the Gemara in Bava Kamma is ruled in Jewish law, but Maimonides rules that the oath of bailees does not require partial admission. So according to Maimonides it is not clear why the Mishnah sets it up as a case of partial admission. If so, why did we teach in our Mishnah, “and he says: I have only five”? Even if he denied everything, he would be liable. And “I delivered to you” is what we taught, meaning: it is a case of safekeeping. So if it is safekeeping and he swears the oath of bailees, then even if he denies everything he is liable—why do we need partial admission?

He didn’t notice that there is a much more fundamental difficulty here: how can there be an oath of bailees here at all, if I don’t agree that there was a contract? That’s the Maimonides we saw above. There it is obvious to him that this is talking about the oath of bailees, and therefore he asks why we need partial admission; total denial should also work, because in the oath of bailees total denial also obligates. But this can’t be the oath of bailees. It can’t be the oath of bailees, because if there is a dispute over the very question whether there is a contract here, you can’t make me swear the oath of bailees; you make me swear by force of the contract. He doesn’t notice that at all.

As for what the Bartenura wrote regarding sale and purchase—he says in all such cases we hold that something standing to be harvested is as if already harvested, and Maimonides also wrote this in his commentary. And his reason is as the Tur wrote: everything attached to the land is like land. And the Halevi wrote—that’s the Ri Migash—specifically regarding bailees. But one who sells his fellow grapes standing to be harvested, since he sold them with the intent that he take them, they are like already harvested. That’s what we saw in the Ri Migash. “And we judge them as movable property in every matter, such as overcharging and oath,” and so on, because he says that anything standing to be harvested is as if harvested. “And here the reason is that with regard to a bailee it is not considered as though harvested, because he guards them while they are attached to the land, and with that intent he gave them to him, and therefore they are like land,” etcetera. End quote from the Tur. And they were forced to distinguish between bailees and other matters, as seems simple to me from that Gemara in the chapter “The maiden who was seduced,” and so on, where we see that anything standing to be sheared is as if already sheared. So why here do we rule otherwise? Apparently this is a special rule because it is the oath of bailees.

Notice: he is talking about the oath of bailees, not about the oath of partial admission that comes by force of a claim of bailees, as one could have learned in the Commentary on the Mishnah and in the Ri Migash. Rather, according to his own interpretation of our Mishnah, he goes that this is only for the law of bailees, and they do not need the land, and even so the Rabbis said that it is not considered as though harvested, because guarding is not like other matters. Okay? So Rabbi Akiva Eiger asks on him: I don’t understand what you want from us. In the Mishnah we are dealing with the oath of partial admission, not the oath of bailees. Among other reasons, because of what I said earlier: after all, there is no safekeeping contract here at all. Besides that, from the context too it is clear: this is the oath of partial admission, because that is why they set it up here as partial admission.

But of course this doesn’t fit Maimonides. Very nice that you’re asking against Tosafot Yom Tov, but in Maimonides it doesn’t fit, because Maimonides brought this rule regarding the oath of bailees. For the oath of partial admission, the grapes are as though harvested, and it doesn’t matter by what kind of claim. In the Laws of Claims and Responses Maimonides does not say, “but if he comes by way of a bailee’s claim then these grapes will be like land also for the oath of partial admission.” He doesn’t say that. He should have mentioned it in the Laws of Claims and Responses. If this is not in the law of bailees, but if the claim is a claim of safekeeping, then in the laws of claims and responses you are not liable for partial admission—Maimonides does not mention that. Even if it came by way of a safekeeping claim, you still need to swear because it is like movable property. Only in the law of bailees is it not like movable property—not in a safekeeping claim. Okay? So in Maimonides it doesn’t fit. Tosafot Yom Tov is apparently right with respect to Maimonides, but there is the difficulty Rabbi Akiva Eiger raises.

In short, there’s no way out of this story. It’s a short circuit. Meaning, either we’re dealing with the oath of bailees—but then you ask yourself why the oath of bailees, and why set it up as a case of partial admission. If we’re not dealing with the oath of bailees—but Maimonides says we are. It also can’t be that we’re dealing with the oath of bailees, because after all I denied the safekeeping contract. In short, from every direction, nothing here works with anything according to Maimonides and the Ri Migash—according to Maimonides. As for the Ri Migash, one can say this is a safekeeping claim in a case of partial admission in the laws of claims and responses, and then everything is fine. And maybe the Commentary on the Mishnah can also be interpreted that way—were it not for the fact that in the Mishneh Torah we see that not to be the case. Fine? But in Maimonides it is difficult. Maimonides himself says that the oath of bailees does not require partial admission, and indeed he does not bring the case of partial admission in the law of the oath of bailees. So the question is how he learned the Mishnah.

The Shakh also asks the same question, the same questions. He brings that Maimonides is following the Ri Migash, and he brings this Maimonides we saw in the Laws of Hiring. And then he says: “Therefore the primary view appears to be like the Halevi”—that is, the Ri Migash, this is the Shakh, yes?—“and Maimonides and the Bartenura, who stand with the Rabbis.” It is clear that Maimonides did not rule like Rabbi Meir, as the Raavad says, but rather like the Rabbis. “Therefore the Ran wrote in the chapter of the judges…” In the end he remains with this: it is clear that this is Maimonides’ intent, but that does not contradict the fact that Maimonides cannot be understood. He says: “But what the Halevi and Maimonides distinguish between bailees and other matters does not seem right. First, it is not reasonable to distinguish like that. Second, if so, the Mishnah should have made it explicit”—you have to explain it. “And furthermore, if so, why does the Mishnah need partial admission? Why did the Mishnah set it up as partial admission? The oath of bailees doesn’t require it.” And Tosafot Yom Tov asked likewise: why do I need partial admission? And it can only be explained with difficulty. “And the plain meaning of the Mishnah also implies that we are not coming to it because of bailees, but by force of partial admission,” because the fact is they set it up as a case of partial admission.

More than that, I don’t know why everyone ignores this: it cannot be the oath of bailees because I deny the contract. Forget the set-up of the Mishnah—it cannot be that there is an obligation of the oath of bailees when I do not admit at all that there was a contract regarding the additional five vines.

In short, this whole story is a mess. There is one more difficulty. The medieval authorities (Rishonim) already ask, both on Rabbi Meir and on the Rabbis: what are you arguing about? Whether these grapes are like land or not like land? After all, it’s obvious that part of what he admitted is land—the vines themselves. Let’s say the grapes are movable property, fine. So the five vines I admitted—the vines themselves, the wood, that is land, right? The grapes on them that I admit to are movable property. And what I deny is land—the wood—and the grapes are the dispute of Rabbi Meir and the Rabbis. But still, does he swear on the grapes themselves? No—but in what he admits, part of what he admits is land, right? And if what you admit is land, then the Gemara says that is “here it is,” present before you. What does that mean? Suppose you claim from me land and movable property, and I admit the land and deny the movable property. Now when I swear, I swear on the movable property, not on the land—the oath of partial admission. What does the Gemara say? No—if what you admit is land, then you do not swear on the movable property that you denied. Sorry—yes, you do not swear on the movable property you denied. Why? Because it is like “here it is.”

