1) "KOL HA'OMER LO LAVISI"

QUESTION: The Gemara asks whether Beis Din may apply the principle of "Migu" ("Mah Li l'Shaker") to lend credibility to a litigant's claim when there is a Chazakah that counters his claim. The Gemara cites proof from a Mishnah in Shevuos (38b). The Mishnah there discusses a case in which a lender claims that a person owes him a Manah and the borrower admits in front of witnesses that he owes a Manah. The following day, the lender demands that the borrower give him the Manah that he owes. If the borrower claims, "I already paid it," then he is believed, but if he claims, "Nothing of yours is in my possession," then he is not believed and he must pay.

The Gemara suggests that the case of the Mishnah in which the borrower says, "I already paid it" means that the borrower claims that he paid the Manah after the date on which payment was due. The claim that "nothing of yours is in my possession," on the other hand, is a claim that he paid the Manah before the date on which payment was due. The Gemara thus infers that a "Migu" is not believed when a Chazakah counters it (because in that case, there is a Chazakah that a borrower never pays before the due date).

The Gemara rejects that proof from that Mishnah, and asserts that the borrower's claim that "nothing of yours is in my possession" really means that he never borrowed any money from the lender. This claim is not believed because of the rule that "when a person says 'I did not borrow,' it is as if he says 'I did not pay back'" -- "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami."

Why does the Gemara have to give this reason ("Kol ha'Omer...") to explain why the borrower is obligated to pay? Since the borrower admitted (in front of witnesses) that he owes a Manah, he certainly should not be believed afterward when he claims that he never borrowed!

The principle of "Kol ha'Omer..." applies in a situation in which a person denies that he ever borrowed any money, and then witnesses testify that they saw him borrow money and that they saw him pay it back. When the borrower says, "I never borrowed," he contradicts the witnesses who say that he borrowed, and thus he is not believed. Even though the witnesses say that he repaid the loan, he himself says that he never borrowed, which is akin to saying that he never repaid the loan. Since he effectively admits that he did not repay the loan, he is obligated, due to the principle of "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami."

In the case of the Gemara here, however, this principle should not be necessary, because the borrower himself admits (in front of witnesses) that he borrowed money. (TOSFOS, RA'AVAD in the Shitah Mekubetzes, RAMBAN, RASHBA, RITVA)

The Rishonim (other than Tosfos and the Ramban) add that in this case, there is another reason not to believe the borrower. The borrower is "Huchzak Kafran" with regard to this money; he has been shown to be lying, and thus he should not be believed.

Why, then, is it necessary for the Gemara to quote the principle of "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami"?

ANSWERS:

(a) TOSFOS and the RAMBAN answer that it indeed is necessary for the Gemara here to invoke the principle of "Kol ha'Omer...." Without this principle, the borrower might have been able to explain his words with the claim, "When I said that I did not borrow money, I did not mean that I did not borrow money at all. Rather, I meant that it is as if I did not borrow, since I had already paid back the money." He would then be believed to claim that the debt was paid, since he would not be contradicting his earlier admission. However, due to the principle of "Kol ha'Omer..." he cannot explain his words in that manner, because when he stated that he did not borrow the money, it was as if he said that he did not pay it back at all.

(b) The RA'AVAD answers that in this case, the borrower is not "Huchzak Kafran," because the witnesses who contradict him do not testify that they actually saw him borrow the money; rather, they testify merely that they heard him say that he borrowed it. In such a case, when the borrower later says that he did not borrow the money, he is not "Huchzak Kafran" since he can claim that when he originally admitted that he borrowed money, his memory failed him due to his many business activities, and now that he has thought about it he remembers that he never borrowed money from this claimant. Since the witnesses can testify only about his previous admission and he agrees that he made that admission, his current claim is not in contradiction to the witnesses' testimony, and therefore he is not "Huchzak Kafran."

A person is "Huchzak Kafran" only when he claims that he did not borrow money and witnesses testify that they saw him actually borrow the money. In such a case, the defendant is not believed if he later claims that he paid the money, because his initial claim was contradicted explicitly by witnesses.

(c) The Ra'avad answers further that a person is "Huchzak Kafran" only when witnesses contradict a claim that he made in Beis Din. When witnesses contradict a claim that a person made outside of Beis Din, this does not make him "Huchzak Kafran." The reason is that when a person makes a claim outside of Beis Din, it is normal for him not to say every part of his claim.

(d) The RAMBAN and RASHBA answer further that the Gemara here had to invoke the principle of "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami" because without that principle, the borrower would be exempt if witnesses testify that he borrowed the money and paid it back. The Gemara here wants to teach that even if witnesses testify that he paid back his debt, he is still obligated, because he himself admits that he did not pay it back (because "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami"). (I. Alsheich)

2) "HODA'AS BA'AL DIN"

QUESTION: The Gemara rejects the attempted proof from the Mishnah in Shevuos (38b) that a Chazakah overrides a "Migu." The Gemara explains that in the Mishnah in Shevuos, the borrower's claim that "nothing of yours is in my possession," does not mean that he repaid the debt before the due date; rather, it means that he never borrowed any money from the lender. Such a claim is not believed because of the rule that "when a person says 'I did not borrow,' it is as if he says 'I did not pay back'" -- "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami."

This principle -- that whenever a borrower says that he did not borrow money (and there are witnesses who contradict him) it is as if he said that he did not repay the debt -- poses a difficulty for one interpretation of another common principle. There is a rule that "Hoda'as Ba'al Din k'Me'ah Edim Dami" -- the admission of a litigant (who admits that he owes money) is like the testimony of one hundred witnesses, and his word is believed. One way of understanding this principle is that when a person admits that he owes money, Beis Din accepts his word and believes that he really owes the money. The KETZOS HA'CHOSHEN (34:4), however, cites the MAHARI BEN LEV who gives another explanation for how "Hoda'as Ba'al Din" works. According to the Ketzos ha'Choshen's understanding, the Mahari ben Lev says that when a person admits that he owes money, his obligation to pay that money results not from the fact that his admission has credibility ("Ne'emanus"), but rather he is obligated to pay because his admission is a form of committing himself to give a gift ("Hischaivus"), and a person has the right to obligate himself to give a gift.

