Bava Metzia Daf 06 - Takfu Kohein
Summary
- The shiur presents the sugya of מיגו דחשיד אממונא חשיד אשבועתא through six proofs, concluding for several cases that one who is suspect in monetary matters is not automatically suspect in oaths, while Abaye maintains that true monetary suspicion implies oath suspicion but distinguishes cases of ספק where people avoid a ספק oath more than a ספק monetary grasp. The shiur applies this to *shnayim ochzin b'tallit*, testing whether initial silence during a grab counts as *shetikah ke-hoda'ah*, analyzes parameters of in-front-of-*beit din* versus before *edim*, and resolves a baraita about המוציא מחברו עליו הראיה without proving initial silence as admission. The shiur then compares physical seizure to consecration via אמירתו לגבוה כמסירתו להדיוט, analyzes a bathhouse case, and rejects a proof from קדושת בכור as a distinct automatic sanctity, before establishing from *maaser behemah* that in ספק פדיון פטר חמור, *tekfo kohen* does not work and the כהן must relinquish seizure.
- Rav Huna states that when a *shomer chinam* or *shomer sachar* refuses to take a *shevuah* and offers to pay, the court imposes a *shevuah she’eina bireshuso* because he may desire to keep the hard-to-replace item by “buying” it. The *Gemara* answers that he is not deemed a thief since he is מורה היתר to himself by paying, so he is not suspect on an oath; Tosafot ask that this is *chamsan* and answer either that this form is not the disqualifying public *chamas* or that *chamsan* is only rabbinically disqualified with public proclamation, which did not occur. Rav Acha of Difti argues he still violates *lo tachmod*; the *Gemara* answers that people assume *lo tachmod* applies only “without payment,” so this does not render him suspect for a *shevuah*. Shulchan Aruch Choshen Mishpat 34 rules that one becomes *pesulei edut* for regularly committing well-known prohibitions but not for acts people mistakenly think are permitted, and the Mahari"l applies this to a woman refusing to appear in *beit din* and R’ Akiva Eiger applies it to shaving with a razor, while Aruch HaShulchan distinguishes between ignorance and social laxity, disqualifying where the issur is known.
- Rav Nachman’s imposition of *shevuat hesset* on a complete denier, Rabbi Chiya’s rule in *chanvani al pinkaso* where both the shopkeeper and workers swear and collect, and Rav Sheshet’s three oaths for a *shomer chinam* with a theft claim show that the court does not assume מיגו דחשיד אממון חשיד אשבועה. Abaye asserts that if one is truly suspect of monetary wrongdoing, he is suspect for a false *shevuah* as well, so the *yachloku* oath in the Mishnah of *shnayim ochzin b'tallit* applies because the grabber seeks to recoup an old loan rather than to steal. Abaye refines that the scenario is a ספק old loan, and Rav Sheshet bar Rav Idi explains that people will risk ספק monetary taking because it is reversible but will not risk a ספק false *shevuah* because it is irreversible.
- The *Gemara* evaluates a case in which in *beit din* one party yanks the garment and the other is initially silent but subsequently protests, questioning whether the initial silence constitutes *shetikah ke-hoda'ah*. Ritva defines “initially silent” at the grabbing moment and “afterwards” post-seizure, while Ra’ah reads both stages within the struggle; Ritva rejects calling mid-struggle silence an admission since the silent party may expect to prevail. Rashba accepts that “afterwards” extends to the period while still before *beit din*, whereas Ramban and Ritva hold that without *beit din* the expectation to cry out immediately renders silence an admission, and Rashba argues the opposite, that protest is expected only in *beit din*. Shach in Choshen Mishpat 138 equates before-*edim* with before-*beit din*, and Tumim disputes that equivalence as unsupported by the major Rishonim.
- The baraita’s clause “אבל היתה טלית יוצאת מתחת ידו של אחד מהן המוציא מחברו עליו הראיה” does not prove that initial silence is an admission. One resolution sets the case where both originally held it, *beit din* ruled *yachloku*, they left, returned with one holding it, and the holder claims the other admitted while the other claims he rented it to him; the court rejects the rental claim absent *edim*, with Ramban allowing credibility if he claims there were *edim*, and the Chiddushim Meyuchasim la-Ritva rejecting credibility without producing *edim*. A second resolution sets the case where one holds properly and the other only clutches loosely (*mesarech beseruchei*), and even Sumchus—who says in some *derara d'mamona* cases ממון המוטל בספק חולקין—admits that a loose clutch is halachically meaningless.
- If the grabber does not retain possession even after *tekifah*, then certainly his *hekdesh* does not take effect. If *tekifah* would establish possession, the *Gemara* asks whether *hekdesh* works via אמירתו לגבוה כמסירתו להדיוט or fails because ואיש כי יקדיש את ביתו קודש requires the item to be in his domain. A bathhouse case features two claimants, one declares it *hekdesh*, and Rabbanan avoid deriving benefit, implying effective *hekdesh*; when asked to clarify before Rav Chisda, R. Hamnuna cites a Mishnah in Taharot on ספק *bechor* with המוציא מחברו עליו הראיה and a baraita that they are אסורים in *gizah va'avodah*, seemingly proving effective seizure and parallel *hekdesh*. Rava rejects the proof by distinguishing קדושה הבאה מאליה in *bechor* from *hekdesh*, asserting that even if *tekfo kohen* fails and the item remains בחזקת ישראל, the איסור of *gizah va'avodah* persists independently, so the bathhouse is no proof for *hekdesh*.
- Rav Chananya supports Rava with a baraita: ספקות of *peter chamor* sheep enter for *maaser behemah*, which would be impossible if *tekfo kohen* worked, because the Israelite would be פוטר his own obligation with the כהן’s property. Abaye initially suggests a nine-plus-one ממה נפשך resolution but retracts, proving that even a mere ספק in the group exempts from *maaser behemah* entirely, as in the Mishnah in Bechorot where one previously counted animal re-enters the pen and all are exempt, thereby establishing that *tekfo kohen* does not help and the כהן has no monetary right in the ספק animal.
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