שבועות 33 — Soncino English Talmud

¹The second set are still there! — Rabina said: Here we are discussing [a case] where, for example, the second set, at the time of the denial of the first set, were related through their wives; and their wives were dying: you might have thought [because we say] the majority of dying people actually die [the second set are eligible], therefore he teaches us [that they are not], because as yet the wives are not dead. MISHNAH. ‘I ADJURE YOU THAT YOU COME AND BEAR TESTIMONY FOR ME THAT THERE ARE OF MINE IN THE POSSESSION OF SO-AND-SO A DEPOSIT, LOAN, THEFT, AND LOST OBJECT.’ — ‘WE SWEAR WE KNOW NO TESTIMONY FOR YOU’: THEY ARE LIABLE ONLY ONCE. ‘WE SWEAR WE KNOW NOT THAT THERE ARE OF YOURS IN THE POSSESSION OF SO-AND-SO A DEPOSIT, LOAN, THEFT, AND LOST OBJECT’: THEY ARE LIABLE FOR EACH ONE. ‘I ADJURE YOU THAT YOU BEAR TESTIMONY FOR ME THAT THERE IS OF MINE IN THE POSSESSION OF SO-AND-SO A DEPOSIT OF WHEAT, BARLEY, AND SPELT’. — ‘WE SWEAR WE KNOW NO TESTIMONY FOR YOU’: THEY ARE LIABLE ONLY ONCE. ‘WE SWEAR WE KNOW NO TESTIMONY FOR YOU THAT THERE IS OF YOURS IN THE POSSESSION OF SO-AND-SO A DEPOSIT OF WHEAT, BARLEY, AND SPELT’: THEY ARE LIABLE FOR EACH ONE. — ‘I ADJURE YOU THAT YOU COME AND BEAR TESTIMONY FOR ME THAT SO-AND-SO OWES ME FULL INDEMNITY FOR DAMAGE, OR HALF INDEMNITY, OR DOUBLE, OR FOUR OR FIVE TIMES THE AMOUNT; OR THAT SO-AND-SO VIOLATED MY DAUGHTER, OR SEDUCED MY DAUGHTER; OR THAT MY SON SMOTE ME; OR THAT MY NEIGHBOUR INJURED ME, OR SET FIRE TO MY HAYSTACK ON THE DAY OF ATONEMENT’; [AND THEY DENY KNOWLEDGE OF TESTIMONY] THEY ARE LIABLE. GEMARA. It was debated: If he adjures witnesses in [a case where] a fine [is imposed], what is the ruling? In accordance with the view of R. Eleazar son of R. Simeon who says, let the witnesses come and hear testimony, there is no question; but the question is in accordance with the view of the Rabbis who say, he who admits [an act for which] a fine [is imposed], and then witnesses come, is exempt. But [consider] the Rabbis there, with whom do they agree? Shall we say they agree with R. Eleazar son of R. Simeon here? Surely he says, that which causes [extraction of] money is counted as [if it had extracted] money! — Well then, they agree with the Rabbis here who say that which causes [extraction of] money is not counted as [if it had extracted] money: what is the ruling? [Shall we say] since, if he had confessed, he would have been exempt, he is not denying [a legitimate] money [liability], or, since now he did not actually confess, [he is denying a money liability]? — Come and hear: ‘I ADJURE YOU THAT YOU COME AND BEAR TESTIMONY FOR ME THAT SO-AND-SO OWES ME FULL INDEMNITY FOR DAMAGE, OR HALF INDEMNITY’. Now, half indemnity is a fine, [and yet they are liable]! — [The Mishnah will agree with him] who holds the half indemnity is a liability. That is well according to him who holds that the half indemnity is a liability, but according to him who holds it is a fine, what shall we say? — [The Mishnah will refer to] the half indemnity of pebbles, for which there is a tradition that it is a liability. Come and hear: ‘[SO-AND-SO OWES ME] DOUBLE’! — Because of the principal. ‘FOUR OR FIVE TIMES THE AMOUNT’! — Because of the principal. — ‘SO-AND-SO VIOLATED, OR SEDUCED MY DAUGHTER’! — Because of the shame and deterioration. What does he teach us? It is all liability! — The first clause teaches us one thing, and the last clause teaches us one thing. The first clause teaches us one thing, that the half indemnity of pebbles is a liability. The last clause teaches us one thing: ‘THAT HE SET FIRE TO MY HAYSTACK ON THE DAY OF ATONEMENT’ [etc.]. What does this exclude? It excludes the view of R. Nehunia b. Hakkanah, for it was taught: R. Nehunia b. Hakkanah made the Day of Atonement equivalent to the Sabbath for payment; just as on the Sabbath, etc. Come and hear: ‘I adjure you that you come and bear testimony for me^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^ᵃᵇ^ᵃᶜ^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ^ᵃʰ^ᵃⁱ

^ᵃnote:To bear testimony; and the first have therefore not occasioned him any loss by withholding their evidence.
^ᵇnote:They married two sisters, and therefore were ineligible to bear testimony together in one case.
^ᶜnote:Because we assume the wives are counted as dead, therefore the witnesses are no longer related to each other; and since they are now eligible, the first set should be exempt, because the second set are there to give evidence.
^ᵈnote:The first set are therefore liable, because they alone are eligible, and by withholding their testimony they make the claimant incur a loss.
^ᵉnote:‘I deposited with him some wheat, and be borrowed from me some wheat, and stole from me some wheat, and found some wheat which I had lost’.
^ᶠnote:In this clause the claim is under one head (deposit), but of different kinds (wheat, barley, and spelt). In the first clause the claim is under different heads (deposit, loan, theft, lost object), but one kind (e.g., wheat).
^ᵍnote:Explained in the Gemara.
^ʰnote:For theft; Ex. XXII, 3.
^ⁱnote:If the thief sold or killed the animal he stole, he pays four times its value (for a sheep), and five times its value (for an ox); Ex. XXI, 37.
^ʲnote:He must pay the father for the shame caused to his daughter (,auc), and for the deterioration in her value (odp).
^ᵏnote:Without causing a wound, he must pay for the shame. If he caused a wound, the penalty is death (Sanh. 85b), and the lesser penalty (compensation for ,auc) is not inflicted, but is merged in the larger.
^ˡnote:Though the penalty for wounding or setting fire on the Day of Atonement is kareth, the money penalty is also inflicted.
^ᵐnote:For they thereby deprive the claimant of his money.
^ⁿnote:E.g., for seducing a maid, for which he pays 50 shekels; Deut. XXII, 29. This is a fine (xbe) in contradistinction to a real liability (iunn). Any payment that does not correspond to the amount of damage caused is considered a fine.
^ᵒnote:He who admits an act for which a fine is imposed is exempt (B.K. 64b); but if after his confession witnesses give evidence, he is liable, according to R. Eleazar b. R. Simeon. If, therefore, the witnesses withhold their testimony, they cause a pecuniary loss to the injured party, and are therefore liable.
^ᵖnote:Do we say this is not a real liability, since a confession would exempt him, and therefore if witnesses are adjured to bear testimony before he confesses, and deny knowledge of testimony, they are exempt; or, since, if they had given evidence before his confession, he would have been liable, they are, by withholding evidence, causing a loss to the claimant, and consequently should be liable?
^ᵠnote:Who hold that even if witnesses come after his confession he is still exempt.
^ʳnote:Supra 32a; if one witness is adjured, and denies knowledge, he is liable.
^ˢnote:Therefore, even if we say that confession of a fine, followed by witnesses, still exempts him; the witnesses, who are adjured before the confession, should be liable, because, by withholding their evidence, they cause loss to the claimant.
^ᵗnote:Supra 32a.
^ᵘnote:Even if witnesses had come later.
^ᵛnote:And therefore the witnesses, who are adjured before he confesses, are not liable, though by withholding testimony they cause a loss to the claimant, for that is merely iunnk orud.
^ʷnote:And the witnesses who are adjured are depriving the claimant of money by withholding their testimony, and are therefore liable.
^ˣnote:It is assumed at present that this half indemnity is for the damage caused by a goring ox on the first two occasions while yet a Tam (v. Glos.), Ex. XXI, 35; and this is a fine, B.K. 15a.
^ʸnote:Hence you may deduce that if witnesses for a fine are adjured, they are liable.
^ᶻnote:B.K. 15a; hence you cannot solve the problem from the Mishnah.
^ᵃᵃnote:How will he explain the half indemnity of the Mishnah?
^ᵃᵇnote:If an animal, while walking, treads on pebbles, and they fly out from under its feet, and cause damage to another's property, the owner of the animal pays half the amount of the damage; B.K. 17a.
^ᵃᶜnote:For theft; the extra amount above the principal is a fine. The witnesses are liable; hence you may solve your problem.
^ᵃᵈnote:The witnesses are liable because by withholding evidence they deprive him even of the principal.
^ᵃᵉnote:For which a fine is imposed; Deut. XXII, 29.
^ᵃᶠnote:By withholding evidence the witnesses deprive the father of compensation by the seducer (apart from the fine of 50 shekels) for the shame, and also for the deterioration in value of the girl (which sums are iunn, not xbe).
^ᵃᵍnote:If all the clauses in the Mishnah refer to iunn and not xbe, why does the Mishnah need to enumerate them all? One clause would suffice.
^ᵃʰnote:And because the Mishnah mentions this, it mentions also the rest (double, four or five times), for they are equal in that they are either more or less than the principal.
^ᵃⁱnote:Because he incurs the death penalty (ihs ,hc ,,hn) for setting a haystack on fire, he does not pay for the damage; so on the Day of Atonement, because he incurs the penalty of kareth, he does not pay; Keth. 30a. Our Mishnah, in stating that the witnesses are liable if they withhold evidence in the case of a man who set fire to a haystack on the Day of Atonement, obviously holds that had they given evidence he would have had to pay, hence it disagrees with R. Nehunia b. Hakkanah. This last clause is therefore inserted to exclude R. Nehunia b. Hakkanah's view.

²that So-and-So uttered an evil report about my daughter’; [and the witnesses deny knowledge of testimony] they are liable. If he confessed himself, he is exempt! — This is in accordance with the view of R. Eleazar son of R. Simeon, who says, let the witnesses come and bear testimony. Read then the latter clause: ‘If he confessed himself, he is exempt’. We here thus come round to [the view of] the Rabbis! — It is all in accordance with the view of R. Eleazar son of R. Simeon; and thus he means: It is not possible that, if he confessed himself, he should be exempt, except when there are no witnesses at all, and he confessed himself. MISHNAH. ‘I ADJURE YOU THAT YOU COME AND BEAR TESTIMONY FOR ME THAT I AM A PRIEST, OR, THAT I AM A LEVITE, OR, THAT I AM NOT THE SON OF A DIVORCED WOMAN, OR, THAT I AM NOT THE SON OF A HALUZAH; THAT SO-AND-SO IS A PRIEST, OR, THAT SO-AND-SO IS A LEVITE, OR, THAT HE IS NOT THE SON OF A DIVORCED WOMAN, OR, THAT HE IS NOT THE SON OF A HALUZAH; THAT SO-AND-SO VIOLATED ANOTHER'S DAUGHTER, OR SEDUCED HIS DAUGHTER; THAT MY SON INJURED ME; THAT MY NEIGHBOUR INJURED ME, OR SET FIRE TO MY HAYSTACK ON THE SABBATH,’ — THEY ARE EXEMPT. GEMARA. The reason [they are exempt] is because [he adjured them:] ‘SO-AND-SO IS A PRIEST, OR, SO-AND-SO IS A LEVITE’, but [if he adjured them:] ‘So-and-So owes So-and-So a hundred zuz’, they would be liable? Surely he teaches in a later clause: [They are exempt] unless they hear [the adjuration] from the mouth of the claimant! — Samuel said: [It refers to a case where] he comes with power of attorney. But the Nehardeans say: We do not write an authorisation on movables! — That is only when he denies it, but when he does not deny it, we do write. Our Rabbis taught: How do we know that the verse refers only to a money claim? R. Eliezer said, Here it is said: or . . . or; and there it is said: or . . . or; just as there it refers only to a money claim, so here it refers only to a money claim. But let the or . . . or of a murderer prove [that a money claim is not intended], for they are or . . . or, and refer not to a money claim! We deduce or . . . or which are concerned with an oath from or . . . or which are concerned with an oath; and let not the or . . . or of a murderer prove [anything], for they are not concerned with an oath. But let the or . . . or a sotah prove, for they are or . . . or, and are concerned with an oath, and refer not to a money claim! We deduce or . . . or which are concerned with an oath, and not concerned with a priest from or . . . or which are concerned with an oath, and not concerned with a priest; and let not the or . . . or of a murderer prove [anything], for they are not concerned with an oath; nor let the or . . . or of a sotah prove [anything], for, although they are concerned with an oath, they are also concerned with a priest. R. Akiba said: And it shall be, when he shall be guilty in one of these things — in some of ‘these things’ he is liable, and in some of ‘these things’ he is exempt: how is this? If he claimed from him money, he is liable, if something else, he is exempt. R. Jose the Galilean said, Behold Scripture says: He being a witness, whether he hath seen or known — of such testimony as may be established by seeing without knowing, and by knowing without seeing, the verse deals. ‘Seeing without knowing’, how? ‘A hundred zuz I counted out to you before So-and-so and So-and-so.’ ‘Let So-and-so and So-and-so come and bear testimony.’ This is seeing without knowing. ‘Knowing without seeing’, how? ‘You admitted that you owe me a hundred zuz before So-and-So and So-and-so.’ ‘Let So-and-so and So-and-so come and bear testimony.’ This is knowing without seeing. R. Simeon said: He is liable here, and he is liable in [the case of] deposit; just as there it deals only with a money claim, so here it deals only with a money claim; and further, [we have an argument] from minor to major: Deposit, where the law makes women equal to men, relatives equal to non-relatives, those ineligible [to bear testimony] equal to those eligible, and where he is liable for^ᵃʲ^ᵃᵏ^ᵃˡ^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ^ᵃˢ^ᵃᵗ^ᵃᵘ^ᵃᵛ^ᵃʷ^ᵃˣ^ᵃʸ^ᵃᶻ^ᵇᵃ^ᵇᵇ^ᵇᶜ^ᵇᵈ^ᵇᵉ^ᵇᶠ^ᵇᵍ^ᵇʰ^ᵇⁱ^ᵇʲ^ᵇᵏ^ᵇˡ^ᵇᵐ^ᵇⁿ^ᵇᵒ^ᵇᵖ^ᵇᵠ

^ᵃʲnote:That he found her not a virgin when he married her; Deut. XXII, 14. If his allegation is false, he is fined 100 shekels of silver; ibid. 19.
^ᵃᵏnote:Apparently even if witnesses came later; yet if witnesses are adjured before the confession, and they withhold testimony, they are liable. Hence it is proved that if witnesses for a fine are adjured and withhold testimony they are liable.
^ᵃˡnote:Even after confession (cf. p. 187, n. 10), but the question is with reference to the Rabbis.
^ᵃᵐnote:Apparently even if witnesses come later.
^ᵃⁿnote:And the confession was not followed by witnesses. We cannot therefore decide the question (according to the Rabbis) whether or not witnesses who are adjured for a fine and withhold testimony, are liable.
^ᵃᵒnote:A woman (whose husband died without issue) released, by the ceremony of halizah (Deut. XXV, 9), from marrying her husband's brother.
^ᵃᵖnote:Causing a wound. Since death is inflicted, there is no money payment.
^ᵃᵠnote:On the Sabbath: the penalty is death.
^ᵃʳnote:The witnesses, denying knowledge of testimony, are exempt in all these cases, for they are liable only if by their refusal to testify they cause a monetary loss to the claimant. In the case of ‘So-and-so violated another's daughter’, they are exempt (though causing monetary loss) because it is not the claimant himself who adjures them.
^ᵃˢnote:The issue is not monetary.
^ᵃᵗnote:Infra 35a.
^ᵃᵘnote:Our Mishnah, which implies that if it were a money claim the witnesses would be liable even if the person who adjured them was not the claimant, refers to a case where he who adjured the witnesses was authorised by the creditor to claim the debt on his behalf.
^ᵃᵛnote:B.K. 70a.
^ᵃʷnote:Should then the debtor deny the claim after the authorisation was given, the witnesses, by withholding their testimony, would cause a loss to the claimant, and therefore be liable.
^ᵃˣnote:In connection with the oath of testimony.
^ᵃʸnote:Lev. V, 1: or saw or knew.
^ᵃᶻnote:In connection with the oath of deposit.
^ᵇᵃnote:Lev. V, 21: in a deposit or pledge or robbery, or oppressed his neighbour.
^ᵇᵇnote:Num. XXXV, 18-21: or if he smote him with a weapon of wood . . . or hurled at him . . . or in enmity smote him.
^ᵇᶜnote:Oath of testimony.
^ᵇᵈnote:Oath of deposit.
^ᵇᵉnote:Woman suspected by husband of infidelity; Num. V, 12-31.
^ᵇᶠnote:Num. V, 14: or if the spirit of jealousy; ibid. 30: or when the spirit of jealousy.
^ᵇᵍnote:Ibid. 21, 22: the priest shall cause the woman to swear.
^ᵇʰnote:But to make her drink the bitter waters; Num. V, 24.
^ᵇⁱnote:Lev. V, 5.
^ᵇʲnote:The witness who withholds testimony.
^ᵇᵏnote:Lev. V, 1.
^ᵇˡnote:And this is only possible in a money claim, as he explains.
^ᵇᵐnote:The claimant says to the debtor: ‘The witnesses saw me counting out the money to you, but I did not tell them if it was a gift or loan or repayment of debt.’
^ᵇⁿnote:The debtor replies: ‘If they testify that they saw you counting out the money to me, I will pay you.’
^ᵇᵒnote:They did not see the transaction; they only heard your admission, and therefore know that you owe me the money.
^ᵇᵖnote:That they heard my admission, and I will pay you.
^ᵇᵠnote:In the case of oath of testimony.