The Ketzos ha'Choshen questions this explanation from the principle of the Gemara here, that "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami." This principle is consistent with the simple explanation of "Hoda'as Ba'al Din k'Me'ah Edim Dami" -- that a person has credibility to admit that he owes money. According to that approach, when a person claims that he never borrowed money and witnesses testify that he borrowed money but repaid it, he is obligated, because when he said that he never borrowed the money it was considered as if he admitted that he never repaid it (since witnesses testify that he borrowed). Even though the witnesses also say that he paid back the money, his admission, a "Hoda'as Ba'al Din," is believed over that portion of the witnesses' testimony.

However, according to the view that "Hoda'as Ba'al Din" is accepted because a person may obligate himself to give a gift (but not because Beis Din actually believes him that he owes money), why should he be obligated against the witnesses' testimony? When a person's admission that he did not repay a debt is derived from a claim that he never borrowed the money, he should be exempt, because he clearly does not intend to obligate himself to give a gift. After all, he did not actually say that he owes money; on the contrary, he claimed that he never borrowed it! Why, then, does the principle of "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami" obligate him to pay? Even if there is a "Hoda'as Ba'al Din," such an admission should not create any monetary obligation.

ANSWER: The SEFER MAR'EI MEKOMOS (Rav Chanoch Henoch Karelenstein zt'l) suggests an answer to this question based on the words of REBBI AKIVA EIGER (Teshuvos #149). Rebbi Akiva Eiger discusses the reasoning behind the principle of "Kol ha'Omer Lo Lavisi, k'Omer Lo Parati Dami." Why, in fact, is the statement that "I did not borrow money" akin to a statement that "I did not repay"? There are two possible explanations. One explanation is that when a person claims that he did not borrow money (and there are witnesses who say that he did), his words are considered an open admission that he did not pay. Alternatively, there may be an "Anan Sahadei" (an assumption that Beis Din makes based on compelling circumstantial evidence) that the borrower did not pay, because if he had paid, he would have claimed that he paid (instead of claiming that he did not borrow the money). Thus, Beis Din can deduce that he did not repay, not by virtue of his own admission but because his actions indicate that he did not pay.

According to the second approach, the Halachah of this Sugya can be reconciled with the approach of the Mahari ben Lev. The borrower's obligation to pay does not stem from the ordinary Halachah of "Hoda'as Ba'al Din" which, in fact, would not be applicable here. Rather, Beis Din obligates him to pay because of an "Anan Sahadei" that he has not yet paid the debt. (I. Alsheich)

3) "HEZEK RE'IYAH" ON ROOFS

QUESTION: Abaye says that when two people on opposite sides of a street own two homes that face each other, each homeowner is obligated to build a wall along the edge of his roof. The length of each wall must be just over half of the length of the roof. This will prevent each owner from being able to see onto the other's roof.

This ruling seems problematic. In the Gemara later, Rav Nachman says in the name of Shmuel that when the roof of a person's home is immediately adjacent to his neighbor's Chatzer, the homeowner must build a wall four Amos high on his roof in order to prevent him from seeing his neighbor's private activities. Between two roofs, however, there is no requirement to build a wall, because people do not engage in private activities atop their roofs, and thus there is no concern of a breach of privacy. Only when one might be able to see into his neighbor's Chatzer -- where one does engage in private activities -- is there concern for a breach of privacy. Why does Abaye say that when two homes face each other, each owner must build part of a wall to prevent a breach of privacy?

ANSWERS:

(a) The RASHBA (see also HASAGOS HA'RA'AVAD, Hilchos Shechenim 3:6) cites those who answer that Abaye's ruling refers to roofs that are level, while Shmuel's ruling refers to roofs that are built on an incline. Flat roofs are used for private activities, while slanted roofs are not fit to be used for private activities.

The Rashba questions this answer. In both cases the Gemara uses the word "Gagin" ("roofs") without any qualification. This implies that both statements refer to the same type of roof.

The Rashba asks further that if Shmuel's ruling refers to slanted roofs, then why does he require the roof owner to build a wall four Amos high when his roof is adjacent to his neighbor's Chatzer? If the roof is slanted, the owner will never stand on it to use it for any purpose, and thus the neighbor will not suffer any loss of privacy, even if there is no wall! (The Rashba answers this question with the suggestion that although a person does not use a slanted roof frequently, nevertheless he may go up to the roof occasionally to use it and he may store some of his wares there, and therefore there is still a risk of a breach of the neighbor's privacy.)

(b) The RASHBA gives a different answer, which is also the answer of TOSFOS. Abaye's ruling refers specifically to roofs that are at a distance from each other (as he says, "on two sides of Reshus ha'Rabim"). Since the roofs are not near each other, each owner will not notice when the other is on his own roof, and he will not know that he should cease his private activities. Therefore, Abaye says that they must build walls to protect each other's privacy. In contrast, when two roofs are adjacent to each other, each owner is aware when the other ascends to his roof, and he will know when to cease his private activities. Therefore, Shmuel says that there is no need to build a wall between two adjacent roofs.

(The Rashba explains that according to this answer, the reason why a roof next to a Chatzer needs a wall is that the usage of a Chatzer is frequent and regular, and thus it is not possible for the neighbor in the Chatzer to stop his activities every time he hears his neighbor going up to the roof.) (I. Alsheich)