R. Chiya Kamayta

  • Rav Moshe Taragin


Please daven for a refua sheleima for YHE alumnus
Rav Daniel ben Miriam Chaya Rut



Sources for this week’s shiur:

  1. 2a: "Mekach u-memkar; ve-lechzei zuzeibe-al korchei."
  2. Kiddushin 73b: "Ne'eman ba'al mekachve-hai lo mi-da'ato; Tosafot, s.v. bameh devarim amurim; Tosafot, Bava Metzia, s.v. ve-lechzei.
  3. Rosh, Bava Metzia, no. 3 until: "Ke-shem she-hu mechayev shevu'a"; ibid., "Ve-yesh makshin hevelme-chiyuv mamon."
  4. 3a: "Tani Rabbi Chiyyaka mashma lan kal va-chomer; Tosafot, s.v. mipenei.
  5. Rosh, Shevu'ot, chap. 7, no. 3.
  6. Kovetz Shiurim, part 2, no. 3.


  1. When the Gemara asks (2b): "Ve-lechzei zuza mi-man nakat" ("Let us ascertain from which of the two [the seller] took money"), who are we supposed to ask in order to clarify the matter? What is the basis for his credibility?
  2. What is the rationale for arguing that a single witness supporting the claim of a person who is obligated to take an oath, should exempt him from that oath?
  3. What is Rabba's question: "Mipenei ma amra Torah modeh be-miktzat ha-ta'ana yishava" ("Why did the Torah say that he who admits part of his opponent's claim must take an oath") (3a)?
  4. How can we explain Rabba's answer: "Ein adam me'iz panav bifenei ba'al chovo" ("nobody would take up such an impertinent attitude towards his creditor")?
  5. What is lacking in a migo argument that involves impertinence?

            Having already addressed the basis of the halakha of modeh be-miktzat and the factors which generate an obligation to take an oath, we now turn our attention to the question of Rav Chiya. Would we be able to extrapolate beyond modeh be-miktzat in the strictest sense to similar cases?  Rav Chiya's direct example involves the following scenario: Reuven demands $100 from Shimon while Shimon denies it all.  Subsequently, witnesses testify that Shimon owes Reuven $50, effectively generating a situation similar to modeh be-miktzat (inasmuch as part of Reuven's original claim is being paid while the other part is denied).  Would the defendant be forced to take an oath on the part of the claim which the eidim did not substantiate?  From the above perspective it appears similar to modeh be-miktzat.  Alternatively, since the defendant denied the claim completely, possibly he should not take an oath.


            Rav Chiya claims that eidim do indeed generate a shevu'a.  This he derives by comparing the relative strengths of hoda'at ba'al din and eidim.  This article will explore the logical basis for Rav Chiya's position and ultimately his derivation of this halakha. 

            In theory, why should we accept and why might we reject Rav Chiya?  In truth, this question might revolve around our understanding of the anatomy of modeh be-miktzat.  Possibly though, we might also take a look at the essence of eidim to help determine their capacity to establish a modeh be-miktzat situation.

            What, after all, lies at the heart of modeh be-miktzat?  One might claim that the 'hedged' response of the defendant looks a tad suspicious and that beit din requests an oath to further clarify the situation.  The Ritva in Bava Metzia as well as the Ramban in Shevu'ot (42) each mention this condition and refer to it as raglayim le-davar (there exists sufficient 'grounds') for concern.  If this were the structure of modeh be-miktzat, one might easily assume the same to be true in Rav Chiya's case.  If a partial admission serves as grounds for suspicion, then certainly witnesses contradicting part of his absolute denial would create the same (or possibly greater) suspicion.  In other words: If the oath of modeh be-miktzat stems from the suspicion factor we would readily apply it to Rav Chiya's case.

            Tosafot in Bava Metzia (4a) take a sharply different approach to understanding modeh be-miktzat.  It stems from the "ta'ana chashuva' (significant claim) of the plaintiff.  Generally, an unsubstantiated claim which has been flatly denied by the defendant is viewed as meaningless in court - it is immediately rejected.  However, a claim which has been partially embraced by the defendant due to his partial admission cannot be completely ignored.  Although the claim is not backed by concrete evidence, which can enforce payment, it nonetheless cannot be ignored. This translates into an oath obligation. 

            If this be our view of modeh be-miktzat we might question its applicability to Rav Chiya's situation.  On the one hand, the claim has also been substantiated in court.  Testimony has been produced which partially supports the general claim of the plaintiff.  He demanded $100 and the eidim supported his claim regarding $50.  Might beit din feel compelled to address the entire claim and elicit an oath on the second $50?  Or might we distinguish between modeh be-miktzat and Rav Chiya?  In the standard modeh be-miktzat, the defendant himself validated his plaintiff and the claim.  By accepting his plaintiff he might lend greater credibility to his opponent, a credibility which, once granted, extends to the entire claim and forces the defendant to address that entire claim.  In the case of Rav Chiya, however, as far as the defendant is concerned, his plaintiff has no legal basis.  Though eidim told a different story and obligated him to pay half of the claim, nothing forces him to relate to the second half.

