שבועות 41 — Soncino English Talmud

¹but he who applies it to the second clause [may say] here it is applicable because there is money at stake; but there where there is no money at stake, it is not applicable. What is the difference between an oath imposed by the Torah and an oath imposed by the Rabbis? — There is this difference; transference of the oath: in the case of an oath imposed by the Torah we do not transfer the oath; but in the case of an oath imposed by the Rabbis we transfer the oath. And according to Mar son of R. Ashi who holds that in the case of a Torah oath we also transfer the oath, what is the difference between a Torah oath and a Rabbinic oath? — There is this difference: going down to his property; in the case of a Torah oath we go down to his property; in the case of a Rabbinic oath we do not go down to his property. And according to R. Jose who holds that in the case of a Rabbinic [law] we also go down to his property? For we learnt: The finding of a deaf-mute, imbecile, or minor, is subject to the law of theft, in the interests of peace. R. Jose says: Real theft. And R. Hisda said: [He means] real theft according to their enactment. What is the difference? Its extraction by the Court. [Now, according to R. Jose] what is the difference between a Torah oath and a Rabbinic oath? — There is a difference in the case where the opponent is suspected of swearing falsely: in the case of a Torah oath, where the opponent is suspected of swearing falsely, we transfer the oath to the other one; but in the case of a Rabbinic oath, it is an enactment, and we do not institute one enactment on top of another enactment. And according to the Rabbis who disagree with R. Jose, holding that in the case of a Rabbinic [law] We do not go down to his property, what do we do to him? We excommunicate him. — Said Rabina to R. Ashi: This is holding him by his testicles till he gives up his cloak! — Well then what do We do to him? — He [Rabina] said to him: We excommunicate him until the time comes for his punishment with lashes, and we lash him, and leave him. R. Papa said: If one produces a document of indebtedness against his neighbour, and the other says to him, ‘It is a paid document, we say to him, ‘It is not at all in your power [to question the validity of the document]; go and pay him.’ And if he says, ‘Let him swear to me,’ we say to him, ‘Swear to him.’ Said R. Aha b. Raba to R. Ashi: [If so] what is the difference between this and one who impairs the validity of his document? — He said to him: There, even if the debtor does not demand [an oath], we demand it for him; but here, we say to him, ‘Go and pay him’; but if he demands and says, ‘Swear to me,’ we say to the creditor, ‘Go and swear to him.’ But if he is a Rabbinic scholar, we do not make him swear. Said R. Yemar to R. Ashi: A Rabbinic scholar may strip men of their cloaks? But we do not attend to his case. ‘YOU HAVE OF MINE IN YOUR POSSESSION ONE HUNDRED DENARII,’ etc. R. Judah said: R. Assi said; If one lends to his neighbour before witnesses, he must repay him before witnesses. When I said this before Samuel, he said to me: He may say to him: ‘I paid you before So-and-so and So-and-so, and they went to a country beyond the seas.’ We learnt: ‘YOU HAVE OF MINE IN YOUR POSSESSION A HUNDRED DENARII’; HE SAID TO HIM [BEFORE WITNESSES]: ‘YES’. ON THE MORROW HE SAID TO HIM: ‘GIVE THEM TO ME’; [AND THE OTHER REPLIED:] ‘I HAVE GIVEN THEM TO YOU,’ HE IS EXEMPT. Now here, since he claimed from him before witnesses, it is as if he lent him before witnesses, and yet it states he is exempt:^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

^ᵃnote:The money has already been admitted in front of witnesses; and therefore when he says he has returned it, he must at least take an oath.
^ᵇnote:For it is not absolutely certain that the claim is valid, since he denied it completely.
^ᶜnote:In the case of a partial admission of the claim.
^ᵈnote:In the case of a complete denial: R. Nahman's consuetudinary oath.
^ᵉnote:The rule is that the debtor takes the oath, and is free. If he says to the claimant, ‘You take the oath’ (being satisfied to pay, if he really takes the oath), the Court do not permit this transference of the oath from debtor to creditor in the case of a Torah oath (,menc vsun), but permit it in the case of a Rabbinic oath (kfv rpuf, where a consuetudinary oath is imposed).
