שבועות 42:1 — Soncino English Talmud

of 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.