שבועות 48:1 — Soncino English Talmud

If one said it was two ox-goads high, and the other said three, their testimony is valid; but if one said three, and the other said five, their testimony is invalid; but they may join for other testimony. Now does this not mean for testimony in a money matter? — Raba said: [No! it means] he and another may join for other testimony for [this] new moon; for they are now two against one, and the words of one are of no value where there are two. HE SAID TO THE SHOPKEEPER: ‘GIVE ME FOR A DENAR FRUIT,’ etc. It was taught: R. Judah said: When [do we say that the householder takes the oath]? If the fruits are heaped up and lying there, and both are contesting about them; but if he threw them into his basket over his back, he who wishes to exact from his neighbour must bring proof. HE SAID TO THE MONEY CHANGER: ‘GIVE ME etc.’ It is necessary [for both clauses to be stated], for if he had taught us only the first one, [we might have thought] in that case the Rabbis say [that the householder takes an oath] because fruit may decay, and because it decays they do not keep it, but in the case of money, which does not decay, we might think they agree with R. Judah. And if this [second clause] had been stated, [we might have thought] in this case R. Judah says [that the householder does not take an oath], but in that [first clause] I might have thought he agrees with the Rabbis, therefore [both clauses are] necessary. JUST AS THEY SAID THAT SHE WHO IMPAIRS HER KETHUBAH. . .SO ALSO ORPHANS CANNOT EXACT PAYMENT EXCEPT WITH AN OATH. From whom? Shall we say, from the borrower? Their father would have obtained payment without an oath; and they require an oath! — Thus he [the Tanna] means: So also orphans from orphans cannot exact payment except with an oath. Rab and Samuel both said: They did not teach this except if the lender died during the lifetime of the borrower; but if the borrower died during the lifetime of the lender, the lender had already become liable to take an oath to the children of the borrower; and a man cannot bequeath an oath to his children. They sent this [question] to R. Eleazar: What is the nature of this oath? — He sent them [the reply]: The heirs swear the oath of heirs, and receive [their due]. They sent this [question also] in the days of R. Ammi. He exclaimed: So often do they continue sending this [question]! If I would have found some argument in connection with it, would I not have sent it to them? But, said R. Ammi, since it has come to us, we will say something concerning it: If he stood in the court and died, the lender had already become liable to take an oath to the children of the borrower, and a man cannot bequeath an oath to his children; but if he died before he came to the court, the heirs swear the oath of heirs, and receive [their due]. To this R. Nahman demurred: Is it the Court that makes him liable to take the oath? From the time that the borrower died, the lender had already become liable to take an oath to the children of the borrower! But, said R. Nahman, if the ruling of Rab and Samuel is accepted, it is accepted; and if not, not. Hence, he is in doubt, But did not R. Joseph b. Minyomi say that R. Nahman decided a case that they should divide? — According to the view of R. Meir, he means; but he himself does not agree. R. Oshaia raised an objection: If she died, her heirs mention her kethubah until twenty five years [have elapsed]! Here we are discussing a case where she took the oath, and then died. Come and hear: If he married a first [wife], and she died; and he married a second, and he died, the second and her heirs come before the heirs of the first. — Here also, she took the oath and then died. Come and hear: But his heirs make her take an oath, and her heirs, and those who come with her authority. — R. Shemaiah said: Alternatives are stated: ‘her’, if she is a widow; and ‘her heirs’, if she is divorced. R. Nathan b. Hoshaia raised an objection: The son's power is more extensive than the father's power.^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:Two witnesses who saw the New Moon came to inform the Beth din in Jerusalem; one of them said it appeared to him to be above the horizon about the height of two ox-goads; the other said three ox-goads; since their estimates differ only slightly, we believe them that they really did see the new moon, and the New Moon and festivals dependent on it can be fixed in accordance with their testimony.
^ᵇnote:R.H. 24a.
^ᶜnote:Each one of these witnesses may join another in a case concerning a money claim, and is accepted as a qualified witness, though we know that one of them is a false witness. This is an argument against R. Hisda.
^ᵈnote:One of these two witnesses may be joined to another who agrees with him, so that there are now two against the one who had testified differently.
^ᵉnote:The householder said to the shopkeeper: ‘Give me fruit for a denar,’ and the shopkeeper gave him; then asked him for the denar; and the householder said he had paid him; the householder takes an oath to that effect, and is free. R. Judah says this is the case only if the fruit is lying between them, but if the householder had already taken possession, he does not take an oath, but the shopkeeper (who now desires to exact from him either the money or the fruit) must bring proof that he has not yet paid him, and if he has no proof, he loses.
^ᶠnote:Why does the Mishnah state the clause of the money changer? It is exactly the same as the case of the shopkeeper selling fruit.
^ᵍnote:The representative of the anonymous opinion in the Mishnah.
^ʰnote:Even if the fruit is already in his basket.
^ⁱnote:The shopkeeper therefore hurriedly threw it into the purchaser's basket, even before he received the money, so that the purchaser should not change his mind; therefore, even if the fruit is already in the purchaser's basket, it is possible he has not yet paid the shopkeeper, and he must take an oath.
^ʲnote:That the householder does not need to take an oath that he had already given the money-changer the denar, for the money-changer would not have given him the small change before he had received the denar.
^ᵏnote:And we believe him that he has paid the money-changer, for the money-changer would not have given him the small change before receiving the denar.
^ˡnote:That the householder takes an oath, for in the case of fruit, the shopkeeper may have put it into the purchaser's basket before receiving the money.
^ᵐnote:To teach us that R. Judah and the Rabbis disagree in both.
^ⁿnote:V. supra 47a, where the whole passage is explained.
^ᵒnote:Which the orphans swear to the orphans? Can they always exact money with this oath, even if the borrower had died during the lifetime of the lender (when, according to Rab and Samuel, the orphans cannot take an oath, and cannot obtain the money)?
^ᵖnote:If the borrower died during the lifetime of the lender, and then the lender died, his heirs take the oath that is imposed in such a case on heirs, that their father had not told them (or left any document) that the debt due to him had been paid, and they exact the money from the borrower's heirs. R. Eleazar thus differs from Rab and Samuel and holds that a man may bequeath an oath to his children, though it cannot naturally be the same oath: the oath he would have had to take is: ‘I have not yet been paid this debt by your father.’ The oath the orphans take is: ‘Our father has not left us instructions that your father's debt has been paid.’ [The interpretation adopted here follows text in cur. edd. MS.M., however, furnishes a better reading which is also that of Asheri: ‘They sent (i.e., the above question) to R. Eleazar, (to which) he replied: What is the import of this oath (i.e. why should the oath which the father would have had to take be considered more effective than any other oath)? Hence the heirs swear the oath of heirs etc.]
^ᵠnote:[MS.M.: ‘before R. Ammi’.]
^ʳnote:If the lender had already appeared at court with his claim against the borrower's heirs, and been bidden to take an oath, and then, before the oath, had died, he cannot bequeath this oath, to which he had already become liable, to his heirs; and the claim lapses.
^ˢnote:He had not as yet become liable to take the oath.
^ᵗnote:Even if he died before bringing his claim to the court, he had already become liable for the oath; i.e., he could not have obtained payment from the borrower's heirs except with the oath. Hence, if the lender cannot bequeath an oath to his children, they cannot, even in such a case, take the oath of heirs.
^ᵘnote:Either the lender can, or cannot, bequeath his oath; we cannot accept R. Ammi's distinction.
^ᵛnote:As to whether the ruling of Rab and Samuel holds good or not.
^ʷnote:Supra 47a, where it is explained that according to Rab and Samuel ‘the oath returns to Sinai’, and the case lapses. Hence, R. Nahman, in deciding that the claimant and borrower divide, does not agree with Rab and Samuel.
^ˣnote:The ruling of Rab and Samuel is applicable to R. Meir's view that the oath returns to Sinai; and on this R. Nahman says that R. Ammi's differentiation is irrational; but R. Nahman himself does not agree with R. Meir, but with R. Jose, that they divide. [MS.M. substitutes ‘R. Ammi’ for R. Meir, which simplifies the argument.]
^ʸnote:Keth. 104a. A widow who had not yet been paid her kethubah from her husband's estate, and died, bequeaths this claim to her heirs; but they must ‘mention’ it, i.e., claim it, within 25 years of her husband's death. Now the widow herself could not have obtained her kethubah from the husband's heirs except with an oath (supra 45a); yet when she dies, her heirs can claim the kethubah with the oath that heirs take (‘Our mother did not leave instructions that she had received the kethubah’). Hence, though the borrower died during the lifetime of the lender (the husband who owes the kethubah died during the lifetime of the wife), and the lender (wife) had already become liable to take an oath to the heirs, she may bequeath the oath to her heirs. This is an argument against Rab and Samuel.
^ᶻnote:Since she had already taken the oath, the kethubah is virtually in her possession, and her heirs do not need to take an oath, but merely exact payment.
^ᵃᵃnote:Keth. 90a; when he died, the second wife who is still alive, has a claim (the kethubah) against his estate, if she dies before receiving the money, her heirs exact payment; but the heirs of the first wife have no claim for kethubah (for she died before her husband). When the kethubah has been paid to the heirs of the second wife, the heirs of the first wife also, of course, participate in their father's inheritance together with their stepbrothers. The Mishnah states, however, that the heirs of the second wife can exact payment of the kethubah; the second wife herself can obtain the kethubah only with an oath from the husband's heirs; her heirs must also take an oath; hence she can bequeath an oath to her heirs. This is an argument against Rab and Samuel.
^ᵃᵇnote:Keth. 86b. If he gave his wife a written agreement that he would not demand an oath of her (in a case where she would otherwise have to take an oath, e.g., if she impairs a kethubah, supra 45a), nor would he demand an oath of her heirs, nor of those who come with her authority (i.e., those to whom she sold her kethubah, and who would be entitled to the kethubah on her divorce or death), he cannot impose an oath upon her, her heirs, etc. But if he dies, his heirs may impose the oath upon her, her heirs, etc., i.e., if she claims her kethubah from the husband's heirs, she must take an oath; if she dies, her heirs take an oath and obtain the kethubah. Hence she bequeaths the oath to her heirs. This is an argument against Rab and Samuel. Here it cannot be said that she had already taken the oath, and then died; for in that case her heirs would not require to take an oath, whereas the Mishnah states definitely that the husband's heirs make the wife's heirs take an oath.
^ᵃᶜnote:The husband's heirs make ‘her’ take an oath, if she is a widow; she can obtain her kethubah from her husband's estate only by taking an oath to his heirs (that she has not yet been paid); but if she dies before she obtains her kethubah, ‘her heirs’ cannot obtain it from the husband's heirs, because she cannot bequeath the oath (as Rab and Samuel say). The Mishnah which states that the husband's heirs make her heirs take an oath refers to a case where she was divorced (the husband now being liable to pay her the kethubah without imposing an oath on her, for he had given her a written agreement that he himself would not demand an oath of her), then she died before obtaining the kethubah, then the husband died; now, when she died, the kethubah was already due to her without an oath: this money claim she may bequeath to her heirs; but when her heirs wish to exact payment from the husband's heirs, they must take an oath (for orphans from orphans can only exact payment with an oath).