Sunday, December 23, 2007

What is the machlokes אביי ורבא by יאוש שלא מדעת? (Bava Metzia 21b-22b)

The פשוט פשט would be that רבא holds that his יאוש at the end is מגלה that he was really מתייאש all along. However, this is very difficult as how does that work? In fact, the ראב"ד asks this should be תלוי on the מחלוקת whether or not יש ברירה.

Another way of explaining the מחלוקת is as follows. אביי holds that you need יאוש בפועל, the person has to actually be מתייאש. The fact that we know the person will be מתייאש when he finds out is irrelevant, until he is actually מתייאש it is still his. רבא, on the other hand, holds that since it is עומד ליאוש, the average person would be מתייאש in this situation , the Torah permitted you to take it even though there was no יאוש בפועל. In fact, the Ritva writes that רבא holds that יאוש שלא מדעת works even if the person is never actually מתייאש which fits in well, it is not dependent on him, rather the Torah was מתיר where it is עומד ליאוש.

We see from תוס' ד"ה דלאו בני מחילה (on 22B), that they hold like this as well. Tosafos writes that according to רבא there is no question from קטנים because when they grow up they are מתייאש. We can't understand the תוס' כפשוטו that the יאוש at the end is מגלה that they were מתייאש all along, because they were קטנים and could not be מתייאש. Rather the פשט has to be as we explained that רבא holds that since it is עומד ליאוש the Torah was מתיר and therefore the fact that they were קטנים at the time is irrelevant, because it is not dependent on their יאוש, rather the Torah was מתיר.

Friday, December 21, 2007

הכא במאי עסקינן כשיכול להציל (Bava Metzia 22A)

There are 2 different מהלכים in the Rishonim how to explain what the Gemara means here.

1. The way it was explained in shiur which is Rashi's pshat is as follows. The ברייתא is difficult on רבא because the דיוק is that if he is not מתייאש the finder can't keep it which implies that יאוש שלא מדעת לא הוי יאוש. The Gemara answers that רבא has a different דיוק (and consequently a different pshat in the ברייתא). According to רבא the דיוק is that if he can save it (כשיכול להציל) then we don't say יאוש שלא מדעת הוי יאוש because he is not מתייאש. According to this it comes out when the ברייתא says מפני שנתיאשו הבעלים it means יאוש שלא מדעת. The ברייתא said it that way so that we could be מדייק that in a case of יכול להציל there is no יאוש שלא מדעת. As was explained in the shiur the הכא במאי עסקינן is going on the דיוק not the case.

2. Most of the other Rishonim reject Rashi's pshat (as it is very difficult in terms of the language of the Gemara) and explain as follows. הכא במאי עסקינן is changing the אוקימתא of the ברייתא. The answer for רבא is that the case of the ברייתא is a case where he can save it (כשיכול להציל) and therefore there is no דיוק fromמפני שנתיאשו הבעלים that is simply the דין because where he can save it we can't assume that he would be מתייאש. Therefore the ברייתא is not a question on רבא as there is no דיוק, it is simply telling you the דין that in a case where it is יכול להציל there is no יאוש שלא מדעת because we assume that he is not מתייאש.

Thursday, November 29, 2007

Why doesn't the Gemara ask a contradiction from מתנה? (Bava Metzia 19a)

My chavrusa asked this morning why doesn't the Gemara ask a contradiction between the ברייתא and the Mishna by the case of מתנות? The Mishna says מתנה as one of the cases and the ברייתא says the case of מתנות as well. By מתנה you can't answer like the Gemara did for דייתיקי.

The Rishonim seem to have 2 approaches to answer the question.

1. There is a מחלוקת Rashi and Tosafos what is pshat in אביי when he explains what the ברייתא means by מתנה that it is מהיום ולאחר מיתה. Rashi understands that he is מקנה the גוף of the קרקע now and he retains the פירות until his death. Because he gave away the גוף of the קרקע now, he can not back out from this מתנה as opposed to a מתנת שכיב מרע, where he can always back out. Tosafos asks on Rashi, if he can't back out how can the gemara compare it to a מתנת ?שכיב מרע Therefore Tosafos says that מהיום ולאחר מיתה includes a תנאי that he can back out until he dies.

