Bava Kamma 106a — the Talmud in English

But one who denies

a deposit

is

disqualified

for testimony - And necessarily, the distinction is: one who denies a loan—for even if the loan money is still in his possession, it is his, because “a loan is given for expenditure”—therefore, even in such a case he is fit for testimony, for one may say that he is merely evading; but one who denies a deposit is disqualified for testimony when the deposit was in his possession, for it is no longer possible to say that he is evading.

since it is no longer possible to say that he was merely trying to gain time.

We further challenge Rav Sheshet:

But Ilfa said: “

An oath acquires,”

and it entered our minds that this is its meaning: one who denies a deposit, once he swears concerning it, acquires it and becomes liable for accidents; and if so, it implies:

It is an oath that acquires, but denial

without an oath

does not acquire

the deposit, to become liable for accidents, and this is a difficulty against Rav Sheshet.

And we answer:

Here too

it is in a case

where

the deposit is standing

in a marsh

at the time of the denial, and for that reason he becomes a robber only through an oath.

And if you wish, say:

Ilfa is not dealing with acquisition that makes him liable for accidents; rather,

what is “

an oath acquires”?

It acquires it literally, and

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

If one says to his fellow: “

I have a maneh with you,”

and the other says: “

You have nothing with me,”

and he swears,

the defendant,

and afterward witnesses came

that he has it in his possession, he is

exempt,

and because it is

stated

in the section concerning a paid bailee: “

The oath of the Lord shall be between them, whether he has not sent his hand into the property of his fellow,

and its owner shall take [

the oath]

and he shall not pay,”

and this is what it says:

Since

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

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

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

I have a maneh with you,”

and the other says: “

You have nothing with me at all,”

and he swears, and afterward witnesses came, he is exempt, as it is stated: “

And its owner shall take and he shall not pay,”

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

Rava said: Rav’s statement stands to reason

only

with 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,

and therefore, when he swore, his obligation ceased.

But

one who swears 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 called “paying,” since

a deposit remains in the domain of its owner [

it stands in the owners’ domain]. Rava further swore:

By the oath of Heaven, Rav said

his ruling

even with a deposit, for when

the

verse says, “

And its owner shall take and he shall not pay,”

in

the section of

a deposit

it is

written.

Rav Naḥman was sitting and reciting this teaching

of Rav Huna in the name of Rav:

Rav Aḥa bar Minyomi raised an objection to Rav Naḥman

concerning Rav’s law, from the Mishna below, 108b:

A depositor who says to his unpaid bailee: “

Where is my deposit,”

and

he said to him: “

It was lost

and I am exempt,” and the depositor said to him: “

I administer an oath to you,”

and

the one entrusted

said: “

Amen,”

and witnesses testify against him that he consumed it, he

then

pays only the principal, for there is an obligation of a fifth in the oath concerning a deposit only when he confessed.

since the additional one-fifth payment applies to an oath concerning a deposit only when he admits.

And if he

confessed on his own initiative: he pays the principal and the fifth and a guilt-offering.

And raise a difficulty against Rav from the first clause of the Mishna,

for he swore that he was exempt, and nevertheless, if witnesses came that he consumed it, we learned in the Mishna that he is liable for the principal!?

He said,

he answered

to him Rav Naḥman

to Rav Aḥa bar Minyomi:

Here

in this Mishna,

with what are we dealing? For example, he swore outside the court,

and Rav said his ruling only concerning an oath in court, which is powerful enough to remove money.

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:

And if he said to him: “

Where is my deposit,”

and

he said to him

the bailee: “

It was stolen,”

and the depositor said to him: “

I administer an oath to you,”

and

the bailee

said: “

Amen,”

and witnesses testify against him that he stole it, he

then

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

since anyone who claims that a thief stole his deposit and is then found to have stolen it himself is liable to pay double.

And if he

confessed on his own initiative,

he does not pay double payment, for the double payment is a fine, and “one who confesses to a fine is exempt”; but

he pays the principal and the fifth

as with the rest of the “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 through an oath outside the court, or not according to the court’s procedure!?

for one who claims that a thief stole the deposit and takes an oath outside the court, or without the authority of the court?!

He said to him,

Rav Naḥman to Rav Aḥa bar Minyomi:

I could answer you [

I could have answered you]:

The first clause

of the Mishna deals with an oath

outside the court, and

whereas

the latter clause

deals with an oath

in court; however, we do not give you a forced answer [

rather, I do not wish to establish a forced answer], but this is how it should be resolved:

Both this and that [

the first clause and the latter clause] concern an oath

in court, and there is no difficulty:

Here—

in the first clause—the Mishna deals

with one who jumped

and swore before the court obligated him to swear; therefore he does not acquire it, because the verse deals with an oath that the court obligated him to take, and he swore at its direction.

Here—

in the latter clause—

where he did not jump, but the court made him swear; therefore he is liable for double payment.

but the court administered the oath to him. 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 exert yourself on Rav’s behalf

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

He said to him,

Rav Naḥman to Rami bar Ḥama:

To explain

I am coming

Rav’s view,

and to say:

This is how Rav explains the Mishna [

this is how Rav would establish the Mishna].

And we challenge Rav Naḥman, who does not accept Rav’s view:

But Rav stated a verse [

for Rav learned this from the verse, “And its owner shall take and he shall not pay”]!?