Suppose you claim from me one hundred and I say: not true, fifty—and here, take it immediately. Then I am exempt from an oath on the other fifty. Why? Because those fifty that I admitted are already effectively with you now. What remains between us is a dispute over the other fifty, and in that dispute I deny everything. I am not partially admitting there, and so I am not liable for an oath. Now with land—the Gemara in Bava Metzia 5—land is always “here it is,” because the land is standing here. I do not need to give you the land; the moment I say it is yours, that is “here it is.” Again, what he admits is not only land. It contains land and movable property—the grapes. So what he admits is the same kind of thing as what he denies. So according to Rabbi Meir, why is he exempt from the oath? According to the Rabbis, why is he exempt from the oath? This oath is if he is a bailee. Ah, right—because if he is a bailee, even though this is the oath of partial admission, the effect of his being a bailee is that the grapes are land. Well then, why is he exempt? Because one does not swear on land? Because one does not swear on land, therefore he is exempt? No. Why not? Because what he admitted is land—there is “here it is.” I don’t understand: what he admitted is land and what he denies is also land. Right—but even if what he denied were movable property, I would be exempt, because what I admit is like “here it is.” Wait—what you admit is also movable property. No, why? Again, sorry—if he’s not a bailee? No, I’m saying: if you say, for example, like Rabbi Meir—Rabbi Meir says that the grapes are movable property—then you are right, because he admits land and movable property, and denies land and movable property. Why? So there is some part of what he admits that is still movable property, right? So there is some dispute between them, and therefore this obligates me in an oath on the rest—though not on the land, only on the movable property. But according to the Rabbis, where the grapes are land and not movable property, then what he admits is land and what he denies is land. So why should he not swear on what he denies? Not only because what he denies is land, but also because what he admits is land, and therefore there is “here it is,” and there is no room here at all for the oath of partial admission, regardless of the question that one does not swear on land. Suppose, for the sake of discussion, one did swear on land—according to the opinion that one swears on land, would he be liable to swear? Why not? No, absolutely not, because he is not partially admitting. After all, regarding the part he admitted, he said “here it is”—it is yours. So I am not partially admitting at all. Even if one did swear on land, I would still be exempt. Right? Because the part I admitted to, according to the Rabbis, is entirely land, so that is basically “here it is”—it is yours. What remains is the dispute about the rest, and in the dispute about the rest I deny everything, not partially admit. It is like “here it is.” So this whole story is not clear at all. That’s another question. Fine? So if so, we actually have three questions. First, why does the Mishnah set the dispute up as a case of partial admission? After all, bailees do not require partial admission. Second, in the Mishnah itself it is obvious that this is not the oath of bailees, because we are dealing here with a situation where he denies the very existence of the contract regarding the rest of the grapes or vines. And third, why do you get into the whole question of partial admission at all? There is no partial admission here; this is “here it is,” at least according to the Rabbis.

So I want to make the following claim. These difficulties resolve one another, as often happens. Why? If someone claims from me ten vines—or just movable property, doesn’t matter, yes?—he claims from me, meaning he says: I deposited ten chairs with you, okay? And I say: nothing of the sort. Then I am not liable for the oath of bailees. Right? Why not? Because I do not agree that there was in fact a safekeeping arrangement. But if I say: you deposited five chairs with me, not ten—then I partially admit. This is not the oath of bailees. I want to claim that there would also be here the oath of bailees. Why? Because he agreed that there was safekeeping here. Right? But now let’s see. Look, the point is this. Let’s think for a moment about the oath of partial admission. This is a major dispute among the medieval authorities. Why is a person actually liable to swear the oath of partial admission? In the Gemara in Bava Metzia, Rav Chiya’s first teaching, on page 3, says that a person is liable for the oath of partial admission—apparently the explanation there is because he has a “since.” He wanted to deny everything, but he doesn’t have enough money, so he decided to deny only part. In short, there is suspicion here that he is lying, and therefore they imposed on him the oath of partial admission. But there is a dispute among the medieval authorities how to understand this. In my view there is a dispute among the medieval authorities—it’s not explicit, but there is a dispute among them. I think the simple explanation of the Gemara is not what people usually think.

The simple explanation of the Gemara is that the oath of partial admission stems from the fact that you basically admit that there was a loan. It’s talking about a loan; leave aside bailees. Someone claimed from me one hundred and I admitted thirty. Okay? So what do they say to me? After all, you admitted there was a loan, right? The dispute is over the amount of the loan. He says it was one hundred, I say it was thirty. But you can’t say that he just attacked you on the street for no reason. There is already some monetary connection. You know what “monetary connection” means? Gemara at the beginning of Bava Metzia, page 2b. The Gemara says there that the question whether there is monetary connection or no monetary connection matters. According to most of the medieval authorities—Rashi there explains differently, but Tosafot and most of the medieval authorities—what is “monetary connection”? The question is whether I have a link to the money beyond my claims, not just because of my claims do I have a link to the money.

If I now stop you in the street and say, give it to me, you owe me one hundred shekels, and you say what are you talking about, I owe you nothing—that is no monetary connection. Why? Because only my claim ties me to the money. There is no reason to start suspecting anything at all—you have brought us no reason to start suspecting anything. What is called monetary connection? Monetary connection is when, say, I was the prior possessor and now he is holding the land. Then there is monetary connection. So it is not just that I am claiming it from him; it is known that this land was mine. I didn’t just stop someone on the street and pounce on him for no reason in the world. In a case like that, you can’t just wave the person away and say leave it alone, anyone can pounce on anyone else and bother him. Because here I have a connection to this money—you can’t ignore that. It’s not just some random person from the street who came and latched onto this land or this property. So there is monetary connection.

