שבועות 43 — Soncino English Talmud

¹If a man give unto his neighbour — is a generalisation; silver or vessels — are specifications; to keep — 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. A PAID GUARDIAN DOES NOT PAY. Whence do we know this? — Our Rabbis taught: If a man give unto his neighbour — is a generalisation; an ass, or an ox, or a sheep — are specifications; or any beast, to keep — is another generalisation: where there is generalisation, specification, and generalisation, etc. till: as for dedicated things, it is written, his neighbour. R. MEIR SAID: THERE ARE THINGS WHICH ARE [ATTACHED] TO LAND, BUT ARE NOT LIKE LAND, ETC. Hence, R. Meir holds that which is attached to land is not counted like land? — Then why do they disagree about laden [vines], let them disagree about fruitless [trees]! — R. Jose son of R. Hanina said: Here they disagree about grapes which are ready to be cut, R. Meir holding they are as if they are already cut; whereas the Rabbis hold they are not as if they are already cut. AN OATH IS IMPOSED ONLY FOR A THING [DEFINED] BY SIZE, WEIGHT, etc. Abaye said: They did not teach [that an oath is not imposed] except when he said to him: ‘A HOUSE’ merely; but if he said to him: ‘This house full etc.’ his claim is known. — Said Raba to him: If so, why does he teach in the later clause: THIS ONE SAID: ‘[I GAVE YOU PRODUCE REACHING] UP TO THE MOULDING [ABOVE THE WINDOW],’ AND THE OTHER SAID: ‘ONLY UP TO THE WINDOW,’ HE IS LIABLE. Let him make a distinction in teaching this [first] clause itself — [thus:] When is it stated [that an oath is not imposed] — only if he says: ‘A full house,’ but if he says: ‘This full house,’ he is liable! — But said Raba: He is never liable unless he claims from him a thing [that is defined] by size, weight, or number; and he admits to him a thing [that is defined] by size, weight, or number. It was taught in support of Raba: [If a man says,] ‘A kor of grain of mine you have in your possession’; and the other says: ‘I have not of yours in my possession,’ he is exempt. ‘A large candlestick of mine you have in your possession.’ — ‘I have of yours in my possession only a small candlestick,’ he is exempt. ‘A large girdle of mine you have in your possession.’ — I have of yours in my possession only a small girdle,’ he is exempt. But if he said to him: ‘A kor of grain of mine you have in your possession,’ and the other said: ‘I have of yours in my possession only a lethek [of grain],’ he is liable. ‘A candlestick of [the weight of] ten litras you have of mine in your possession.’ — ‘I have of yours in my possession [a candlestick of the weight of] only five litras,’ he is liable. The principle of the matter is: He is never liable unless he claims from him a thing [that is defined] by size, weight, or number; and he admits to him a thing [that is defined] by size, weight, or number. Now, ‘The principle of the matter’: what does this include? Does it not include [the case where he says]: ‘This house full etc.’? Now, what is the difference? [In the case of] ‘large candlestick and small candlestick,’ [he is exempt because] what he claimed from him, he did not admit to him; and what he admitted to him, he did not claim from him; if so, [in the case of] ‘ten litras and five litras [weight]’ he should also be exempt, because what he claimed from him, he did not admit to him; and what he admitted to him, he did not claim from him! — R. Samuel son of R. Isaac said: Here we are discussing a candlestick of sections, of which he admits a portion. — If so, [in the case of] girdle also let him teach [a similar law], and explain it as referring to pieces sewn together! But [you must conclude that] he [the Tanna] does not state [the case of a girdle made up of] pieces sewn together. Here also [then], he would not state [the case of a candlestick made up of] separate sections! — But said R. Abba b. Mammal: A candlestick is different, because he can scrape it and reduce it to five litras. MISHNAH. IF A MAN LENDS [MONEY] TO HIS NEIGHBOUR ON A PLEDGE, AND THE PLEDGE WAS LOST, AND HE SAID TO HIM: ‘I LENT YOU A SELA’ ON IT, AND IT WAS WORTH A SHEKEL,’ AND THE OTHER SAYS: ‘NO! YOU LENT ME A SELA’ ON IT, AND IT WAS WORTH A SELA’,’ HE IS EXEMPT. ‘I LENT YOU A SELA’ ON IT, AND IT WAS WORTH A SHEKEL,’ AND THE OTHER SAYS: ‘NO! YOU LENT ME A SELA’ ON IT, AND IT WAS WORTH THREE DENARII,’ HE IS LIABLE. ‘YOU LENT ME A SELA’ ON IT, AND IT WAS WORTH TWO,’ AND THE OTHER SAYS: ‘NO! I LENT YOU A SELA’ ON IT, AND IT WAS WORTH A SELA’,’ HE IS EXEMPT. ‘YOU LENT ME A SELA’ ON IT, AND IT WAS WORTH TWO,’ AND THE OTHER SAYS: ‘NO! I LENT YOU A SELA’ ON IT, AND IT WAS WORTH FIVE DENARII,’ HE IS LIABLE. AND WHO TAKES THE OATH? HE WHO HAD THE DEPOSIT, LEST, IF THE OTHER TAKE THE OATH, THIS ONE MAY BRING OUT THE DEPOSIT.29^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:Ex. XXII, 6; this verse deals with an unpaid guardian (v. B.M. 94b), who takes an oath that he has not been wilfully neglectful, and is exempt from making restitution.