Based on this the Tosafos Harosh and others answer the question as follows. They explain that מתנה in the Mishna is like אביי, a case of מהיום ולאחר מיתה and he can back out (לשיטתם). Therefore there is no contradiction between the Mishna and the ברייתא as ר' אבא בר ממל answered. The Mishna (even by מתנה) is where he can be חוזר and therefore a שטר with an earlier date doesn't help him while the ברייתא is talking about a regular מתנה where he cannot be חוזר and therefore even if he says תנו אין נותנים because we are afraid that he never gave him the שטר and in the meantime he gave it away to someone else. Therefore if we give back the שטר we are going to be מפסיד the second guy.

2. Rashi says (י"ט: ד"ה קמא זכה at the end) that we only make the דיוק of אם אמר תנו נותנים where the reason of the Mishna doesn't apply, namely by a שכיב מרע since because he can back out it doesn't matter whether he gave the שטר or not. However, by מתנה where the reason of שאני אומר that he didn't give the שטר applies even if he said תנו, even of he said תנו we are not מחזיר.

This is difficult for a number of reasons. The Gemara doesn't make this distinction. The Gemara seems to say that the דיוק of אמר תנו נותנים applies to all the cases. If it applies to everything but מתנה (which it does) why does the gemara list מתנה with the other cases? The דיוק also seems to be based on the language of the Mishna, the same language is used by מתנה as the other cases.

Tuesday, November 13, 2007

Is there מחזי כריבית by פירות? (Bava Metzia 14b)

Shmuel only said explicitly מחזי כריבית by שבח, what about by פירות? This is aמח' ראשונים and affects how we understand the Gemara's question from the ברייתא of לאכילת פירות כיצד.

The רשב"א says that just like by שבח there is מחזי כריבית there is מחזי כריבית by פירות as well because he didn't actually buy anything. Therefore, the question from the ברייתא of לאכילת פירות כיצד is as was explained in the shiur.

However the תוס' הרא"ש says that by פירות there is no מחזי כריבית because by פירות the פירות are a tangible asset and it is clear that he is being paid for them. Only by שבח it is מחזי כריבית because the שבח is intangible and therefore looks like ריבית. Because of this (and other difficulties עיי"ש) the question from the ברייתא can't be a question on ר' נחמן as Shmuel would agree by פירות that the לוקח can collect the money because it is not מחזי כריבית. Therefore, he has a completely different pshat in the Gemara's question.

The Gemara is asking as follows. The Gemara thinks that the ברייתא is a proof to ר' נחמן, because the ברייתא has 2 distinct cases פירות and שבח. If a לוקח מגזלן got שבח then the ברייתא should have combined פירות and שבח into 1 case as they are the same דין. The fact that it split it into 2 cases is a proof that they are 2 distinct cases (בע"ח and גזלן). It turns out that the Gemara's question is actually on רבא, what is the chiddush of the 2 cases if they are both by גזלן, it should be the same din that he gets the money and the ברייתא should have combined them into 1 case. רבא answers with a different אוקימתא and ultimately, the chiddush is that even though there was a גזר דין on the קרן we don't say there was a קול on the פירות.

אין שליח לדבר עבירה (Bava Metzia 10b)

There is a מח' ראשונים ואחרונים what is the reason for אין שליח לדבר עבירה. The תוס' הרא"ש here ד"ה הני as well as the סמ"ע in סי' קפ"ב ס"ק ב hold that the reason is a סברה because the משלח thinks that the שליח won't do the שליחות because דברי הרב דברי התלמיד דברי מי שומעים. However if he knows that the שליח will do the עבירה he is חייב because the סברא does not apply. The סמ"ע seems to hold that אין שליח לדבר עבירה is a problem in the appointment of the שליח. If I am not confident that he will do the שליחות then I am not really appointing him and he is not my שליח.

The ריטב"א in קידושין מ"ב and רעק"א here both say that it is a גזירת הכתוב and not a סברה. The ריטב"א says that the Gemara mentioned the סברה because it applies most of the time but even where the סברה does not apply, for example שוגג (see below), we say אין שליח לדבר עבירה in any case.

תוספות in a number of places argue with the ריטב"א and say that יש שליח לדבר עבירה where the שליח is a שוגג. This would seem to be like the סמ"ע, that since the שליח doesn't know it is אסור the משלח is confident that he will do the שליחות and therefore it is a good appointment. Similarly, the רמ"א writes (סי' שפ"ח סע' ט"ו) that if the שליח is הוחזק to do this עבירה you don't say אין שליח לדבר עבירה and the משלח is חייב. The reason would seem to be like the סמ"ע, that since he is הוחזק you believe he will do the עבירה and therefore you really are appointing him.

