Hodaas Baal Din - Maishpatim 5769

The K’tzois is on Hoidoas Baal Din K’maiya Aidim Dami. We learn this Din out of our Parsha. By Moideh B’miktzas the Posek says (אֲשֶׁר יֹאמַר כִּי-הוּא זֶה). This is found right after Shlishi in 22:8. The Drash on (כִּי-הוּא זֶה) Rashi says is to teach that you don’t need to swear unless you are Moideh B’miktzas (אשר יאמר כי הוא זה: לפי פשוטו אשר יאמר העד כי הוא זה שנשבעת עליו הרי הוא אצלך. עד הדיינין יבא דבר שניהם ויחקרו את העדים, ואם כשרים הם וירשיעוהו לשומר זה, ישלם שנים, ואם ירשיעו את העדים, שנמצאו זוממין, ישלמו הם שנים לשומר. ורבותינו ז"ל דרשו כי הוא זה, ללמד שאין מחייבין אותו שבועה אלא אם כן הודה במקצת לומר כך וכך אני חייב לך, והמותר נגנב ממני). There is a famous Chakirah in Hoidoas Baal Din K’maiya Aidim Dami about how it works. There are those who say that Hoidoas Baal Din K’maiya Aidim Dami is like Palginan Ne’emanus. An example would be, if a man walks into Beis Din who we don’t know if he has any brothers, and he says ploini is my brother, later when his father dies, he has to share the Yerusha with Ploini. However, for any other Halachah like Yibum or Chalitzah, if he would die without children, there would be no Chiyuv. The reason is, there is no Chazakah that they are brothers. It is just Hoidoas Baal Din K’maiya Aidim Dami. We believe him L’gabai himself but we don’t believe him regarding others. So there are those who understand, that this is P’shat in Hoidoas Baal Din K’maiya Aidim Dami. There are those who argue on this and say, Hoidoas Baal Din K’maiya Aidim Dami, either Bais Din believes him or they don’t believe him. A person never has a Ne’emanus on himself. Ai, so why when a person comes into Bais Din and says I owe Ploini $100, we make him pay. Or if he says Ploini is my brother, he must share the Yerushah with him?

That coming into Bais Din and saying I owe someone $100, creates a new His’chaivus to pay. There is a similar Chakirah that the K’tzois is Toileh Zeh BaZeh. By Shava Anafshi Chatichah B’isura.Someone who says something is Treif, even though we don’t believe him, in a Matziv that it is not his, so there is no Eid Echad Ne’eman B’isurin. He himself is not permitted to eat the food. Some are of the opinion that it is a sort of Palginan Diburoi and others believe that the person created a new Issur on himself, almost like a Neder not to eat this food. Do these Gemaras actually fit into the Chumash?

 Our Posuk is talking about someone who got a Pikadoin as is seen in Posuk Vav.  So when the owner comes to retrieve his object, let’s say it is $100, he is told you only gave me $50 to watch. You are Chayov to swear, a Shvuas Moideh B’miktzas. What would happen if someone came and said I gave you $100 to watch. He says back, you didn’t give me anything to watch, however, he is Mechayeiv himself somehow to $50. Is that a Moideh B’miktzas? There is no Hava Aminah that this is not a Moideh B’miktzas. So when the Toirah says that there is a Parsha here of swearing, there are 2 choices. Either, there is a new Chidush of Moideh B’miktzas L’kol Hatoirah Kuloi. If you are going to learn that there is a new Hischaivous, you will have to say that there is a new Din. That a person who creates a new Hischaivous for half the money and he is Chayov to swear a Shvua. No one ever heard of this second new Din. This is the first Din of Moideh B’miktzas. How does this Chakirah of the K’tzois fit into the P’sukim? Maybe Drashois don’t have to fit into the Parsha.