שבועות 42 — Soncino English Talmud

¹of gallnuts, which were worth six [zuz per kab]?’ He said to him: ‘No! They were worth four [zuz per kab].’ Two witnesses came and said: ‘Yes, they were worth four [zuz per kab].’ Said Raba: He is proven a liar. Said Rami b. Hama. But you said: Anything which does not rest upon a man he will do unconsciously! — Said Raba to him: The fixed market price people remember. There was a certain [man] who said to his neighbour: ‘Give me the hundred zuz that I claim from you, and here is the document.’ He said to him: ‘I have paid you.’ The other said to him: ‘Those [monies] were for a different claim.’ R. Nahman said: The document is impaired. R. Papa said: The document is not impaired. And, according to R. Papa, in what way does this differ from the case of the man who said to his neighbour: ‘Give me the hundred zuz that I claim from you; and here is the document;’ and the other said to him: ‘Did you not give it to me to buy oxen, and did you not come and sit by the butcher's stall and receive your money?’ And he replied to him: ‘Those [monies] were on a different occasion;’ and R. Papa said: The document is impaired. — There, since he said: ‘You gave [the money] to me for oxen, and you received repayment from the [sale of the] oxen,’ the document is impaired; but here, perhaps they were for a different claim. What then [is the ruling] with reference to this? — R. Papi said: The document is not impaired. R. Shesheth the son of R. Idi said: The document is impaired. And the law is: The document is impaired; but this is so only if he paid him before witnesses, and did not remember [to take back] the document; but if he paid him privately, since he could have said: ‘The thing never happened,’ he can also say: ‘The monies were for a different account’; as in the case of Abimi the son of R. Abbahu. There was a certain [man] who said to his neighbour: ‘You are believed by me whenever you say to me that I have not paid you.’ He went and paid him before witnesses. Abaye and Raba both said: Behold, he believes him! R. Papa argued: Granted, he believes him more than himself, but does he believe him more than witnesses? There was a certain [man] who said to his neighbour: ‘You are believed by me like two [witnesses] whenever you say that I have not paid you.’ He went and paid him before three [witnesses]. — R. Papa said: Like two he believed him, but like three he did not believe him. Said R. Huna the son of R. Joshua to R. Papa: When do the Rabbis say that we go according to the majority of opinions — only in the case of estimates, where the more there are, the more experts there are; but in the case of testimony, a hundred are like two, and two are like a hundred! Another version: There was a certain [man] who said to his neighbour: ‘You are believed by me like two whenever you say that I have not paid you.’ He went and paid him before three. Said R. Papa: Like two he believed him, but like three he did not believe him. To this R. Huna the son of R. Joshua demurred: Two are like a hundred and a hundred are like two! But if he said to him: ‘like three’, and he went and paid him before four [witnesses, the lender is not believed], for since he troubles to mention the number of opinions, he definitely means that number of opinions. AN OATH IS NOT IMPOSED FOR THE CLAIM OF A DEAF-MUTE, IMBECILE, OR MINOR; AND A MINOR IS NOT ADJURED. What is the reason? Scripture says: If a man give into his neighbour silver or vessels to keep: but the giving of a minor is nothing. BUT AN OATH IS IMPOSED IN A CLAIM AGAINST A MINOR OR THE TEMPLE. But you said in the first clause: AN OATH IS NOT IMPOSED FOR THE CLAIM OF A DEAF-MUTE, IMBECILE, OR MINOR! — Rab said: If he comes on behalf of his father's claim; and it is in accordance with the view of R. Eliezer b. Jacob; for it was taught: R. Eliezer b. Jacob says: Sometimes a man must take an oath on his own claim. How? He said to him: ‘I have a hundred denarii of your father's in my possession, of which I have returned to him the half’; he takes an oath; and this is the one who swears on his own claim. But the Sages Say: He is only like one who restores a lost object, and is exempt. And does not R. Eliezer b. Jacob hold that he who restores a lost object is free! — Said Rab: [He means], when a minor claims from him. ‘A minor’! But you said: AN OATH IS NOT IMPOSED FOR THE CLAIM OF A DEAF-MUTE, IMBECILE, OR MINOR! — Indeed an adult [is meant]; and he is called a minor, because with reference to the affairs of his father he is a minor. If so, [why does R. Eliezer call it] his own claim? It is the claim of others! — [Yes!] it is the claim of others, but his own admission.35^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:And must pay the difference — two hundred zuz.