The gemara asks that an עבד ואשה since they don't have to pay we should say יש שליח לדבר עבירה and the Gemara answers that since if they get divorced or freed they have to pay that is called a בר חיובא. The Gemara's ה"א is very difficult. רעק"א and the רש"ש ask even if they don't have to pay they are certainly עובר the איסור of גזילה so how can the Gemara possibly think that they are called a לאו בר חיובא just because they won't have to pay back the money? Since they are violating the איסור we should still say אין שליח לדבר עבירה

The question would seem to be לשיטתו that אין שליח לדבר עבירה is a גזירת הכתוב and not a סברה however, according to the סמ"ע we can answer as follows. The ה"א was that since they won't have to pay, the משלח thinks that they will do the עבירה and therefore the מינוי is good. The Gemara answers that since they may eventually have to pay, the משלח is not confident that they will do it and therefore we would say אין שליח לדבר עבירה. The ה"א is very similar to where the שליח is a שוגג, since you think he will do the שליחות we say יש שליח לדבר עבירה

Monday, October 29, 2007

רוכב ברה"ר (Bava Metzia 9b)

The Gemara says that someone who rides an animal in the רה"ר is קונה in certain circumstances. The Gemara says that the case is מנהיג ברגליו meaning that the קנין is משיכה. Both the קצות and רעק"א ask that the din is that משיכה does not work ברה"ר it only works in a סימטא or צידי רה"ר, if so how can the rider here be קונה in the רה"ר with a קנין משיכה?

תופס לבע"ח במקום שחב לאחריני by a שליח (Bava Metzia 9b)

Rashi (Bava Metzia 10a) states explicitly that there is no problem of תופס לבע"ח במקום שחב לאחריני if the person is a שליח of the one who is owed the money.

Akiva pointed out this morning that this seems to be against the Gemara in כתובות פד where the simple reading of the Gemara is that תופס לבע"ח במקום שחב לאחריני applies even to a שליח.

In fact, Tosafos (both in כתובות and in ב"מ) points this out and holds that there is a problem of תופס לבע"ח במקום שחב לאחריני even by a שליח.

In Shulchan Aruch (ח"מ סימן ק"ה) the Shulchan Aruch paskens like Tosafos (against Rashi) that תופס לבע"ח במקום שחב לאחריני is a problem even if he appoints a שליח. The ש"כ wants to explain that Rashi only said a שליח works where he pays the שליח. Since he is paying him he becomes like a פועל and therefore ידו כיד בעל הבית. See also the נתיבות there who has a long discussion about Rashi.

One suggestion I saw is that Tosafos holds that זכייה is מטעם שליחות and therefore there is no difference between a שליח and anyone else while Rashi may hold that זכייה works מטעם יד and therefore there is room to differentiate between a שליח and someone else.

Wednesday, October 24, 2007

מגביה מציאה לחבירו and the proof from the Mishna (Bava Metzia 8a)

The Acharonim ask the very obvious question, how can the Gemara think to bring a proof from the Mishna, the Mishna is clearly not a case where you are picking it up for your friend. There seems to be 2 fundamental approaches:
1. The פני יהושע says that אין הכי נמי. The רישא in the Mishna is not מגביה מציאה לחבירו because you are not picking it up for him. The Gemara could have asked this and deflected all the proofs from the Mishna. However, the Gemara had other answers to deflect the proofs. למסקנה that we learn out from the last case, there is no problem since they both agree they picked it up together.
2. A person is assumed to have the necessary כוונא in order to acquire the object. Therefore, if in the mishna he needs כוונא for his friend then we ascribe that כוונא to him.

There is a מחלוקת the סמ"ע and the ש"ך and the קצות and the נתיבות whether by מגביה מציאה לחבירו the person who picks it up needs to verbalize his intent for the other person. The סמ"ע and the קצות both say that if Reuven is picking up for Shimon, Reuven needs to verbalize that he is picking up for Shimon when he picks up the object. The ש"ך and נתיבות disagree. It is pretty clear that the סמ"ע and the קצות need to learn the Gemara like the פני יהושע. If they hold in a regular case you need to verbalize, they would clearly hold in the Mishna's case that it doesn't work.

According to everyone the pshat in the Gemara's deflection from the רישא is as follows:
There is no proof from the רישא because maybe מגביה מציאה לחבירו לא קנה חבירו, however the din in the mishna will still be יחלוקו. Since they are both holding it and they both claim it is theirs, there are 3 possibilities:
1. It is Reuven's
2. It is Shimon's
3. They picked it up together and it is neither one's because מגביה מציאה לחבירו לא קנה חבירו

We will not let a third party take it because maybe it is one of their's and therefore the din is יחלוקו

The Gemara however, does not deal with the issue that how is this מגביה מציאה לחבירו if he didn't have כוונא to pick it up for him.

Monday, October 22, 2007

מחוי ליה ר' אבהו ובשבועה (Bava Metzia 7a)

Is the שבועה on the whole thing (including what he holds) or is the שבועה only on the rest (what he is not holding)?

Tosafos (ד"ה מחוי) states that the שבועה is on all of it. The Rambam holds that the שבועה is only on the rest. The Rambam would seem to be supported by the Gemara. Since what you are holding is כמאן דפסיק דמי then why should you need to take a שבועה on it it is yours?

שנים אדוקים בשטר (Bava Metzia 7a)

The Rishonim point out that this case shows that even by a ודאי רמאי you say יחלוקו. By שנים אדוקים בשטר one of them is definitely lying, he either paid off the loan or he didn't and yet the din is יחלוקו. However, the חלוקה can be אמת as it is possible that he paid off half the loan. This very much ties into a previous post Does everyone hold from the סברא of ודאי רמאי? (Bava Metzia 2a-3a)

Wednesday, October 17, 2007

Does אביי hold חשיד אממונא חשיד אשבועתא? (Bava Metzia 6a)

This is a מח' הראשונים.

Rashi understands that אביי has a fundamental argument with ר' יוחנן and that אביי holds חשיד אממונא חשיד אשבועתא. He explains the Mishna that שמא יש לו עליו מלוה ישנה. The Rishonim explain according to Rashi that all the proofs that were brought are answered this way as well. In those cases also we say שמא יש לו עליו מלוה ישנה. If so why is הכופר בפקדון פסול? The Rishonim explain that when all we have is a suspicion that you stole something the claim of שמא יש לו עליו מלוה ישנה can take care of that. But by הכופר בפקדון where we know that you took money, then שמא יש לו עליו מלוה ישנה is not strong enough and we say חשיד אממונא חשיד אשבועתא.

The Ramban and the Ran offer an alternative pshat. They say that אביי agrees that we don't say חשיד אממונא חשיד אשבועתא. He only argues with ר' יוחנן on the reason for the שבועה in the Mishna. אביי says that the חכמים would not be מתקן a שבועה because we are worried about people attacking each other on the streets. We should not assume that people will just go ahead and attack people on the street and grab for no reason. Rather, the reason for the שבועה in the Mishna is because שמא יש לו מלוה ישנה and that is why he grabbed. However, in any case even if he is חשיד אממונא he is not חשיד אשבועתא and like all the proofs that the Gemara brought that חשיד אממונא לא חשיד אשבועתא.

Tuesday, October 16, 2007

An alternative pshat in ההוא רעיא (Bava Metzia 5a)

The Gra (ח"מ סי' פ"ז ס"ק מ"ו and in much more detail in the שנות אליהו ליקוטים at the end of זרעים) offers a completely different pshat in the sugya of ההוא רעיא.

The Gra is bothered by a number of questions:
1. The Gemara says לסוף אמר להד"ם, what is the לשון of לסוף? What is this at the end of? This is the רועה claim in Beis Din.
2. Why doesn't the Gemara ask right away from the din of שבועת היסת? As soon as ר' זירא said that if we hold like ר' חייא the רועה would be חייב a שבועה the gemara should have asked even without ר חייא the רועה is חייב a שבועת היסת? Why does the Gemara wait until after we are מהפך the שבועה, it makes more sense earlier?
3. The Gemara asks at the end, ותיפוק ליה דהוי רועה? Rashi explains that this is a question on אביי, that even if he is not a גזלן he is still פסול because he is a רועה, so why did אביי ask from גזלן? However this is very difficult as גזלן is more חמור then רועה (it may be דאורייתא while רועה is for sure only דרבנן).

