Bava Kamma 106a (קו.) — the Talmud in English

But one who denies

a deposit is disqualified

is

from bearing witness—

The distinction must necessarily be as follows: One who denies a loan—even if the loan money is still in his possession, it belongs to him, because a loan is given for expenditure (malveh lehotza’a nitna)—is therefore fit to bear witness even in such a case, since it can be said that he is merely evading payment. But one who denies a deposit is disqualified from bearing witness when the deposit was in his possession,

for then it is no longer possible to say that he is merely evading payment.

The Gemara further raises an objection to Rav Sheshet:

But didn’t Ilfa say: “

An oath acquires,”

and it was initially understood that this means as follows: One who denies a deposit acquires it, upon taking an oath concerning it, thereby becoming liable for accidents involving it. If so, it follows that:

It is an oath that acquires it, but denial

without an oath

does not acquire it

as a deposit, to make him liable for accidents involving it; and this is difficult for Rav Sheshet.

And we answer:

Here too,

this is referring to a case

in which

the deposit was

in a meadow

at the time of the denial. Therefore, he becomes a robber only through an oath.

Alternatively,

Ilfa is not discussing acquisition that makes him liable for accidents. Rather,

what does “

an oath acquires” mean? It means that the oath acquires the deposit itself,

and this is

in accordance with Rav Huna, as Rav Huna said in the name of Rav:

If one says to his fellow: “

I have one hundred dinars with you,”

and the other says: “

You have nothing with me,”

and he takes an oath,

the defendant,

and afterward witnesses came

who testified that he does have the money with him, he is

exempt,

because

it is stated

in the passage concerning a paid bailee: “

The oath of the Lord shall be between them, that he has not laid his hand upon his fellow’s property, and

its owner shall accept

the oath

and he shall not pay.”

And this is what the verse means:

Since

the owners accepted the oath, he no longer pays money;

and this is the law that Ilfa taught us when he said: “An oath acquires.”

The body of the matter: Rav Huna said in the name of Rav: “

I have one hundred dinars with you,”

and the other says: “

You have nothing with me at all,”

and he takes an oath, and afterward witnesses came, he is exempt, as it is stated: “

And its owner shall accept the oath and he shall not pay”;

since the owners accepted the oath, he no longer pays money.

Rava said: Rav’s statement stands to reason

only

with regard to a loan,

for even if the money is still in his possession, it does not belong to the lender,

because it was given for expenditure;

therefore, when he takes an oath, his obligation lapses.

But

one who takes an oath concerning a deposit does not acquire it, for the Torah said only, “and he shall not pay,” whereas one who returns the deposit is not considered to have “paid,” since

a deposit remains in the authority of its owner

[it remains in the owners’ authority]. Rava further swore:

By God, Rav stated his ruling

even with regard to a deposit, for when

even with regard to a deposit, for when

the

verse

“and its owner shall accept the oath and he shall not pay”

is

in the passage concerning

a deposit, it is

it is

written there.

Rav Naḥman sat and recited this teaching

of Rav Huna in the name of Rav.

Rav Aḥa bar Minyomi raised an objection to Rav Naḥman

against Rav’s ruling, from a Mishna below, on 108b:

A depositor says to his unpaid bailee: “

Where is my deposit?”

and he

says to him: “

It was lost,

and I am exempt.” The depositor then says to him: “

I administer an oath to you,”

and

the bailee

says: “

Amen,”

Amen,”

and

witnesses testify that he consumed it, he pays

only the principal, since the obligation to add a fifth in an oath concerning a deposit applies only when he confesses.

And if

he confesses on his own initiative, he pays the principal, a fifth, and a guilt-offering.

But this is difficult for Rav from the first clause of the Mishna,

for he took an oath that he was exempt, yet nevertheless, if witnesses came and testified that he had consumed it, the Mishna teaches that he is liable to pay the principal!?

Rav Naḥman said

in reply

to him,

Rav Aḥa bar Minyomi:

Here,

in this Mishna,

what are we dealing with? For example, he took an oath outside the court,

whereas Rav spoke only of an oath taken in court, which is powerful enough to effect the removal of monetary liability.