Now the question is what happens in partial admission. My claim is that the obligation of the oath of partial admission stems from the fact that if the defendant admits to thirty out of the hundred, that means there really was a loan, and now we only have a dispute about the amount of the loan. Understand why in a case of total denial we say “the burden of proof is on the one seeking to extract from another.” Suppose you claim money from me, and I say there was no such thing, or I paid, or whatever—I am exempt, right? The burden of proof is on the one seeking to extract from another. Usually people understand this because there is a presumption that whatever is under a person’s hand is his. What does that mean? Most things are in the possession of their owners, right? Most things in the world are in the possession of their owners. If you claim something from me and I say no, apparently I’m right, because things in my possession are apparently mine. But that’s not true, obviously. That explanation cannot be correct, even though many later authorities bring it. It simply cannot be correct. Why? What is the statistic behind the presumption that what is under a person’s hand is his? If we do statistics on all the objects in the world and see how many are in the possession of their owners, of course we will find that the overwhelming majority are in the possession of their owners. Some are not—they were lent out or lost, whatever—but most objects are in the possession of their owners. So statistically, there is such a presumption: what is under a person’s hand is his. Most objects are with their owners. And if a question arises whose object it is, if it is with you, then it is probably yours. Okay? But here we are talking about an object over which there is a legal dispute. Reuven is claiming from Shimon a specific object. If you claim that Reuven is probably right, that means that usually claimants are the liars and defendants are truth-tellers. Is there such a presumption? Of course not. Why assume that the claimant is the liar and the defendant is the truthful one? Both have a presumption of validity, and you don’t know which one is speaking truth and which one is not.

So therefore it is not correct that there is some statistical proof here that the defendant is more likely to be right. So why is the burden of proof on the one seeking to extract from another? One possibility is a technical possibility: you want the religious court to do something, to act—give them a reason to act. If you don’t give them evidence, why should they act? After all, you want them to remove money from the current holder and transfer it to you. For them to take active steps, they need a reason. If there is no reason, they do not act. So what happens when they don’t act? The money remains with the holder, right? Therefore the claimant has an inherent disadvantage. It’s not statistics, it’s not because the defendant is probably right, but simply because the religious court will not act if it has no reason that causes it to act. Okay? That’s one possibility.

A second possibility is this: we must establish this legal rule that the burden of proof is on the one seeking to extract from another. Why? Think about what would happen if this rule did not exist. It would be insane. Every person could stop you on the street and claim all your property, and what would we do? Split it? I don’t know. There is no evidence—split it. If the rule were not “the burden of proof is on the one seeking to extract from another,” then according to Sumchus, money placed in doubt is divided. We rule like the Rabbis that the burden of proof is on the one seeking to extract from another. If we were to split, I could stop anyone on the street and claim all his money, and he would split it with me. Now you’ll tell me: okay, but most people are upright and only a minority are robbers. But you understand that two robbers can destroy the whole world. You don’t need most of the world for that. It’s enough that there is one criminal—he can attack every person in the street and claim money from him. Therefore you cannot fail to give an advantage to the one in possession.

But notice—why? Because when you claim against him, who says you are connected to the matter at all? Maybe you just stopped him on the street and decided to extract half his money. But in a place where it is clear that you have a connection to this money, you are not just some person from the street coming and claiming against me, because we know that you lent to me; you just say it was one hundred and I say it was thirty. You can’t say this is just some person who came from the street and latched onto me. In a case like that, you can’t say I automatically give the advantage to the possessor and a disadvantage to the claimant. Not to that extent. True, if I swear, I’ll be exempt; he won’t get the money. But to win, I have to swear, because you can’t say he just came from the street and latched onto me. Not everyone can do that—only someone who already lent me money. And someone who already lent me money, there is at least some trust between us. So therefore no. It’s really not simple.