Based on this the Gra adopts the גירסא of the רי"ד that changes the placement of the word לסוף. Their גירסא is אמר להד"ם ולסוף אתו סהדי. The pshat in the gemara is as follows.

The רועה and the owner come into Beis Din. The owner says I gave you 5 sheep and the רועה says להד"ם. The רועה then takes a שבועת היסת like every כופר הכל. Then לסוף, after he has already taken a שבועת היסת , then 2 עדים come and say that we saw him give you 2 sheep. This answers question 1. The לשון of לסוף makes perfect sense, it means at the end after he already took a שבועת היסת the עדים came. ר' זירא then says, if we hold like ר' חייא the רועה would be חייב a שבועה דאורייתא and even though he took a שבועת היסת he would need to take the שבועה דאורייתא because it is more חמור. This answers question 2. Now we understand why we can't ask from שבועת היסת, he already took one. It is only after אביי says that he is a גזלן and therefore the owner swears that we can ask from שבועת היסת. The question is, since he is a גזלן the original שבועת היסת that the רועה took is null and void so let the owner swear and collect. To that the Gemara answers תקנתא לתקנתא. The Gemaras last question is not on אביי, but rather how could we have given the רועה the original שבועת היסת, he should have been פסול. This answers question 3.

The Gra points out that with this pshat we understand where the שו"ע got the din that is mentioned in סי' פ"ז סע' י"ד from. The שו"ע writes that if a person is כופר בכל and takes a שבועת היסת and then an עד א comes and is מחייב a שבועה דאורייתא he has to take the שבועה דאורייתא. The Rama then comments that if he takes a שבועה and it turns out that he was פסול the שבועה is null and void and he must pay. The באר הגולה and others cannot find a source in Shas for these. The Gra says that based on his pshat both of these dinim are explicit in our Gemara.

Saturday, October 13, 2007

Is there הזמה by an עד אחד? (Bava Metzia 4a)

The (קצות (סימן ל"ח ס"ק ה points out that we see from Tosafos (ד"ה עד אחד יוכיח) that there is הזמה by an עד אחד as Tosofaso says that the girsa of ובהזמה is correct. Tosafos explains that the fact that he doesn't pay money is just because he is not מחייב money. The קצות says that the נפקא מינא would be in a case where he is מחייב money such as where he is מחייב a שבועה that the person can't take and the person then has to pay. In that case if he is מוזם the עד would need to pay. The קצות ends off that he is not sure that there is הזמה by an עד אחד.

The Minchas Chinuch (מצוה ל"ז), points out that the Rambam (הל' עדות פרק כ"א הל' ה) says explicitly that there is הזמה by an עד אחד by a Sota:
"בא עד אחד והעיד שזינת אחר הקינוי והסתירה, ונמצא אותו העד זומם--משלם כתובתה ..."

And therefore the Michas Chinuch is surprised why the קצות said he is not sure that there is הזמה by an עד אחד.

The fact is that there are different נוסחאות in the Rambam whether it should say עד א or not and therefore the proof from the Rambam can be disputed (עיין חזו"א שם).

Tuesday, October 9, 2007

Does everyone hold from the סברא of ודאי רמאי? (Bava Metzia 2a-3a)

From the gemara on 3a it would seem that even the רבנן hold that you don't say יחלוקו if there is a ודאי רמאי because the Gemara asks on both ר' יוסי and the רבנן from חנוני על פנקסו that in that case there is a ודאי רמאי.

However, in fact, this is a מח' ראשונים. The last Rashi on 2a states that whenever you have a ודאי רמאי you say יהא מונח, the simple understanding of Rashi is that this is even according to the רבנן. A נפקא מינה is the case of זה אומר אני ארגתיה וזה אומר אני ארגתיה where Rashi says the din is יהא מונח because there is a ודאי רמאי. However, Tosafos (2b ד"ה אי תנא מציאה) as well as the Rosh in סימן א both disagree and say that even in the case of זה אומר אני ארגתיה וזה אומר אני ארגתיה where there is a ודאי רמאי, you say יחלוקו. They hold that the סברה of ודאי רמאי was only said for ר' יוסי. They bring a proof from the Gemara later (7a) from the case of שנים אדוקים בשטר where there is a ודאי רמאי and still the din is יחלוקו. Tosafos and the Rosh explain that according to the רבנן there is a different סברה, that the חלוקה יכולה להיות אמת. What this means is that we don't look at their claims whether they are lying or not but rather we look at the psak din, can the psak din be correct. In the case of זה אומר אני ארגתיה וזה אומר אני ארגתיה the answer is yes, it is possible that both of them own it and the correct psak is יחלוקו.

