שבועות 49:2 — Soncino English Talmud

‘IT DIED,’ WHEREAS IT WAS INJURED OR CAPTURED OR STOLEN OR LOST; [OR HE REPLIED,] ‘IT WAS INJURED,’ WHEREAS IT DIED OR WAS CAPTURED OR STOLEN OR LOST; [OR HE REPLIED,] ‘IT WAS CAPTURED, WHEREAS IT DIED OR WAS INJURED OR STOLEN OR LOST; [OR HE REPLIED,] ‘IT WAS STOLEN, WHEREAS IT DIED OR WAS INJURED OR CAPTURED OR LOST; [OR HE REPLIED,] ‘IT WAS LOST, WHEREAS IT DIED OR WAS INJURED OR CAPTURED OR STOLEN; [AND THE OWNER SAID,] ‘I ADJURE YOU,’ AND HE SAID, ‘AMEN,’ HE IS EXEMPT. [IF THE OWNER SAID,] ‘WHERE IS MY OX?’ AND HE REPLIED TO HIM, ‘I DO NOT KNOW WHAT YOU SAY,’ WHEREAS IT DIED OR WAS INJURED OR CAPTURED OR STOLEN OR LOST; [AND THE OWNER SAID,] ‘I ADJURE YOU,’ AND HE SAID, ‘AMEN,’ HE IS LIABLE. IF HE SAID TO A PAID GUARDIAN, OR HIRER. ‘WHERE IS MY OX?’ AND HE REPLIED TO HIM, ‘IT DIED,’ WHEREAS IT WAS INJURED OR CAPTURED; [OR HE REPLIED,] ‘IT WAS INJURED,’ WHEREAS IT DIED OR WAS CAPTURED; [OR HE REPLIED,] ‘IT WAS CAPTURED,’ WHEREAS IT DIED OR WAS INJURED; [OR HE REPLIED,] ‘IT WAS STOLEN, WHEREAS IT WAS LOST; [OR HE REPLIED,] ‘IT WAS LOST,’ WHEREAS IT WAS STOLEN; [AND THE OWNER SAID,] ‘I ADJURE YOU,’ AND HE SAID, ‘AMEN,’ HE IS EXEMPT. [IF HE REPLIED,] ‘IT DIED,’ OR, ‘IT WAS INJURED,’ OR, ‘IT WAS CAPTURED,’ WHEREAS IT WAS STOLEN OR LOST; [AND THE OWNER SAID,] ‘I ADJURE YOU.’ AND HE SAID, ‘AMEN,’ HE IS LIABLE. [IF HE REPLIED,] ‘IT WAS LOST,’ OR, ‘IT WAS STOLEN,’ WHEREAS IT DIED OR WAS INJURED OR CAPTURED; [AND THE OWNER SAID,] ‘I ADJURE YOU,’ AND HE SAID, ‘AMEN,’ HE IS EXEMPT. THIS IS THE PRINCIPLE: HE WHO [BY LYING] CHANGES FROM LIABILITY TO LIABILITY. OR FROM EXEMPTION TO EXEMPTION, OR FROM EXEMPTION TO LIABILITY, IS EXEMPT; FROM LIABILITY TO EXEMPTION, IS LIABLE. THIS IS THE PRINCIPLE: HE WHO TAKES AN OATH TO MAKE IT MORE LENIENT FOR HIMSELF, IS LIABLE; TO MAKE IT MORE STRINGENT FOR HIMSELF, IS EXEMPT. GEMARA. Who is the Tanna who holds that there are four guardians? — R. Nahman said that Rabbah b. Abbuha said: It is R. Meir. Said Raba to R. Nahman: Is there then a tanna who does not hold that there are four guardians! — He said to him: Thus I meant to say to you: Who is the tanna who holds that a hirer is like a paid guardian? Rabbah b. Abbuha said: It is R. Meir. But surely, we have heard that R. Meir holds the reverse [view], for we learnt: A hirer: how does he pay? R. Meir said: Like an unpaid guardian; R. Judah said: Like a paid guardian! — Rabbah b. Abbuha learned it reversed. Are they four? They are three! — R. Nahman b. Isaac said: There are four guardians, but their regulations are three. IF HE SAID TO AN UNPAID GUARDIAN, etc. ‘WHERE IS MY OX?’ etc. IF HE SAID TO ONE IN THE STREET, etc. IF HE SAID TO A GUARDIAN, etc. WHERE IS MY OX?’ HE REPLIED TO HIM, ‘I DO NOT KNOW WHAT YOU SAY,’ etc. Rab said: They are all exempt from the oath of guardians, but are liable in respect of the oath of utterance; and Samuel said: They are exempt also in respect of the oath of utterance. In what do they disagree? — Samuel holds it is not [possible of application] in the future; and Rab holds it is [possible of application] both negatively and positively. But they have already expressed their disagreement on this point once, for it was stated: ‘I swear that So-and-so threw a pebble into the sea,’ ‘I swear that he did not throw [a pebble into the sea]’; Rab says, he is liable, and Samuel says, he is exempt. Rab says, he is liable, because it is [applicable] negatively and positively; and Samuel says, he is exempt, because it is not [applicable] in the future! — It is necessary [for them to express their disagreement in the present instance too], for if they had told us [their disagreement] in that case, [we might have thought that] in that case Rab says [he is liable], because he swears of his own accord, but in this case, where the Court administer the oath to him, we might have thought that he agrees with Samuel; as R. Ammi said, for R. Ammi said: In any oath which the Judges administer there is no liability in respect of the oath of utterance. And if [their disagreement] had been stated in this case, [we might have thought that] in this case Samuel says [he is exempt]. but in that case we might have thought that he agrees with Rab, therefore it is necessary [for their disagreement to be stated in both cases]. [To turn to the main] text: R. Ammi said: In any oath which the Judges administer there is no liability in respect of the oath of utterance, for it is said: Or if any one swear, uttering with the lips — of his own accord; as Resh Lakish said, for Resh Lakish said: ki is translatable by four expressions: ‘if’, ‘perhaps’, ‘but’, ‘because’. R. Eleazar says: They are all exempt from the oath of guardians, but are liable in respect of the oath of utterance, except [in the case of the statement], ‘I DO NOT KNOW WHAT YOU SAY, [made] by the borrower, and that of theft and loss, by the paid guardian and hirer, where they are liable, for they denied money.^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

^ᵃnote:From the guilt-offering, for he did not, by his false oath, desire to evade payment, since even if the facts were in accordance with his oath, he would still have had to pay.
^ᵇnote:For a guilt-offering (in addition to paying for the animal) for by his denial he desired to evade payment.
^ᶜnote:A paid guardian and hirer are exempt from payment in any of these cases, therefore they do not bring a guilt-offering, for even if they had admitted the truth they would not have had to pay.
^ᵈnote:In these two cases the paid guardian and hirer must pay; they did not therefore, by their oath, wish to avoid payment, and are therefore exempt from a guilt-offering.
^ᵉnote:For he desired to evade payment by his oath, whereas if he admitted the truth he would have had to pay; therefore he brings a guilt-offering.
^ᶠnote:For by his oath he is making himself liable to pay, whereas in reality (since it died, etc.) he would have been exempt; he is therefore exempt from a guilt-offering.
^ᵍnote:If by his oath he is not trying to evade payment, he is exempt from a guilt-offering.
^ʰnote:[The last passage is omitted in MS.M. and other texts as superfluous repetition, and moreover as implying some contradiction to the preceding passage, which extends the exemption to one who effects no change by his lying, whereas here the exemption is limited to one who makes it more stringent for himself.]
^ⁱnote:Surely all admit that there are four!
^ʲnote:That R. Meir holds a hirer pays like a paid guardian.
^ᵏnote:For a hirer is either like a paid or an unpaid guardian.
^ˡnote:Read: ‘To A BORROWER’.
^ᵐnote:Those mentioned in the Mishnah as being exempt are exempt only from liability in respect of the oath of guardians, i.e., are exempt from a guilt-offering for their false oath of deposit.
^ⁿnote:For though they did not desire to evade a money payment (and are therefore exempt from a guilt-offering), they nevertheless uttered a false oath, and must bring a sliding scale sacrifice. This sacrifice is brought, however, only if the transgressor trespassed unwittingly in that he was unaware that a sacrifice was necessary for a false oath, though he knew a false oath was prohibited, and that he was swearing falsely; for if he swore falsely unwittingly (i.e., if he really thought he was swearing the truth), he would in any case be exempt from a guilt-offering for his false oath of deposit; v. supra 36b.
^ᵒnote:He holds that a sliding-scale sacrifice for a false oath of utterance is brought only if that oath is applicable to the future; e.g., if the guardian swore falsely, ‘The animal died,’ he does not bring a sliding scale sacrifice, for he could not swear, ‘The animal will die’; v. supra 25a.
^ᵖnote:Applicability in the future is not necessary, as long as it is applicable in the negative and positive; e.g., the animal died, or did not die; was stolen, or was not stolen.
^ᵠnote:‘So-and-so will throw a pebble;’ for he does not know what So-and-so will do; supra 25a.
^ʳnote:He must perforce take an oath, if he wishes to free himself from payment. If he is an unpaid guardian, he takes an oath that he was not wilfully neglectful; if a paid guardian, he takes an oath that the animal died, or was forcibly taken from him by robbers, or injured.
^ˢnote:That if he swore falsely, he is not liable to bring a sliding scale sacrifice, because he did not utter the oath of his own free will.
^ᵗnote:Because the court administered it.
^ᵘnote:That he is liable, because he swore of his own accord.
^ᵛnote:Lev. V, 4; he brings a sliding scale sacrifice.
^ʷnote:R. Ammi takes the conjunction hf in this verse (Lev. V, 4) to mean ‘if’: if any one swear, i.e., of his own accord; he need not swear, but if he does swear, he must bring a sliding scale sacrifice. Rab, however, takes ki here as meaning ‘because’: because he swears (whether of his own accord, or compelled by the court), he must bring a sacrifice.
^ˣnote:He agrees with Rab.
^ʸnote:For a guilt-offering, and do not bring a sliding scale sacrifice. R. Eleazar does not need to mention in his exceptions the case of an unpaid guardian who, after swearing that the animal was lost or stolen, confessed that he stole it himself, in which case he is exempted from a sliding scale sacrifice, for the Mishnah states clearly that he brings a guilt-offering; and it is obvious that he is therefore exempt from the sacrifice for the oath of utterance.