            In truth, this issue might form the basis of an interesting machloket between the Rishonim.  What would happen if the claim were completely denied, no eidim arrived, and yet, as it happens, the defendant is obligated to pay half the claim; not a case of modeh be-miktzat (and not even a case of Rav Chiya where eidim came) but instead a case of 'chayav be-miktzat.'  For example, the defendant claims that he doesn't owe the plaintiff money since he paid moneys on behalf of that plaintiff to cover the latter's debt to a third party.  These paid moneys, he reasons, should offset his initial debt.  Part of the money he claims that he paid on behalf of the plaintiff was interest payment on the latter's debt to a gentile.  Yet, payment of interest is illegal and the money paid was in actuality not owed to the gentile.  Hence, the interest in no way covers the debt of the plaintiff and is not factored in to offset the said debt from the defendant to the plaintiff, even if we accept the defendant’s position. Although, he must pay part of the claim, this is due to an halachik error (he thought interest must be paid to a gentile), not to partial admission.  Another case involves a defendant who defends his innocence by calculating offsetting payments he covered for the plaintiff.  After checking his books, we realize, he made some errors and though he offset part of his debt, he still owes money; he merely made a calculation error in claiming to have completely covered the debt.  In each of these cases no direct admission occurs, yet the initial claim of the plaintiff does indeed translate into partial payment from the defendant.  Still, the defendant completely denied the plaintiff's claim.  How we rule in this case (whether or not the defendant takes an oath on the part he does not pay) might reflect how we rule in Rav Chiya's case where the claim did in fact partially obligate the defendant to pay, even though he flatly denied the latter's claim.

            The above issue forms the heart of a machloket between the Sefer ha-Terumot (who obligates a shevu'a) and the Rashba (who rules that no oath is taken).  Clearly, according to the Sefer ha-Terumot, Rav Chiya makes much sense.  Modeh be-miktzat never rested upon the defendant’s partially embracing the claim.  As long as the claim was not ignored by beit din, and as long as, ultimately, it engendered some partial payment, the entire claim must be addressed.  We cannot ignore the claim and therefore require an oath on the non-paid part of the debt.  Whether the claim was personally accepted by the defendant, partially substantiated by eidim, or even completely rejected but nonetheless responsible for partial payment (because the denial was based on incorrect calculations), the claim was still 'effective' and an oath is taken.  [See Tosafot at the bottom of Gittin 51b which bases modeh le-miktzat on gilgul shevu'a.]

            The Rashba, however, denies this position. A mere successful claim does not generate an oath.  Evidently, we require some personal admission by the defendant to generate an oath on the denied part, and Rav Chiya's case does not include this personal admission. How, then, might we understand Rav Chiya?

            One option might be to differentiate between the substantiation which eidim provide and that which is only a product of some mathematical or halakhic error.  Eidim which (in Rav Chiya's case) testify to part of the debt are actually validating a claim.  Once this claim has been bolstered, it cannot be ignored and part is paid while the remaining part is clarified through an oath.  When the claim is denied and beit din obligates payment because of some error, the claim has not been substantiated.  Rather, beit din, after hearing the debate, senses a slight error in the working assumptions of the case and realizes an outstanding debt.  The claim was not directly responsible for the payment nor was it in any way validated.  The Rashba might accept Rav Chiya and reject the earlier cases because Rav Chiya's case better allows for the actual claim of the plaintiff to be legally admitted.

            There might be an alternate approach to understanding Rav Chiya according to the Rashba.  Indeed, the Rashba might reason that only a concession by the defendant can generate an oath.  By personally affirming the legitimacy of the plaintiff, the defendant leaves beit din little choice but to consider the entire claim, extracting payment on one part and an oath on the other part.  If the claim is denied by the defendant, regardless of any payments which might ensue because of technical errors, no oath is required on the second part.  Yet, Rav Chiya reasons, once eidim testify to a partial chiyuv, the defendant has no choice but to concede and admit to the eidim's testimony.  Eidim do not merely represent the highest form of evidence.  Once eidim have testified, their statements are taken as common knowledge which must be affirmed by all.  After they testify to part of the debt, we view it AS IF THE DEFENDANT HAS PERSONALLY AFFIRMED PART OF THE DEBT AND THE SETUP IS IDENTICAL TO MODEH BE-MIKTZAT.  A modeh be-miktzat oath is the product of the defendant’s partially admitting to the claim.  Rav Chiya's stance is that even if he initially denied the claim, the presence of eidim leaves him no choice but to accept their testimony as fact, effectively rendering Rav Chiya's case identical to modeh be-miktzat: the plaintiff claimed $100 and the defendant conceded to half (immediately, or after being 'convinced' by eidim) and denied half.  He must swear that he does not owe the part which he denied.