^ᵇnote:Perhaps he did not remember the actual market price at the time, but he still maintains that he repaid the money, if not with gallnuts, then with money.
^ᶜnote:Proving the claim.
^ᵈnote:I admit you paid me 100 zuz, but that was in settlement of another claim.
^ᵉnote:We assume the claim to be paid, since the claimant admits having received the money; and we do not believe his submission that the payment was for another claim (for which he has no document), and that the present claim is still unpaid.
^ᶠnote:To kill, and sell the meat, the profits to be divided equally between us.
^ᵍnote:As the meat was being sold, and receive the money which you advanced.
^ʰnote:Since he admits having received the money. Why does not R. Papa hold the same view in the previous case?
^ⁱnote:Since the claimant admits all the circumstances mentioned by the debtor, and admits having received his money from the sale of the oxen, it is reasonable to assume that this was the very transaction for which he produces the document, and he cannot say that the claim on this document is still unsettled, and that the transaction with the oxen (for which no document is produced) is the one that is settled. But where he claims on a document, the debtor saying he has paid, without giving any concrete details, the claimant may say the payment was for another debt, but this document still holds good.
^ʲnote:The claimant cannot say the payment was for another account.
^ᵏnote:If the debtor paid the claimant privately (no witnesses being present), and the claimant admits receiving the payment, he is believed when he says that it was for another account, and the debt on the document is still outstanding, for, had he desired to tell an untruth, he might have said that he had not received any payment at all; and having the document, he could have enforced his claim without difficulty.
^ˡnote:Where a similar incident occurred; v. Keth. 85a.
^ᵐnote:Borrower.
^ⁿnote:Before witnesses, when borrowing the money.
^ᵒnote:And the creditor denies having received payment.
^ᵖnote:The debtor himself said, when borrowing the money, that he would always believe him if he denied receiving payment; therefore he must pay again.
^ᵠnote:And since there are witnesses that he paid him, he does not pay again.
^ʳnote:But the lender denies having received it.
^ˢnote:Therefore we believe the three that he has paid.
^ᵗnote:E.g., estimating the valve of land; v. A.Z. 72a.
^ᵘnote:Therefore if he said he believes him like two, he believed him also like three; and he must pay again.
^ᵛnote:MS.M. deletes the whole of this passage, apparently as a needless repetition, and begins the variant version at this point.
^ʷnote:Are you believed by me.
^ˣnote:I.e., people; that he counts him like three people; he means three, and not four; for if he had intended to imply that he counted him like any number of witnesses, he would have said two (for two are equivalent to any number of witnesses), but since he said three, he meant three only. Therefore if four witnesses say he paid, the claimant is not believed.
^ʸnote:Ex. XXII, 6; and for this an oath is imposed.
^ᶻnote:And a deaf-mute and imbecile are counted as minors, for their minds are undeveloped.
^ᵃᵃnote:Lit., ‘they (the defendants) must swear to a minor, or to the Temple (authorities);’ i.e. if the minor or the Temple has a claim against them, and they deny the claim, they must take an oath. In the text, however, the Mishnah has been translated in accordance with the sequel (infra 42b).
^ᵃᵇnote:The original giving (of the deposit or loan) was by a man (who is now dead); therefore the claim is valid, though it is proceeded with by a minor: ‘my father lent you 100 denarii.’
^ᵃᶜnote:I.e., on his own admission that the other has a claim against him though the other does not know it.
^ᵃᵈnote:That he owes no more, having returned the half which he admits still owing.
^ᵃᵉnote:For the son knew nothing of this debt; therefore he merely returns what he admits, and does not take an oath for the rest. Now, according to R. Eliezer b. Jacob, if the defendant must take an oath though the minor had not instituted the claim, he must certainly take an oath if the minor does claim; hence the Mishnah is in accordance with his view.
^ᵃᶠnote:From an oath, though the person to whom it is restored claims, for example, that there was more money in the purse that is restored to him now. All admit that the restorer of a lost object is free. Surely R. Eliezer does not disagree!
^ᵃᵍnote:R. Eliezer b. Jacob imposes an oath only when the minor claims; but if no one claims, and he himself mentions the claim, he does not take an oath, for he is ‘a restorer of a lost object’.
^ᵃʰnote:For he may not be fully acquainted with the affairs of his father who is now dead.
^ᵃⁱnote:He admits owing half.

²But all [cases] are the claims of others and his own admission! But [say] they disagree in Rabbah's dictum; for Rabbah said: Why did Scripture say that he who admits a portion of a claim must take an oath? Because it is a presumption that a man has not the effrontery to deny a claim in front of his creditor, for this one may have wished to deny it all, but did not deny it, because he had not the effrontery [to do so] in front of his creditor; and he really wished to admit it all, but he did not admit it all, because he tried to evade him [for the moment], thinking, ‘When I will have money, I will pay him’; so Divine Law said: Impose an oath on him, so that he may admit it all. Now R. Eliezer b. Jacob holds: No matter whether against him or against his son, he has not the effrontery; and therefore he is not a restorer of a lost object.’ But the Rabbis hold: Against him himself he has not the effrontery, but against his son he has the effrontery; and since he is not evincing any effrontery, he is ‘a restorer of a lost object’ [and exempt]. But how can you affirm the Mishnah to be in accordance with the view of R. Eliezer b. Jacob? Surely it states in the first clause: ‘YOU HAVE A HUNDRED DENARII OF MY FATHER'S IN YOUR POSSESSION.’ — ‘I HAVE OF HIS IN MY POSSESSION ONLY FIFTY DENARII’; HE IS EXEMPT, FOR HE IS ‘A RESTORER OF A LOST OBJECT’! — There, he did not say, ‘I am certain’; here, he said, ‘I am certain.’ Samuel said: ‘AGAINST A MINOR’ [means] to collect payment from the estate of a minor; ‘AGAINST THE TEMPLE’ — to collect payment from the estate of the Temple.’ — ‘Against a minor’ — to collect payment from the estate of a minor! But we have already learnt it, [viz.:] From the estate of orphans one cannot collect payment except with an oath. Why do we require [this ruling] twice? — This he teaches us, as Abaye the Elder said, for Abaye the Elder stated: Orphans which are mentioned are adults, and there is no need to say [they include] minors, whether for oath, or for [exacting payment from] the lowest class of land. — ‘AGAINST THE TEMPLE’ — to collect payment from the estate of the Temple! But we have already learnt it, [viz.:] From assigned property they cannot collect except with an oath! [For] what is the difference whether they are assigned to a layman or assigned to the Most High? — It is necessary, for I might have thought [in the case of property assigned to] a layman [an oath is necessary], because a man may make a conspiracy to defraud a layman; but in the case of the Temple [an oath is not necessary], for a man will not make a conspiracy to defraud the Temple, therefore he teaches us [that it is necessary]. But did not R. Huna say: A dying man who dedicated all his property to the Temple, and said: ‘I have a hundred denarii of So-and-so in my possession,’ he is believed, because it is a presumption that a man does not make a conspiracy to defraud the Temple. — I will tell you: that is only in the case of a dying man, for a man will not sin without benefit to himself; but in the case of a healthy man we certainly fear [for conspiracy]. MISHNAH. AND THESE ARE THE THINGS FOR WHICH NO OATH IS IMPOSED: SLAVES, BONDS, LANDS, AND DEDICATED OBJECTS. [THE LAW OF] PAYING DOUBLE, OR FOUR OR FIVE TIMES THE VALUE, DOES NOT APPLY TO THEM. AN UNPAID GUARDIAN DOES NOT TAKE AN OATH, AND A PAID GUARDIAN DOES NOT PAY, R. SIMEON SAID: FOR DEDICATED OBJECTS FOR WHICH HE IS RESPONSIBLE AN OATH IS IMPOSED; AND FOR WHICH HE IS NOT RESPONSIBLE AN OATH IS NOT IMPOSED. R. MEIR SAID: THERE ARE THINGS WHICH ARE [ATTACHED] TO LAND, BUT ARE NOT LIKE LAND. BUT THE SAGES DO NOT AGREE WITH HIM. HOW? [IF A MAN SAYS,] ‘TEN VINES LADEN WITH FRUIT I DELIVERED TO YOU.’ — AND THE OTHER SAYS: ‘THERE WERE ONLY FIVE’; R. MEIR MAKES HIM TAKE AN OATH; BUT THE SAGES SAY: ALL THAT IS ATTACHED TO LAND IS LIKE LAND. AN OATH IS IMPOSED ONLY FOR A THING [DEFINED] BY SIZE, WEIGHT, OR NUMBER. HOW? [IF A MAN SAYS,] ‘A HOUSEFUL [OF PRODUCE] I DELIVERED TO YOU,’ OR ‘A PURSEFUL [OF MONEY] I DELIVERED TO YOU’; AND THE OTHER SAYS: ‘I DO NOT KNOW; BUT WHAT YOU LEFT YOU MAY TAKE,’ HE IS EXEMPT. IF ONE SAYS: ‘[I GAVE YOU PRODUCE REACHING] UP TO THE MOULDING [ABOVE THE WINDOW],’ AND THE OTHER SAYS: ‘ONLY UP TO THE WINDOW,’ HE IS LIABLE. GEMARA. That [THE LAW OF] PAYING DOUBLE [DOES NOT APPLY] how do we know? — Our Rabbis taught: For every matter of trespass — is a generalisation; for ox, for ass, for sheep, for raiment — are specifications; for any lost thing — is another generalisation: where there is generalisation, specification, and generalisation, you may include only those things which are similar to the specification: just as the specification is clearly a thing which is movable, and intrinsically worth money, so everything which is movable and intrinsically worth money [may be included], but exclude lands, which are not movable, exclude slaves, which are likened to land, and exclude bonds which, though they are movable, are not intrinsically worth money. As for dedicated things, it is written: his neighbour. AND NOT FOUR OR FIVE TIMES THE VALUE. What is the reason? — The payment of four or five times the value, said Scripture, and not the payment of three or four times the value. AN UNPAID GUARDIAN DOES NOT TAKE AN OATH. Whence do we know this? — Our Rabbis taught:^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

^ᵃʲnote:Then why does R. Eliezer say: Sometimes a man must take an oath etc.? And if an adult is claiming, why do the other Sages hold that the defendant need not take an oath, for he is ‘a restorer of a lost object’? If an adult claims, the defendant is not accounted ‘a restorer etc.’
^ᵃᵏnote:R. Eliezer b. Jacob and the Sages disagree in a case where a minor claims (his father being dead). R. Eliezer calls it ‘his own (the defendant's) claim,’ because a minor's claim is really of no consequence, and no oath is imposed elsewhere; but here, since it is on behalf of an adult (his father), an oath is imposed, for the original ‘giving’ (of the deposit) was by a ‘man’.
^ᵃˡnote:Who has done him a favour by lending him the money.
^ᵃᵐnote:But since he does deny a portion, let us believe him, for since a man has not the effrontery to deny a valid claim, and this one does deny, he must be speaking the truth; then why should he take an oath? Because, continues the Talmud, to deny a portion does not necessitate effrontery (and he may really owe the money); for he is merely trying to evade his obligation temporarily in order to gain time, fully intending to pay later when he has money; v. B.M. 3b Tosaf. For an alternative interpretation of this passage, v. B.M. (Sonc. ed.) pp. 8ff. and notes.
^ᵃⁿnote:Therefore when the minor claims, it is as if the father is claiming, and the defendant, since he admits a half, takes an oath like any other person who admits part of a claim.
^ᵃᵒnote:And could have denied it all, if he had wished; therefore whatever he admits is like the restoration of a lost object, and he does not take an oath.
^ᵃᵖnote:In the first clause, the minor did not say ‘I am certain you owe my father 100 denarii,’ but ‘I think you do;’ therefore the defendant in admitting a half is exempt, for he is a ‘restorer of a lost object’.
^ᵃᵠnote:In the later clause ‘an oath is imposed for the claim of a minor’ when the minor puts forward a definite claim.
^ᵃʳnote:There is no inconsistency in the Mishnah. An oath is not imposed for the claim of a minor; but when the Mishnah states later that an oath is imposed for a minor and the Temple, it means that when a claim is made against the estate of a minor or the Temple (and even when documentary evidence is produced), the claimant must take an oath that it has not already been paid by the minor's father.
^ᵃˢnote:If a man dedicated some property to the Temple treasury, and a claimant (with a document) desires to exact payment for his debt from that dedicated property, he must take an oath that it has not yet been paid.
^ᵃᵗnote:Infra 45a.
^ᵃᵘnote:That when payment is claimed from them on their father's debt the claimant must take an oath.
^ᵃᵛnote:Even if the orphans are adults, the claimant must still take an oath.
^ᵃʷnote:When the oath is taken and payment demanded, it may be exacted only from the third grade of land (if the orphans possess best, medium, and third grade; v. B.K. 7a). The law is therefore stated twice; in our Mishnah: an oath is imposed when a claim is made against the estate of an orphan who is a minor; and in the other Mishnah (infra 45a) that even when they are adults an oath must be taken in any claim against them.
^ᵃˣnote:Infra 45a. If the property has already been assigned (or mortgaged) to another, the creditor cannot collect his debt from that property without an oath.
^ᵃʸnote:That we be told the law holds good also in the case of property assigned to the Temple.
^ᵃᶻnote:Before the creditor can collect from the property.
^ᵇᵃnote:The borrower may already have paid his debt; and now, having sold his land, he conspires with the creditor to defraud the purchaser, by saying he still owes the money, so that the creditor takes the land, and they divide it. Therefore the creditor must take an oath that the debt is still unpaid.
^ᵇᵇnote:For even in the case of the Temple a man may conspire.
^ᵇᶜnote:And the man obtains the money without an oath.
^ᵇᵈnote:And since he himself will derive no benefit from the 100 denarii we believe him.
^ᵇᵉnote:In any claim concerning these the defendant does not take an oath.
^ᵇᶠnote:For stealing.
^ᵇᵍnote:Normally, an unpaid guardian takes an oath that he did not wilfully cause the loss of the deposit, and he is free from payment (v. infra 49a), but in the case of slaves etc. no oath is imposed.
^ᵇʰnote:For loss or theft, which, normally, he would have to pay (infra 49a).
^ᵇⁱnote:If a man vowed to bring a burnt offering, and assigned a certain animal for that purpose, and gave it into the keeping of a neighbour for a time, and on claiming it, the bailee denies having it; he must take an oath, for this will cause a loss to the depositor (who will have to offer another animal), and not to the Temple.
^ᵇʲnote:Though the vines are fixed to the ground they are not accounted as land to exempt him from an oath, because the grapes were ripe and ready for picking, and it is for the grapes that he is claiming; v. infra 43a.
^ᵇᵏnote:Because the claim was not defined as to size, weight, or number.
^ᵇˡnote:For the claim is defined.
^ᵇᵐnote:Ex. XXII, 8; the verse ends, he whom the judges shall condemn shall pay double unto his neighbour.
^ᵇⁿnote:Ibid., but he does not pay double in a claim by the Temple.
^ᵇᵒnote:Since the payment of double does not apply for theft, there would only be three or four times the value for killing or selling (three for a lamb and four for an ox), which Scripture does not enjoin; Ex. XXI, 37.