And yes, true—it still remains a case of “the burden of proof is on the one seeking to extract from another.” I still have an advantage. But in order for me to prevail, they ask me also to swear, so as to be sure. By the way, what about the somewhat similar case in Maimonides at the beginning, where the bailee agreed that he had been a bailee but he says he returned it? Okay, that’s why I said—there I said that in Maimonides it really is a big novelty, a bigger novelty than if someone says “there was never anything,” or something like that. But still, I said: after I returned it, what if he latches onto me ten years later? We said: I already returned it; that’s a different transaction, it’s already disconnected. So there was room to say that there too. But it’s not terrible. Maimonides holds that way; it’s not terrible. I could also have understood otherwise, but it’s not terrible.

In any event, for our purposes—what do I want to say? If that is the idea of the oath of partial admission, and the whole discussion of Rav Chiya’s first teaching—that there is suspicion and maybe he is lying and all that—that is only to explain why he is not exempt because of a “since.” He has a “since”: he could have denied everything, and he admits part; therefore he has a “since” that he could have denied everything. That “since” could have exempted him from the oath. The Gemara there explains why that “since” does not exempt him from the oath. But why is he liable for an oath in the first place—not why the “since” does not exempt him? I claim that the Gemara is not dealing with that at all. That is an assumption. And the assumption comes from the reasoning I just explained. Because if I claim one hundred from you and you admit thirty, that means we both agree there was a transaction. We only have a dispute about the amount of the transaction. In that case there is monetary connection, there is a link to the money. You are not just some guy from the street who latched onto me. Therefore, in principle, there is an obligation of an oath. But the question is: okay, there is an obligation of an oath—but does the “since” exempt me from the oath? That is Rav Chiya’s first teaching with all the explanations why the “since” does not exempt him from the oath. But the very basis of the obligation of the oath is not in those explanations there. Its basis is the fact that we both agree that there was a contract and the dispute is only over the scope of the contract. Okay?

Now if that is so, let us return to the case of the Mishnah. First of all, leave aside for the moment that this is land. Let’s say we’re talking about crates of grapes that have already been harvested. Fine? I claim from you ten crates of grapes, and you admit to me five crates of grapes. I claim there is room to say that on the rest you swear the oath of bailees, not the oath of partial admission. And here I am making a conceptual construction. Here we have arrived at the conceptual construction. And I’m saying this: in principle, if you had denied everything, then of course there would be no oath of partial admission and also no oath of bailees, because you do not admit at all that there was a contract. But if you admit part of the deposit, then you agree that there was a contract, right? So by the logic of the oath of partial admission, you would become liable for the oath of bailees. Because you are basically admitting that there was a contract. So this is like someone who says: true, you deposited with me, but it was lost by unavoidable accident. Meaning: within the framework of the contract, I am claiming that I do not owe you. In that case you are liable to swear. The claim is that the logic of partial admission—if I take the logic—is not the oath of partial admission but the oath of bailees.

If I take the logic, then it works like this: you claim from me ten vines and I agree that there was a deposit, because I say yes, but not ten, only five—part of it. Okay? So I am basically admitting that there was a contract of deposit. Now we have a dispute within the framework of the contract. When the dispute is within the framework of the contract, then there is here the oath of bailees. This is an oath by force of the contract. Now we have to discuss: if it is land, then one does not swear on land; if it is not land, then one does swear—that is the dispute of Rabbi Meir and the Rabbis. But it can indeed be framed as the oath of bailees.

Now look: we asked, if this is the oath of bailees, then why did we need partial admission? After all, a bailee does not need to admit part in order to become liable for an oath. It is obvious why. Because if he had not partially admitted, there would have been no oath of bailees here. The only reason you can obligate him in the oath of bailees on the rest is because he partially admitted, and therefore there really is a contract here; we just have a dispute over the size of the contract. And therefore, because of the logic of partial admission, and since here I admitted part, there is here the oath of bailees. Do you understand? Earlier I said there was here a safekeeping claim, but the oath was partial admission—just that the claim happened to come through safekeeping. Now I’m saying exactly the opposite. Meaning: there is here really a claim of partial admission, but the oath is the oath of bailees. Exactly the reverse. But that is the logic.

And I wanted to bring the classic case of the oath of bailees that… no, I wanted also to make this novelty heard. Why not teach a bigger novelty? Once you tell me this, then of course the other case is included too. But they wanted to teach me precisely this—that is exactly what the Mishnah wanted to teach: that the logic of partial admission can obligate me in the oath of bailees even though as to the very part on which I swear, I do not agree at all that there was a contract. But the logic of partial admission tells me that even in such a situation there is the oath of bailees. That is the novelty of the Mishnah.

So perhaps in Maimonides there is here—yes—what this means, and I return to the laws we saw in Maimonides, is this: Maimonides brings, in the Laws of Hiring, “One who gives his fellow something attached to the land to guard—even if they were grapes standing to be harvested—they are considered like land in the law of bailees.” What does that mean? Regarding the oath of bailees, grapes standing to be harvested are like land. From where does Maimonides know this? From our Mishnah. This really is our Mishnah, because in our Mishnah it says that since you are liable for the oath of bailees by the logic of partial admission, you are liable for the oath of bailees on the rest, and the Rabbis say that since this is the oath of bailees, the grapes are not considered as though harvested—and that is only because it is the oath of bailees. So we learn from here that for the oath of bailees, grapes standing to be harvested are not as though harvested, even though generally they are as though harvested.

Why doesn’t Maimonides bring here the case of partial admission? Because here Maimonides is not dealing with novelties in the laws of claims and responses. Maimonides wants to state the principle we learned from there. The principle in the laws of bailees is that if the oath of bailees arises over grapes standing to be harvested, then they are like land and not like movable property. And that is learned from our Mishnah. Therefore Maimonides brings the general rule. In our Mishnah they taught it through a case of partial admission—namely, that when the oath of bailees applies, grapes standing to be harvested are like land. Maimonides brings that which we learned; he does not need to bring the precise case of the Mishnah.

Where does he bring the case of the Mishnah? He brings the case of the Mishnah here. There he is not a bailee? But there the person is not a bailee. Right, because Maimonides says that in a context where we are not in the law of bailees but in the oath of partial admission, then for that purpose the grapes really are like movable property. And here this is the case of partial admission, right? But since it is not by force of a safekeeping claim, the oath you want to impose is an oath of partial admission—that is, it is the oath of partial admission, not the oath of bailees. Regarding the oath of partial admission, this is movable property; it is not land. And this too is learned from our Mishnah, because the whole reason the Mishnah set our case up as one of partial admission was to tell you why the rest carries the oath of bailees. But from here we learn that if it were not a safekeeping claim and it were a claim of partial admission, then indeed the rest would be considered movable property even according to the Rabbis, as we saw in the other passages—that grapes standing to be harvested are as though harvested. And on that point the Rabbis do not disagree; they only disagree in the law of bailees.

So in fact both the law above and this law are learned in different ways from our Mishnah, and Maimonides is simply unpacking it. He says: there is the lesson we learn for the laws of claims and responses, and that appears in the Laws of Claims and Responses; and there is the lesson we learn for the laws of bailees, and that appears in the Laws of Hiring. The lesson we learn for the laws of bailees can be formulated generally; you don’t have to arrive specifically at the laws of partial admission. Any time, for example, if you deposited with me grapes standing to be harvested, fine, and I say all the grapes— all ten grapes—were lost by unavoidable accident, what would the rule be? He need not swear. So Maimonides does not need to set it up as a case of the oath of partial admission. Every time there is an obligation of the oath of bailees and we are dealing with grapes standing to be harvested, they are not as though harvested. Maimonides does not need to get into the cases; he establishes here the principle that every time there is an oath of bailees on grapes standing to be harvested, they are like land. That is also what the Ri Migash says. He does not say “from a safekeeping claim”; he says “the oath of bailees.” And that is what we explained.

The whole distinction was supposed to turn on the case itself. It doesn’t matter whether this is the oath of partial admission or the oath of bailees. What matters is whether the person is a bailee. Even if the oath—why do I need to get to that—that the oath… no, the claim of Maimonides is not… this reasoning that the Ri Migash brings is not because you were a bailee. Rather, this reasoning was stated only in the law of the oath of bailees, because this reasoning by itself—as both the Ritva and Tosafot Yom Tov said—is fairly weak. Just because it was deposited with you so that it would not be picked, does that mean the grapes are no longer standing to be harvested? Where does that come from? No! So he says: in the laws of bailees I am willing to accept that, because that is how we treat the laws of bailees. But don’t tell me that everywhere someone comes with a safekeeping claim this suddenly changes things. After all, in places that are not the oath of bailees, the rule is that this is not land. So there I will not apply this weak reasoning. In a place where the whole discussion is a bailee-discussion, there I am willing to accept such reasoning. Because if the discussion is about the laws of bailees, you cannot treat this thing as though harvested, and therefore they are land.

