The Jewish Agency for Israel The Department for Jewish-Zionist Education

JUICE 2000 Jewish University in CyberspacE

From our chat room , Sunday April 30:
SSlivko: We have a case the Gemara brings regarding a cow who was killed by another cow and we find she had miscarried. We don't know who (or what) caused the miscarriage. Does the owner of the viloent animal pay the owner of the cow or not?

Summakhos says divide the difference. The "Rabbanan" say prove it was the result of the goring, otherwise back off.

Our Gemara tries to prove the Mishna is one or the other. What is the underlying klal (principle) of this "proof Mishnah" and how does it alter our viewpoint of the case as it is stated in our Mishnah [in Bava Metzia?]

ilan> I think that if the Mishna is according to Summakhos than the rule is that the sides don't take an oath on every occasion.

Werner> Which leans awfully close to the statement made by Ben Nannas that we limit the oath-taking of the participants. That would mean there has to be a pretty good reason for taking an oath...

In a secular court in the States, witnesses have to swear. What alternative is there?

SsSivko: From what I understand, they are allowed to "affirm", which means they do not have to swear on a bible, but they say "I affirm that what I am about to state is true", I think. (Does anyone know specifically how this is done?)

ilan> Can some explain "Drara demamona"? I understand that there are many opinions on the matter

SSlivko: Let's get back to the reference. The Gemara said where there is a Drara Demamona, Summakhos says no oath is taken. Where there is no Drara demamona, we do demand an oath

Drara Demamona seems to have (at least) 3 possible meanings:

1. Rashi says it means a financial loss. In the case of the cow, there is a financial loss to one of the
claimants. Our Mishna has no financial loss. (Is this an issue of trust?)
2. A econd opinion is that it refers to an external doubt, which means something neither party can attest
to (so how could they swear when they themselves don't know?)

ilan> do both parties have to say that they can't take oath?

SSlivko: I think that it's pretty self evident that the Beit din can't make them take the oath in a circumstance where it's just not possible to swear one way or another. How can anyone say for sure what caused the calf to die? They came upon the scene after the fact. What kind of oath could they take?

The third explanation is from the Ramban (also mentioned in Steinsaltz) that it refers to what is called "Ikar t'viat mamon" or "a claim based on undisputed connection to the money" Where there is a connection there is no oath.

Rachmiel> Is not the purpose of the oath to prevent outright theft? Not necessarily to establish the truth?

Werner> In our Mishna, was it to prevent theft or to bring the litigators closer together, that is, incorporate them into the process.

SSlivko: I think that we end up coming back to the same issue of when the Beit din intervenes in civil law (and ultimately to its overall role in civil life). Is the role of Beit din to keep the peace or justice at all costs? What are its advantages and what are its limitations?

From the argument of Summakhos & the Hakhamim, we see some further restrictions, either we divide with no interference from the Beit din, or we delay their limited role by saying "prove it" to the one who wants to be compensated. Both directions seem to put the beit din at a "disadvantage" of sorts.

This is also proven by the role the Beit din has in regard to witnesses. They cannot make them swear, but they do try to intimidate them (see, for example, Sanhedrin 37a) the Beit din may be treading a fine line between keeping its constituents honest and getting at the truth. No wonder a judge has to see himself as having a "sword dangling over his loins" whenever he sits in judgement.

I think the Beit din wants to avoid having people take an oath, but realizes the necessity in certain cases and when needed, does not shy away from administering it (unlike, it seems, Ben Nannas).

From the above discussion, it seems that the Beit Din saw itself in the middle between the spiritual and the practical aspects of Jewish life. The discussion mirrors much of what goes on in the Talmud itself, a balancing act between these two poles of life. (It has been noted that the Talmud is a combination of Halakhah (law) and Aggadah (tales or anecdotes & Midrash). The former deals with the practical, the "guf" of man. The latter deals with the spiritual, the "neshamah". The former shows us what to do. The latter shows us why we do it.

The next piece of the Talmud explores this further using a logic and counter-logic to uncover what the "klal" of our Mishnah here is.

Bava Metzia, 3a
The Gemara asks: Isn't it "kal vahomer" [literally easy-hard, that is, a rule which can be inferred from one case to another, a fortiori]! In the case of the cow who was gored, where there is an independent doubt ["drora demamona"] for one party and a doubt for the other, and where it is possible that it all belongs to one and it is possible that it all belongs to another [but it is impossible that it all belongs to both, ] Summakhos says "money which is in doubt we divide without an oath". But in our Mishnah here where there is no independent doubt about the object, and it is possible that it belongs to both of them, wouldn't Summakhos say that that it should be divided without an oath!

The Gemara answers: You can even say our Mishnah agrees with Summakhos. The oath in our Mishnah is of Rabbinic origin, as Rabbi Yohanan says. For Rabbi Yohanan says the oath in our Mishnah is a Rabbinic ordinance ("Takkanah") so that everyone should go and grab the garment of another and say "it is mine"!

Questions for thought:

1. How does the new passage from the Talmud changeour understandng of the klal of our Mishnah?
2. If, as we say, the Hakhamim tried to minimize the opportunities for transgressing, how were they able to institute an oath as a Takkanah?
3. What other kinds of Takkanot (ordinances) did the Hakhamim institute?
4. What is the Difference between a Takkanah (ordinance) and Gezera (Decree?)