[The oath obligated by] a single witness which is subject to contradiction and hazamah¹ demonstrates[that an oath can be obligated by testimony which is subject to nullification by contradiction and hazamah]. For proper understanding of this Tosfos we must keep in mind: Hazamah has a double function. It causes a) nullification of the testimony and also b) obligates the zomemim witnesses to pay their intended victim what their testimony would have cost him. For the sake of clarity, we will mark each reference to witnesses’ testimony with: z) for the zomemin witness who testify falsely about an intended victim. m) for the second set of witnesses who are מזים - discredit the zomemim witnesses. The word hazamah does not appear in our text of the Gemara. Tosfos will defend the text that does have this word in this sentence. The word hazamah usually conjures the punishment meted out to zomemim z) witnesses whose testimony is discredited by other m) witnesses who testify that we were with the zomemim witnesses elsewhere at the time of the purported event and they could not possibly have seen the event about which they are testifying. Usually, zomemim witnesses are subject to the punishment for the crime that they are testifying about. This is not true when there is only one witness. This is of course the reason for not having the word hazamah in the text of our Gemara, since a single witness is not subject to this penalty. Tosfos explains that even though one witness is not subject to the standard b) punishment of zomemim witnesses, the word can appear in our Gemara. The word*hazamah can rightfully appear herein this sentence, since by the process ofhazamah[the single witness’] testimony is nullified.**Even though the usual punishment for hazamah b) is inapplicable, the process does a) nullify his testimony. This is an inherent weakness of a single witness’ testimony as compared to a defendant’s admission. At this point in the dialogue, where the Gemara is demonstrating the relative strengths and weaknesses of various sources of information, it is justified in mentioning that the single witness’ testimony is subject to a) nullification by the process of hazamah. At this point the Gemara is attempting to disprove the kal v’chomer that witnesses’ testimony on half the plaintiff’s claim can obligate an oath by the defendant. The objective of such analysis is to show that one’s admission is inherently stronger than the testimony of witnesses and that is why one’s own admission generates an obligation to swear, whereas witnesses’ testimony which is inherently weaker cannot generate such an obligation. Proof that one’s admission is more powerful than witnesses’ testimony: One’s own admission cannot be nullified by the hazamah process, whereas: Witnesses’ testimony can be nullified by the hazamah process. Tosfos now entertains the notion that there is an extremely powerful aspect of one’s own admission as compared to witnesses’ testimony that seems to have been overlooked by our Gemara. That is the fact that zomemim witnesses must pay the amount that they planned to obligate their victim to pay. For example: When z) witnesses testify that Ruvain owes Shimon one hundred zuz and it turns out that they are zomemim, the z) witnesses must pay Ruvain one hundred zuz. This is totally untrue of one’s own admission. For example: If Ruvain admits that he borrowed a hundred zuz from Shimom on Sunday the first of Nissan at twelve noon in New York City. m) Witnesses testify that Ruvain was with them in Los Angeles on Sunday the first of Nissan at nine a.m. Pacific time. Ruvain is not obligated to pay even though m) witnesses say that he falsely admitted that he owes Shimon one hundred zuz.² Perhaps the Gemara should have used this strength of one’s admission as compared to witnesses’ testimony to undermine the basis of the kal v’chomer. We should not askthis question to undermine the kal v’chomer by proving that one’s admission is stronger than witnesses’ testimony, as follows: **What can you prove from one’s own admission,which is so powerful that he does not need to payeven when his admission is nullified by the process of****hazamah?Can you say the same for witnesses who do need to paytheir intended victim when their testimony is nullified bythe process of*hazamah? Proof that one’s admission is more powerful than witnesses’ testimony: Witnesses must pay when their testimony is discredited by hazamah, whereas, One does not need to pay when his admission is discredited by hazamah. This challenge to the kal v’chomer is much more potent than the Gemara’s present challenge, which is demonstrating that one’s own admission stands even when assailed by hazamah as compared to the testimony of witnesses which is nullified by the process of hazamah. This is countered by introducing a solitary witness, whose testimony can also be nullified by hazamah and even so his testimony generates an oath obligation. Proof that even testimony that can be nullified by hazamah generates an oath obligation: The testimony of a single witness can be nullified by hazamah and even so it generates an oath obligation. But if the Gemara is demonstrating the power of an admission that he cannot be obligated to pay by the process of hazamah, we cannot use the single witness to prove that even when testimony is from a source that needs to pay when nullified by hazamah as proof that even testimony that is subject to the penalty of hazamah can generate an oath obligation, because the single witness also does not pay when his testimony is nullified by hazamah. Thenhad the Gemara focused on aspect b), the admission not being subject to paying when nullified by hazamah, [the Gemara] could not have said - a single witness provesthat even testimony that is b) subject to pay when nullified by hazamah generates an oath obligation, because a single witness also does not pay when his testimony is nullified by hazamah. If so, both source of the common characteristic system would be instances where they cannot be obligated to pay via the process of hazamah. How can we learn from either of these two sources that witnesses’ testimony, which is subject to pay via the process of hazama can also generate an oath obligation? Tosfos explains that this argument that both sources of the kal v’chomer are beyond paying via hazamah is simply not true. It is definitely true that one’s admission is more powerful than witnesses’ testimony and that is why he does not pay when his admission is discredited by hazamah, but the same cannot be said for the single witness who does not pay when his testimony is nullified by two witnesses. For the reason that asinglewitness does not pay when his testimony is nullified byhazamah,is not because it is more stringentor more powerful than the testimony of two witnesses, as is one’s admission, rather, the reasonfor his not needing to pay is the inherent impotence of his testimony,because with his testimony he cannot obligatehis intended victim*to paymoney. Therefore, since his statement is*a) nullified⁴ via the hazamah process, it is consideredthat his testimony issubject tohazamah. In the case of a single witness, the b) punishment aspect cannot be invoked, because of the inherent impotence of a single witness’ testimony, but the a) nullification aspect can be applied. Thus his testimony is viewed as subject to hazamah. Even so, he can generate an oath obligation, so too, two witnesses whose testimony is subject to hazamah can also generate an oath obligation. The Gemara will soon say: How can you learn from the common characteristic of an admission and a single witness, but in both those cases the punishment of hazamah is not applied? We see that the Gemara does consider aspect b) a proper challenge to the derivation. But shortly the Gemara does use this aspect b) to challenge the common characteristic derivation? That is becausewhen dealing witha common characteristicderivation we may challenge it even with an insignificant challenge.There is a definite weakness in this challenge as Tosfos pointed out earlier. That a single witness does not pay when nullified by hazamah is not because of the strength of his testimony, but rather because of its weakness. The Rabanan consider this challenge as too weak to disprove a healthy kal v’chomer, but since ultimately both a single witness and one’s own admission are not subject to the penalty of hazamah, this can be used to negate a common characteristic derivation, even though it cannot be used to overturn a kal v’chomer.³ R’ Chiyawho does hold that we can learn from the common characteristic derivation that witnesses’ testimony can generate an oath obligation holds that even a common characteristicderivation,cannot be challengedwith this insignificant challenge, becausethe reasonthat a single witness does not pay when nullified byhazamah,is because of his inherent weakness, because he did not have the powerto generatea payment of money with his testimony.

footnotes: ¹ See Artscroll 3B3 note 23 for a definition of hazamah. ² Tosfos seems to understand that it is because one’s own admission is so powerful that he is not required to pay even when discredited by m) witnesses. Some of the latter commentators raise the following question: Perhaps the reason Ruvain is not required to pay is because there is nobody to whom he must pay. After all, he himself was the intended victim of his false admission. To whom should he pay the hazamah penalty? See אמרי בנימין and נחלת משה who discuss this question. Perhaps, we are speaking of a situation where others will be hurt by his own admission, even though he is not directly testifying about them. For example: his debtors sold his loans to other people. If his debts are minimal they are worth significantly more than if he is heavily in debt. By falsely admitting that he owes much more money than he actually does, he is reducing the value of his paper and would be harming the holders of such loans. Tosfos assumes that he does not have to pay those loan holders the difference in value between when he had not yet admitted his greater liability and when he did falsely admit his greater liability. ⁴ See Rashi חולין קטז. ד'ה אבל: We challenge common characteristic derivation with even an insignificant challenge. So are the systems of expounding the written law handed to us from Sinai. ³ See אוצר מפרשי התלמוד who quotes קצות החשן who discusses whether there is hazamah liability in an instance wherea solitary witness does cause a victim to pay. For example: In a situation where the defendant would have to swear, but cannot do so, he must pay. Would the zomem single witness be required to pay or not? See there for more discussion of this subject.

“The Tanna [of our Mishna] taught this”, [refers to] another [rule taught] by R’ Chiya. A review of our Gemara is in place: On 3a R’ Chiya teaches that A) if a plaintiff claims one hundred zuz and the defendant denies the claim entirely and two witnesses testify that the defendant owes fifty zuz, the defendant must swear that he does not owe the second fifty zuz, just as the defendant would need to swear if he had admitted owing fifty zuz. This ruling is referred to as the earlier teaching of R’ Chiya. Initially the Gemara said that ‘our Tanna taught’ this ruling in our Mishna. The Gemara on 4a then showed how this ruling cannot be deduced from our Mishna. The Gemara continues saying that there is a second ruling of R’ Chiya that our Tanna taught in the Mishna. That is the rule of B) ‘הילך - here, it is yours’. For example: Ruvain says to Shimon you owe me one hundred zuz. Shimon responds: I owe you only fifty and here, it is yours. Shimon offers immediate payment for the fifty zuz that he admits owing. R’ Chiya says that even in this case Shimon needs to swear. Rav Sheishes disagrees. He holds that one swears only when he does not immediately offer to pay the portion he owes. The Gemara is now saying that when R’ Chiya said ‘the Tanna taught’ my ruling in the Mishna, he was referring to B) this latter ruling and not to A) his earlier ruling. In order to view this ruling and how it can be deduced from our Mishna from the proper perspective, we must understand that the case of the Mishna is one where there is an oath obligation similar to a) one who partially admits the claim of the plaintiff and b) he is obligated to swear even though he is offering immediate payment for the portion he owes. We must first see how in our Mishna a) there is an oath obligation similar to when one admits partial liability and then we can perhaps see R’ Chiya’s second ruling: b) that even when the defendant offers immediate payment, he is obligated to swear. For greater clarity let us review Rashi together: The Gemara initially thought that according to R’ Chiya, the reason for our Mishna’s ruling is because, we [the court] testify that the portion of the garment that each of the litigants is holding is his. This is similar to when one claims: you owe me one hundred zuz and the other responds: I owe you nothing. While witnesses testify that [the defendant] owes fifty zuz, as in the other [earlier ruling] of R’ Chiya, where [R’ Chiya] obligates [the defendant] to take a Torah oath. We will look at this case first from Ruvain’s and then from Shimon’s perspective:Ruvain claims that the garment is entirely mine. This is the equivalent of saying that you Shimon, owe me one hundred zuz. Shimon claims: it is entirely mine. This is the equivalent of Shimon saying: I owe you nothing! The court sees that half is definitely Ruvain’s, because he is holding the garment. This the equivalent of witnesses testifying that half of Ruvain’s claim is true. The Mishna rules that Shimon must swear to defend the half of the garment that he does receive. This is similar to R’ Chiya’s first ruling that the testimony of witnesses accomplishes the same as one’s own admission. Now, if we just reverse the roles of Ruvain and Shimon, we will have the same exact ruling for Shimon as we do for Ruvain. The Gemara sees this ruling of the Mishna in this light. Thus we have in our Mishna the basis for an oath obligation a) R’ Chiya’s first ruling. The Gemara also sees this case as one of ‘הילך - Here, it is yours!’, since delivery of half the garment to each of the litigants is immediate. Thus we have demonstrated R’ Chiya’s second ruling b) that even in a case of ‘הילך - Here, it is yours!’, there is an oath obligation. **We,**the court, testify that which this etc.[litigant is holding is his, and as if the other litigant said , “Here, it is yours.”