^ᵇnote:Ibid.
^ᶜnote:Ex. XXII, 9; this verse deals with a paid guardian (v. B.M. 94b) who normally pays for loss or theft.
^ᵈnote:Ibid.; the whole argument as above.
^ᵉnote:Since he says that in a claim for 10 vines (the other admitting 5) an oath is imposed.
^ᶠnote:Why mention in the illustration that the trees are laden with grapes? That is surely immaterial!
^ᵍnote:R. Meir holds that which is joined to the land is counted like land, but here, in the case of vines, he holds that an oath is imposed, because the grapes were ready for cutting, and therefore he accounts them as equivalent to having been cut, and therefore imposes an oath.
^ʰnote:‘A house full of produce I delivered to you.’
^ⁱnote:For if he says: ‘This house full of produce,’ he is defining his claim exactly, for the amount of produce it will contain may be ascertained; and if the other returns the house to him half empty, he is liable to take an oath.
^ʲnote:Why then should the Mishnah insert an extra clause (that one claims ‘to the moulding’ and the other admits ‘to the window’)? Obviously, therefore, there is no difference between ‘a house full’ and ‘this house full’.
^ᵏnote:But if he says: ‘This house full etc.’ though the amount it holds may be ascertained, the defendant is not liable; for he too must mention specifically the exact amount (size, weight, or number) he is admitting; v. Tosaf.
^ˡnote:[MS.M. preserves a preferable reading, adding: ‘but pulse’. V. next note].
^ᵐnote:Because he denies it all (kfv rpuf). [According to MS.M. (n. 5): Because the admission is not in like kind of the claim, cf. next note.]
^ⁿnote:Because the admission is not of the same kind as the claim; he does not admit a portion of what the other claims, but something else.
^ᵒnote:Because he admits a portion: 1 kor = 2 lethek.
^ᵖnote:The reason is explained below.
^ᵠnote:The principle may be inferred from the examples mentioned. Why is the principle stated? Obviously, to include something that may not be deduced from the examples.
^ʳnote:That the defendant is here also exempt, because neither the claim nor the admission is defined exactly as to size, weight, or number. Hence this Baraitha supports Raba.
^ˢnote:The candlestick of ten litras is built up of separate sections which can be taken apart, and the defendant admits that certain sections, amounting to five litras, belong to the claimant, but not the rest. He is therefore liable, because he admits a portion of this very candlestick.
^ᵗnote:If one claims a girdle of the length of ten cubits, and the other admits owing him a girdle five cubits long, he is liable, if the girdle consists of separate pieces (each, for example, one cubit long) sewn together, and he admits that five of the pieces of the girdle belong to the claimant.
^ᵘnote:Since he does not mention the case of a girdle of separate pieces, we cannot say, in the case of a candlestick, that the reason he is liable is because it is composed of sections (some of which he admits). What, then, is the reason for liability in the case of a candlestick of ten litras (the defendant admitting owing a candlestick of five litras)?
^ᵛnote:If one claims a candlestick of ten litras, and the other admits one of five litras, he is liable for an oath, because he may have scraped the metal, or planed the wood, (if it is made of wood) of this very candlestick, so that its weight is now only five litras. He therefore admits a portion of the actual claim, and is liable. If, however, one claims a large candlestick (i.e., tall) and the other admits a small candlestick (i.e., short), he is not liable, because he is admitting something which was not claimed, for we cannot say that he shortened the very same candlestick that was claimed, by cutting off top or bottom, because that would spoil it. In the case of a large girdle (i.e., long) and small girdle (i.e., short), the defendant is exempt, because we cannot say he is admitting a portion of the same girdle (which he has cut down and shortened) for the cut ends would be noticeable. Hence, both in the case of candlestick (tall and short) and girdle (long and short), the defendant is exempt, because he is admitting something else (not a portion of that which was claimed).
^ʷnote:Two denarii, so you still owe me two denarii.
^ˣnote:Because he denies the whole; therefore he does not take an oath.
^ʸnote:Because he admits owing one denar; and he takes an oath.
^ᶻnote:Therefore you, the lender, have to pay me a sela’.
^ᵃᵃnote:How much the pledge was worth.
^ᵃᵇnote:The lender with whom the pledge was deposited.
^ᵃᶜnote:If the borrower takes the oath, the lender (who may not have lost the deposit at all) may bring out the deposit, and show that the borrower has sworn falsely as to its value.

²GEMARA. To what does it refer? Shall we say, to the last clause? You may infer this [in any case], for the oath devolves upon the lender! — Said Samuel: It refers to the first clause: and so said R. Hiyya b. Rab: It refers to the first clause; and so said R. Johanan: It refers to the first clause. — Which first clause? The latter part of the first clause: ‘I LENT YOU A SELA’ ON IT, AND IT WAS WORTH A SHEKEL,’ AND THE OTHER SAYS: ‘NO! YOU LENT ME A SELA’ ON IT, AND IT WAS WORTH THREE DENARII,’ HE IS LIABLE. For here the oath devolves upon the borrower, but the Rabbis removed it from the borrower, and imposed it upon the lender. But now that R. Ashi has said that we have established that this one swears that it is not in his possession, and the other one swears how much it was worth, he means thus: WHO TAKES THE OATH first? HE WHO HAD THE DEPOSIT, LEST, IF THE OTHER TAKE THE OATH [FIRST], THIS ONE MAY BRING OUT THE DEPOSIT. Samuel said: If one lent a thousand zuz to his neighbour, who deposited with him as a pledge the handle of a saw; if the handle of the saw was lost, the thousand zuz are lost; but in the case of two handles we do not say this. But R. Nahman Says, even in the case of two handles, if he lost one, he loses five hundred [zuz], if he lost [also] the other, he loses the whole [loan]; but in the case of a handle and a bar [of silver] we do not say this. The Nehardeans say, even in the case of a handle and silver bar, if he lost the silver bar, he loses half [the loan], if he lost [also] the handle, he loses the whole [loan]. We learnt: ‘I LENT YOU A SELA’ ON IT, AND IT WAS WORTH A SHEKEL,’ AND THE OTHER SAYS: ‘NO! YOU LENT ME A SELA’ ON IT, AND IT WAS WORTH THREE DENARII,’ HE IS LIABLE. — [Now why?] Let him say to him: ‘But you accepted it [as security]’! — Our Mishnah [refers to a case] where he stated explicitly; and Samuel [refers to a case] where he did not state this explicitly. Shall we say that Tannaim [disagree on this point]? [For it was taught:] If a man lends his neighbour [money] on a pledge, and the pledge was lost, he swears, and takes his money: this is the opinion of R. Eliezer. R. Akiba says: He may say to him: ‘Did you not lend me because of the pledge? Since the pledge is lost, your money is lost.’ But if one lends a thousand zuz on a bond, and he deposited a pledge with him, all agree that if the pledge is lost, the money is lost. — Now, how is this? If the pledge is equal to the amount of the loan,^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ^ᵃʰ^ᵃⁱ^ᵃʲ^ᵃᵏ^ᵃˡ^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ^ᵃˢ^ᵃᵗ^ᵃᵘ^ᵃᵛ^ᵃʷ

^ᵃᵈnote:The statement of the Mishnah that the lender takes the oath.
^ᵃᵉnote:Where the borrower claims a sela’ from the lender, and the lender admits owing him a denar.
^ᵃᶠnote:For he is the one who admits a portion of the claim.
^ᵃᵍnote:For the reason given in the Mishnah.
^ᵃʰnote:The lender.
^ᵃⁱnote:For he may not have lost the pledge, but may have become enamoured of it and desired to retain it; he therefore says that he lost it, and wishes to pay its value. Consequently, he must take an oath that it is really not in his possession.
^ᵃʲnote:The borrower.
^ᵃᵏnote:In the latter part of the first clause (where the oath devolves upon the borrower) to which this question of the Mishnah refers.
^ᵃˡnote:Takes the oath that it is not in his possession; he cannot now produce the deposit.
^ᵃᵐnote:About the value of the deposit.
^ᵃⁿnote:And show that the other had sworn falsely as to its value.
^ᵃᵒnote:Which is worth much less than the loan.
^ᵃᵖnote:Because the lender accepted it as sufficient security.
^ᵃᵠnote:That he accepted each handle as security for 500 zuz, and if he loses one handle, he loses 500 zuz. For he did not specifically say that he accepted each handle as security for half the loan. We therefore say that both handles together are the pledge for the loan, and if he loses one handle, as long as the other is left, he may restore it to the borrower; and he deducts from the loan merely the value of the lost handle, and not 500 zuz.
^ᵃʳnote:That he accepted the silver bar as security for half the loan, for since a silver bar is sufficiently valuable to be accepted as part payment, the lender accepted it as a pledge only up to its value,
^ᵃˢnote:Why should the borrower have to take an oath? Let him say to the lender: ‘You accepted the pledge as security for your loan, and since you have lost the pledge, you have lost your money!’ Since the Mishnah does not say this, it conflicts with the view of Samuel!
^ᵃᵗnote:That he accepts the pledge as security only up to its value.
^ᵃᵘnote:But simply accepted the pledge; we assume therefore that he accepted it as full security for the whole amount of the loan; and if he loses the pledge, he loses the loan.
^ᵃᵛnote:That he has lost it.
^ᵃʷnote:For since the lender has a document that the other owes him the money, what need is there for a pledge? Obviously, therefore, he took the pledge to secure himself, that if the borrower would not pay (or would have no means to pay) he would keep the pledge. The pledge was therefore not merely a reminder of the loan but a possible source of repayment (for, as a reminder of the loan, he had the bond). If he loses the pledge, therefore, he loses the loan.