Ketubot Chapter 2, Lesson 12

[Rabbi Michael Abraham] Okay, I want to add one more short completion from last time, which is also connected to the law of modeh b’miktzat, so that will connect us well to today’s lecture, but let’s start with that. In the Talmud we learned last time, the Talmud asks why Rabbi Yehoshua didn’t frame his admission in the Mishnah as a case of admission regarding a loan—“I borrowed from you and I repaid”—where he has the mouth that prohibited is the mouth that permitted, and therefore he is believed. In modeh b’miktzat, which is already a topic you studied today, so it’s more convenient for me to talk about it today—the Torah law, maybe just a few introductory sentences about the oath of partial admission. There are three kinds of oaths in Jewish law. One kind is Torah oaths—the meaning is an oath of Torah law, one established by the Torah itself—and within that there are three sub-types, three oaths within that category: the oath of partial admission, the oath of one witness, and the oath of bailees. A bailee who claims the item was stolen or something like that has to swear that he did not lay a hand on what belonged to the other person. One witness who testifies against me obligates me to take an oath. Money is extracted on the basis of two witnesses, but one witness obligates me to swear. Partial admission also obligates an oath. All those oaths are written in the Torah.

[Speaker B] So basically the oath comes to strengthen—like, there’s already something there, and we just want to add some reinforcement?

[Rabbi Michael Abraham] No, on the contrary, there isn’t something there. You need to remove something that is there.

[Speaker B] Need to—

[Rabbi Michael Abraham] Remove it, not strengthen it. The oath removes what prevents me from simply ruling in your favor. So there are three oaths that are Torah oaths. Then there are Mishnaic oaths, which are generally at the beginning of chapter seven.

[Speaker C] What’s the difference—Torah oaths, is that really from a verse, or from logical derivation?

[Rabbi Michael Abraham] “The oath of the Lord shall be between them”—that’s written in the Torah. Where is there a verse for partial admission? “That he says: this is it.” “This is it” means: part of this he admits to. Again, of course it’s always with the Sages’ interpretation, but they derive it from a verse. So on that there are verses—that’s Torah oaths. Mishnaic oaths are many oaths listed at the beginning of chapter seven in tractate Shevuot: the shopkeeper on his ledger, the hired worker, all sorts of oaths like that that the Sages enacted one must swear. Generally, that’s the second type. The third type is called the oath of the Gemara, the oath of inducement, which is an oath enacted in the Talmudic period—even in the period of the Mishnah it didn’t exist. What, the Amoraim enacted it? The Amoraim enacted it—Rav Nachman, some say—although again, the later authorities discuss this and find hints to it even in the Mishnah. But it’s called the oath of the Gemara, the oath of inducement, and that is an oath imposed on someone who totally denies the claim. Meaning, if someone totally denies, then in principle he should be exempt. The Sages nevertheless required him to swear the oath of inducement.

[Speaker D] Even though apparently the other one should have had to swear?

[Rabbi Michael Abraham] No, if the other one swore, that would create a problem, because if the other one swore, he would be swearing in order to collect. And I don’t want to give a person the option of taking money from someone else—after all, if some pathological liar is willing to swear, he’ll be able to take money from all of us. Meaning, he’ll just sue everyone, swear, and take money from everybody. Therefore the option of swearing is always the option of swearing and being exempt. Meaning, the one who is holding the money and is being sued can swear and be exempt. Because the plaintiff is the one trying to extract?

[Speaker D] Yes, so apparently he should have had to swear. Because he’s the one in possession, isn’t that enough—

[Rabbi Michael Abraham] Enough to keep the money? He doesn’t need to swear. He has to bring proof. In principle, without his bringing proof, I should simply be exempt. We obligate me to swear just to be on the safe side, but certainly we don’t reverse the law and let him win by swearing. We allow me to be exempt by swearing. Okay?

[Speaker B] Because he’s in possession, that isn’t enough? Right.

[Rabbi Michael Abraham] It doesn’t completely clear the table. We still want some reinforcement in the form of an oath. And total denial—is that Rav Nachman’s enactment?

[Speaker C] Yes, that too.

[Rabbi Michael Abraham] In Torah oaths and in the oath of inducement, these are oaths of exemption. Meaning, someone who is sued—we exempt him, but require him to swear in order to be exempt. If he does not swear, then it may be that “since he cannot swear, he must pay,” and we’ll obligate him to pay after all; but basically, fundamentally, he is exempt. We just want, in order to exempt him with peace of mind, to ask him to swear and thereby be exempt. That fundamentally, according to Torah law, he is exempt in both those cases? Yes, yes—that’s the accepted conception, at least. In Mishnaic oaths, most of them—though not all, I think. And why here does the consideration you mentioned before, that we don’t want the one collecting—? In every case on its own terms, you have to understand how they solve the problem of liars. A liar can pounce on anyone and take. So in every such case there is discussion, but those are very specific cases where the Sages of the Mishnah saw that there, fundamentally, he could in fact collect even without an oath—he is believed—but they required him to swear anyway in order to collect, okay? And what about maybe forgetting? Maybe—every case, I’m saying, every case has its own explanation. We won’t get into that now; I’m just giving a general picture here. Maybe one more sentence: there is such a law, “since he cannot swear, he must pay.” If someone is obligated to swear and for some reason does not swear, in principle he has to pay. Some see this as a contradiction—wait, that’s the question—some see this as contradicting what I said before. Because what does that mean? It means that really you do owe the money, but they gave you the option of swearing and being exempt. If you don’t swear, then pay. So apparently it looks as though even an oath of exemption—say, the oath of partial admission—if he doesn’t swear, he has to pay. What does that mean? That fundamentally he owes the money, and we are only giving him the option of swearing and being exempt; but if he doesn’t swear, he should pay. And then it turns out that an oath of exemption is not an oath that comes to be stringent on the person being exempted.

[Speaker C] Right, it’s the opposite.

[Rabbi Michael Abraham] He should have been exempt without an oath, and the Torah was stringent with him and required an oath as well. No—he should really have paid altogether; they only gave him the option that if he swears, he can be exempt. That’s a leniency for him, not a stringency on him.

[Speaker F] Not if he swears falsely.

[Rabbi Michael Abraham] No, if he swears truthfully—

[Speaker G] Why falsely?

[Speaker F] Because if he really owes—if he doesn’t owe, then if—

[Rabbi Michael Abraham] If he doesn’t owe, then he’ll swear that he doesn’t owe—he’ll swear. But we obligate him, because we don’t know what the truth is.

[Speaker F] And if there’s no possibility—

[Rabbi Michael Abraham] Of swearing, then in any case he—

[Speaker F] Will pay. If there’s no possibility of swearing, according to the law he pays.

[Rabbi Michael Abraham] We the judges do not know whether he owes or doesn’t owe. If a case comes before us, then he has to swear; if he doesn’t swear, he pays. Always. No matter what the actual truth was, because we don’t know what the actual truth was. From our perspective, if he doesn’t swear, he pays. He has the option of swearing and not paying, and being exempt. So the oath is a leniency for him, not a stringency on him. Otherwise he would have paid. We’re giving him the option: if you want, swear, and then we’ll exempt you. That’s the opposite conception from what I said before. Before, I said that fundamentally he is exempt, and we are stringent with him and require that in order to be exempt he should swear. Okay, so this is a major dispute, and it also depends on which oath—we have major disputes among the medieval authorities (Rishonim); I won’t get into all of that. One second, I’m just saying it’s not necessary. Some say that “since he cannot swear, he must pay” is only an enforcement tool—what Ayelet said earlier. Not that he really owes the money and the oath exempts him, but rather that fundamentally he is exempt. The Torah obligated him to swear because it was stringent with him, but you need teeth. If you don’t obligate him to pay when he doesn’t swear, then he won’t want to swear. The teeth, or the stick, that forces him to swear is that if he doesn’t swear, he pays—but not that he really owes the money; he is really exempt. It’s only on the side of the oath obligation that we tell him, okay, if you don’t swear then pay, because otherwise we have no means of compelling him.

[Speaker G] There were stories like that about—

[Rabbi Michael Abraham] Great figures who didn’t want to swear and preferred to pay.

[Speaker G] Wait, a question. In the oath—in the oaths from the Mishnah, in tractate Shevuot, you said that he is believed and still he has to—mostly these are people who are believed and still they have to swear, the ones who collect. Yes, the one collecting, the plaintiff. Wait, but if they’re believed, then apparently they’re exempt. Right.

[Rabbi Michael Abraham] No, they collect the money—it’s the plaintiff who is believed. The plaintiff is believed; by law he would receive the money—

[Speaker G] And the Sages—

[Rabbi Michael Abraham] The Sages were stringent with him: before you take the money, swear so that we can be sure. Okay?

[Speaker G] Meaning, in any case, in one variation or another, the oath comes to people who are basically exempt or believed—it’s an additional element. Two approaches.

[Rabbi Michael Abraham] Basically, the straightforward way of looking at it is that the oath always comes to be stringent on the one swearing—to be stringent on the one swearing.

[Speaker D] Meaning usually he—

[Rabbi Michael Abraham] Should have received the money without an oath, and we are stringent with him and require him to swear in order to receive the money. Or in the Torah oaths, he should have been exempt without an oath, and we are stringent with him that he should swear in order to be exempt. There are other conceptions, as I said, perhaps connected to the law of “since he cannot swear, he must pay,” but this is really just a general overview without entering into the details—we won’t need that here. Now let’s go a bit more into modeh b’miktzat, which is our topic. Modeh b’miktzat is a person whom someone comes and sues for one hundred shekels, and he admits to fifty. It’s not so simple—we’ll comment on that, we’ll comment on it a bit. In the simple reading, yes. In the simple reading there is no difference, and in both there is the law of the oath of partial admission. Now, basically, the oath here is a Torah oath. The one swearing here swears and is exempt. This is the defendant, who really should be exempt, because the burden of proof is on the one who seeks to extract from another; but in order to exempt him, the Torah still wants him to swear. Okay? That is the oath of partial admission. Why do we require an oath from him at all? There are some reasons for that; in our passage, Nachmanides talks about this a bit—we’ll get to it shortly. But the basic law is that he is exempt even without an oath, and they obligated him to swear. That is in partial admission. In total denial, of course, he is exempt and also does not need to swear. Only through the oath of the Gemara did they nevertheless obligate even someone who totally denies to swear; but when we’re speaking here on the Torah level, then someone who totally denies is exempt and does not need to swear. Only in partial admission must he swear. Okay?

[Speaker C] Because his status as the one in possession is enough so that we don’t need—

[Rabbi Michael Abraham] Need more in order to exempt him from paying. So why do we nevertheless require him to swear? Let the other one bring proof—the burden of proof is on the one seeking to extract from another. There are various considerations, concerns, because of which we still want him to swear, but that’s only… And if the plaintiff brings proof, then he doesn’t need to swear. If the plaintiff brings proof—two witnesses, whatever—in his own favor, then they won’t make the defendant swear; he’ll simply pay, and that’s that. There’s no point making him swear. You only ever swear when we’re about to rule that you are exempt. So in order to calm us before we rule that you are exempt, swear to us. Exactly. To calm the judges. To calm the judges so they’ll understand that they don’t need to worry that maybe they missed something here or something like that. But the moment they’ll rule otherwise, there’s no point in making him swear; they simply obligate him. Now, in the basic case of partial admission, he is exempt—he swears regarding the other part. Right? Meaning, he pays the fifty he admits to, and he swears regarding the additional fifty that he denies. Okay? Why does he swear? We’ll discuss that later. But that is the law of the oath of partial admission. Now, if I return to our discussion, then in the Torah the Torah is basically telling us that total denial is exempt even without an oath, and partial admission is exempt but with an oath. Exempt meaning regarding the fifty he denies; the fifty he admits to he will pay—that’s unrelated; there’s no dispute about that. Regarding the fifty that is in dispute, there he is in fact exempt, but he has to swear. So from the very obligation of the oath of partial admission, it follows that in total denial the defendant, of course, is exempt even without an oath. Right? What does that mean? Apparently, from here there is proof that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. Right? A person comes and sues me for one hundred shekels. Okay? I say to him: nothing of the sort ever happened—or: I repaid. Let’s say I repaid, not nothing of the sort; let’s say he has witnesses to the loan. Okay? He says I repaid. So I’m exempt, right? I’m exempt because this is not partial admission, it’s total denial. Only partial admission requires an oath; total denial is exempt even without an oath. Okay? And in partial admission too he is exempt. But now, why? After all, if he lent to me before witnesses, then this is the dispute we saw in the Talmud: does one who lends to another in the presence of witnesses need to be repaid in the presence of witnesses, or not? And here, if one must repay in the presence of witnesses, then I’m not believed to say “I repaid”; one must repay in the presence of witnesses. But the Jewish law is not like that. Still, according to the opinion that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses—what does he do with this? Apparently the Torah itself says that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses, because the fact is that in total denial we exempt him even without an oath. Okay?

[Speaker B] So there’s a contradiction between the one who holds that one must repay in the presence of witnesses and the Torah.

[Rabbi Michael Abraham] Right, it’s basically difficult for him based on the Torah law. How can you say that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses? Say he says: I repaid before so-and-so and so-and-so, and they went overseas. Okay, and then what?

[Speaker C] And then he—

[Rabbi Michael Abraham] Repaid before… okay, but if he doesn’t say that—if he just says generally, “I repaid,” not before witnesses—then he isn’t believed. Why? After all, total denial is exempt. It’s enough that there is one case on which it’s difficult for there to be a problem. Other cases where it’s not difficult don’t interfere. So according to the one who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, it seems to me that one must say that the total denial which the Torah exempted from an oath is a case of total denial where there were no witnesses to the loan. Right? There’s no choice. Because if there were witnesses to the loan, then not only would he have to swear, he would have to pay—according to the one who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. In total denial and partial admission, the whole discussion is about whether you are obligated to swear or exempt from an oath, but that you are exempt from paying is obvious: the burden of proof is on the one who seeks to extract from another. But according to the one who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses—if he’s talking to me about oaths, talk about the money! He isn’t even believed regarding the money—he should pay. If he claims para’ti, he will have to pay.

[Speaker I] Right. That’s what apparently has to come out.

[Rabbi Michael Abraham] According to the one who thinks like that. Yes.

[Speaker I] According to the one who thinks he has to pay.

[Rabbi Michael Abraham] According to the approach of Rav Pappa, the approach that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses—how will he understand the law of partial admission as against total denial, these two Torah laws? He’ll probably have to say that it’s talking about a case where there were witnesses to the loan. Right. That there were not.

[Speaker B] That there were not—

[Rabbi Michael Abraham] That there were no witnesses to the loan, sorry. Because only there is there no discussion about the money; the whole question is whether to swear or not to swear, but regarding the money you are certainly exempt. Why? Because you have the mouth that prohibited is the mouth that permitted—which is exactly that—because after all, you are the one who admitted that there was a loan, and therefore you have the mouth that prohibited, which is the mouth that permitted, so you are exempt from the money. The question of the oath is a different question. Right, that’s what one has to say. Another possibility is to say—does partial admission also have the mouth that prohibited? Also. Both of them. Partial admission too—if I admitted that there was a loan, only I said that the loan was for fifty, okay, that I repaid fifty for purposes of the discussion—then there too there is the mouth that prohibited.

[Speaker D] But the second half I admit that I have to pay.

[Rabbi Michael Abraham] Why? And that is the mouth that prohibited.

[Speaker B] The mouth that prohibited on the fifty that—on which he admitted—that he admitted there was a loan of one hundred, that’s the mouth that prohibited.

[Rabbi Michael Abraham] I admitted that there was a loan. I repaid fifty.

[Speaker C] I admitted there was fifty.

[Rabbi Michael Abraham] No. That there was a loan of one hundred and I repaid fifty. In a moment we’ll see what happens if I say lo adam. Or—

[Speaker C] If I said I repaid fifty, that’s the mouth that prohibited. A loan of one hundred and I repaid fifty means I have—

[Rabbi Michael Abraham] No. No. The oath of partial admission.

[Speaker C] I repaid fifty—that’s the mouth that permitted.

[Speaker J] Meaning—

[Rabbi Michael Abraham] Right, but “there was a loan” is the mouth that prohibited.

[Speaker J] There was a loan of one hundred and I admitted that I repaid fifty.

[Rabbi Michael Abraham] I admitted—I admitted that I didn’t repay fifty. I claimed that I repaid fifty and admitted that fifty I did not repay.

[Speaker G] You’re exempt from the first fifty?

[Rabbi Michael Abraham] No. The fifty, yes—but the second fifty I’m exempt from. Regarding what I admitted, there’s no dispute; obviously I have to pay. That’s it. But regarding what I’m exempt from, I need to swear.

[Speaker F] And that’s a different case from “I only borrowed fifty.” Right. Because on the fifty—

[Rabbi Michael Abraham] On the fifty that I said I repaid, I admitted that there was a loan there.

[Speaker F] I obligated myself in one hundred.

[Rabbi Michael Abraham] After all, I said there was a loan of one hundred. Fifty I repaid, so about that there’s no dispute—but fifty I did not repay, there’s no dispute; but regarding the fifty that I repaid, I said “I borrowed and I repaid”; I did not say lo adam.

[Speaker G] So believe me. The mouth that prohibited—I admit that I borrowed and also that I repaid. Okay? But that means that really partial admission—

[Speaker C] Is only when I came with the loan?

[Rabbi Michael Abraham] No. Wait. That’s exactly the analysis I’m doing now. So according to the one who says—Rav Pappa—who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, apparently there is a difficulty for him from the law of partial admission versus total denial, because there it implies that as far as the money is concerned I am certainly exempt. The whole discussion is only the question of whether I am obligated to swear—partial admission yes and total denial no. But why? According to his view, I am not even exempt regarding the money. Apparently one must say that he will learn the law of partial admission and total denial only about a situation where there were no witnesses to the loan. There were no—there were no witnesses. If there were witnesses, then if one must repay in the presence of witnesses, I owe the money. If there were no witnesses, then because of the mouth that prohibited, in total denial I am totally exempt; in partial admission I am exempt, but I do need to swear. Okay? Another possibility is to say that he is speaking about lo adam, not about para’ti. Total denial means “nothing of the sort ever happened.” Partial admission means “I borrowed fifty, not one hundred,” like the case you mentioned earlier. Not that I repaid fifty, but from the outset the loan wasn’t for one hundred, it was for fifty. So regarding the fifty that is in dispute, I deny it entirely—not that I say I repaid. It’s like the parallel to total denial, with a claim of lo adam—that I say lo adam regarding the fifty that is in dispute.

[Speaker C] That he admitted to another fifty.

[Rabbi Michael Abraham] What? That is not the mouth that prohibited. It’s not the mouth that prohibited, because he didn’t admit at all that there was a loan. Right. So in such a situation—

[Speaker G] The the mouth that prohibited of Tosafot? What? Doesn’t that come out for us as the mouth that prohibited like Tosafot?

[Rabbi Michael Abraham] Yes, but you don’t need to get to the mouth that prohibited. What is Tosafot’s the mouth that prohibited? Tosafot’s the mouth that prohibited is when he says para’ti, but he could have said lo adam. I’m talking about when he says lo adam. Right. So even in the case of lo adam, the one who says—Rav Pappa—who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, can explain that the Torah’s law of total denial and partial admission deals with the claim of lo adam, not the claim of para’ti. Can you say lo adam if there was a loan with witnesses? What? Can you say lo adam? Of course. In a matter where there are no witnesses to the loan—there are no witnesses here to the loan, and it also wasn’t given with witnesses. Because I am claiming—it could be that the lender claims it was given with witnesses, but he doesn’t have them, they’re gone. But I deny that there was any loan at all. Okay? In that situation, obviously I don’t need to pay. The burden of proof is on the one who seeks to extract from another. So there’s nothing to talk about. Right? “One who lends to another in the presence of witnesses must be repaid in the presence of witnesses”—we explained this in the previous lecture, with three explanations: the Ran, the Rashba, and the Tosafot Yeshanim in our passage. But all that is when I claim para’ti. If I claim lo adam, then there’s nothing to talk about. If you sue me for a maneh that you lent me—what are you talking about? I don’t even know you. I never borrowed from you. In such a case nobody will say that I need to repay in the presence of witnesses. Anyone could stop me on the street and say, “You owe me a hundred shekels,” and now I have to bring proof or witnesses? There’s no such thing. Right? The whole discussion is only when I say para’ti. So it could be that the whole law of partial admission or total denial is talking about a claim of lo adam, not a claim of para’ti. And then again there is no difficulty for him, right? Either it’s speaking where there are witnesses—or where there are no witnesses, sorry—or it’s speaking of a claim of lo adam. Because when there are no witnesses, then for a claim of lo adam I always have the migo that I have. These aren’t two different interpretations; it’s the same thing. Because if I can frame it with a claim of lo adam, then when there are no witnesses I can also say para’ti, because I have a migo that I could have claimed lo adam. Migo, the mouth that prohibited—depends how you look at it. Okay? Therefore that opinion can be reconciled. But in truth, it comes out from here, according to that opinion, that if a person says para’ti—I borrowed one hundred and repaid fifty—there will not be an oath of partial admission; he will have to pay. All of it? Yes.

[Speaker C] Again, if like—he needs to repay—

[Rabbi Michael Abraham] Because as for the fact that he repaid fifty—bring witnesses that you repaid the fifty. It doesn’t matter whether he repaid one hundred or repaid—regarding any repayment he claims to have made, he needs to bring witnesses.

[Speaker C] What you admitted to, yes, exactly.

[Rabbi Michael Abraham] Any repayment you claim took place—bring witnesses for it. Okay? So in any case, according to the one who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, it’s obvious that if I claim para’ti, then this whole story of partial admission and total denial and the whole thing does not even arise. Only if either I claim lo adam, or there are no witnesses so that even if I claim para’ti I have a migo that I could have claimed lo adam. Right? Now, if that’s really the case, then something else emerges—but maybe from the reverse angle of the same thing—and this is Rabbi David Povidorsky, whom I referred you to in the previous lecture, I mean. He says: apparently it requires explanation, what is Rabbi Yehoshua teaching us? What novelty is Rabbi Yehoshua teaching us? Is it not stated explicitly in the Torah in the very law of partial admission that he is exempt from paying the portion he denies, and likewise total denial is exempt, even if he admits there was a loan? So what is Rabbi Yehoshua teaching us? What is he saying? He is not asking the question I asked earlier. I asked earlier, from the very law of partial admission and total denial, against the one who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. But that is not difficult. Because he will explain it as referring to lo adam, or where there are no witnesses and he claims para’ti with the support of lo adam. Right? Now he asks the opposite question. He says: you, Rabbi Yehoshua—how do you explain the Torah law of partial admission? Obviously you explain it as speaking about a claim of lo adam, or where there are no witnesses and he claims para’ti with the support of lo adam. Right? So he says: if so, then what is the novelty that Rabbi Yehoshua admits, in the case of the mouth that prohibited, that he is believed? The Talmud here wanted Rabbi Yehoshua to state his novel point—that he admits the mouth that prohibited—in the case of “I borrowed from you and repaid.” What’s the novelty? It is explicitly written in the Torah, this novelty. After all, it’s explicitly written in the Torah. I didn’t understand the translation. Again—the Talmud here says that Rabbi Yehoshua, why did Rabbi Yehoshua need to get to the case of land: “This field belonged to your father, and I bought it from him”? Talk about the case of “I borrowed from you and repaid.” Right? And then what would Rabbi Yehoshua say? In that case I admit that he is believed because there is the mouth that prohibited. It’s not migo, it’s the mouth that prohibited, and I admit he is believed.

[Speaker C] And that is what, with land? What?

[Rabbi Michael Abraham] No, not with land. The Talmud asks: why go to a land-case? Talk about a loan case involving movable property. He borrowed one hundred from you and you’re suing him—right, I borrowed, but I repaid. And Rabbi Yehoshua would admit that there. Why doesn’t Rabbi Yehoshua in the Mishnah admit that there—bring that case and say: in this case I admit, because there is the mouth that prohibited. Right, that’s the Talmud’s question. Rabbi David Povidorsky asks about this: you can’t say such a thing. Because in such a case Rabbi Yehoshua is coming to teach a novelty, and there is no novelty here at all. It’s explicitly written in the Torah, this novelty. After all, this is what is written explicitly in the Torah when the Torah says that total denial is exempt, isn’t it? When the Torah says total denial is exempt, what is it really saying? If there are witnesses, the Torah wasn’t speaking about that. Because the lender—right? Well, that’s exactly Rabbi Yehoshua’s case. So did Rabbi Yehoshua need to teach me the novelty that he admits the mouth that prohibited? The Torah says that. But regarding—

[Speaker C] Necessarily, then, it is a novelty.

[Rabbi Michael Abraham] Right? So why does Rabbi Yehoshua admit the mouth that prohibited? Rabbi Yehoshua admits that “In the beginning God created the heavens and the earth.” It’s written in the Torah. That’s not our discussion.

[Speaker C] Say—

[Rabbi Michael Abraham] Tell me some non-trivial novelty in which you admit.

[Speaker I] But necessarily it is a novelty.

[Rabbi Michael Abraham] And necessarily it is a novelty. Okay? So that’s what Rabbi David Povidorsky asks, and that really is a good question. What I asked earlier was only a didactic question—it isn’t difficult. But I prepared the ground for this question. Because after we understand that according to “one who lends to another in the presence of witnesses must be repaid in the presence of witnesses”—and at that stage in the Talmud, at the first stage, they thought Rabbi Yehoshua went with that. Later they answered no, but I’m talking about that stage in the Talmud, where they thought Rabbi Yehoshua went with that. So according to that opinion, obviously the Torah is speaking when he claims lo adam, or where there are no witnesses and then he has a migo of lo adam. Right? That’s all the Torah is talking about. And according to the Torah, why indeed is he exempt? Because he has the mouth that prohibited, even though he is admitting. Right? If he says para’ti with a migo of lo adam, where there are no witnesses. If he says lo adam, then there’s nothing to discuss. But if he says para’ti with a migo of lo adam—then here Rabbi Yehoshua says he is believed by the mouth that prohibited, right? Because after all, he admitted there was a loan; he could have said lo adam. Right? Therefore he is also believed to say that he repaid. That is the novelty the Talmud wanted Rabbi Yehoshua to teach us. So Rabbi David Povidorsky asks: that novelty is written explicitly in the Torah. That is the Torah law of total denial. The Torah itself says that partial admission requires an oath but not payment, and total denial doesn’t even require an oath. Meaning, obviously—and what is it talking about? It is talking only about someone who claims para’ti with a migo of lo adam. Because if he claims para’ti without a migo of lo adam, then he simply will not be believed—that is not true according to this opinion. Right? Only in the case of para’ti with a migo of lo adam. Well, then it is explicitly written in the Torah that here the mouth that prohibited works. So what does it mean that Rabbi Yehoshua admits it? What novelty does Rabbi Yehoshua need to teach me—that he agrees with the Torah?

[Speaker C] But in the Torah they didn’t tell me whether it was given with witnesses or not.

[Rabbi Michael Abraham] But necessarily we have to say it was given without witnesses. Because if it was given with witnesses, then even according to this opinion it would not be true that he is exempt.

[Speaker B] The Torah says he is exempt.

[Rabbi Michael Abraham] We are talking about the opinion that one must repay in the presence of witnesses, yes. Okay?

[Speaker B] But if the Talmud doesn’t agree with Rav Pappi, then it can still bring that derivation.

[Rabbi Michael Abraham] I didn’t understand. Right, but we are speaking according to Rav Pappi. The Talmud is speaking according to Rav Pappi. Otherwise this couldn’t have been suggested at all. Otherwise the Talmud’s answer would be obvious according to Rav Pappi. We talked about this in the previous lecture—that this possibility couldn’t have been raised at all except according to Rav Pappi. It’s not only in the Talmud’s answer, but according to Rav Pappi even the initial assumption couldn’t have been raised. The whole initial assumption is only according to Rav Pappi. And that’s what Tosafot Yeshanim says—that at the moment it is dealing according to the view that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. And later the answer is: no, as a matter of law we rule like Rav Pappi that he does not need to be repaid in the presence of witnesses. But according to Rav Pappi’s view—that one must repay in the presence of witnesses—just as the Talmud initially wanted to frame Rabbi Yehoshua, then the whole business is basically written explicitly in the Torah. So what did Rabbi Yehoshua need to teach?

[Speaker B] This argument isn’t always right—I mean Rabbi Povidorsky’s argument—it’s not… in the end, the Sages reveal hidden dimensions that were in the Torah; through their learning they reveal to us, basically…

[Rabbi Michael Abraham] What do you mean? It’s not hidden; it’s written explicitly. What’s hidden there? The Torah says that one who denies the whole claim is exempt. It’s all a matter of calculations. But it’s not a complicated calculation. It says: if he denies the whole claim, he’s exempt; if he admits part of it, he’s liable. Why is one who denies the whole claim exempt? It’s written in the Torah that one who denies the whole claim is exempt. Why is he exempt? Because if one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses, then why is he exempt? “The mouth that forbade is the mouth that permitted” — what else could it be? More than that: why didn’t they bring a proof from here for “the mouth that forbade”? The Talmud asks — and I’m adding — the Talmud asks: from where do we know “the mouth that forbade is the mouth that permitted,” right? We saw the Talmud on page 22. From where do we know “the mouth that forbade is the mouth that permitted”? As it was taught: “I gave my daughter to this man” — “I gave” forbade, “to this man” permitted. Right? Why? There is a law of denying the whole claim in the Torah; the law of “the mouth that forbade is the mouth that permitted” is written there explicitly. So why do we need close readings of verses and pilpul and all kinds of things? This law is written in the Torah, “the mouth that forbade.” But in the Torah it’s not with witnesses. No, but according to the view that one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses — I’m speaking entirely according to that view; the whole calculation is according to that view. You could say that our Talmud on page 22 can apparently be set up according to the view of Rav Pappi, because that’s also how Jewish law is ruled. But in truth, according to Rav Pappi, the law of “the mouth that forbade” can be learned from the very case of denial, from the Torah’s exemption of one who denies the whole claim; you don’t need “I gave to this man” and all those calculations that appear on page 22. Okay? So he says… Rav David Povidarsky says: “And one can say that from the basic law of partial admission and total denial there is no proof at all, for perhaps it is speaking of a denial of ‘it never happened,’ where he claims he borrowed only fifty, or where he denies the whole claim by saying he never borrowed at all. In such a case there is no ‘the mouth that forbade’ at all; rather, he is denying the very basis of the obligation. But where he admits that he was obligated and only claims that he repaid, it could be that in truth he would not be believed.” What is he saying? We’re assuming the conclusion. We know that the law of partial admission and total denial applies both when he claims “it never happened” and when he claims “I repaid,” where there were no witnesses and he has “the mouth that forbade,” because he could have said “it never happened.” Right? It’s nice that we know that, but if we were just reading the Torah, in the Torah itself you could have said that maybe it speaks only about “it never happened,” and “the mouth that forbade” doesn’t help. If he says “it never happened,” then of course “the burden of proof is on the claimant,” right? Someone comes and claims a hundred shekels from me; I say to him, “Nothing of the sort ever happened.” Here obviously the burden of proof is on the claimant; that’s not even a question. It’s written in the Torah that he is exempt. And in partial admission I’m liable, and let’s say I admitted that I borrowed fifty, not that I repaid fifty. I borrowed only fifty — about that the law of the oath of partial admission is stated. Why? Because when you claim “it never happened,” there’s no discussion about the money; regarding the money you are certainly exempt, because the burden of proof is on the claimant. The whole discussion is only about the question of the oath: in partial admission there is an oath, and in total denial there is no oath. But if I claim “I repaid,” not “it never happened,” or “I repaid part” or “I repaid all,” whether total denial or partial admission, there it could really be that I would be liable — always liable. Why? Because if one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses, then he would be liable. Then Rabbi Yehoshua comes and innovates: no, there is “the mouth that forbade,” and therefore even in such a case he is exempt. I agree that in such a case, because there is “the mouth that forbade,” he is exempt. And now when we read the Torah regarding total denial and partial admission, we understand that it applies both to “it never happened” and to “I repaid” with the miggo that he could have said “it never happened.” And that is only after this whole calculation, where Rabbi Yehoshua agrees with us about everything. What? If he says “it never happened,” that’s… No, with the miggo that he could have said “it never happened.” Or if he says yes, there were witnesses, then you can say either “it never happened” — if you claim “it never happened,” you brush him off. If you claim “I repaid” and there are no witnesses, you have a miggo that you could have said “it never happened.” No, but

[Speaker C] Let’s say in the case of partial admission, “it never happened” means

[Rabbi Michael Abraham] “I borrowed fifty.” That’s called “it never happened.”

[Speaker C] “I borrowed fifty.” Yes.

[Rabbi Michael Abraham] Not “I repaid fifty.” “I borrowed fifty and repaid nothing.” I borrowed only

[Speaker C] fifty; what do you want from me?

[Rabbi Michael Abraham] The question about the fifty that I admit — am I admitting it because I still haven’t repaid it, or am I admitting it because I borrowed it? Sorry, the fifty that I deny — I

[Speaker C] deny because I repaid it, or because I never borrowed it?

[Rabbi Michael Abraham] So that’s really about the fifty that I don’t want to… No, that’s the difference. Either you admit there was a loan and say you repaid it, or you don’t admit there was a loan at all.

[Speaker C] That’s

[Speaker G] the difference between “it never happened” and “I repaid” in the case of partial admission.

[Rabbi Michael Abraham] Even in the case of partial admission there’s a difference between “it never happened” and “I repaid.” Regarding the fifty I’m disputing — why am I disputing it? Am I disputing it because it never existed, or because I repaid it? The same distinction that exists in total denial.

[Speaker J] If there is “the mouth that forbade,” that means I’m admitting they existed and I repaid; otherwise that’s what exempts me. Exactly. And I don’t necessarily have to say “it never happened.”

[Rabbi Michael Abraham] You could say “it never happened.” You could have said “it never happened.” No, yes. You could have said “it never happened,” but you said “I repaid.” So you have a miggo that you could have said “it never happened”; that is “the mouth that forbade.” According to Tosafot, that’s “the mouth that forbade” — not so simple. It’s miggo, not “the mouth that forbade.” According to Tosafot it is “the mouth that forbade,” a miggo that he could have said “it never happened.” According to Rashi, if he wasn’t claimed against, then it’s “the mouth that forbade”; never mind. According to Rashi, it’s a case where he wasn’t claimed against, and then it’s “the mouth that forbade.”

[Speaker J] Fine, subtle differences. Wait, but the fifty about which I said nothing — I’m not admitting that at all.

[Rabbi Michael Abraham] You’re not admitting that you owe it, but you are admitting that you borrowed it. No, who says? It depends on the case. There’s a case where you say, “I’m not admitting that I borrowed the other fifty,” and there’s a case where you say, “I admit I borrowed it, but I repaid you fifty — what do you want from me?” Fine.

[Speaker J] Now if I say, “I borrowed fifty,” and he says, “You borrowed a hundred from me,” and I say, “No, I borrowed fifty and repaid” — it doesn’t matter, I’ll still be fifty short. About the fifty I didn’t repay, that’s “it never happened,” right? I have no miggo there. I didn’t admit.

[Rabbi Michael Abraham] If you had said that you repaid, you’d have had a miggo. Right, right.

[Speaker J] And regarding that part I have neither “the mouth that forbade” nor anything.

[Rabbi Michael Abraham] If you claim “it never happened,” then of course not. Even in total denial, when you claim “it never happened,” you have no “mouth that forbade” and nothing.

[Speaker J] Is it considered that I’m denying the whole claim as to those fifty?

[Rabbi Michael Abraham] Of course, because “the whole claim” is only the fifty that we’re disputing. The fifty that I admit, I admit, so I’ll pay it — what does that have to do with anything?

[Speaker J] The Torah doesn’t say partial admission; the Torah says total denial

[Rabbi Michael Abraham] regarding the other fifty — what are they? Yes. The fifty from which you’re exempt, you’re exempt because you denied them and the burden of proof is on the claimant, but in order to be exempt the Torah still wants you to swear. Here comes in the idea of partial admission. The exemption from payment is the same exemption as in total denial, and only…

[Speaker J] No, no, no, you’re mixing things up.

[Rabbi Michael Abraham] If you borrowed and returned it, then you don’t owe it. Right? And in the second part too you claim you don’t owe it, so that’s called total denial.

[Speaker J] So in the second part I claim I didn’t take it.

[Rabbi Michael Abraham] Then you’re denying the whole claim; you’re not partially admitting. What are you talking about? Partial admission means: I owe you fifty. You’re describing a case where I owe you nothing. I repaid fifty, and the other fifty I never borrowed at all.

[Speaker J] What

[Rabbi Michael Abraham] are you talking about? Here,

[Speaker J] he claims that he never borrowed at all, only fifty.

[Rabbi Michael Abraham] Never borrowed at all, only fifty? Meaning: he didn’t borrow the whole hundred, only fifty — that’s what it means.

[Speaker J] Half. He borrowed half, and you

[Speaker C] That’s

[Rabbi Michael Abraham] what he’s not disputing.

[Speaker J] Right, he borrowed fifty, right. He answered…

[Rabbi Michael Abraham] No, he didn’t repay! No, he owes it. That’s partial admission. If he repaid it, then it’s not partial admission. There are two cases.

[Speaker J] And what about the fifty that he did admit?

[Rabbi Michael Abraham] No, there’s no discussion about the fifty he admitted. If he admitted it, he pays. How much did I borrow?

[Speaker J] Okay, he said to me, “You took fifty.” I admit that I took fifty, and I don’t admit that I took a hundred. That is the law of partial admission. Right. And in that case I’ll have to return the fifty, right, and swear about the rest.

[Rabbi Michael Abraham] No, the other fifty that you returned…

[Speaker J] Do I have to swear about the other fifty? Yes, in order to be exempt.

[Speaker G] That I didn’t take it.

[Rabbi Michael Abraham] That’s the law of partial admission. Because regarding fifty you admit that you owe it, so about the other fifty that you deny — which in principle we should have exempted you from, because as to that you’re denying the whole claim, as to the other fifty — because you admitted part, you’ll have to swear about the part you denied. The exemption from payment is the same in partial admission and in total denial. Why is she exempt from paying? She’s exempt from paying because the burden of proof is on the claimant. And what difference does it make whether I denied fifty or denied a hundred? Whatever you denied, he needs to bring proof to extract it from me, because I’m not admitting it.

[Speaker J] But I already borrowed it?

[Rabbi Michael Abraham] Doesn’t matter; that’s not important.

[Speaker J] Why? If I borrowed it, because I’m saying… Even in total denial, if I admit that there was a loan and that I repaid it, and one had to repay in the presence of witnesses…

[Rabbi Michael Abraham] Ah, that’s the discussion about whether one must repay in the presence of witnesses. Exactly! According to the one who says that if you lend to your fellow in the presence of witnesses you must repay in the presence of witnesses, if I admit that there was a loan, then in principle I should have to pay were it not for “the mouth that forbade.” Because if there was a loan by virtue of my own admission, not because there are witnesses to it, I’m still exempt. But I’m exempt because of “the mouth that forbade,” not because of the simple rule that the burden of proof is on the claimant.

[Speaker I] I didn’t understand. So is he claiming there are two cases of partial admission in the Torah or not? Yes. So he says one case is obvious and doesn’t need anything from Rabbi Yitzchak, and the second case, where I say I didn’t borrow more than fifty, is Rabbi Yitzchak’s innovation?

[Rabbi Michael Abraham] No, no, again.

[Speaker I] Because I got lost here. Okay, let’s write it on the board.

[Rabbi Michael Abraham] I’ll organize it. One second, one second, I’ll sort it out for you.

[Speaker I] What is Rabbi Yitzchak’s innovation?

[Rabbi Michael Abraham] Yes, right. Let me explain for a moment. Look, there can be several cases of total denial, and there can be several cases of partial admission. First of all, you have to understand: partial admission, at the basic level, before the Torah’s innovations and before everything else, is no different from total denial. Partial admission is simply partial denial instead of total denial, and the litigation is over that part which he denies, because as for the part he admits — what do I care? He admits it and will pay. So there’s no argument. Their dispute is about what he denies. Okay? On the level where we compare total denial to partial admission… what?

[Speaker B] That already makes more sense. Total denial and partial denial.

[Rabbi Michael Abraham] It’s the same thing. Partial admission is really partial denial.

[Speaker B] Right, which is why basically the Sages instituted… in the Talmud they instituted that in partial admission one swears, because it’s really…

[Rabbi Michael Abraham] Not the Sages — the Torah.

[Speaker H] It’s the Torah,

[Rabbi Michael Abraham] not the Sages.

[Speaker H] The difference between total denial and partial admission is that in total denial he can say “it never happened,” and in partial admission he admits that it did happen.

[Speaker B] No,

[Rabbi Michael Abraham] no, no, no, no, wait, wait, wait, wait, give me a second. There’s terrible confusion here. Give me a moment, I’ll summarize, and afterward tell me if something still isn’t clear, okay? There are several possibilities for total denial and several possibilities for partial admission, and they are completely parallel possibilities. Every scenario that exists in total denial also exists in partial admission. Why? Because partial admission means partial denial. The same ways of denying the whole claim can also be used to deny part of the claim. Okay? So let’s talk for a moment about total denial. How does he deny? He can say: I didn’t borrow at all. That’s “it never happened,” right? He can say: I borrowed and repaid. Fine? But there can be another state, another aspect…

[Speaker G] Wait, “I borrowed and repaid” is denying the whole claim? Yes. Because there is no debt.

[Rabbi Michael Abraham] Denying the obligation, not the reality. Fine? Now here too we have to distinguish between a case where there were witnesses and a case where there were no witnesses.

[Speaker G] Wait, you said there’s a third case.

[Rabbi Michael Abraham] No,

[Speaker C] That’s what I’m saying.

[Rabbi Michael Abraham] Wait, wait, before that, one second. I’m talking about the cases. I haven’t said anything yet. I’m talking about the cases. The cases are like this: someone comes and claims a hundred shekels from me. Fine? He may have witnesses, or he may not have witnesses to the loan. Fine? I can make one of two claims. I can claim “it never happened” — I’m talking now about total denial — either “it never happened” or “I repaid.” Fine? Now if there are witnesses against me, obviously I can’t claim “it never happened.” Right? I can only claim “I repaid.” Right. So there are really three cases. Case one: there are no witnesses against me, and I claim “it never happened.” Case two: there are no witnesses against me, and I claim “I repaid.” I’m shooting myself in the foot, admitting that there was a loan and only saying “I repaid” — that is “the mouth that forbade.” Case three: there are witnesses against me, and I claim “I repaid.” I can’t claim “it never happened”; I claim “I repaid.” Fine? Again. Sorry. Again, three cases. Admit what?

[Speaker G] The witnesses, the witnesses, the loan.

[Rabbi Michael Abraham] Three cases.

[Speaker G] First case, there was nothing at all, right?

[Rabbi Michael Abraham] No witnesses, no

[Speaker G] witnesses, and I claim “it never happened.”

[Rabbi Michael Abraham] Okay.

[Speaker C] No witnesses, “I repaid.”

[Rabbi Michael Abraham] There are witnesses, and I claim

[Speaker C] “I repaid.”

[Speaker G] Okay,

[Rabbi Michael Abraham] and where there are witnesses you can’t claim “it never happened.” Right. Now the case of “the mouth that forbade” is always from one mouth to the same mouth. Right? Because only this case belongs to “the mouth that forbade.” Right, because here, when there are no witnesses, I could also have claimed “it never happened,” and instead I claim “I repaid,” so I have a miggo. Here there is no “mouth that forbade”; here it’s the strong claim itself. Here the claim is weak, so I have a miggo that I could have made the stronger claim. Here there’s nothing. Here there is no “mouth that…” Okay? About this there is a dispute whether

[Speaker J] one who lends to his fellow in the presence of witnesses

[Rabbi Michael Abraham] must or need not be repaid in the presence of witnesses. About this case, right? Because there are witnesses to the loan.

[Speaker J] Wait, wait, there’s also about the no…

[Rabbi Michael Abraham] Wait, wait, one second. Fine? On this there is the dispute. Right. Meaning: must or need not, of course — that’s the dispute. Okay.

[Speaker C] Now if… wait.

[Rabbi Michael Abraham] Okay, so on this we said “the mouth that forbade,” good. Now in these two cases that dispute is obviously irrelevant; “one who lends to his fellow in the presence of witnesses” isn’t relevant because here there were no witnesses. Yes. Fine? Now that’s for total denial. Now in partial admission it’s exactly the same. I’ll just write it again, but it’s exactly — I could just duplicate the board — exactly the same thing, only it applies to the other half. Yes. Therefore one has to be careful: in partial admission there is no difference between partial admission and total denial regarding the question of liability to pay. The difference between them is only the obligation of the oath. Because I admit… Look, here in partial admission…

[Speaker J] But if there are no witnesses, then according to the one who says you don’t need to repay in the presence of witnesses, the law is different. What? No, we’re not talking about the witnesses; there is a difference in the middle case according to that dispute.

[Rabbi Michael Abraham] A difference between what and what?

[Speaker J] There is no “mouth that forbade” if we maintain that one need not repay in the presence of witnesses. Okay,

[Rabbi Michael Abraham] no, why not? If there are no witnesses, then of course he doesn’t need to repay in the presence of witnesses, because there are no witnesses.

[Speaker J] But I don’t have “the mouth that forbade,” if I think that…

[Rabbi Michael Abraham] No, no, of course you do have “the mouth that forbade.” If there are no witnesses and I claim “I repaid,” I could have claimed “it never happened.”

[Speaker J] But that’s only on the assumption that…

[Rabbi Michael Abraham] No, no, after all here there are no witnesses. If not B then not A, but a loan without…

[Speaker I] witnesses is the same thing on the assumption that…

[Speaker J] Why not? “The mouth that forbade” is only if witnesses come and…

[Rabbi Michael Abraham] No, no. “The mouth that forbade” means I claim “I repaid” and I could have claimed “it never happened,” and that’s Tosafot’s version of “the mouth that forbade,” okay? I could have claimed “it never happened”; according to everyone, I could have. The dispute about whether I can claim something or not is only here — not “it never happened,” but “I repaid.”

[Speaker I] Sorry, in the second case of partial admission he claims “I repaid” about the half, right?

[Rabbi Michael Abraham] Now I’m getting to partial admission… Now in partial admission this whole story repeats itself regarding the half that I’m disputing. I can dispute it with the claim “it never happened” if there were no witnesses regarding it; if there were witnesses, there’s nothing to discuss. I can dispute it with the claim “I repaid”…

[Speaker C] But “it never happened” in partial admission — after all here…

[Rabbi Michael Abraham] It’s all within partial admission.

[Speaker C] Wait, but there are two possibilities.

[Rabbi Michael Abraham] They’re all partial admission. I’m now talking about partial admission, and I’m saying that all these things also recur within partial admission.

[Speaker I] But when he says “it never happened,” does he mean “I didn’t take anything at all” or “I didn’t take the other half”?

[Rabbi Michael Abraham] It’s partial admission. Partial admission always means admitting half. Exactly. Partial admission means: there is one part that I admit and one part that I deny. Fine? What? The opposite, as it were. What do you mean?

[Speaker F] The denial is here; the denial points here. This whole side is the side of the denial.

[Rabbi Michael Abraham] Everything there falls under the denial; it doesn’t matter.

[Speaker F] But what is there, all

[Rabbi Michael Abraham] that’s there, you write here. Regarding the part that I deny, clear? Meaning: regarding the part that I deny, I can say “it never happened.” What does “it never happened” mean? The loan was only fifty, not a hundred.

[Speaker F] “It never happened” regarding the fifty

[Rabbi Michael Abraham] that we’re disputing — that’s called “it never happened.” I can say: no, there was a loan of a hundred, but I repaid fifty. That’s the second part.

[Speaker F] But if there were witnesses, I can’t say “it never happened” — there were witnesses to a loan of a hundred, so I can’t say “it never happened,” but I can say that I repaid fifty of it. The three cases that appear in total denial, if it’s without witnesses… What? Yes, if there are witnesses, it means there are witnesses to the loan. If there are witnesses that I repaid, then there’s no dispute. Whenever there’s a dispute, it always means there are no witnesses. Fine?

[Rabbi Michael Abraham] No, in this case — but in this case where there are witnesses, there are witnesses to a loan of a hundred. How can one… one can’t dispute the loan.

[Speaker F] No, I’m claiming without witnesses. What?

[Rabbi Michael Abraham] If there are witnesses that I repaid, why would I claim that I repaid without witnesses? There are witnesses that I repaid.

[Speaker F] No, there are witnesses that I borrowed.

[Rabbi Michael Abraham] Fine, so what’s the question?

[Speaker F] There are witnesses that I borrowed a hundred, but you say that you repaid fifty.

[Rabbi Michael Abraham] Same thing, exactly as in total denial. According to the one who says that one who lends to his fellow in the presence of witnesses must be repaid

[Speaker F] in the presence of witnesses, here there is no

[Rabbi Michael Abraham] difference between no witnesses and witnesses here. According to the one who says that one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses, you can’t say “I repaid” when there are witnesses, right? You’re not believed. According to the one who says that one who lends to his fellow in the presence of witnesses need not be repaid in the presence of witnesses, you are believed to say “I repaid” even when there are witnesses, right? The same will be true here, in total denial and in partial admission. Regarding the remaining fifty, if there are witnesses to the loan of a hundred and I say, “Yes, but I repaid fifty,” it depends. According to the one who says that one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses, I’ll have to pay — not just swear; I’m not believed at all. Fine? If according to the one who says that one who lends to his fellow in the presence of witnesses need not be repaid in the presence of witnesses, then this is an ordinary discussion of partial admission.

[Speaker B] Except that in the first case he has to swear about what? He doesn’t have to swear at all. Only pay. When does he have to swear? Only pay. In the third case — no, in partial admission — if there are witnesses and he says “I repaid.”

[Rabbi Michael Abraham] There are witnesses to a loan of a hundred, and he says, “I repaid fifty, and fifty I still owe you,” right? Now you can’t claim regarding the additional fifty that you repaid, because according to the one who says that one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses, then in effect you have to pay the whole hundred.

[Speaker F] And there’s no issue of an oath?

[Rabbi Michael Abraham] Of course not, because you’re not prevailing on anything.

[Speaker F] When does he swear in partial admission?

[Rabbi Michael Abraham] In order to be exempt from fifty.

[Speaker G] In the first two cases he

[Speaker F] is exempt from the fifty.

[Rabbi Michael Abraham] In the first two cases

[Speaker F] he

[Speaker G] is exempt from the fifty.

[Rabbi Michael Abraham] Wait — in the third case it depends whether one must or need not repay in the presence of witnesses.

[Speaker G] Exempt from the fifty by an oath? Right, there it’s by an oath. Wait, he’s exempt from the fifty that he denies? Yes, the ones he denies.

[Rabbi Michael Abraham] But since there are fifty that he does owe, that imposes on him an obligation to swear regarding the fifty that he denies.

[Speaker I] What did we say simply here according to Rav Huna and Rav Chisda?

[Rabbi Michael Abraham] Wait, one second. First of all, are the cases clear? Fine. So basically what we have here is that the whole discussion is here. All these cases and the whole discussion concern the part that he denies. As for the part he admits, he’ll pay — what’s the problem? The only implication of the fact that he admits is that here, besides all these discussions, there is also an obligation of an oath,

[Speaker G] that the admission itself imposes the oath on him. Exactly.

[Rabbi Michael Abraham] These quotation marks are just a copy of the whole board on the right. Fine?

[Speaker B] Here.

[Rabbi Michael Abraham] But besides that there is an obligation…

[Speaker B] Again, what does he swear about?

[Rabbi Michael Abraham] About the part from which he is exempt, the part he denies.

[Speaker B] But according to the one who says that he needs witnesses to repay, then he won’t be exempt from anything and he won’t swear.

[Rabbi Michael Abraham] He also won’t swear?

[Speaker B] Only where he is exempt on half in the three cases; and in the fourth,

[Rabbi Michael Abraham] where witnesses are required, he is not exempt.

[Speaker B] Exactly. And wait, and if there are witnesses

[Speaker F] and according to the one who says he need not repay in the presence of witnesses?

[Rabbi Michael Abraham] If he need not repay in the presence of witnesses, then this is ordinary partial admission. Yes, so he is exempt and has to swear.

[Speaker F] He is exempt on the half

[Rabbi Michael Abraham] where he said he repaid, but he has to swear.

[Speaker F] Meaning: when is he liable to pay in every case?

[Rabbi Michael Abraham] Only if there are witnesses, and according to the one who says he must repay in the presence of witnesses.

[Speaker F] Right, which in any case is how we rule.

[Rabbi Michael Abraham] Fine, right, that isn’t the Jewish law.

[Speaker G] Now, but I don’t understand why you wrote this under the denial.

[Rabbi Michael Abraham] The oath is on the part he denies. There are two parts here. In partial admission he admits part and denies part.

[Speaker G] Right, but regarding the part he admits, there is only an obligation to pay, but if he says already…

[Rabbi Michael Abraham] “I already paid” means claiming exemption. That’s the part he denies. If he says he already paid, then he denies; he doesn’t admit. To admit means there are fifty that I really owe you — I borrowed and also didn’t pay.