He said to him,

Rav Aḥa bar Minyomi:

If so—

that the Mishna is dealing with an oath outside the court—

say the latter clause

of that same Mishna:

If he says to him: “

Where is my deposit?”

and he

says to him,

the bailee: “

It was stolen,”

and the depositor says to him: “

I administer an oath to you,”

and

the bailee

says: “

Amen,”

Amen,”

and

witnesses testify that he stole it, he

pays double payment, since anyone who “claims the claim of a thief” and is found to have stolen it is liable for double payment.

And if

he confesses on his own initiative,

he does not pay double payment, since double payment is a fine, and “one who admits liability for a fine is exempt”; nevertheless, he

pays the principal and a fifth,

as in the other cases of “an oath concerning a deposit.”

And if it enters your mind

that this Mishna deals with an oath

outside the court, is there double payment

for one who claims the claim of a thief by taking an oath outside the court, or not in accordance with the direction of a court!?

He said to him,

Rav Naḥman to Rav Aḥa bar Minyomi:

I could answer you

[I could have explained it to you]:

The first clause

of the Mishna deals with an oath

outside the court, while

the

latter clause

deals with an oath

in court; but I will not give you a forced answer

[rather, I do not wish to establish a forced explanation]. Instead, it should be explained as follows:

Both this and that

[the first clause and the latter clause] deal with an oath

in court, and there is no difficulty:

Here—

in the first clause—

the Mishna is dealing with one who

jumped ahead

and took an oath before the court obligated him to take one; therefore, he does not acquire the deposit, since the verse is discussing an oath that the court obligated him to take, and which he took at its direction. Here—

in the latter clause—

he did not jump ahead;

rather, the court administered the oath to him, and therefore he is liable for double payment.

Rami bar Ḥama said to Rav Naḥman:

Since you do not accept Rav’s view, why do you trouble yourself to defend Rav

[You do not hold like Rav, so why do you put yourself in his place to resolve the difficulty against him]!?

He said to him,

Rav Naḥman to Rami bar Ḥama:

I am coming to explain

what applies

Rav’s

view,

and to say: This is how Rav would explain the Mishna

[this is how Rav would establish the Mishna].

And the Gemara raises a difficulty against Rav Naḥman, who does not accept Rav’s view:

But Rav cites a verse

[Rav derives this from the verse, “and its owner shall accept the oath and he shall not pay”]!?

They said

the members of the academy, explaining the verse according to Rav Naḥman’s view:

The verse

“and its owner shall accept the oath and he shall not pay” comes to teach

with regard to all those who take oaths prescribed by the Torah

[every oath-obligation prescribed by the Torah]

that they take oaths but do not pay.

This is so that you should not say: The claimant should take an oath and collect, while the defendant should not take an oath and be exempt. For this is what the verse implies: “

And its owner shall accept the oath and he shall not pay”;

the one who is liable to pay is

the one who

takes the oath.

Rav Hamnuna raised an objection

to Rav from a Mishna in Shevuot 36b:

If he administered an oath to him

[this implies that he caused the court to administer an oath to him]

five times, whether

he took an oath

before the court, or whether

he took an oath

not before the court, and denied the claim against him,

the person who took the oath is

liable for each and every one.

And Rabbi Shimon said: What is the reason

that he is liable for the oaths following the first oath?

Since he can retract and confess,

saying, “I swore falsely,” and since he then swore falsely again, this is an oath denying a monetary claim.

It is explicit that he is liable for the second oath. But according to Rav, he should not become liable from the second oath onward, since he was already exempted from the claimant through the first oath, and the second oath is not an oath denying a monetary claim!?

The Gemara adds an explanation of the objection:

And here—

in this Mishna—

you cannot say that he jumped ahead

[you cannot establish it as referring to one who jumped ahead], since it

teaches, “If he administered an oath to him,”

it teaches

a formulation implying that he caused others to administer an oath to him, namely, through a court. And you likewise cannot say that the Mishna is dealing with one who took an oath

outside the court,

since

it teaches, “before the court.”

It must therefore be dealing with a case in which the court administered the oath to him and he took it in court. This is difficult for Rav: How can he be liable for the second oath after he was already exempted through the first oath!?

He—

Rav Hamnuna—

raised the objection and

also

resolved it himself

[Rav Hamnuna raised the difficulty and himself answered it]:

It teaches the cases separately:

He administered an oath to him outside the court, and in court he jumped ahead. That is, the phrase “before the court” in the Mishna does not refer to “he administered an oath to him,” which would imply through a court. Rather, “not before the court” refers to “he administered an oath to him,” while “before the court” refers to a case of jumping ahead, not to a case in which the claimant administered an oath to him.

