שבועות 47:2 — Soncino English Talmud

Now granted, if you say, that his father in such circumstances, would have been liable [to take an oath], it is therefore necessary for Scripture to exempt the heirs; but if you say, that his father in such circumstances would also have been exempt, wherefore do we need Scripture [to exempt] the heirs! And Rab and Samuel, how do they expound this [verse]: ‘the oath of the Lord etc.’? — They require it for what was taught: Simeon b. Tarfon says: ‘The oath of the Lord shall be between them both’: this teaches that the oath falls upon both. Simeon b. Tarfon says: Whence do we know that there is a prohibition to the souteneur? Because It is said: Thou shalt not commit adultery: thou shalt not cause adultery to be committed. And ye murmured in your tents. Simeon b. Tarfon says: You spied out and put to shame the tent of the Omnipresent. As far as the great river, the river Euphrates. Simeon b. Tarfon says: Go near a fat man, and be fat. In the School of R. Ishmael it was taught: The servant of a King is like a King. AND THE SHOPKEEPER WITH HIS ACCOUNT BOOK, etc. It was taught: Rabbi said: What is the object of troubling with this oath? — R. Hiyya said to him: We have already learnt it: Both take an oath and receive [payment] from the householder. — Did he accept it from him, or did he not accept it from him? — Come and hear: It was taught: Rabbi says, ‘The workmen take an oath to the shopkeeper.’ Now if it were so, it should be to the householder [that they take the oath]. — Raba said: The workmen swear to the householder in the presence of the shopkeeper, so that they may be ashamed because of him. It was stated: If two sets of witnesses contradict each other, R. Huna said, this set may come by itself and bear testimony, and that set may come by itself and bear testimony; but R. Hisda said: What do we want with false witnesses! [Where there are] two lenders and two borrowers and two documents — is the point at issue between them. [In the case of] one lender and one borrower and two documents — the holder of the document is at a disadvantage. [Where there are] two lenders and one borrower and two documents — that is our Mishnah. [But in the case of] two borrowers and one lender and two documents — what [is R. Huna's ruling]? Let it stand. R. Huna b. Judah raised an objection.^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

^ᵃnote:And since he could not take an oath, for he is not sure, he would have had to pay.
^ᵇnote:That in such circumstances they are entirely exempt.
^ᶜnote:As Rab and Samuel say, that when an oath cannot be imposed, it ‘returns to Sinai’, i.e., the matter lapses, and there is neither oath nor payment.
^ᵈnote:Hence, the fact that we do need the verse to exempt the heirs implies that the father would have to pay. Thus, this supports the view of R. Abba.
^ᵉnote:Even the claimant, though his claim be legitimate, is guilty to some extent for causing an oath to be taken; for he could have had witnesses or a document, when transacting his affair with the defendant, and so have avoided the necessity of imposing an oath on his fellow-suitor; v. supra 39b.
^ᶠnote:Lit., ‘he who is at the heels of the adulterer,’ i.e., procures prostitutes for him.
^ᵍnote:Ex. XX, 13.
^ʰnote:The Heb. may be pointed as the Hiph'il.
^ⁱnote:Deut. I, 27.
^ʲnote:The Heb. ubdr, (from idr, to murmur rebelliously) is here divided into ubd r,: you have spied out (from ru,), and put to shame (from vbd, pi'el) your tent, i.e., the tent (land) which the Omnipresent had destined for you; you have rejected His offer of the Holy Land.
^ᵏnote:Deut. I,7.
^ˡnote:Or, touch a person smeared with oil, and you will also become smeared with oil. The river Euphrates is not really greater, but smaller, than the others, for it is mentioned last (of the four rivers, Gen. II, 14), but it is called here ‘the great river’, because it is mentioned in connection with the Holy Land (as its eastern boundary), and anything connected with the Holy Land is great (Rashi). [Maharsha: Though in reality the Euphrates is the longest of the four it is described as great only when mentioned in connection with the Holy Land.]
^ᵐnote:The Euphrates, servant of the Holy Land, is great like the Holy Land itself.
^ⁿnote:For there is bound to be one false oath: the shopkeeper swears he gave the workman small change to the value of a sela as instructed, and the workman swears he has not received it; and both claim from the employer, and are paid. Rabbi does not hold that both shall swear; but he does not explain whether he agrees with Ben Nannus that both are paid without an oath, or that the workman alone takes an oath that he has not been paid by the shopkeeper, and he is paid by the shopkeeper, so that the shopkeeper loses (if he has really paid him once); and it is right that he should lose, for he ought to have paid the workman in the presence of witnesses.
^ᵒnote:You yourself, the Editor of the Mishnah, stated definitely in our Mishnah (supra 45a) that both take the oath (Rashi).
^ᵖnote:Did Rabbi accept this statement from R. Hiyya, i.e., did Rabbi, though at first holding the view that there should not be two oaths imposed (because one would be false), later change his mind, and agree that both should take the oath?
^ᵠnote:That they have not been paid, and he must pay them.
^ʳnote:That Rabbi changed his mind.
^ˢnote:For that is his view in the Mishnah that both shopkeeper and workman take the oath, and obtain their due from the householder.
^ᵗnote:Rabbi did change his mind, and both the shopkeeper as well as the workmen, take the oath to the householder; when he states that they swear to the shopkeeper, he means, in the presence of the shopkeeper: that may deter them from swearing falsely, for they might be ashamed to swear in front of him that they had not received their money, if in reality they had.
^ᵘnote:In the present case, of course, since the evidence is contradictory, the accused is exempt; but in any future case, each set is qualified to testify, for, since we do not know which of the two sets had testified falsely in the first case, we cannot disqualify either; but one witness of the first set together with one witness of the second set cannot combine to testify in any case, for one of them is certainly a false witness.
^ᵛnote:Neither set is qualified to testify, because one set is false.
^ʷnote:Two separate cases of lender, borrower and bond; one set of these witnesses had signed the bond in one case, and the other had signed the bond in the other case. According to R. Huna, both bonds are correct and legally enforceable, and according to R. Hisda, both bonds are invalid.
^ˣnote:One lender lent one borrower two loans, for which he produces two documents, on one of which one set of witnesses had signed, and on the other of which the other set of witnesses had signed. Both R. Huna and R. Hisda agree that since this lender desires to exact money from the borrower on both documents, on one of which (though we do not know which one) false witnesses had signed, he may obtain payment on one loan only, the lesser one; and he loses the bigger loan, for the borrower may maintain that the witnesses who had signed on the larger amount are the false witnesses; since the lender cannot prove the contrary, he cannot obtain that loan.
^ʸnote:Two lenders, each producing a document against the same person, one document having been signed by one set of witnesses and the other document by the other set: R. Huna holds both documents can be enforced, for the case is similar to that of our Mishnah where both shopkeeper and workman take the oath and enforce their claims against the householder, though we know definitely that one of them is swearing falsely; but we cannot deprive either of them of his money; so here, both lenders can enforce their claims. Though, according to R. Hisda, neither, of course, can enforce his claim; cf. next note.
^ᶻnote:The lender produces two documents against two borrowers: does R. Huna hold, since it is one man who produces both documents (one of which is definitely signed by false witnesses), the court cannot uphold his claim at all, for each borrower may maintain that the document against him is the false one; or since his claim is against two separate people, he produces one document at a time and enforces his claim, for R. Huna holds that both sets of witnesses are believed separately. According to R. Hisda, of course, the claims cannot be enforced, for he holds that both sets of witnesses, even separately, are disqualified (even when two different lenders are the claimants).
^ᵃᵃnote:We do not know R. Huna's view in such a case.