[Speaker G] So what is he admitting here? Basically he admits that there was a loan?

[Rabbi Michael Abraham] No, that there was a loan and that he owes it — he also didn’t repay. Yes, fine. Fifty. Regarding the other fifty that he denies, the question is whether he claims he repaid it, claims that he never borrowed it at all, whether there are witnesses or not. Now Rav David Povidarsky comes and says this: apparently we asked, what is Rabbi Yehoshua’s innovation, according to Rabbi Yehoshua, that in a situation where there is “the mouth that forbade” he is believed? Apparently this is simply the law of total denial that appears in the Torah, or partial admission — it doesn’t matter, because even in partial admission, on the monetary level, he is exempt. The difference between them is only regarding the oath. It doesn’t matter whether it is partial admission or total denial, right? Meaning, this part of partial admission is exactly like total denial. And here we see that once he is exempt from paying, that means apparently that one need not repay in the presence of witnesses — or no, sorry, according to the one who says that one must repay in the presence of witnesses, that means he has “the mouth that forbade” and the Torah is speaking about a case without witnesses, right? It must necessarily be speaking about one of these first two situations, right? According to the one who says that one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses, then it must be talking about one of these two situations. The third situation is not legally possible according to him, right? So if it is talking about these situations, then it’s already written here that “the mouth that forbade” is effective, right? Because if there are no witnesses, you’re basically telling me that if he claims “I repaid,” he will be exempt. So we see that… why will he be exempt? Because he is believed, because he has “the mouth that forbade.” So the law of “the mouth that forbade” is written explicitly here. So what is Rabbi Yehoshua’s innovation?

[Speaker G] It’s already written in the Torah.

[Rabbi Michael Abraham] Yes. Rav David Povidarsky says: no. If not for Rabbi Yehoshua’s admission, I would have thought that the Torah speaks only about this and not about this. The Torah exempts him from paying only here.

[Speaker G] Meaning in total denial.

[Rabbi Michael Abraham] In total denial. But in a case where he claims “I repaid,” maybe the Torah does not exempt him. Why? Because here, when he claims “I repaid,” in principle he should have to repay in the presence of witnesses; he is not believed when he claims “I repaid.” But because he has “the mouth that forbade,” therefore he is exempt — and that is Rabbi Yehoshua’s innovation.

[Speaker B] But then the Talmud comes to reject that claim — as though the Talmud suggested this before, and in the end it doesn’t bring it.

[Rabbi Michael Abraham] No, this is at the stage where it suggested it. The whole discussion is at the first stage in the Talmud, when the Talmud proposed it, and about that we ask: wait a second, what was it proposing at all? What is there to propose, that Rabbi Yehoshua agrees in such a case? It’s written explicitly in the Torah. What is there for Rabbi Yehoshua to concede? Afterward the Talmud also backs away from it because it follows the second opinion. But according to the one who says that one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses, this remains — that’s how he will explain Rabbi Yehoshua.

[Speaker H] “The mouth that forbade” is not Torah-level law; miggo is not Torah-level law, but rather…

[Rabbi Michael Abraham] We would have thought not. We would have thought not. Therefore the fact that Rabbi Yehoshua agrees in this case is indeed an innovation. Why do you say there’s no innovation here? The innovation is that we don’t read the Torah as speaking only about the first case, but also about the second case. Yes.

[Speaker F] No — what “the mouth that forbade” does he have in the case of “it never happened”?

[Rabbi Michael Abraham] In “I repaid” — a miggo, because if he wanted he could have said, “I didn’t borrow.”

[Speaker F] In “I repaid” — that’s the innovation. No — which verse are we…

[Rabbi Michael Abraham] No, if there hadn’t been — let’s say Rabbi Yehoshua had not said that I agree in a situation where I said, “I borrowed from you and repaid.” Fine? Let’s say Rabbi Yehoshua had not agreed. Then I would say, what do you mean — it says in the Torah that this is so, that he is believed, right? Because the Torah says that one who denies the whole claim does not need to pay. No — in the Torah I would read the Torah only on this case, where he says “it never happened.” But who says that in this case too he is exempt? Here he is saying that he admits there was a loan; he claims “I repaid.” Who says that for this he is exempt? The innovation is that there is “the mouth that forbade.” The innovation in what the Talmud proposes, that Rabbi Yehoshua agrees, is that because of “the mouth that forbade,” he is believed even here.

[Speaker F] The verse in question is not about “the mouth that forbade”; rather, the verse — there are two verses we’re talking about here.

[Rabbi Michael Abraham] Partial admission — no, only about partial admission.

[Speaker H] But the innovation is that Rabbi Yehoshua thinks this is actually Torah-level? Yes.

[Rabbi Michael Abraham] We saw on page 22: From where do we know “the mouth that forbade is the mouth that permitted” from the Torah? So this is a Torah-level law.

[Speaker H] So then really why do we need to say it

[Speaker I] with miggo?

[Rabbi Michael Abraham] What? Because who says that the miggo helps to extract him from liability?

[Speaker I] Why not? After all, he has a miggo to say “it never happened,” doesn’t he?

[Rabbi Michael Abraham] Right, yes, he has a miggo to say “it never happened,” so what? Who says that miggo helps to extract? Miggo to extract does not work. If this is considered extracting, there is room to discuss it.

[Speaker J] And that’s the issue of why we have to say, as we said in the previous class, that if I say yes — if I say “I repaid,” I am obligating myself. Meaning, “I repaid” — and that is also a miggo.

[Rabbi Michael Abraham] Exactly. Our passage assumes that — exactly what I said.

[Speaker J] And that’s also what Rabbi

[Speaker I] David Povidarsky says — he has to assume it.

[Rabbi Michael Abraham] Yes, in our passage it’s apparently written that way, yes.

[Speaker I] So what is the Talmud claiming? That miggo creates liability, or that miggo creates exemption?

[Rabbi Michael Abraham] The innovation the Talmud wants Rabbi Yehoshua to teach me is that even with a miggo he is believed. Not when he says “it never happened” — when he says “it never happened,” obviously he is believed. I understand.

[Speaker I] No, the question is different. Either the Torah simply decrees that even in a case where he claims “paid,” he is believed, or the Torah is saying that miggo works here.

[Rabbi Michael Abraham] He simply wants miggo to work here. Why should we say it’s a scriptural decree? If there is an explanation, why assume there isn’t?

[Speaker I] For example, he has no miggo at all for the claim…

[Rabbi Michael Abraham] But the logic says he is exempt: the burden of proof is on the claimant. But in “paid” he admits there was a debt. He admits there was a debt and only claims it was paid. Here one could have said: if you claim it was paid, prove it — who says not? To that Rabbi Yehoshua comes and says: yes, but I have “the mouth that forbade,” after all I admitted the loan. I could have refrained from forbidding — I could have refrained from admitting the loan. So therefore that helps me be believed. But you can’t say there is no innovation here; there is an innovation here. Because the Torah itself, were it not for this, I could have read as speaking only about the first case: in a claim that “nothing ever happened,” there is the law of total denial and the law of partial admission. But if I claim I paid part or paid all, then really I would have to pay. Who says not?

[Speaker G] And the whole structure collapses because it’s not about…

[Speaker B] What?

[Rabbi Michael Abraham] No, but I’m speaking — yes, but I’m speaking according to the view that one who lends

[Speaker B] to his fellow in the presence of witnesses must be repaid in the presence of witnesses. Now Rabbi Yehoshua agrees in the middle case, and now we’ve learned that this is Torah-level law.

[Rabbi Michael Abraham] I don’t understand how that fits into the calculation. Rabbi Yehoshua agrees that with “the mouth that forbade” he is believed, and that we must read the Torah also on the second case, not only on the first case.

[Speaker B] Meaning that our reading of the Torah has to include the middle case of no witnesses and “paid.”

[Rabbi Michael Abraham] Correct. Right. Therefore it is Torah-level, because it is in the Torah.

[Speaker B] And this is Rabbi Yehoshua’s innovation in the reading of the Torah?

[Rabbi Michael Abraham] That’s what the Talmud proposed that Rabbi Yehoshua would innovate. Why doesn’t Rabbi Yehoshua teach us this innovation? If we understand the previous Mishnah — that’s what the Talmud suggests.

[Speaker B] The Talmud said

[Speaker J] only according to the second Tosafot and the Ran and Maimonides…

[Rabbi Michael Abraham] Right, but that’s in this passage here. That’s the passage. Ah, but the fact that…

[Speaker B] Wait. Let’s continue the calculation. The fact that Rabbi Yehoshua doesn’t agree in this case — meaning, as the Talmud suggests — does that mean we don’t read the Torah that way?

[Rabbi Michael Abraham] No. Because we follow the opinion that one who lends to his fellow in the presence of witnesses need not be repaid in the presence of witnesses. As a matter of Jewish law we do not rule like that opinion. The Talmud’s question went according to the opinion…

[Speaker B] But the case of no witnesses still exists. Meaning, even if in the case of witnesses we have a different issue or we look at it differently, we still have the case of no witnesses and the claim “paid.”

[Rabbi Michael Abraham] But according to the one who says that one who lends to his fellow in the presence of witnesses need not be repaid in the presence of witnesses, in order to be believed you don’t need “the mouth that forbade.” He is believed anyway, simply because the burden of proof is on the claimant, irrespective of “the mouth that forbade.” According to the one who says that one who lends to his fellow in the presence of witnesses need not be repaid in the presence of witnesses, even if there are witnesses to the loan, I am exempt, right? I say “paid” and I’m believed. Why am I believed? Because I am in possession; the burden of proof is on the claimant. So where there are no witnesses, why am I believed? Because of “the mouth that forbade”? No — for the same reason. Because nothing else is needed; I am simply the one in possession, and that’s all. We are looking for a case in which Rabbi Yehoshua’s credibility… Exactly, therefore I say there is no innovation. Therefore the Talmud rejects it. And the Talmud says that if, as a matter of Jewish law, we rule that one who lends to his fellow in the presence of witnesses need not be repaid in the presence of witnesses, then there is no innovation here at all, because his exemption is not because of “the mouth that forbade”; his exemption is simply because the burden of proof is on the claimant. We asked… He’s saying, as it were, why the Talmud rejects it. No, it’s not connected to where we were here — it’s the Talmud, it’s what we learned in the previous class. The Talmud proposed its whole explanation only according to the view that one who lends to his fellow in the presence of witnesses must be repaid in the presence of witnesses. According to that conception, there is no automatic credibility for the defendant. Because he must repay in the presence of witnesses, he is not believed to say “paid.” If he has “the mouth that forbade,” Rabbi Yehoshua agrees — fine, if he has “the mouth that forbade,” then yes, he will be believed. That’s what the Talmud proposed. But without “the mouth that forbade,” he would not be believed. But since as a matter of Jewish law we rule that even without “the mouth that forbade” he is believed, there is no point in bringing this case, where Rabbi Yehoshua agrees because he has “the mouth that forbade.” Even without “the mouth that forbade” he is believed. So that is exactly why the Talmud rejects it. I think we got a little tangled up. Not really, it’s okay. Okay, good. Fine, so that is basically the claim. I don’t really care about the continuation of this now; this is the main principle that appears in Rav Dov…

[Speaker C] Maybe let’s say the simple explanation orally

[Rabbi Michael Abraham] but for now that’s good enough for me. Now let’s go into the second passage for a moment, because I see we got a bit delayed.

[Speaker C] Returning a lost item.

[Rabbi Michael Abraham] Returning a lost item, yes, exactly. So now the Talmud suggests another possibility: “Let it teach: Rabbi Yehoshua agrees in one who says to his fellow, ‘I have in my possession a maneh of your father’s, and I gave him half,’ that he is believed.” “Half” here means a portion, like half. Okay? Meaning, I… Why do they use the expression “I fed him half”?

[Speaker B] Meaning, why is that?

[Rabbi Michael Abraham] Because it’s wordplay. Like “the time needed to eat half a loaf,” so there is a measure of eating there. So “I fed him half” means I gave him half — yes, that’s the idea. So he is basically admitting part of the claim. Yes? And since he is admitting part of the claim, Rabbi Yehoshua agrees that he is believed. Why is this connected to our passage? Because basically there is “the mouth that forbade” here. Right?

[Speaker B] It’s more similar to land. Right, with land he admits — he tells him that there was land. That’s the comment.

[Rabbi Michael Abraham] What?

[Speaker C] But there too he is obligating himself, like there in the field case.

[Rabbi Michael Abraham] What do you mean, obligating himself? Liable, yes. Ah, because he is partially admitting. Here he is partially admitting; there he is denying the whole claim. Fine — that’s the difference between partial admission and total denial, but it’s the same. We said that in terms of the money, it doesn’t matter whether you are partially admitting or totally denying. The difference is only regarding the oath. Regarding the part you deny in partial admission, your law is like total denial: you do not have to pay it, period. Only the question of the oath obligation is relevant because you admitted part elsewhere.