What do Tosafos and the Rosh do with the Gemara (3a) that we started with where the Gemara seems to assume the סברה of ודאי רמאי even according to the רבנן? The answer is that although the Gemara uses the language of ודאי רמאי that is לפי ר' יוסי, however according to the רבנן the question really is that by חנוני על פנקסו the psak din cannot be correct. Reuven owes his worker Levi $100 and tells him to collect from Shimon. Both Levi and Shimon now come to collect from Reuven. Reuven only owes $100 yet the psak din is to make him pay $200, $100 to Levi and $100 to Shimon. Even according to the רבנן that is a problem because the חלוקה cannot be אמת.

To sum up, Rashi holds that the סברא of ודאי רמאי is accepted by the רבנן as well and therefore in a case such as זה אומר אני ארגתיה וזה אומר אני ארגתיה the din is יהא מונח. Tosafos and the Rosh hold that the רבנן do not accept the סברא of ודאי רמאי, rather they have a different סברא, that the חלוקה יכולה להיות אמת. Therefore they hold that in the case of זה אומר אני ארגתיה וזה אומר אני ארגתיה the din would be יחלוקו בשבועה.

Monday, October 8, 2007

What is the ka mashma lan for Mekach Umemkar being in the mishna?

By Ari Shapiro

The gemara says that we need both cases because if I only had 1 I would think that you take a shevua because you are moreh heter but the other one where there is no moreh heter you would not take a shevua, ka mashma lan the second case in the mishna that you do swear. The question is, why do you swear in the second case?

The Ran offers 2 pshatim.
1. Ka mashma lan that in both cases there is moreh heter. In other words the shevua is because you are moreh heter in both cases. The Ran points out that this is very difficult. If so, what is the gemara's question on Sumchus and what is the answer? Why didn't the gemara answer that the mishna could be like Sumchus and there is a big distinction between the 2 cases. In our mishna he is moreh heter and therefore he swears while in the case of Sumchus there is no Moreh heter and therefore there is no
shevua. Also, why does R' Yochanan have to come on to a new reason for the shevua (that we don;t want people attacking other people on the street), we already have a reason for the shevua in the mishna, moreh heter. Based on this he offers another pshat
2. Ka mashma lan that even where there is no moreh heter you swear because even though he is chashud to steal he is not chashud to lie with a shevua. This answers both questions. There is no simple distinction between our Mishna and Sumchus because even in our Mishna you swear even when there is no moreh heter. This also explains why R' Yochanan had to come up with a new reason for the shevua because until we haven't yet offered a reason for the shevua in the Mishna.

What does ochazin mean in the Mishna?

By Ari Shapiro

Rashi on the Mishna doesn't explain but the Rambam in the peirush Hamishnayos (Bartenura and others) explain based on the Gemara on 7a that it means that they are holding the fringes of the garment. If they were holding a part of the garment then the din is that each one gets what they are holding and the rest they would split. The next case in the mishna where 1 claims the whole thing and 1 claims half is a machlokes rshonim whether it is the same case, they are holding only the fringes (Tosafos Harosh) or whether the person saying kula sheli is actually holding half (see Shita Mekubetzes).

Sheyesh lahem eidim there is no shevua

By Ari Shapiro

What exactly are the eidim saying?

The Rambam in the Peirush Hamishnayos explains that 2 witnesses come and testify that they saw the 2 of them lift up the object together. The problem with the Rambam is what is the chidush? We always believe 2 eidim.

R' Akiva Eiger on Mishnayos offers a different pshat. He says that if you hold that 1 witness can exempt you from an oath then the case here is that each person has 1 witness testifying that they picked it up alone. The problem with this is that since the witnesses contradict each other we should just throw them out.

The Rashash offers a similar pshat. He says each one has 2 witnesses testifying that they picked it up alone. He asks, but when 2 sets of witnesses contradict each other we throw them out so we should be back to square one and they should need to swear? He answers that since the shevua is only a takana d'rabbanan, in this case the chachamim were not mesaken a shevua.