Rava raised an objection

—to demonstrate that this is not the correct resolution—from what was taught in a beraita:

A homeowner who claimed the claim of a thief concerning a deposit, and took an oath

concerning it,

and

afterward

confessed

that the deposit was in his possession,

and

also

witnesses came

who testified that the deposit was in his possession.

and testified that the deposit was in his possession:

If he confessed before the witnesses came,

he confessed,

he

pays the principal, a fifth, and a guilt-offering,

as is the law with one who denies a deposit under oath and then confesses: he pays the principal, a fifth, and a guilt-offering, but does not pay double payment as one who “claims the claim of a thief,” since “one who admits liability for a fine is exempt.”

But if he confessed after the witnesses came,

he confessed,

he

pays double payment

[the principal and its double] because of the witnesses, as is the law of one who claims the claim of a thief,

and a guilt-offering

because of the law of “an oath concerning a deposit,” since he confessed. But he does not pay a fifth, because the fifth is included in his double payment.

It is thus established that although he had already taken an oath, he nevertheless pays the principal as well, contrary to Rav

; and here,

to explain that the Mishna deals with an oath

outside the court

and

he

jumped ahead—you cannot say

[or “jumped ahead,” in the manner in which the Gemara resolved Rav Hamnuna’s difficulty],

for it teaches double payment. The Mishna establishes that with regard to that oath he pays double payment if the witnesses came first; and one pays double payment only when he took an oath in court and through the court. If so, how can he be liable to pay the principal on account of that same oath!?

And we answer:

Rather, Rava said

to resolve Rav Hamnuna’s difficulty, by first stating two principles demonstrated by the beraita he cited:

a.

Anyone who

“confessed,”

it makes no difference whether he is

“claiming that it was lost”

and it makes no difference whether he is

“claiming the claim of a thief”—

Rav did not say

that he would not be liable to pay the principal,

for it is written: “

And he shall confess,”

that he must pay the principal and the fifth.

That is, since it is stated in the passage concerning an oath involving a deposit: “And they shall confess the sin that they committed, and he shall restore his guilt-offering in its principal [the principal]”

“and he shall add its fifth to it,” the Torah made him liable for the principal when he confessed, meaning, when he admitted. This principle is demonstrated by the first clause of the beraita.

That is, because it is stated in the passage concerning an oath concerning a deposit: “They shall confess the sin that they committed, and he shall return his guilt-offering at its principal [that is, the principal],” “and he shall add its fifth to it,” the Torah made him liable for the principal when he confesses, meaning when he admits. This principle is demonstrated by the first clause of the source.

b.

With regard to one who claims the claim of a thief and witnesses came as well, Rav did not say

that he would not be liable to pay the principal,

for it is written

in the passage concerning one who claims the claim of a thief:

double payment.

That is, “If the thief is not found, he shall pay double,” which shows that he is liable for the principal. This principle is demonstrated by the latter clause of the beraita, which makes him liable for double payment.

If so, there is no difficulty from the Mishna cited by Rav Hamnuna, since the reason for his liability is that he can retract and confess; had he confessed, he would indeed have been liable for the principal as well, since he would be liable on account of “an oath concerning a deposit”—

When Rav said

that he is not liable for the principal after taking an oath, he was referring

to a case in which he claims that it was lost,

where there is no liability for double payment,

and he took an oath but did not confess, and witnesses came,

where there is no liability for an oath concerning a deposit.

Rav Gamda went and recited this teaching before Rav Ashi

[Rav Gamda went and stated Rava’s resolution before Rav Ashi],

and

he

said

to him, in astonishment, Rav Ashi:

Now, if Rav Hamnuna, Rav’s student, knew that Rav said

even in the case of one who

confessed, and

therefore

raised an objection

from a case in which he

confessed, and

if

you say: Rav did not speak of one who confessed!?

Rav Aḥa the Elder said to Rav Ashi:

Actually, Rav Hamnuna too agrees that in a case of confession he does not become exempt from paying the principal.

And Rav Hamnuna—

who raised the difficulty from the Mishna that makes him liable for five oaths, since he can retract and confess—

this is what was difficult for him: