Bava Metzia - Daf 5

• The shepherd who was caught eating two of the sheep in his care

The Gemara records an incident of a shepherd to whom people usually gave their animals in front of witnesses, but one day gave them without witnesses present. He later denied having received them, but witnesses testified that they saw him eating two of the animals. Rebbe Zeira said that if we rule like Rebbe Chiya’s first law, that one swears when a claim is partially substantiated by witnesses, then the shepherd would have to swear regarding the remaining claim. Abaye asked him, how can he swear? והא גזלן הוא – But he is a proven thief and disqualified from swearing!? Rebbe Zeira responded: שכנגדו קאמינא – I meant that his opponent (i.e., the plaintiff) swears to collect payment, which is the (Rabbinically enacted) law when the defendant is disqualified from swearing. Although Rav Nachman taught that the Rabbis enacted that even one who fully denies a claim must swear ("שבועת היסת"), the Gemara explains that this alone would not have enabled the plaintiff to swear and collect from the shepherd, because this shevuah is a Rabbinical enactment, ותקנתא לתקנתא לא עבדינן – and we do not apply one enactment to another enactment (i.e., to have his opponent swear).

• אין אדם חוטא ולא לו

Abaye had objected to the shepherd swearing because he had been confirmed a thief. The Gemara asks that he should be disqualified even without specific testimony of thievery, because Rav Yehudah said that an ordinary shepherd is invalid as a witness, because shepherds are assumed to allow their animals to graze in other private fields!? It answers that this is only where the animals are his own. Rebbe Zeira’s case was a shepherd for other people’s animals, who is not automatically assumed to allow them to graze in private fields. This distinction must be true, for otherwise, אנן חיותא לרועה היכי מסרינן – how can we give over our animals to a hired shepherd, if he will commit thievery with them? The Torah says "לפני עור לא תתן מכשל" – do not place a stumbling block before the blind, which includes putting someone in a position where he will sin!? אלא חזקה אין אדם חוטא ולא לו – Rather, there is a presumption that a person does not sin where there is no benefit for himself. Thus, a hired shepherd is not suspected of stealing.

• If מיגו דחשיד אממונא חשיד נמי אשבועתא

Rebbe Yochanan taught that the shevuah of the Mishnah was enacted to discourage people from seizing other people’s cloaks and claiming them. The Gemara asks: ונימא מיגו דחשיד אממונא חשיד נמי אשבועתא – Let us say, since he is suspect in monetary matters, he is also suspect regarding swearing (i.e., one who is prepared to steal would also swear falsely)!? The Gemara responds that we do not say מגו דחשיד אממונא חשיד אשבועתא, because people are more hesitant to swear falsely than to steal. The Gemara attempts to prove this from the fact that one who partially denies a debt must swear, even though we suspect he is attempting to withhold payment from his creditor. The Gemara rejects this proof, because we assume the borrower intends to pay the debt but is stalling for time. After more proofs are rejected, three rulings are quoted on Daf 6 which prove that one who is suspected of stealing is still relied upon to swear truthfully. Abaye disagrees with Rebbe Yochanan and will explain the Mishnah’s shevuah differently.