^ᶠnote:If he refuses to take the oath or to pay, the Court instruct their officers to distrain on his goods to the value of the debt.
^ᵍnote:If they find anything, it belongs to them, though, because of their disabilities, they have no legal right of possession. Yet, in the interests of peace, no one is permitted to deprive them of what they find; and he who does is guilty of theft.
^ʰnote:Not only in the interests of social stability do we empower the deaf-mute, imbecile, and minor to retain what they find; it is really lawfully theirs; and he who extracts it from them is guilty of real theft.
^ⁱnote:Not real theft according to the Biblical law, but only according to the Rabbinic law.
^ʲnote:Between R. Jose and the other Rabbis, since he also agrees that it is only theft by enactment of the Rabbis in the interests of social peace.
^ᵏnote:R. Jose makes the proprietary rights of the deaf-mute stronger (though only Rabbinically, and not Biblically), and if anyone steals from him that which he has found, the Court extracts it from the thief; though the thief has not transgressed the Biblical law (Thou shalt not steal), nor is he disqualified from being a witness (v. Git. 61a, Rashi). According to the other Rabbis, if the thief stole from the deaf-mute the thing that he found, the Court does not interfere,
^ˡnote:Since he holds even in the case of a Rabbinic law the court has power to distrain.
^ᵐnote:If the debtor is suspected of swearing falsely (in the case of a claim of which he admits a portion) the creditor is given the oath, and obtains his money.
^ⁿnote:To impose an oath on a kfv rpuf is itself a Rabbinic ordinance; and to transfer the oath from debtor to creditor is also a Rabbinic ordinance; we do not impose both; if the debtor is suspect and cannot take the oath, the creditor is not permitted to take the oath, but loses his money.
^ᵒnote:The Court has no power to extract from the thief who stole from the deaf-mute the object he found.
^ᵖnote:This is actually force, the same as distraint, if you say that we excommunicate him till he restores the theft or, in the case of a debtor, pays the debt; then what is the difference between the Rabbis and R. Jose?
^ᵠnote:[Omitted in MS.M., v. next note.]
^ʳnote:[According to MS.M. (previous note) this reply would be made by R. Ashi.]
^ˢnote:If he allows 30 days to elapse with the ban of excommunication upon him for contempt of court, he is punished with lashes (v. Kid. 12b).
^ᵗnote:That I have not paid him.
^ᵘnote:[Adopting reading of Florentine MS. v. D.S. a.l.]
^ᵛnote:If a creditor, producing a document for his claim, admits having already received some payment on account, he impairs the trustworthiness of his document, for the amount stated on the document is now not true (on his own admission), and he may have received more than he admits; he therefore cannot obtain the rest of his claim without taking an oath. But in R. Papa's example he does not admit partial repayment, and therefore has not impaired the validity of the document he produces; why then should he be asked to take an oath?
^ʷnote:Where the document is impaired.
^ˣnote:For though the document is valid, it is possible the debtor paid him, and the creditor omitted to restore the document to the debtor for destruction; therefore he must swear, if the debtor demands it; v. Tosaf.
^ʸnote:Because he is a scholar is he favoured, and allowed to enforce his claim without an oath?
^ᶻnote:[It is not clear whether what follows are the words of R. Ashi or of R. Yemar. MS.M. reads, He (R. Ashi) said to him.]
^ᵃᵃnote:We do not make him swear, because it would appear that we suspect him of attempting to claim money on a paid document; but he cannot receive his money, for the debtor demands an oath. But what is the difference between a scholar and an ordinary person? An ordinary person, too, need not swear, and loses his money. A scholar, if he has obtained his money by force from the debtor, is allowed to retain it; but an ordinary person is compelled by the court to return it; v. Asheri and t,phrj tkupkp a.l.
^ᵃᵇnote:And are therefore not available; and the borrower is exempt.
^ᵃᶜnote:And he admitted the debt before them; v. B.B. 30a Tosaf. s.v. utk.

²which is a refutation of R. Assi! — R. Assi may say to you: I said [that he must repay him before witnesses] only if originally he lent him before witnesses, [which shows that] he did not trust him; but here, he trusted him!’ R. Joseph taught it thus: R. Judah said, R. Assi said: If one lends to his neighbour before witnesses, he need not repay him before witnesses; but if he said to him: ‘Do not repay me except before witnesses,’ he must repay him before witnesses. When I said this before Samuel, he said to me: He may say to him: ‘I paid you before So-and-so and So-and-so, and they went to a country beyond the seas.’ We learnt: ‘YOU HAVE OF MINE IN YOUR POSSESSION A HUNDRED DENARII’; HE SAID TO HIM [BEFORE WITNESSES]: ‘YES’. HE SAID TO HIM: ‘DO NOT GIVE THEM TO ME EXCEPT BEFORE WITNESSES’; ON THE MORROW HE SAID TO HIM: ‘GIVE THEM TO ME’; [AND THE OTHER REPLIED:] ‘I HAVE GIVEN THEM TO YOU,’ HE IS LIABLE, BECAUSE HE MUST GIVE THEM TO HIM BEFORE WITNESSES. This is a refutation of Samuel! — Samuel may say to you: This is a question upon which Tannaim disagree; for it was taught: [If a man said to his fellow] ‘I lent you before witnesses; pay me before witnesses’; he must either pay, or bring proof that he has paid. R. Judah b. Bathyra said: He may say to him: ‘I paid you before So-and-so and So-and-so, and they went to a country beyond the seas.’ R. Aha asked: How do we know that this refers to the time of the loan, perhaps it refers to the time of the claim? And thus he says to him: ‘Did I not lend you before witnesses? You should have repaid me before witnesses!’ But at the time of the loan, all hold that he is liable. R. Papi said in the name of Raba: The law is: If one lends his neighbour before witnesses, he must repay him before witnesses. But R. Papa said in the name of Raba: If one lends his neighbour before witnesses he need not repay him before witnesses; but if he said to him: ‘Do not repay me except before witnesses,’ he must repay him before witnesses; and if he says to him: ‘I repaid you before So-and-so and So-and-so, and they went to a country beyond the seas,’ he is believed. (Mnemonic: Reuben and Simeon, who studied the law, they lent and paid (before) So-and-so and So-and-so, gallnuts, different claims, being believed as two.) There was a certain [man] who said to his neighbour: ‘When you repay me, repay me before Reuben and Simeon’; but he went and repaid him before two others. Abaye said: He told him to repay him before two witnesses, and [he said] he repaid him before two witnesses. Said Raba to him: For this reason he said to him: Before Reuben and Simeon, so that he should not be able to put him off. There was a certain [man] who said to his neighbour: ‘When you repay me, repay me before two who have studied laws.’ He went and repaid him privately. The money was lost. The lender came to R. Nahman and said, ‘Yes, I received it from him, but only as a deposit, and I said, Let it remain with me as a deposit until we obtain two witnesses who have studied laws, so that the condition may be fulfilled.’ Said [R. Nahman] to him: ‘Since you admit that you definitely received the money from him, it is a proper repayment; if you desire the condition to be fulfilled, go and bring the money [here], for here am I and R. Shesheth who have studied the laws, Sifra, Sifre, Tosefta, and the whole Gemara.’ There was a certain [man] who said to his neighbour: ‘Give me the hundred zuz that l lent you.’ The other said to him: ‘The thing never happened.’ He went and brought witnesses that he lent him, but [they also said] he repaid him. Abaye said: What shall we do? They say he lent him, and they themselves say he repaid him. Raba said: If he says, ‘I did not borrow,’ it is as if he said, ‘I did not repay.’ There was a certain [man] who said to his neighbour: ‘Give me the hundred zuz that I claim from you.’ He replied to him: ‘Did I not repay you before So-and-so and So-and-so?’ [Thereupon] So-and-so and So-and-so came and said: ‘The thing never happened.’ R. Shesheth thought of saying that he was therefore proven a liar. Said Raba to him: Anything which does not rest upon a man he will do unconsciously. There was a certain [man] who said to his neighbour: ‘Give me the six hundred zuz that I claim from you.’ The other replied to him: ‘Did I not repay you a hundred kabs^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ^ᵃʰ^ᵃⁱ^ᵃʲ^ᵃᵏ^ᵃˡ^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ^ᵃˢ^ᵃᵗ^ᵃᵘ^ᵃᵛ^ᵃʷ^ᵃˣ^ᵃʸ^ᵃᶻ^ᵇᵃ^ᵇᵇ^ᵇᶜ^ᵇᵈ^ᵇᵉ

^ᵃᵈnote:For he says he must repay the loan before witnesses, and if he cannot produce the witnesses he is liable.
^ᵃᵉnote:For he lent him without witnesses, and only when he claimed the loan later were there witnesses present.
^ᵃᶠnote:He had a different tradition as to what R. Judah reported to Samuel in the name of R. Assi.
^ᵃᵍnote:Even if the creditor says to him he must repay him before witnesses, the borrower may always exempt himself by saying he did repay him before witnesses, but they are not now available.
^ᵃʰnote:For Samuel says the borrower may always contend that he did repay him before witnesses, but they have since gone abroad.
^ᵃⁱnote:And I have a Tanna who agrees with me.
^ᵃʲnote:The debtor cannot free himself by saying he has paid, but that the witnesses have gone abroad.
^ᵃᵏnote:And Samuel agrees with R. Judah b. Bathyra.
^ᵃˡnote:[MS.M.: ‘Ahai’ i.e. the Saborean; v. Brull, Jahrb. II, p. 28.]
^ᵃᵐnote:The lender's statement: ‘I lent you before witnesses; pay me before witnesses.’
^ᵃⁿnote:If the lender definitely stipulated at the time of the loan that he must repay him before witnesses, even R. Judah b. Bathyra will agree that be cannot free himself by saying the witnesses have gone abroad. Hence Samuel has no Tanna to support him, whilst our Mishnah is clearly in refutation of him.
^ᵃᵒnote:The reading in text alternates between ‘he is believed’ and ‘he is not believed,’ v. Maim. Yad, Malweh XV, 2.
^ᵃᵖnote:Made up of catchwords as aids to memorise discussions that follow.
^ᵃᵠnote:I.e., he said he repaid him before two other witnesses, but they went abroad (v. Tosaf.).
^ᵃʳnote:Therefore he is believed.
^ᵃˢnote:The lender specifically named the two witnesses so that the borrower might not put him off by saying he had repaid him before two other witnesses who went abroad and are not available. It is therefore no excuse, and he must pay.
^ᵃᵗnote:I.e., learned men.
^ᵃᵘnote:Without witnesses.
^ᵃᵛnote:After being received by the lender.
^ᵃʷnote:Not as repayment, because I particularly wanted my condition to be fulfilled, that it should be repaid before two learned witnesses; and now that the money is lost, he must still repay the loan, because I was only a gratuitous bailee not responsible for loss.
^ᵃˣnote:On these terms, v. Sanh. (Sonc. ed.) p. 567, n. 1.
^ᵃʸnote:I.e., it is no excuse to say, because the money is now lost, that you accepted it as a deposit and not as repayment of the loan. [MS.M. reads ‘Talmud’ for ‘Gemara’ in curr. ed. On these terms, v. B.M. (Sonc. ed.) p. 206, n. 6.]
^ᵃᶻnote:I did not borrow from you.
^ᵇᵃnote:Therefore he is exempt.
^ᵇᵇnote:For if he did not borrow he certainly did not repay. Witnesses testify that he did borrow, and they are believed; but they are not believed when they say he repaid, for he himself admits that he did not repay; therefore he must pay.
^ᵇᶜnote:He did not repay before us.
^ᵇᵈnote:And is not believed even on oath to say that he repaid the loan though not before those two witnesses; for he has already been proved guilty of a lie.
^ᵇᵉnote:It was not incumbent upon him to remember whether he paid before witnesses or not, for the lender had not stipulated that he must repay him before witnesses; when, therefore, he said he had repaid before witnesses, his memory was at fault, but he is not thereby accounted a liar, and may take an oath that he has repaid the loan.