Fine, according to the Ri Migash or according to Maimonides—I don’t understand what there is to distinguish. Why say that the oath needs to be specifically the oath of… I could understand it if they did not distinguish; I’m telling you what I analyzed earlier. But if they do distinguish, that is not difficult. So they do distinguish because that is their reasoning. They are basically claiming that the Torah is not dealing with the question of by what force you come with your claim. It says partial admission. If you partially admit, the Torah says partial admission—it does not enter the question of what you are claiming and by what force you are claiming it, and so on. In the law of bailees, the rule is that grapes standing to be harvested there are like harvested—because that is the idea of a discussion about guarding. So now I am not entering into distinctions about what exactly the claim was; these are contexts. In the Laws of Hiring we are dealing with the oath of bailees; there it is like land. In the Laws of Claims and Responses, even if you come by force of a safekeeping claim, in the Laws of Claims and Responses it will be like movable property; it will be as though harvested. That is the claim.

If we understand this, then first of all the Mishnah becomes completely clear. I asked two questions: why is the oath of bailees relevant here? It’s clear why it is relevant—because of the logic of partial admission. And why did they set it up as a case of partial admission, if after all this is the oath of bailees, which applies even in total denial? No—if it were total denial, there would be no oath of bailees here. Only because he partially admits is there here the oath of bailees.

In parentheses I add: after all, we also asked about “here it is.” It may be that “here it is” exempts you only if this is the oath of partial admission. Because what happens with “here it is”? Once I say “here it is,” then this is no longer partial admission, because our dispute remains only about the rest; after all, I gave you this part. Right? So if this were the oath of partial admission, then “here it is” would indeed exempt. But since here we are dealing with the oath of bailees—in the oath of bailees, even though here too there is a reason to exempt, because also in the oath of bailees you can say: fine, but our discussion is only about the rest, because after all I gave you this part, and about the rest I entirely deny that there was any safekeeping contract—yes, so therefore I say that in the oath of bailees I am not exempt by the reasoning of “here it is,” even though the thing I admitted was land. That answers my question: you cannot say that the oath is an oath of partial admission because of “here it is.” Yes, right—it has to be the oath of bailees. Fine? So all three questions actually come together here beautifully, and all the “this requires analysis” of all the later authorities is simply a lack of understanding. Maimonides and the Ri Migash—this is the simplest explanation of the passage. The simplest and most sensible. What’s the problem? Why does everyone miss it? Because what I did here is a conceptual construction.

What did I do? I took the oath of bailees and the oath of partial admission—those are my two prototypes. And now I made a construction, a synthesis between the two, and I said this: if there is a discussion of safekeeping in a situation where I deny part and admit part, then the idea of the oath of partial admission teaches me that there is here an obligation of the oath of bailees. You see that this is exactly like one who winnows and one who throws in relation to spitting? Exactly the same thing, right? The idea that the wind doesn’t interfere basically tells me: fine, then obligate him under “throwing” even though the wind helped. I am saying: the idea of partial admission tells me that it does not bother me that he denies the contract regarding the other five. Because the idea of partial admission tells me this is not really called denying that contract. This is a real conceptual construction. And someone who does not understand that there is such a thing as a conceptual construction, or does not distinguish it from the other side, gets tangled in this passage. But if we understand that there is conceptual construction, then everything works out perfectly.

By the way, now there is room to discuss what kind of oath this is that I am swearing here. This brings us back to the Rosh and the Gedolim from the previous lesson. If I am really right that this oath is some kind of synthesis between partial admission and the oath of bailees, then there is room, for example, to discuss which exemptions will apply to this oath—the exemptions of the oath of bailees, or the exemptions of the oath of partial admission. Which laws apply to this oath? We saw three approaches on that matter, remember? On the common denominator in Bava Kamma of one’s stone, knife, and load that fell from the top of a roof and caused damage. And here too one could make the same claim.

One could say this: what do I really learn from the synthesis of the oath of partial admission and the oath of bailees? I really learn that the principle of all Torah oaths is the oath of defendants defending themselves. What does that mean? The defendant normally has the upper hand. Therefore, by the basic rule, he is exempt—“the burden of proof is on the one seeking to extract from another.” There are situations where there is a flaw in what he says. There is some weakness, and then he has to defend himself. He is still in possession, he still has the advantage, he is the one who will prevail—but I ask him to give me some assurance that he is not lying, and then he prevails. How does that happen? Either when there is one witness against him. That is not enough to count as proof, but it means this is not just a random claim. Give me an oath so I can be sure. Or partial admission, because that means there was a transaction. True, you say only part—but you can’t say he just attacked you for no reason. There is some basis to the claim, as it were. Or the oath of bailees, for the reasons I said earlier: because one has to satisfy the depositor, since he does not know what happened in the bailee’s house.

There may actually be here some kind of common denominator and not a conceptual construction. What does that mean? I am basically saying this is not three oaths; it is one—the oath of defendants defending themselves. I have three types of this oath of defendants. Each time there is a different flaw in your claim, and because of it, despite the fact that you are in possession, we ask you to swear. So now if that is so, I now have a general idea—the common denominator of “it is your property and its guarding is upon you,” exactly what we saw in Bava Kamma. Now I can make here a common denominator. What is the common denominator of all oaths? That a defendant who in principle has the upper hand, but there is some flaw in his claim—I obligate him to swear. There are three examples, but really the idea is one. Their common denominator is that you are a defendant with some flaw in what you say, and therefore you must swear.

Then I am basically saying that the case of Rabbi Meir and the Rabbis is simply a case of a defendant with a flaw in what he says. It is neither the oath of bailees nor the oath of partial admission; it is that same general oath we learned from the three examples. As you remember, with one’s stone, knife, and load, I asked there: is this fire or pit? None of the above. It is “your property and its guarding is upon you,” and I know from all the prototypes that this is the common denominator. So if that characteristic is present, you are liable because of that. Now there is room to discuss which exemptions you would have. Remember? If I learn from two things, then you will have the exemptions from both sides. But if you learn a general principle, then on the contrary—for every exemption you need a source for it to be exempt; otherwise there is no exemption at all. And “here it is” would be a practical difference exactly in our case.

If you say this is a conceptual construction, then there is no common denominator here. So this oath is basically the oath of bailees, like the Rosh. This is a pit where fire only proves that the assistance of the wind does not interfere. Fine? That is the Rosh we saw there on Bava Kamma page 6. The same here. This is basically the oath of bailees; it’s just that the idea of partial admission shows me that here one can impose the oath of bailees. But the oath is the oath of bailees. Because from the side of partial admission there is “here it is,” so you cannot swear. Okay?

Another possibility is to say no. The oath of partial admission and the oath of bailees together teach me that it is neither this oath alone nor that oath alone, but there is some general idea: if you are a defendant with a flaw in what you say, you must swear. You will prevail, because you are the defendant and the burden of proof is on the one seeking to extract from another—but give us an oath so that we can be sure, where there is this flaw in what you say. And in this case would he be exempt because of “here it is”? What? In this case? Now that has to be discussed. It may be that “here it is” would not exempt him. Because we said that special exemptions do not pass over to a derivative if this is a common denominator. Only if this is a conceptual construction do both of them pass over. But if this is a common denominator, then they do not pass over. And then there may be a practical difference here with respect to “here it is.”

The question is whether this is a new oath, or a general oath, let’s call it that, or whether it is a synthesis between the oath of bailees and the oath of partial admission. And this depends very much on how one learns the intermingling of sections. We know that partial admission is a verse implanted within the oath of bailees. What is the Torah coming to teach us through this mixing? Is it coming to say that these are really two examples of one general idea, and that gives us the common denominator? Or is it coming to say: no, these are two different examples and both exist, and these are two prototypes from which I can synthesize, in a conceptual construction, a new derivative? The question is how I understand the intermingling of sections in the Torah. That is really what determines the whole story here. Okay. We’ll stop here.