[Speaker H] No, but there it’s an admission where he says it belonged to your father, but I bought it from him — and after all the possession was there; here…

[Rabbi Michael Abraham] Doesn’t matter. So the claim is that he is denying the whole claim. It’s a claim of total denial, that’s all. Here it is partial admission and there it is total denial — that’s the whole difference. But it’s not important for our purposes. The difference between total denial and partial admission does not matter. Okay? Therefore the Talmud says that really Rabbi Yehoshua could have taught his concession about “the mouth that forbade” on this case: “I have in my possession a maneh of your father’s, and I gave him half.” So about that the Talmud says: according to which tanna does this go? It brings a tannaitic dispute; this dispute originates in tractate Shevuot. “If according to the Rabbis — they say he is like one returning a lost item, and is exempt. If according to Rabbi Eliezer ben Yaakov — he says an oath is required.” As it was taught — and this is the source; yes, we’re getting a little ahead of ourselves — “Rabbi Eliezer ben Yaakov says: there are times when a person swears on the basis of his own claim. How so? ‘I have in my possession a maneh of your father’s, and I gave him half’ — this one must swear. And this is a case where he swears on the basis of his own claim. But the Rabbis say: he is merely like one returning a lost item, and is exempt.”

[Speaker B] And here the Talmud doesn’t explain why Rabbi Eliezer ben Yaakov thinks that in this case he swears, why this is an example of a case where sometimes he swears on the basis of his own claim. It just says that here he swears on the basis of his own claim, and doesn’t explain why he swears on the basis of his own claim.

[Rabbi Michael Abraham] What does he need to explain? On the contrary, we see from the Talmud the opposite: the Sages are the ones who need an explanation. So they say no, he is returning a lost item, and therefore he is exempt. Someone who says he is obligated—obviously he is obligated. If he admits part of the claim, one who admits part of the claim must take an oath. Fine. On the contrary, the Sages need to explain why nevertheless he is exempt. Ah—because he is returning a lost item.

[Speaker C] According to the Sages he is believed, and according to Rabbi Eliezer we would say that he is not believed, and therefore they obligate him to take an oath? Yes.

[Rabbi Michael Abraham] What do you mean he is not believed without an oath? If he swears, then he will be believed.

[Speaker C] No, the very fact that they obligate him to take an oath is a sign that he is not believed.

[Rabbi Michael Abraham] We talked about this at the beginning: he admits part of the claim. The question is whether that means that basically he is exempt, and they were just stringent with him and required him to swear in order to be exempt, or the opposite—that basically he is liable, and they were lenient with him, that if you want to be exempt, swear. Fine.

[Speaker K] Isn’t it that Rabbi Eliezer thinks that someone returning a lost item is also obligated to take an oath?

[Rabbi Michael Abraham] So that’s what the Talmud asks later. The Talmud says no. In a moment. So now, says the Talmud, let’s do the calculation.

[Speaker K] So do they both agree that this is a case of returning a lost item?

[Rabbi Michael Abraham] No. In the Talmud it says they don’t. In a moment. In the very next sentence the Talmud asks: and does Rabbi Eliezer ben Yaakov not hold that one returning a lost item is exempt? After all, Rabbi Eliezer ben Yaakov also agrees that one returning a lost item is exempt, so why doesn’t he exempt him? And they answer that this is a claim made by a minor, and once it’s a claim by a minor, then they start getting into the whole issue of a minor’s claim. But first let’s do the calculation of the framework of the passage. I told you at the beginning: think for a moment about the framework of the passage—what is left at the end. So in the end, why indeed didn’t they bring this case of “I have a maneh of your father’s in my possession, and I paid back half”? What’s the answer?

[Speaker H] Because he didn’t claim from him. Oh, no. What’s the answer?

[Rabbi Michael Abraham] Why didn’t they bring it in the Mishnah? What?

[Speaker H] He’s exempt not because of “the mouth that forbade is the mouth that permitted.” Oh—because it doesn’t fit Rabbi Yehoshua’s position. Why? Because Rashi explains why it doesn’t fit according to the Sages, why it is not Rabbi Yehoshua’s position, and according to—okay—

[Rabbi Michael Abraham] Rabbi Eliezer—why doesn’t it—

[Speaker H] fit the view? Why? Because according to the Sages, if there is a legal framework and judgment, then he will be exempt as one who admits part of the claim, and according to Rabbi Yehoshua, if there is a legal framework and judgment, then there is no “mouth that forbade.” Right. And according to Rabbi Eliezer—

[Rabbi Michael Abraham] ben Yaakov, yes. He is liable. Right—liable.

[Speaker H] So that definitely is not according to Rabbi Yehoshua.

[Rabbi Michael Abraham] Meaning, the Talmud says this simply doesn’t work according to any tanna. That’s the answer: that’s why they didn’t bring this case, because it does not work according to any tanna. According to the Sages he is exempt because—

[Speaker D] he is returning a lost item,

[Rabbi Michael Abraham] not because of “the mouth that forbade,” right? And according to Rabbi Eliezer ben Yaakov he is not exempt. Okay? So that is the Talmud’s answer. From here on, it’s just sorting out what exactly the dispute is between Rabbi Eliezer ben Yaakov and the Sages. But the passage is over here. Meaning, from here on it’s just an argument over exactly what Rabbi Eliezer ben Yaakov and the Sages disagree about. But the framework of this passage is: we have exhausted this case. Why is there an analogy to returning a lost item? Wait, we still haven’t explained that. One second—we’ll get there, we’ll get there, we still haven’t explained it. But why do the Sages exempt him as someone returning a lost item? Isn’t it because of “the mouth that forbade”? What?

[Speaker C] The Sages exempt him as someone returning—

[Rabbi Michael Abraham] a lost item. Isn’t it because of “the mouth that forbade”?

[Speaker C] We’ll see in a moment.

[Rabbi Michael Abraham] I asked you what the difference is between “the mouth that forbade” and returning a lost item. It really is a subtle question. So I didn’t understand the answer—why isn’t it “the mouth that forbade”?

[Speaker C] Because here there is no “mouth that forbade.” Either he is exempt because he is returning a lost item, or else he is liable altogether.

[Rabbi Michael Abraham] Because according to the rabbis, the person is exempt because he is returning a lost item, not because he has “the mouth that forbade.”

[Speaker G] This is not—

[Speaker B] an example that comes under “the mouth that forbade” according to the rabbis.

[Rabbi Michael Abraham] After all, we are looking for a case where a person’s credibility is based on the fact that he has “the mouth that forbade,” right? Since that is what Rabbi Yehoshua agrees to. “The mouth that forbade” is not like migo. The proof is that here “the mouth that forbade” tells you he is believed even though in the case of migo he is not. Here he is believed regardless of “the mouth that forbade”; even if he didn’t have “the mouth that forbade,” he would still be believed. He is believed because he is returning a lost item.

[Speaker K] But in terms of the case itself, as it appears at first, it does look like “the mouth that forbade,” because he comes to the son and tells him.

[Rabbi Michael Abraham] Yes, but his exemption does not stem from “the mouth that forbade.” He doesn’t need “the mouth that forbade” in order to be exempt.

[Speaker B] It’s because this specific case is found there.

[Speaker K] Because there is an exemption of returning a lost item, so to speak?

[Rabbi Michael Abraham] The setup is a setup of “the mouth that forbade,” true, but in order to explain the exemption I do not need to base it on “the mouth that forbade.” After all, you want to tell me the power of “the mouth that forbade,” that it exempts me, and here what exempts me is not “the mouth that forbade.” What exempts me is that I am returning a lost item. But wait, you don’t understand—

[Speaker B] why the rabbis compared this case to returning a lost item, because that itself is not at all obvious.

[Rabbi Michael Abraham] I don’t understand—why is it not obvious?

[Speaker B] Why is this returning a lost item? What lost item is being returned here?

[Rabbi Michael Abraham] Wait, wait, we’ll get there, we’ll get there in a moment, in a moment I’ll get to that.

[Speaker J] Returning a lost item—

[Speaker B] is something that he did not know about at all; he wasn’t obligated.

[Rabbi Michael Abraham] Wait, in a moment, in a moment. Let’s move forward slowly. I’ll get to that in a moment, okay? Just another second. First of all, is the structure clear? This is the structure of the passage. Meaning, we asked why not interpret it as the case of “I have a maneh of your father’s in my possession, and I paid back half.” We answered that really this does not work either according to the Sages or according to Rabbi Eliezer ben Yaakov. That’s all; therefore it cannot be interpreted that way, period. Then the Talmud goes into: okay, what do the Sages say, what does Rabbi Eliezer ben Yaakov say, and what is this—does Rabbi Eliezer ben Yaakov accept the law of returning a lost item or not accept the law of returning a lost item? That is the whole later discussion. But that is already an internal discussion within the dispute between Rabbi Eliezer ben Yaakov and the Sages.

[Speaker C] And it appears exactly the same way in that passage in Gittin. Okay, exactly the same ending, so to speak. But it’s a very…

[Rabbi Michael Abraham] Yes, yes, there is… So that is basically the structure of the Talmud. After that the Talmud asks: and does Rabbi Eliezer ben Yaakov not hold that one returning a lost item is exempt? How can that be? I mean, this has to be a case of returning a lost item—what do you mean? Does he dispute the law of returning a lost item? It can’t be. So the Talmud says: when the claimant is a minor. If the claimant is a minor, then there is no law here of returning a lost item, and therefore he is liable. Why is there no law of returning a lost item when it comes to a minor? Because he—

[Speaker H] is not the owner, he—

[Rabbi Michael Abraham] cannot be the owner of… what? No, the minor—it belongs to him. What do you mean, no?

[Speaker H] There is no returning a lost item in the case of a minor claimant?

[Rabbi Michael Abraham] That is difficult in the Talmud here. Why is there no law of returning a lost item in the case of a minor? Seemingly this is based on what is said at the end: that in the presence of a minor, a person can brazen it out. Once he can brazen it out, then it is not called returning a lost item. Returning a lost item is only where you had the option, basically, to wave him away, and instead you voluntarily moved toward him; you did not use the power that you could have had. Then you are returning a lost item, and we will accommodate you and exempt you from an oath. Okay? But that is only said at the end of the passage, and somehow it comes out that the Talmud is already assuming it here. Fine, I don’t know—that’s a difficulty that I haven’t found anyone addressing at the moment, but that’s what must be said, otherwise I don’t understand why in the case of a minor there is no law of returning a lost item. In any event, that is what the Talmud says, and then: one does not take an oath in response to the claim of a deaf-mute, an incompetent person, or a minor. Then they get into it, and then Rava’s statement about why one who admits part of the claim is obligated or exempt. Let me begin with Rashi’s position. According to Rashi, as we saw, “the mouth that forbade” applies only where he has a migo of “if he wanted, he could have remained silent,” right? Meaning, the person would not have made the claim at all had I not supplied him with this information. Now here, in this case, the person comes and says, “I have a maneh of your father’s in my possession, and I paid back half.” So this is really “the mouth that forbade,” right? Because he did not know that the maneh belonged to his father—unlike the previous case we had, where I say, “I owe you a maneh; I borrowed from you a maneh and repaid it,” where you knew, and we had to squeeze Rashi a bit. Here it is “I have a maneh of your father’s in my possession,” meaning he basically did not…

[Speaker C] There is also the point here that perhaps he is liened to the property…

[Rabbi Michael Abraham] That’s on Tosafot. I’m talking now about Rashi. Yes. According to Rashi it’s straightforward: yes, you didn’t know about it and everything is fine. Now Rashi says—Rashi basically says this. There is a case where he would not have made a claim without me—that is “the mouth that forbade,” right? There is a case where he would have made the claim even without me, but I had a migo of “it never happened”—that is ordinary migo. Right? What is returning a lost item? Seemingly that setup.

[Speaker G] He didn’t know at all that it was with me.

[Rabbi Michael Abraham] Who said so?

[Speaker G] According to—it would seem there are two possibilities.

[Rabbi Michael Abraham] I want to check where the setup of returning a lost item can be located according to Rashi.

[Speaker G] It cannot be—

[Rabbi Michael Abraham] “the mouth that forbade,” because then we would have “the mouth that forbade” here. What are you saying? Apparently it is a situation where someone claimed against me, knew about the matter, claimed against me, but I could have said “it never happened.” What Tosafot calls “the mouth that forbade,” according to Rashi, is apparently returning a lost item, right? And then it comes out that there are three different setups. One setup is ordinary migo. A second setup is returning a lost item—that is the migo of “it never happened,” what Tosafot calls “the mouth that forbade.” And a third setup is “the mouth that forbade.” In “the mouth that forbade,” he is believed because “the mouth that forbade” exempts him. In returning a lost item, he is exempt by the law of returning a lost item. In migo, he is liable according to Rabbi Yehoshua. Rabbi Yehoshua does not exempt him in a case of migo. Okay? That is what seems to emerge from Rashi.

[Speaker B] I don’t understand the setup of the migo of “it never happened” here. What is that setup?

[Speaker G] I didn’t write it down, I missed it.

[Speaker B] The assumption being explained now is that the one who lost the item knows with whom the lost item is found.

[Rabbi Michael Abraham] Wait, wait, wait, one second, I haven’t yet gotten to returning a lost item. One second. I’ll say it again. We are talking here according to the Sages. Why, according to the Sages, can the Mishnah not be interpreted in this setup? Which setup?

[Speaker E] According to the Sages—in which setup?

[Rabbi Michael Abraham] “I have a maneh of your father’s in my possession, and I paid back half.” We said: whichever way you look at it, according to the Sages it does not work, and according to Rabbi Eliezer ben Yaakov it does not work. According to Rabbi Eliezer ben Yaakov it does not work because he is obligated to take an oath. But according to the Sages?

[Speaker G] He is exempt because he is returning a lost item.

[Rabbi Michael Abraham] Exempt because he is returning a lost item, not because of “the mouth that forbade.” Who said that? Why not because of “the mouth that forbade”?

[Speaker G] Because according to Rashi it comes out the same, then.

[Rabbi Michael Abraham] Because this is apparently a setup that is not “the mouth that forbade.” Otherwise there would be an exemption here of “the mouth that forbade”; we would not need returning a lost item. What is this setup? If it is ordinary migo, then in ordinary migo Rabbi Yehoshua does not agree at all. “The mouth that forbade”—Rabbi Yehoshua agrees that he is exempt because of “the mouth that forbade.” When is there a setup where he is exempt not because of “the mouth that forbade,” but he is still exempt? Returning a lost item. Apparently this is the setup of Tosafot, with the migo of “it never happened.”

[Speaker B] Returning a lost item is the only case that…

[Rabbi Michael Abraham] Okay, according to Rashi, that is how the calculation has to be made, right?

[Speaker B] According to Rashi, he could have said “it never happened.”

[Rabbi Michael Abraham] The fact that he did not say “it never happened” turns him into someone returning a lost item. Now that he is returning a lost item, they exempt him even though he does not have “the mouth that forbade.” If he did not need to answer at all—he had a migo of “if he wanted, he could have remained silent”—then he is exempt regardless of returning a lost item; he is exempt because of “the mouth that forbade.” Okay? So apparently, according to Rashi at least, one is almost forced to say… Rashi writes this explicitly. Yes, right.

[Speaker I] But he says there could be a difference between “the mouth that forbade” and returning a lost item in that in returning a lost item there is some kind of claim. I didn’t understand. Why is this not “the mouth that forbade”?

[Rabbi Michael Abraham] Because there was a claim without him, yes, correct. According to Rashi it isn’t. And in fact according to Tosafot—who disagrees with Rashi and says that the migo of “it never happened” is also “the mouth that forbade”—the question arises: so what is returning a lost item according to Tosafot? After all, anything that would be returning a lost item would also be “the mouth that forbade.” So returning a lost item is just another name for “the mouth that forbade.” So what is the problem? Why, according to the Sages, can Rabbi Yehoshua not be interpreted that way? When they said “returning a lost item,” they meant “the mouth that forbade.” That’s what they meant.

[Speaker C] What are you saying in the Mishnah?

[Speaker B] I do not understand the analogy at all.

[Rabbi Michael Abraham] It’s not an analogy; I’m asking what setup we’re talking about. What setup are we talking about?

[Speaker B] So I didn’t understand Rashi’s setup of “it never happened”; I didn’t understand that setup.

[Rabbi Michael Abraham] What do you mean? “I have a maneh of your father’s in my possession, and I paid back half”—I could have refrained from saying that I admitted the maneh. Right, but if the other one claims against me, “You have my father’s maneh in your possession,” and he claims against me, I still could have said, “What are you talking about? It never happened.” I still could have denied him, because he has no witnesses; he is only making a claim. But according to Rashi that is no longer “the mouth that forbade,” right? That is a migo of “it never happened.” Now if I ask what setup we are talking about in returning a lost item, where “the mouth that forbade” is absent—seemingly it is this setup.

[Speaker B] Why ask into which setup returning a lost item fits? I don’t understand why to bring returning a lost item in here.

[Rabbi Michael Abraham] Because the Mishnah brought it in. The Talmud says that the rabbis exempt him because he is returning a lost item. Why does it need to say—

[Speaker B] this case of “I have your father’s maneh in my possession” as a case of returning a lost item.

[Rabbi Michael Abraham] No, no, it has nothing to do with returning a lost item right now. Again: why is it analogous to returning a lost item? That is a different story. But there is such an exemption of returning a lost item, right? There is such an exemption—it is written in the Talmud. Fine. The Talmud says that in this setup he is exempt because of returning a lost item, because of the law of returning a lost item. Let’s leave aside for the moment why it is analogous to returning a lost item, but that is what it says. I’m asking what setup we are talking about. If we are talking about a case where there would have been no claim without him, then we do not need to reach the law of returning a lost item in order to exempt him. He is exempt because of “the mouth that forbade.” Right? Then in fact we could have interpreted Rabbi Yehoshua’s case this way. So the question arises: why did they not interpret Rabbi Yehoshua in this setup? You tell me: because of returning a lost item? Returning a lost item and “the mouth that forbade” are the same thing. What’s the problem? We see in the Talmud that no—returning a lost item is a situation where there is no “mouth that forbade,” and nevertheless the Sages exempt him because he is returning a lost item. What kind of situation could that be? What could be there? Seemingly what could be there is that there is a claim here even without him, and therefore according to Rashi there is no “mouth that forbade” here, but there is returning a lost item here, and therefore he is exempt, even though it is not “the mouth that forbade.” And on that the Talmud says: therefore Rabbi Yehoshua could not have interpreted it in such a setup, because according to the Sages his exemption from an oath is not because of “the mouth that forbade” but because of returning a lost item. So what does that have to do with Rabbi Yehoshua’s admission? Okay? That is how it must be according to Rashi. According to Tosafot it is difficult, because according to Tosafot even a case of a migo where the other party makes a claim without him is “the mouth that forbade.” So where, according to Tosafot, can there be a setup of returning a lost item that is not “the mouth that forbade”? Tosafot himself struggles with this. But it is difficult for Tosafot. You have to understand: this is the background to the whole discussion in which Tosafot twists himself around here. Tosafot twists himself around here because here he gets stuck. This passage flows smoothly according to Rashi and is difficult according to Tosafot. Okay, now look.

[Speaker F] Sorry, with returning a lost item, the analogy between that and “the mouth that forbade” is that this person who is holding the other person’s lost item simply comes and says on his own, “I have your lost item and I’m returning it to you”? Yes. But he didn’t do anything to it. What here—what is the analogy to “the mouth that forbade”?

[Rabbi Michael Abraham] I didn’t understand.

[Speaker J] What—

[Speaker F] is the analogy between returning a lost item and “the mouth that forbade”? What could he have said—“it’s mine”?

[Rabbi Michael Abraham] Yes, he could have just not come at all.

[Speaker F] But he is returning a lost item on his own initiative. Fine, that’s nice, but in “the mouth that forbade” someone is claiming against him.

[Rabbi Michael Abraham] No, according to Rashi, in “the mouth that forbade” there is no claim. Only where I come on my own initiative—that is “the mouth that forbade” according to Rashi.

[Speaker F] He could simply not come.

[Rabbi Michael Abraham] On the contrary, that is exactly the idea. Therefore according to Rashi, seemingly, it is the same thing, and we have to say that this is the difference: returning a lost item is even when there is a claim.

[Speaker F] But the information that your property is with me comes only from me.

[Rabbi Michael Abraham] That is “the mouth that forbade.”

[Speaker F] No, also in returning a lost item. That’s the analogy.

[Rabbi Michael Abraham] So wait—in a place where it does not come from me, but rather you know it on your own, only you have no proof of it, and I could have denied you and said “it never happened”—that is returning a lost item.

[Speaker B] But that’s not returning a lost item. It’s not returning a lost item until he returns the money that is yours. It’s not returning a lost item; the concept of returning a lost item assumes something completely different. It is not returning your money that is currently with me, whether lawfully or unlawfully. First of all, in returning a lost item too, I am returning your money to you—that’s first of all.

[Rabbi Michael Abraham] Second, we’ll leave the analogy to returning a lost item for later. First I want to explain what we are talking about. I understand, but I’m trying first to explain what we are talking about. After we understand what we are talking about, we’ll try to see whether it is similar to returning a lost item or not. But first let’s understand what we are talking about. If I come on my own initiative and say to you, “I borrowed from your father and repaid him half,” and you did not know at all that this belonged to your father, that is “the mouth that forbade,” right? But according to Rashi, if you knew about it, then even when I can deny you and say “it never happened,” because you have no proof and yet you knew about it, that is already no longer “the mouth that forbade.” Therefore according to Rashi one is pushed toward the possibility that the second case, the one that is not “the mouth that forbade,” is the case being discussed here, and that is called returning a lost item.

[Speaker B] That his exemption, his credibility—if the Talmud rejects this interpretation, tell me, if the Talmud had not rejected this interpretation, then Rashi would not have needed to be driven to this case of returning a lost item.

[Rabbi Michael Abraham] Correct. Rashi does not need it; the Talmud does it. The Talmud says this is an exemption because of returning a lost item. Rashi is only explaining what this setup is in which one needs the special exemption of returning a lost item—why he is not exempt by the law of “the mouth that forbade.” Rashi says: when the other party is not making a claim, that is “the mouth that forbade,” but if he is making a claim, then it is a different exemption because he is returning a lost item.

[Speaker C] And exempt from what?

[Rabbi Michael Abraham] From an oath. Now look, let’s read Rashi. “And does Rabbi Eliezer not hold that one returning a lost item is exempt?” says Rashi: exempt from the oath? Exempt from the oath? In astonishment. “It was instituted by the rabbis in tractate Gittin: one who finds a lost object shall not swear, for the sake of repairing the world. And since even when he is not claimed against he is nevertheless obligated to swear, there is no greater returner of a lost item than this, and yet he is liable.” I didn’t understand.

[Speaker B] What does “there is no greater returner of a lost item than this” mean? What is it trying to say—that here is the clearest possible example of why this is returning a lost item? What does that refer to?

[Rabbi Michael Abraham] I come to him on my own initiative and say to him: basically, I borrowed from your father and repaid half. Okay? He could actually, I could have claimed “it never happened” against him and brushed him off completely.

[Speaker B] Or say nothing.

[Rabbi Michael Abraham] No, not say nothing. Saying nothing is “the mouth that forbade.” I could not say nothing. He knows that it belonged to his father.

[Speaker B] “And since when he is not claiming against him”—this is the case here for us. No—“and since when he is not claiming against him.” Now the son is not claiming.

[Rabbi Michael Abraham] What does “when he is not claiming against him” mean? It means he is not claiming without him, not that he is not claiming at all. Even though he does not claim without me, but only by virtue of me does he claim, and even then I am obligated to take an oath, then why would I get myself into all this trouble? So that is returning a lost item. If I were exempt, Rashi says like this: if I were exempt from an oath in this situation only because I came on my own initiative, that would not be returning a lost item. Because the whole point of returning a lost item is that it is a privilege for someone who got himself into trouble. He acted honestly and got himself into trouble. Now if he did not get himself into trouble, because he was not obligated to take an oath in the first place, since he is the one who volunteered the information, then it would not be called returning a lost item. Rashi says: not only is this another setup so that it won’t be “the mouth that forbade”; it is a setup that essentially has to be different. If there were “the mouth that forbade” here, he would not be a returner of a lost item. Not merely that we would not need to arrive at returning a lost item—he would not be a returner of a lost item. Because the whole idea of returning a lost item is someone who is basically getting himself into trouble. But if he had “the mouth that forbade,” then he didn’t get himself into trouble. He is exempt either way. The whole idea that he is returning a lost item is because he got himself into trouble. Why did he get himself into trouble? Because were it not for the law of returning a lost item, he would have had to swear. Why would he have had to swear? He could have said “it never happened.” Because a migo of “it never happened” does not exempt him, because according to Rashi that is not “the mouth that forbade.” Only a migo of “if he wanted, he could have remained silent” exempts him. What is the statement that he didn’t steal it?

[Speaker F] That he repaid half.

[Rabbi Michael Abraham] No, about the returner of a lost item—what is the statement? That he repaid half. That he didn’t take… the returner of a lost item. Returning a lost item—returning a lost item here is about a loan. Not returning a lost item in the laws of lost objects—returning a lost item in a loan case, here in our passage. He is called a returner of a lost item, someone who said: “I had a maneh of your father’s—I borrowed a maneh from your father and repaid half.” I am returning a lost item.

[Speaker B] Admitting that—that’s what the Talmud says, that one who finds a lost object does not…

[Rabbi Michael Abraham] No, our Talmud says this is called the law of a returner of a lost item. Again.

[Speaker B] But the whole exemption is based on Gittin: one who finds a lost object does not swear, for the sake of repairing the world. Meaning, you can’t detach this from the source of this law of returning a lost item that we are used to talking about.

[Rabbi Michael Abraham] I am just trying to get there, but I’m not succeeding. I want to explain—look. When a person comes and says, “I borrowed a maneh from your father and repaid half,” okay, the Talmud says that he is a returner of a lost item. Fine? I haven’t yet explained. He is called a returner of a lost item and therefore he is exempt. Rashi explains: what kind of returning a lost item is there here? So Rashi says as follows. If there were no law of returning a lost item, what would happen here? After all, he claimed against me—no, he claimed against me without this, so this is not “the mouth that forbade.” No, then I have migo here. That is what Rashi says—no. If he had not claimed against me without me, then I would have had “the mouth that forbade.” Right—if he could not have claimed against me because he knew nothing, then this is a setup of “the mouth that forbade.” Then if I came on my own initiative and said, “I borrowed from your father and repaid him half,” I would be exempt from the oath—why?

[Speaker G] Because I have “the mouth that forbade.”

[Rabbi Michael Abraham] “The mouth that forbade,” not because of returning a lost item. Rashi says more than that: in such a situation, it is not only that you do not need to arrive at the exemption of returning a lost item—there is no exemption of returning a lost item. Why? Because “the mouth that forbade”… sorry—returning a lost item, sorry—because I have no exemption of returning a lost item, because returning a lost item applies only when I get myself into trouble. But if I have “the mouth that forbade,” I’m not getting myself into trouble; I take no risk by coming and admitting. After all, I know that I have “the mouth that forbade” and they won’t obligate me in anything. I didn’t get myself into trouble. Therefore I have the exemption of “the mouth that forbade,” and I do not have the exemption of returning a lost item. When do I have the exemption of returning a lost item? When you knew the information and claimed against me even without me, and you claimed against me, and I answered: you are right, I borrowed from your father, but I repaid half. I could have said “it never happened,” because you had no proof. You knew the information but you had no proof. In such a situation, according to Rashi, this is not “the mouth that forbade.” Rashi says: this is ordinary migo. Rashi says: since that is so, we have returning a lost item here. Why? Because I got myself into trouble. After all, if there were no law of returning a lost item, what should the law be here? I would be liable. This does not exempt him because it is not “the mouth that forbade.” So I got myself into trouble. Someone who gets himself into trouble only in order to benefit the other person is called—and this is already a hint to the answer—a returner of a lost item. Therefore the Sages instituted that he be exempt from the oath. Because he is returning a lost item—he is doing the other person a favor and taking risks. He is telling the truth.

[Speaker F] But the migo is returning a lost item…

[Rabbi Michael Abraham] Correct. Migo is a type—but migo does not exempt him according to Rabbi Yehoshua. Ordinary migo—only “the mouth that forbade.” Right, but here there is an exemption by the law of returning a lost item. That is what Rashi says. Why this is analogous to returning a lost item—I think now that is indeed clear. Basically, in order to return your money to you, I was willing to get myself into trouble, to pay costs, to work on the lost object, to deal with it, to return it to you. Basically I paid costs only in order to return to you what is due to you. So what more do you want—to make me swear over all the other things? Say thank you that I returned to you what I was obligated to return, and that’s it. That is the law of returning a lost item. So on that they say—but is this only because of repairing the world? Wait. That’s a different discussion. Rashi is just saying—that’s in a moment. That is what Rashi says: therefore this law is called returning a lost item. We are not dealing here with actually returning a lost object; we are dealing here with admitting a loan from the father. נכון that Rashi says—now I return to the Rashi we just read. Rashi says: where is the source for the idea that there is an ordinance of returning a lost item that exempts? From an actual case of returning a lost item. A real returner of a lost item is not obligated to swear, for the sake of repairing the world. That is a rabbinic ordinance. Rashi says: but that is only the source of inspiration, that is the idea. The idea of returning a lost item is drawn from there to here. Here too, essentially, you are returning a lost item. In order to return to him what is due to him, you get yourself into trouble. So you are a righteous person, you return lost items, you care about another person’s money—we will be lenient with you, we will exempt you. Strictly speaking, you should have had to swear. Right. According to Rashi it comes out that this is only a rabbinic exemption. Now that is difficult. Why? Because if it is only a rabbinic exemption, then the Talmud’s question comes back. Why didn’t Rabbi Yehoshua say that in such a setup he agrees because of “the mouth that forbade”? What do you answer me? Because according to the Sages the exemption here is not “the mouth that forbade,” but returning a lost item. Not true. That is only a rabbinic exemption. But on the Torah level, because of “the mouth that forbade,” he would be exempt on the Torah level. So why not interpret it in such a setup?

[Speaker M] Is that Tosafot’s question or Rashi’s? No, no, not Tosafot’s.

[Rabbi Michael Abraham] I’m asking this about Rashi. After all, if this whole business is on the rabbinic level, then there was still room in the Mishnah to say: why didn’t Rabbi Yehoshua bring this case, where he agrees that there is a Torah-level exemption because of “the mouth that forbade”? True, on the rabbinic level, even without “the mouth that forbade” he would also be exempt. But on the Torah level there is an exemption of “the mouth that forbade.” Because there is a claim here. Huh? Maybe you’ll say—so I say, if we really have some independent proof that there is a claim here, then it is not difficult. Because what are we talking about? What do we want? We want him to interpret it in a setup with a claim or without a claim. If he interprets it in a setup without a claim, then—

[Speaker E] then—

[Rabbi Michael Abraham] the exemption really is because of “the mouth that forbade,” and then ostensibly the question remains in place.

[Speaker K] Why didn’t Rabbi—

[Rabbi Michael Abraham] Yehoshua bring this case and concede here on the basis of “the mouth that forbade”?

[Speaker K] Rashi also brings a case from tractate Shevuot, why the son claims against him and even there he is exempt from an oath.

[Rabbi Michael Abraham] He says that? That is regarding a minor’s claim. Why a minor’s claim?

[Speaker K] What? That’s the example Rashi brings. Rashi according to whom? That’s the punchline he shouted earlier. The son claims a maneh, the borrower admits part of the claim, and he is exempt from the oath because he is like one returning a lost item according to the Sages; he could have denied everything. Right.

[Rabbi Michael Abraham] Well, that’s what we just said. So what’s the question? No—because the other party claims, because the son claims, there is no “mouth that forbade” here, because the son claims even without him. But I still have a migo for now; that is called returning a lost item. אצלנו too, that is what Rashi says here as well.

[Speaker K] No, I brought that from Rashi.

[Rabbi Michael Abraham] Yes, yes. I’m just saying: that is also what is written here in the Talmud. That is the concept of returning a lost item when there is no “mouth that forbade.”

[Speaker K] No, but there is a somewhat different status if the son claims or if the son does not claim.

[Rabbi Michael Abraham] Of course. Because if the son claims, then it is not “the mouth that forbade”; it is returning a lost item. If the son does not claim, and he knows only by virtue of what I said, then it is “the mouth that forbade”; that is unrelated. The question, again, is: if we are dealing here with a situation where there is a claim even without my admission, as seems to emerge from Rashi—for otherwise there is no law of returning a lost item—then in such a case, in such a case, the returner of a lost item is exempt only rabbinically.

[Speaker B] Right,

[Rabbi Michael Abraham] according to Rashi this is an ordinance for the sake of repairing the world.

[Speaker B] So—

[Speaker C] why—

[Rabbi Michael Abraham] no, so now I will ask the question in place of the Talmud. Then why didn’t Rabbi Yehoshua speak about a case where there is no claim without him? I say, “I have a maneh of your father’s in my possession, and I paid back half,” and he truly did not know—there is no claim. Then this is “the mouth that forbade.” So let Rabbi Yehoshua say that in such a case he agrees. What’s the problem?

[Speaker B] Why shouldn’t he say that? Actually, from the plain meaning of the Talmud, that is what seems implied. Meaning, “I have your father’s maneh”—and they brought—

[Rabbi Michael Abraham] “and I paid it back,” exactly.

[Speaker B] But then—

[Rabbi Michael Abraham] what does the Talmud answer?

[Speaker B] That it works neither—

[Rabbi Michael Abraham] according to the Sages nor according to Rabbi Elazar ben Yaakov. Why not? They were speaking about a case of returning a lost item where there was a claim even without him. I am suggesting to you that in the Mishnah we insert a case where there is no claim without him, and there indeed the exemption is because of “the mouth that forbade” and not because of returning a lost item. So what’s the problem? Why not say such a case?

[Speaker B] In which of the cases? The one the Mishnah said? Where there is no claim.

[Rabbi Michael Abraham] The second formulation is apparently speaking where there is a claim, because otherwise it would not be returning a lost item.

[Speaker B] I’m going to interpret it like that even though I don’t know. That’s how they think, but I think—

[Rabbi Michael Abraham] that in the plain meaning—

[Speaker J] of the Talmud it’s not like that.

[Speaker B] What?

[Speaker C] Also, it’s not like the previous case.

[Rabbi Michael Abraham] There? What you brought. Not only do they not say “returning a lost item,” but if there is no claim without him, then that is the case of “the mouth that forbade,” right? So basically Noa is telling us it could not have been interpreted in the Mishnah. Why not? Because if there is no claim without me—that is, because what I want is to exempt him because of “the mouth that forbade”—but in such a situation, in such a situation, I am exempt even without that. I am exempt because “the burden of proof rests on the one who wishes to extract money from another,” not because of “the mouth that forbade.” Exactly what we said about the previous case in the Talmud.

[Speaker B] Because he isn’t claiming. Yes. So why don’t we say that with land? The one in possession is the original possessor. Because that is a different law.

[Rabbi Michael Abraham] Basically, the only real novelty here is that this truly is not a setup of “the mouth that forbade,” because we already ruled that out earlier. It is not an option, right? Because we rule that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. So here there is a different setup. What is this setup? That there is a claim even without my speaking, and on that there is an exemption of returning a lost item. Rashi says: precisely because of that they did not bring it—that is what the Talmud said. Here we are not dealing with a setup of “the mouth that forbade” but with a setup of returning a lost item, and therefore it is irrelevant that Rabbi Yehoshua would agree here.

[Speaker B] Actually, now that I think about it, in this arrangement of the cases, the reason the Mishnah needed to bring the case of land is because there you have an original possessor that basically changes the whole equation.

[Rabbi Michael Abraham] That could have changed it were it not for “the mouth that forbade.”

[Speaker B] No, there that is the case where Rabbi Yehoshua agrees in “the mouth that forbade,” because otherwise—

[Rabbi Michael Abraham] because without “the mouth that forbade,” the original possessor would win. Yes.

[Speaker B] And that is really the only case here. In the other two cases being treated, we do not have an original possessor; possession remains with the one holding the money, and in land you have the setup—

[Rabbi Michael Abraham] No, the opposite. No, possession doesn’t remain with the one holding the money. Possession… because one who lends to another in the presence of witnesses need not be repaid in the presence of witnesses. Ah, sorry, yes, possession does remain with the one holding the money. Sorry.

[Speaker B] And with land it’s a kind of strange case where the one holding the land is not the possessor. Right. The possessor is not the one in possession.

[Rabbi Michael Abraham] The claimant is the possessor, and the Mishnah brought—

[Speaker B] the case of real estate precisely because of that.

[Rabbi Michael Abraham] Right. Exactly. So according to Rashi, what comes out is this, in short. What I want to argue is the following. According to Rashi there are three setups—one and two setups, let’s call them that. One setup is where he claims against me even without… where he would not claim against me without knowing what I tell him, without my information. Fine? That is the setup of “the mouth that forbade.” I am now asking why they did not bring that setup in the Mishnah, the one regarding which Rabbi Yehoshua concedes. For the same reason they did not bring the previous setup that we discussed in the previous lesson—what Noa said earlier. Why? Because here you are exempt simply because one who lends to another in the presence of witnesses need not be repaid in the presence of witnesses, and I am exempt irrespective of “the mouth that forbade”; you do not need to get to “the mouth that forbade” in order to be exempt. And this is the setup that Rabbi Yehoshua did bring, right? And this setup that the Talmud suggested here, where he does claim against me even without my information, but he has no proof—here I am exempt by the law of returning a lost item, and according to Rashi this is not “the mouth that forbade.” Why? Because in such a setup, where he claims without me, there is no “mouth that forbade.” What there is here is an exemption of returning a lost item. So what do you want Rabbi Yehoshua to concede in such a case? It is unrelated to the issue. Rabbi Yehoshua may agree regarding returning a lost item, but that is not the concession he wants to convey. He wanted to tell me the case where he agrees in “the mouth that forbade,” not in returning a lost item. Right? That is basically Rashi’s view. Tosafot’s view, of course, is much more complicated, because according to Tosafot you have to understand what the difference is between returning a lost item and “the mouth that forbade”—it is the same setup. In both of them we are talking about a migo of “it never happened.” Then the whole calculation has to be redone. Well, I see we’ve already gone over time. What I… I had thought of doing some kind of pause for review. The question is whether we should… I propose the following. Have you finished the preparation sheet? No. Beyond, say, the last three sources I gave now?

[Speaker B] No, we got exactly to this point, and here we were hesitating about understanding the…

[Rabbi Michael Abraham] All right, so I propose this: next time I won’t send a sheet. Next time, finish this sheet, and when you finish this sheet, start some kind of review. In the class I’ll simply complete this lesson. That’s it, I won’t do more than that. Maybe we’ll even do a shorter class, and then I’ll leave you more order or something like that to do the review. I’ll be here a bit so that you can ask questions and we can talk a little. Okay? Next week… no, no, next time we’ll do review and see where you are up to. We won’t finish this lesson next time, on Thursday? Right, you do the review, okay… you’re not doing the… no, no, I’m doing the classes—the classes I said; all in all we just need to organize it, review it, and organize it. If you won’t manage, then we’ll dedicate more time to it again. We’ll see where we’re standing next time. Okay?

[Speaker C] That’s right, yes, we did do it right. I can do review and maybe not…

[Rabbi Michael Abraham] If there are questions, then we’ll talk. Okay. If there are questions, then we’ll talk. But I’m saying again: next time, finish the current sheet. You don’t need to get into—maybe read Rav Chaim out of the three or something. I’m not going to devote much time to it, from the last three that I brought at the end of today’s sheet. Okay? Just pay attention to the point that Rabbi Akiva Eiger asks there; that is really the main point. And then do a review. In the class maybe we’ll do a one-hour lesson, say, or maybe even less—whatever I need in order to finish the lesson I didn’t get to today. Then you’ll have a somewhat longer block of time so that you can manage the review. You didn’t manage? We’ll talk in the next lesson and see; it may be that we need more time in the following meeting as well. And then you want the review to be in the class that we’ll fill? No, no, no—I want you to do review while going over the lessons.

[Speaker C] No, aside from that, what we’ll do is that in class we’ll see whether we were really right—what the result is.

[Rabbi Michael Abraham] Anyone who wants is invited—anyone who wants is invited to present the picture she arrived at in review, and we’ll give comments. It’s simply to say the lessons briefly, that’s all.

[Speaker C] Thank you very much, it was—

[Speaker B] very meaningful because of that, because we understood.