B'kiut post for Daf Gimmel of Mesechet Makkot

Summary:

The Gemara asks a question: What is the main point of what Rav Nachman is saying (The point that these witnesses did not do anything at this moment and yet, they are paying) since this is just what Rabbah said?

It therefore answers and says: Let it say, “Similarly, Rav Nachman says” so that it shows that Rav Nachman is just further explaining Rabbah.

            Rav Yehuda says in the name of Rav that a zomem witness should pay according to his portion.

Question 1: What does “paying according to his portion,” mean? If we say that it means that one pays half and the other pays half, we’ve already learned this in a Mishna that says that the zomem witnesses can divide a monetary punishment but they cannot divide a sentence of lashes!! This makes the previous statement unnecessary!

 Question 1A: And if this would apply in an example where only one of the two witnesses was proven to be false, which could explain Rav’s statement as the one false witness would pay his share, this is also not possible! This isn’t possible because we learned in a Baraita that a zomem witness doesn’t pay his money unless both witnesses are zomem!!

Rava answers: This is when only one witness admits that he was a zomem.

Attack on Rava: Can this actually happen? Since there is a rule that once someone has testified, they cannot go back and change their narrative. (Therefore, the Beit Din can’t accept this testimony of his confession and would then not be able to require this witness to pay the penalty of hazamah)

Explanation of Rava’s answer: Rather, this case that Rava mentions is a case where a witness says in court that their testimony in Beit Din ploni was falsified. (This isn’t a changing of his testimony but is his admitting to liability)

Attack on this explanation: Who would validate this? Certainly not R’ Akiva since he said in a Baraita earlier that one cannot pay based on his own confession! (This is because he considered the penalty for hazamah a fine, which this rule applies to as well).

Explanation of Rava’s answer: Rather, this case is when a witness says the earlier explanation of both witnesses being falsified in Beit Din ploni and THEN adds that they were liable to pay. (This is because he is admitting to owing a collectable debt, not just one fine! The admission of owing a debt is always accepted)

Therefore, Rav teaches that he pays his share of his total hazamah penalty. You might have thought to say that since one cannot obligate his partner through his own confession, that he should also not become obligated to pay his penalty. Therefore, Rav teaches us that this is possible.

            The Mishna states: Witnesses come and testify that a man divorced his wife without paying the ketubah, thereby causing a monetary loss for the husband since he now has to pay. These witnesses are zomemim and now have to pay the husband the value of the ketubah (his monetary loss). However, maybe he wouldn’t have had to pay her the ketubah anyways today or tomorrow if he or she dies? This means that the Beit Din cannot equate the loss to mean the entire ketubah! Rather, they must evaluate how much one would be willing to pay right now on speculation for the rights of her ketubah on the chance that she is widowed or divorced. Yet, if she dies first, the husband would inherit everything and will not have to pay the ketubah. This gamble makes the prices decrease significantly thereby decreasing the penalty that the zomem witnesses have to pay as well.

           

            The Gemara asks: How is the amount of the penalty calculated?

Rav Chisda answers: By the worth of the husband’s placement in the situation since this would be his monetary loss if they weren’t caught.

Rav Natan bar Oshaya also answers: By the worth of the wife’s position.

Rav Papa also answers: By the worth of the wife’s position but only in regards to her primary ketubah.

           

            The Mishna states: If witnesses come and testify that a man owes his fellow man 1000 zuz on the condition that he repays this over the course of one month yet the man says that it was over the course of 10 years, the witnesses are zomem and now their penalty must be calculated since the monetary loss wouldn’t be 1000 zuz due to the fact that the defendant DID admit to owing the money. Rather, it would have to be the difference between paying 1000 zuz over one month or over 10 years.

            The Gemara brings a statement said by Rav Yehuda in the name of Shmuel that if one lends another money for 10 years, the shmitah year cancels the loan. Even though now we cannot apply to him the statement that prohibits him from pressing the borrower for the money, ultimately this loan will be subject to the statement anyways during shmitah.  

Rav Kahana’s attack: We assess how much a person would be willing to give to own 1000 zuz from the difference between having to repay them within one month and repaying them in 10 years. But if you say, that shmitah cancels the debt even if it’s not due yet, the zomem witnesses should have to pay the whole 1000 zuz to the defendant! So why doesn’t the Mishna say this?

Rava answers: In the Mishna, it is discussing a lending of money on collateral (lending money on the condition that the borrower will leave something with the lender and if he does not pay the money back in a certain time frame, the lender keeps the item) or when one gives in his documents to the court. For we have learned in a Mishna that these two cases do not get its debts cancelled.

There are those who say that Rav Yehuda said in the name of Shmuel that if one lends another money for 10 years, the shmitah year does not cancel the loan. Even though this loan could ultimately be subject to the statement of not pressing the borrower for the money, nevertheless we cannot apply this statement to him now.

Rav Kahana supports this and says: We have also learned this in a Mishna that we assess how much a person would be willing to give to own 1000 zuz from the difference between having to repay them within one month and repaying them in 10 years. And if you say that shmitah cancels the debt, the zomemim therefore, should have to pay the entire sum of 1000 zuz to the defendant.

Rava attacks: There is no proof since in the Mishna, it is discussing a lending of money on collateral or when one gives in his documents to the court. And we have learned in a Mishna that these are the two cases that do not get its debts cancelled.

            Rav Yehuda also said in the name of Shmuel that if one says to his friend who has requested to borrow money that he will only lend on the condition that shmitah doesn’t cancel my loan, shmitah still cancels it.

We can say that Shmuel believes that this is contradicting the Torah, and whoever does this, their conditions are void.

Question: But it has been said that when a man says to his friend buying an object that he will sell it on the condition that he do not claim fraud against him, doesn’t Rav say the buyer can still claim fraud while Shmuel says the buyer can’t claim fraud?

Answer: But it has been said that Rav Anan said that Shmuel explained it to him personally that whether or not that right is valid depends on the wording of the condition. If he said, “ on the condition that YOU DON’T HAVE A CLAIM of fraud against me”, then the buyer cannot claim fraud. If he said, “on the condition that THERE IS no fraud”, then the buyer can claim fraud if necessary. Here too, if it was said,  “on the condition that YOU DON’T cancel the debt in shmitah” the shmitah doesn’t cancel his debt. Yet, if it was said,  “on the condition that SHMITAH DOESN’T cancel the debt” the shmitah does cancel his debt.

            We have learned in a Baraita that if one lends another money without specifying when he wants it to be repaid, he cannot demand payment before one month afterward. Rabbah bar bar Chana, while studying with Rav said that this only applies for a loan recorded in a document since it would be uncommon for one to burden themselves to write a document for a loan of less than one month but for an oral law, this doesn’t apply.

Attack: Rav said to Rabbah that his uncle said this rule does apply in both circumstances. We also learned this in a Baraita that if one lends another money without specifying when he wants it to be repaid, he cannot demand payment before one month afterward, whether he lends with a document or whether he lends orally.

The explanation of the source of this rule: Since the pasuk that discusses shmitah says, “ the seventh year, the year of shmitah, draws near”, we wonder what could be learned from “the seventh year draws near”. Would I not have known that it is the year of the cancellation of debts? If so, what is the purpose of saying “the year of shmitah”? It is to teach you that there is a similar cancellation to this one, which is the case of not being able to claim money owed before one month if a due date was not specified and Mar has said 30 days within a year may be considered a year (when discussing orlah).

            Rav Yehuda said in Rav’s name that if one makes a neck opening on Shabbat, he is liable to a chatat offering.

Rav Kahana’s attack: How does this differ from a barrel lid?

Response: This is bonded but the barrel and lid is not bonded.

            Rav Yehuda also said in Rav’s name that if 3 lugin of drawn water (that fell into a kortov of wine and has the color of wine) fell into a mikvah, it does not invalidate it.

Rav Kahana’s attack: How does this differ from colored water? Since in a Mishna R’ Yossi says that colored water invalidates a mikvah with 3 lugin.

Response: There, the mixture is referred to as colored water but here; the mixture is referred to as diluted wine.

Question to consider:  The Gemara discusses how one would be able to claim someone is overcharging them or how one would be able to make sure a debt isn’t cancelled by the shmitah year. Yet, it also says in the Torah that shmitah is a year of rest and it continues on to set the guidelines on how one should be handling financial transactions during that year. 

How is this allowed that two people can construct a valid business deal that violates Hashem’s will/commandment about debts in the shmitah year? Hashem explicitly explained to us what He wanted and now the rabbis in the Gemara are making a system to get around it! In other areas of Halacha, man cannot just make a rule that if two people agree to do a prohibited act that it is all of a sudden okay. Why is this different in business? The Torah is telling us that you can’t overcharge someone and now we are saying you can, if you say “this and this” and the Torah is also telling us to cancel debts in the shmitah but we’re saying you don’t have to if you say it in a certain way! Aren’t we building an alternate universe that’s veering off of Halacha?