¹ Rashi explains that sinceour perception of what we see, is that Ruvain and Shimon each own at least half of the garment, this is equivalent to the testimony of witnesseswho testify that Shimon owes Ruvain half of Ruvain’s claim. Shimon must swear that at least half is his **because of R’ Chiya’s earlier ruling,**that the testimony of witnesses (in this case, the court’s perception that Ruvain owns at least half of the garment) can generate an oath obligation on the other half of the garment. As explained earlier, we must first have an oath obligation and then we can apply R’ Chiya’s second ruling that even when immediate payment is offered the defendant is also obligated to take an oath. According to Rashi’s explanation, the basis for the oath obligation in our Mishna is R’ Chiya’s earlier ruling. Thus, by demonstrating that the Mishna is teaching R’ Chiya’s second ruling, we automatically have proof of his first ruling. If not for the first ruling, there would be no oath obligation at all. This is difficult, for since we cannot prove this latter² ruling b) about when the defendant says, הילך - Here, it is yours!’, only because of the earlierruling of R’ Chiya a) that one is obligated to swear upon the testimony of witnesses who say that the defendant is partially liable, we shouldalso say ‘theTanna taught’ about the earlierruling of R’ Chiya. Since we can prove ruling b) only if ruling a) is true, any proof of ruling b) is automatically proof of ruling a).³ We are compelled to say that it is possible that ruling b) can exist without ruling a), and that our Mishna need not be understood specifically as a case of b) R’ Chiya’s latter ruling being imposed on an oath obligation established by his a) earlier ruling. There must be a way of explaining the initial oath obligation other then as a result of R’ Chiya’s earlier ruling. We already know that a) one’s partial admission generates a Torah oath obligation. We are considering that b) the testimony of witnesses about part of the plaintiff’s claim might also generate a Torah oath obligation. R’ Chiya’s latter ruling that even when the defendant says, “Here, it is yours!”, he must swear by Torah law is applicable in both instances, when the original claim is a) partially admitted by the defendant or b) when we hear from witnesses that he owes part of the claim. Our Gemara seems to be saying⁴ that the basis for the oath in our Mishna is that the court who sees that half of the garment belongs to Ruvain is the equivalent of b) the ' testimony. But must we say that the court’s view of this situation is equivalent to b) witnesses’ testimony? Perhaps it is equivalent to hearing an admission from Shimon that half the garment belongs to Ruvain? For this reason we can say, that the wordsin brackets in our text **‘we,**the court, are witnesses’used to describe our perception that Shimon owes Ruvain half the garment is imprecise,rather, now we consider that which [Ruvain] is holding [the garment]even more than the testimony of witnesses. It is considered as if [Shimon] admits to [Ruvain] that [half] is [Ruvain’s].Thus the Mishna is an example of when R’ Chiya’s latter ruling is imposed on a) one’s own partial admission. There is no evidence at all that witnesses’ testimony that Ruvain owns half the garment would generate a Torah oath. Tosfos will now show that his explanation of the Gemara’s phrase ‘אנן סהדי - we are witnesses’ as meaning ‘we perceive an admission’ is not problem free. As usual, we will need to review the Gemara’s rejection of R’ Chiya’s earlier ruling. The Gemara is discussing whether R’ Chiya’s earlier ruling was ‘taught by the Tanna’ of our Mishna: But that which [R’ Chiya] said “and our Tanna taught this” in our Mishna, is it comparable? There, in R’ Chiya’s case, the lender has witnesses that the borrower borrowed fifty zuz, but the borrower has no witnesses that he does not owe the lender more than the fifty zuz that the witnesses testified about. For if the borrower had witnesses that he does not owe the lender anymore, R’ Chiya would not require an oath for the balance, since the borrower has witnesses who testify that he owes no more than fifty zuz. Here, in the case of our Mishna, just as we are witnesses that [Ruvain] owns half, we are also witnesses that [Shimon] owns half, and even so an oath is required! It seems that the Gemara’s rejection of R’ Chiya’s earlier ruling is because whatever evidence we have on behalf of Ruvain, we also have that very same evidence on behalf of Shimon. Just as we have the equivalent of witnesses testifying that Ruvain owns half, we have witnesses who testify that Shimon owns half. When discussing R’ Chiya’s latter ruling, the Gemara neglects to cite the very same difficulty. Tosfos will now re-examine the basis for the oath in our Mishna, before we reach the issue of ‘Here, it is yours! But this remains difficult! For in any case we can challengeR’ Chiya’s deduction of his latter ruling from our Mishna by arguing that in our Mishna, just as [Shimon] admits to [Ruvain] that half is his, so too, [Ruvain] is admitting to [Shimon]that half is hisand even so an oath is required, as [the Gemara] asks this very question aboutR’ Chiya’searlier ruling.If so, how is thisattempt to say that R’ Chiya was not discussing his first ruling but his latter ruling an improvementover the previous discussion about the earlier ruling of R’ Chiya? The same problem we have with the earlier ruling re-emerges with the latter ruling. Eventually, our Gemara says that even if the oath obligation in our Mishna is inherently Rabbinic, the Rabanan would not institute an oath that is not at all similar to an oath required by Torah law. Thus, if in a case of ‘הילך - Here, it is yours!’ there would be no obligation to swear by Torah law, the Rabanan would not institute a Rabbinic oath in a similar situation. Tosfos suggest that even at this earlier point in the dialogue, the Gemara was utilizing this approach, even though it is first articulated later in the Gemara. We can answer: That nowin this earlier point in the dialogue as well [the Gemara] is provingthat in a case of ‘הילך - Here, it is yours!’ there is an oath obligation because of the reasonthat willsoonbe mentioned in the Gemara: Ifwhen a defendant who has admitted half says ‘Here, it is yours!’, he is exemptfrom an oath by Torah law, the Rabanan would not have instituted aRabbinicoath that is not comparable to any oathprescribed bythe Torah.Thus, the fact that in our Mishna an oath is required, even if this happens to be a situation where the oath is only Rabbinic, because the evidence on both sides is equal,it still proves that by Torah law in a situation of ‘Here, it is yours!’, there is an obligation to swear. We cannot say the same for R’ Chiya’s earlier ruling. It is possible that even if the testimony of witnesses cannot generate an oath obligation, the litigants in our Mishna would still be obligated to swear. However, according to the earlierruling of R’ Chiya, even if witnesses’ testimonycannot generate an oath obligation and when witnesses testify that the defendant owes half the plaintiff’s claim he is exemptfrom an oath, the Rabanan would institute an oath in the case of our Mishna, becausethe fact that the litigants are eachholding the garment is tantamount to an admission,which certainly generates an oath obligation. When we consider the source of information in our Mishna, which is that we see the two litigants each holding the garment, we may view this either as witnesses’ testimony or as an admission that half the garment belongs to each of the litigants. Even if we reject R’ Chiya’s earlier ruling that the testimony of witnesses generates an oath obligation, the case of two litigants holding a garment requires an oath because the fact that they are holding the garment is tantamount to an admission. Thus, the Gemara is correct in its rejection of R’ Chiya’s earlier ruling. However, if when a litigant says, “Here, it is yours!,’ he is exempt from taking an oath, there could be no requirement for an oath in our Mishna, because our Mishna is clearly a case of ‘Here, it is yours!’. Although Tosfos is satisfied with the logic of his explanation of the Gemara, he is unhappy with how it conforms to the text of our Gemara. This explanation is awkward! For according to thisexplanation, the reason that [the Gemara] could not say “and theTannataught it” in reference to the earlier rulingof R’ Chiya is because we can view [the litigants’] holding the garment as an admissionand not as witnesses’ testimony, but that was notthe gist of[the Gemara’s] challenge earlier. Rather, the reasonfor saying that R’ Chiya’s earlier ruling is not taught by the Tanna of our Mishna was articulated as: **because just as we are witnesses for [Ruvain], we are also witnesses for [Shimon] etc.,**but according to Tosfos’ explanation that is not the reason at all, it is because each litigant’s holding the garment can be viewed as an admission by his opponent.

footnotes: ¹ The words אנן סהדי in the Gemara are in brackets. It appears that at some point they were added to the text. They do appear in Rashi’s explanation of the Gemara. It is unclear whether Rashi had those words in his text of the Gemara. It is interesting to note that Tosfos wrestles with the meaning of these words as they pertain to our Gemara. He does not mention that there is an alternative text. See Artscroll’s translation of the text and note 28. ² We have corrected the text to conform with רש"ש. ³ See ריטב"א רמב"ן, and ר"ן who offer a defense of Rashi. In general their explanation is that when the Gemara said “our Tanna taught it” in reference to the latter ruling of R’ Chiya, the Gemara was referring to the conclusion of the Gemara later where R’ Chiya admits that the oath in our Mishna is of Rabbinic origin. Thus, we have no proof of R’ Chiya’s earlier ruling. However, when the Gemara initially begins its conversation about proving R’ Chiya’s second ruling from our Mishna because the oath in our Mishna is required by Torah law, the Gemara could have in fact used the very same proof to prove R’ Chiya’s earlier ruling. R’ Chiya ultimately admits that the oath in our Mishna must be of Rabbinic origin and at that point we no longer have proof of R’ Chiya’s earlier ruling, but we can prove his latter ruling, for if ‘Here, it is yours!’ is exempt from an oath by Torah law, it would also be exempt in Rabbinic law. בעל המאור quoted in ,שיטה מקובצת offers a different approach. ⁴ See note 1. In Shulchan Aruch C.M. 75, 4, we do in fact rule like the earlier ruling of R’ Chiya that when liability of fifty zuz is established by witnesses, the defendant must swear by Torah law.

And Rav Sheshet says: [One who says]: Here you are [is] exempt. Our Gemara fails to rule in this dispute. Tosfos tells us that elsewhere the Gemara does demonstrate its halachic preference in this issue. It appears that thehalachais in accordance with Rav Sheishes, for in Perek Hashoel (below 100a) in regard to a dispute aboutwhether a large slave or asmall slavewas sold,¹ [the Gemara] arguesthat there should be no oath obligation because it is a case of **“Here, it is yours!”.**² The Gemara there is a clear indication that it assumes that one is exempt from swearing in a case oh “Here, it is yours!”. However, in Sefer Chaifetz it is to be understood that he rules thatin a case of **“Here, it is yours”**the defendant is **obligated to swear.³See Tosfos Bava Basra 128b: ד'ה הלכתא.**Tosfos there quotes Rabbeinu Chananel⁴ as also ruling in accordance with Rav Sheishes that in a case of “Here, it is yours!” the defendant is exempt from swearing.

footnotes: ¹ A seller sold one of two slaves: a smaller or a larger slave. They are now disputing which of the two slaves was sold. The Mishna there rules that the seller must swear that he sold a small slave. The Gemara challenges this ruling for three reasons: a) The claim is not about the same item that he admitted. b) It is a case of “Here, it is yours!, and c) one does not swear about slaves. Since the Gemara uses the argument that it is b) a case of “Here, it is yours!” it is proof that the Gemara assumes that the halacha follows Rav Sheishes. ² Shulchan Aruch Choshen Mishpat 75, 6, also rules that in a case of “Here, it is yours!” the defendant is exempt from a Torah oath. He is however required to take a Rabbinic oath, called שבועת היסת, which will be discussed later. ³ See רא"ש who presents some difficulties with the ruling that in a case of “Here, it is yours!” one is exempt from a Torah oath. The רא"ש manage to find differences betyween the cases that he quotes and the Gemara in Hashoel 100a. Perhaps Sefer Hacheifets feels that those Gemaros are in fact proof that the halacha should follow R’ Chiya. ⁴ See – מהר"ץ חיות quoted in the digest of ש"ס נהרדעא who explains that there are those who held that Sefer Hacheifetz was written by Rabbeinu Chananel. The autyhor of this gloss is disproving thios theory by showing that Rabbeinu Chananel rules that ‘הילך’ is exempt from a Torah oath in opposition to Sefer Hacheifetz.