שבועות 32:2 — Soncino English Talmud

‘And they disagree in [the case of] the witnesses of the sotah’ — the witnesses of the secret meeting; one holds that which causes [extraction of] money is counted as [if it had actually extracted] money, and they are liable; and the other holds it is not counted as [if it had actually extracted] money, and they are exempt. ‘All agree [in the case of the witness] where his adversary is suspected of swearing falsely’. ‘All agree in [the case of] one witness’ [in such circumstances as came] before R. Abba. ‘All agree [in the case of the witness] where his adversary is suspected of swearing falsely.’ Who is suspected? Shall we say the debtor is suspected; and the creditor could say [to the witness]. ‘If you would have come to bear testimony for me, I would have sworn, and taken [the debt]’? Let the witness say to him, ‘Who says that you would have sworn?’ — Well then, for example, if they are both suspect, in which case it has been said, the oath returns to the one who is bound to take it, and because he cannot swear, he pays. ‘All agree in [the case of] one witness’ [in such circumstances as came] before R. Abba; for there was a man who snatched a bar of silver from his neighbour; they came before R. Ammi, and R. Abba was sitting before him. He went and brought one witness that he had snatched it from him. The other said, ‘Yes, I snatched it, but it is mine that I snatched’. Said R. Ammi: How shall judges settle this dispute? Shall he pay? There are not two witnesses. Shall he be exempt? There is one witness that he snatched it. Shall he swear? Since he said, ‘Yes, I snatched it, but it is mine that [snatched’, he is like a robber. R. Abba said to him: He is bound to take an oath, and he cannot swear; and anyone who is bound to take an oath, and cannot swear, pays. R. Papa said: All agree in [the case of] a witness of death that he is liable; and all agree in [the case of] a witness of death that he is exempt. ‘All agree in [the case of] a witness of death that he is exempt’, — if he told it to her, and did not tell it to the Beth Din; for we learnt: A woman who said, ‘My husband died’, may remarry; ‘my husband died’, marries her brother-in-law. ‘All agree in [the case of] a witness of death that he is liable,’ — if he told it neither to her nor to the Beth Din. Can we deduce from this that if one adjures witnesses in connection with land [and they deny knowledge of testimony], they are liable? — No! Perhaps she had seized movables. IF ONE DENIED, AND THE OTHER ADMITTED, etc. Now, if in the case of one after another where both deny, you say the first is liable, and the second exempt, in the case where one denies and the other admits, is there any question? — It is not necessary [for the Mishnah to tell us this except in the case] where both denied, and then one of them turned and admitted within the interval of the time of an utterance; and this he teaches us, that [two statements following each other] within the interval of the time of an utterance are considered one utterance. Granted, according to R. Hisda who explains that [clause] as being in accordance with the view of R. Jose the Galilean; the first clause [establishes that] it is possible to ascertain simultaneity, and the second clause is necessary in order to teach us that [two statements following each other] within the interval of the time of an utterance are considered one utterance; but, according to R. Johanan, the first clause [teaches us the law with regard to statements uttered] within the interval of the time of an utterance, and the second clause [teaches us the law with regard to statements uttered] within the interval of the time of an utterance! Why do we need both? — You might have thought that only in the case of denial and denial [do we say that two statements within a brief interval are considered one], but in the case of denial and admission we do not say this, therefore he teaches us [that we do]. IF THERE WERE TWO SETS OF WITNESSES, AND THE FIRST DENIED, AND THEN THE SECOND DENIED, [THEY ARE BOTH LIABLE]. Granted, the second should be liable, because the first denied; but the first — why [should they be liable]?^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ

^ᵃnote:If the husband adjures the two witnesses of the secret meeting (vrh,x hsg) to bear testimony for him, and they swear, denying knowledge of testimony, R. Eleazar b. R. Simeon (who regards the causing of pecuniary loss as the direct infliction of a money loss, as is proved by his view imposing liability on one witness who was adjured) will hold they are liable, for by withholding their testimony they cause a pecuniary loss to the husband (for, had they given testimony, the wife might have confessed rather than undergo the ordeal of the ‘bitter waters’, and the husband would have been exempt from paying the kethubah); but the Sages hold they are not liable, for their testimony would not have directly freed the husband from paying the kethubah.
^ᵇnote:If there is one witness for a debt, the debtor takes an oath denying liability; but if he is suspected of swearing falsely, the creditor takes an oath that the debt is due, and is paid (infra 44b). If the witness is adjured by the creditor, and denies knowledge of testimony, he is thereby depriving the creditor of his debt, and therefore all agree that in such a case he is liable. [The order of the text in cur. edd. is somewhat disarranged. MS.M. preserves a better order and reading which avoid the needless repetitions in our text, v. D.S.].
^ᶜnote:Explained below.
^ᵈnote:Perhaps you would not have wished to swear, and would not have obtained your money. The witness is therefore merely a possible cause of monetary loss (and does not actually deprive the creditor of his money); the Sages (who disagree with R. Eleazar b. R. Simeon) would therefore not hold him liable. Why, then, say that all agree in this case?
^ᵉnote:The debtor, infra 47a.
^ᶠnote:Being suspected of swearing falsely.
^ᵍnote:The witness, therefore, by withholding his testimony in such a case, definitely deprives the creditor of his money, and all agree that he is liable.
^ʰnote:The owner of the bar.
^ⁱnote:A man cannot free himself by saying, ‘it is mine that I snatched’, for if this excuse were accepted, no robber would ever be liable, even when there were two witnesses that he robbed, for he could always say, ‘I admit I took it, but it is my own property’; v. Tosaf. a.l. And since he is like a robber, he cannot take an oath.
^ʲnote:He cannot keep it by saying, ‘it is mine’, for there is a witness that he snatched it from some one else; and property is always presumed to belong to the one in whose possession it has been (unless there is definite proof to the contrary). He must therefore take an oath to deny the statement of the witness. This he cannot do, for he admits that he snatched it (agreeing with the witness), and since he cannot swear, he must return it; v. B.B. (Sonc. ed.) p. 156 and notes.
^ᵏnote:The witness, therefore, if he had withheld his evidence, would have deprived the man of his bar of silver; therefore all agree that he must bring an offering for his false oath in such circumstances.
^ˡnote:That a woman's husband had died.
^ᵐnote:That he knows her husband has died abroad; but when she adjured him to give evidence before the Beth Din, he denied the knowledge. He is not liable, because she can go to the Beth Din herself, and say her husband is dead, and requires no witness. He has therefore not occasioned any monetary loss to her by withholding his evidence, for she is believed, and can obtain her kethubah from the heirs.
^ⁿnote:If her husband died without issue; Deut. XXV, 5.
^ᵒnote:If the wife adjures him to give evidence, and he denies having any knowledge, he is liable, for he has deprived her of the kethubah, since he did not tell even her that her husband had died, and she has therefore no information at all on the matter.
^ᵖnote:The kethubah was collected (in Talmudic times) from immovable property only; the witness of the husband's death is liable, according to R. Papa, if he is adjured and withholds information. But there is already a dispute between Tannaim on this point (v. infra 37b). Let R. Papa then merely say he agrees with one of the Tannaim!
^ᵠnote:The wife had in her possession during the husband's lifetime some of his movable property; and if the witness had given evidence, she would have retained it in settlement of her kethubah. R. Papa's ruling may refer to such a case, and not to a case where the kethubah has to be collected from immovable property.
^ʳnote:Though be could say, ‘Why should I be liable? My testimony alone is of no avail, since the other also denies’, yet because when he denies, the other had not yet denied, he is liable.
^ˢnote:Surely, it is obvious that the first is liable, for the second admits knowing testimony; hence, the first, by withholding testimony, deprives the claimant of his money. Why, then, does the Mishnah mention this clause? It is superfluous!
^ᵗnote:And the Mishnah does not wish to teach us that the one who denies is liable (for this we know from the previous clause), but that the one who admits is exempt, although he first denied, his admission within the brief interval being accepted, and exempting him.
^ᵘnote:Where both denied together.
^ᵛnote:V. supra 32a.
^ʷnote:One denied, and the other admitted.
^ˣnote:As in the first clause.
^ʸnote:And the second is liable like the first.
^ᶻnote:The second clause, where the same person first denies, and then admits.
^ᵃᵃnote:Hence, only the second set were left to bear testimony, and by withholding testimony, they make the claimant incur a loss.