            This second approach might in fact be the basis for the gemara's derivation of Rav Chiya's oath.  The initial thrust of the gemara attempts to compare the relative strengths of eidim and the concession of the defendant.  Being that the eidim are stronger then a concession, it stands to reason that if a partial concession generates and oath then certainly eidim can.  The gemara then attempts to cite various halakhot which might prove or disprove this premise.  Ultimately, the gemara cannot conclusively state that eidim are stronger, (since eidim can be contradicted and disarmed by conflicting eidim,) whereas once a defendant has admitted he pays even though eidim testify that he is not liable.  At this stage the gemara chooses a different strategy for deriving Rav Chiya (one which will be discussed iy"H in next week's shiur).

            What concept is the gemara focusing upon in its attempt to equate concession with testimony?  That eidim are stronger than a concession is debatable and might prove to be true.  How, though, does this clinch the fact that eidim can establish an oath in the same manner that a concession may?  Just because it is stronger does not necessarily mean that it functions in a similar manner in creating an oath.

            There are several strategies suggested by the Rishonim to explain this point.  The Nimukei Yosef, for example, assumes that the gemara was concerned as to whether eidim supporting part of the claim of the plaintiff can create the same grounds for suspicion that a partial concession on the part of the defendant can.  If the gemara can prove that eidim are in fact stronger than a concession, then presumably their testimony, when held up in light of a contradictory 'complete - denial' of the defendant, will certainly generate the same form of suspicion which ultimately will force beit din to demand further clarification.

            Based upon the above suggestion we might read the gemara slightly differently.  It is not sufficient to prove that eidim are quantitatively stronger than the concession of the defendant.  We must prove that their testimony is not just the clincher in beit din but also represents objective truth which all parties must concede to.  Only in this light can we translate testimony into personal concession (a personal concession which at least according to the Rashba is vital for the oath to be generated).  The gemara's efforts, then, are set upon proving whether testimony is the strongest form of proof or whether we might actually define it as objective knowledge about the past (as objective as we might enjoy in the pre-videotape era).  The issues it cites to eidim's benefit do not merely suggest its quantitative force; rather, they indicate the degree to which the testimony morphs into common and therefore accepted knowledge.  Only this metamorphosis will assure that they, too, can establish an oath in lieu of an actual personal admission.

            For example, by citing the case of korban and whether eidim can independently obligate a korban (when the subject denies the transgression) the gemara might be gauging this very issue.  The Torah states that a korban is brought if "hoda eilav chatato,' he is aware of his sin.  How do we define awareness?  We might claim that if eidim testify, but he rejects their testimony such awareness does not exist. Beit din might believe the eidim, however, as a korban must be the product of personal conviction and personal recognition, eidim might not be successful in accomplishing this task.  This indeed might be the position of R. Me'ir.  Rabanan could argue that testimony is not just the clinching evidence in beit din.  In fact, it is viewed as objective truth and must be universally accepted.  Once we view it in this manner, we might be facing a situation of 'hoda eilav chatato' which obligates a korban.  If eidim are merely stronger than admission, they would not be relevant to cases in which personal concession or recognition is necessary - such as offering a korban or generating an oath.  By citing the case of korban and specifically the position of the Chakhamim, the gemara may be proving that eidim represent objective knowledge.

            Ultimately, though, this line of reasoning is rejected since eidim have a weakness - they can be neutralized by conflicting eidim.  This clearly would prove that they are neither quantitatively better than concession nor does their knowledge constitute objective truth.


Sources and questions for next week's shiur:


1. Bava Metzia daf 3b "u-mai kal ve-chomer ... tomar be-eidim she-yeishnan be-hakchasha ve-hazama."  Rashi

2. Tosefta Bava Metzia 1:6 "Hoda'at...", Kiddushin 65b "Amar lei R. Ashi le-Rav Kahan, ma da'atakh ... hakha chayav le-achrini."  Rashi s.v. Hoda'at

3. Ketzot 34:4.

4. Bava Batra 33a "Kerivei de-Rav Idi bar Avin shakhiv ... keivan de-odi odi."

Rashbam s.v. Odi; "Ze she-amar she-hoda... u-piv mechayvo mammon."



1. What is the relative strength of hoda'at ba'al din as evidenced in our sugya and what are its boundaries?

2. What is the source of this halakha?

3. What is its scope?

4. What is the nature of the din?