They said,

the members of the academy, to explain the verse according to Rav Naḥman:

The verse

of “and its owner shall take and he shall not pay” comes to teach

concerning all those who swear in the Torah [

every oath-obligation in the Torah] that

those who swear do not pay,

so that you should not say: the claimant should swear and take, while the defendant should not swear and be exempt; for so the verse implies: “

And its owner shall take and he shall not pay,”

the one who is to pay is he

who

swears.

Rav Hamnuna raised an objection

to Rav from a Mishna in Shevuot 36b:

If he administered an oath to him, [

the wording implies: he caused the court to make him swear]

five times, whether

he swore

before the court, and whether

he swore

not before the court, and he denied it,

through an oath, the one who swore is

liable for each and every one.

And Rabbi Shimon said: What is the reason

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

Since he can return and confess,

saying: “I swore falsely,” and since he again swore falsely, this is an oath of denial of money.

It is explicitly stated that he is liable for the second oath, whereas 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 of denial of money!?

The Gemara adds to explain the difficulty:

And here—

in this Mishna—

you cannot say that he jumped [

you cannot establish it as dealing with one who jumped], for “

he administered an oath to him”

it teaches, and this wording implies that he caused others to make him swear, namely, through the court; and even to say that the Mishna deals with one who swore

which implies that he caused others to administer the oath to him, namely, through the court. And you also

outside the court you cannot say,

for

it teaches, before the court, and necessarily the Mishna deals with a case where the court made him swear and he swore in court. This is therefore a difficulty against Rav: how is he liable for the second oath after he was already exempted through the first oath!?

It must therefore be that the Mishna concerns a case in which the court administered the oath to him and he took the oath in court. This presents a difficulty for Rav: How can he be liable for the second oath after he was already exempted through the first oath?!

He—

Rav Hamnuna—

raises the objection and

also

resolves it himself [

Rav Hamnuna raised the difficulty, and he himself answered it]:

It teaches with respect to different sides:

He administered an oath to him outside the court, and in court he jumped, that is: what we learned, “before the court,” does not refer to “he administered an oath to him,” which implies through the court; rather, only what we learned, “not before the court,” refers to “he administered an oath to him,” while what we learned, “before the court,” means by way of jumping, and not that the claimant “administered an oath to him.”

That is, the statement we learned, “before the court,” does not refer to “he administered an oath to him,” which would imply that the court administered it. Rather, “outside the court” refers to “he administered an oath to him,” while “before the court” refers to a case in which he jumped forward, and not to a case in which the claimant administered the oath to him.

Rava raised an objection—

to prove that this is not the answer—from what was taught in a beraita:

A homeowner who claimed the claim of a thief concerning a deposit, and swore

concerning it,

and

afterward

confessed

that the deposit was in his possession,

and

also

witnesses came

that the deposit was in his possession.

If before witnesses came—he

confessed,

he then

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

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

And if after witnesses came—he

confessed,

he then

pays double payment [

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

and a guilt-offering

under the law of “the oath concerning a deposit,” for he confessed; but he does not pay a fifth, because his fifth is included in his double payment.

It is thus explained that although he already swore, he nevertheless pays the principal as well, unlike Rav

; and here

to establish that the Mishna deals with an oath

outside the court,

and he jumped [

or jumped]

you cannot say [

in the manner in which the Gemara resolved Rav Hamnuna’s difficulty],

for it teaches double payment,

since the Mishna explains that for that oath he pays double payment if witnesses came first; and he pays double payment only if he swore in court and through the court. If so, how can he become liable for the principal on account of that same oath!?

And we answer:

Rather, Rava said

to resolve Rav Hamnuna’s difficulty, by prefacing two principles proved from the beraita he brought:

a.

Every

who

“confessed”,

it makes no difference whether he is

“one who claims the claim of loss”

and it makes no difference whether he is

“one who claims the claim of theft”—

Rav did not say

that he would not become liable to pay the principal,

for it is written: “

And he confessed,”

that he must pay the principal and the fifth,

that is: because it is stated in the section concerning the oath of a deposit, “And they shall confess the sin that they committed, and he shall return his guilt-offering in its principal [that is, the principal] and its fifth he shall add to it,” the Torah made him liable for the principal when he confessed, meaning, when he admitted; and this principle is proved from the first clause of the beraita.

b.

Even concerning one who claims the claim of a thief and witnesses came, Rav did not say

that he would not become liable for the principal,

for it is written

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

double payment,

that is: “If the thief is not found, he shall pay double”; therefore he is liable for the principal, and this principle is proved from the latter clause of the beraita, which makes him liable for double payment.

And if so, there is no difficulty from the Mishna that Rav Hamnuna challenged, for the reason for his liability is that he can return and confess, whereas if he confessed, he would indeed also be liable for the principal, since he becomes liable for it because of “the oath concerning a deposit”—

For when Rav says

that he is not liable for the principal after he swore, it is

in a case where he claims the claim of loss

which carries no liability for double payment,

and he swore but did not confess, and witnesses came,

which carries no liability for the oath concerning a deposit.

Rav Gamda went and stated his teaching before Rav Ashi, [

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

he said

in astonishment

to him

Rav Ashi:

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

even in the case of

confession, and

for this reason

raised an objection

from a case in which he

confessed, and

whereas

you say: In the case of confession Rav did not say this!?

Rav Aḥa the Elder said to Rav Ashi:

In truth, Rav Hamnuna too agrees that in the case of confession he does not become exempt from the principal, and

Rav Hamnuna—

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

this is what was difficult for him: