Bava Metzia 4a (ד.) — the Talmud in English

You can say that in the case of witnesses, he swears concerning that which he denied.

Whereas in Rabbi Hiyya’s ruling, the oath is not concerning that which the witnesses testified, since he swears in order to exempt himself from liability for the second half, concerning which the witnesses did not testify. If so, from where did Rabbi Hiyya derive the authority to be stringent and introduce such an oath, which is entirely unlike the oath imposed by one witness?

For this reason, the Gemara rejects the comparison and says that Rabbi Hiyya’s ruling is not derived from the case of one witness—

Rather, Rav Pappa said:

Rabbi Hiyya’s ruling

is derived

from,

the rolling of an oath imposed by one witness—

For the Gemara in Kiddushin (27b) derives from a verse that whenever a person becomes obligated to take an oath, the claimant may require him to swear also concerning other claims that he has against him, and he is obligated to swear even concerning claims that, in themselves, do not entail an obligation to take an oath. This is the law of “rolling an oath”: the claimant rolls additional oaths onto the defendant along with the oath to which he has become obligated—

Likewise, if the defendant becomes obligated to take an oath through the testimony of one witness, the claimant may roll other oaths onto him concerning claims that do not entail an obligation to take an oath.

And from the rolling of an oath through one witness, Rabbi Hiyya derived a kal va-chomer. For if one witness, whose force is limited, as he does not have the power to impose a monetary obligation, can nevertheless obligate the defendant through the rolling of an oath to swear also concerning that about which he did not testify, then certainly two witnesses, whose force is greater than that of one witness, since they have the power to impose a monetary obligation, can obligate him to take an oath even when the oath does not concern that about which they testified. [And therefore, when they testify concerning part of the claim, they can obligate him to swear concerning the remainder—even though they did not testify concerning the remainder].

But the Gemara rejects this:

What is there to say concerning the rolling of an oath imposed by one witness? An oath causes another oath to follow.

It is impossible to derive Rabbi Hiyya’s ruling from the rolling of an oath imposed by one witness. For the rolled oath is not due to the force of the one witness; rather, since the witness obligates the defendant to take an oath concerning that about which he testified, this oath causes additional oaths to follow. If so, we have not found that one witness obligates a person to take an oath concerning that about which he did not testify. Rather, the oath imposed by the witness upon the defendant enables the claimant to obligate him to take an additional oath, even concerning that about which the witness did not testify—

you can say that in the case of witnesses, they impose a monetary obligation.

Witnesses who testify concerning part of the claim do not obligate the defendant to take an oath; rather, they obligate him to pay money. There is no oath here that can cause another oath to follow. If so, what is the source for the assertion that they can obligate him to take an oath concerning the half about which they did not testify?

For this reason, the Gemara retracts its proposal and says that the kal va-chomer is not from the rolling of an oath, but is as we initially stated: the kal va-chomer is from the case of one witness. And although we rejected it by saying, “What is there to say concerning one witness? He swears concerning that about which he testifies,” whereas in Rabbi Hiyya’s ruling the oath is not concerning that about which the witnesses testified, but concerning that which he denies—to this one can respond:

His own mouth proves it,

for we find that a person’s own mouth obligates him to take an oath even concerning that which he did not admit.

And although we rejected this proof, since

what is there to say concerning his own mouth? It is not subject to contradiction,

for the force of a person’s own mouth is greater than that of witnesses: witnesses do not have the power to nullify his admission, whereas witnesses whose testimony is contradicted or refuted have their testimony nullified—

To this refutation one can respond:

one witness proves it, for

even though

he is subject to contradiction,

for if witnesses come and contradict his testimony, his testimony is nullified,

he

nevertheless

obligates him to take an oath.

He has the power to obligate him to take an oath—

If so, one can no longer refute the derivation by saying that witnesses cannot obligate him to take an oath because they are subject to contradiction, since in the case of one witness we see that even one who is subject to contradiction can obligate a person to take an oath—

But it is still possible to raise the objection that the oath imposed by one witness cannot prove Rabbi Hiyya’s ruling.

For

what is there to say concerning one witness? He swears concerning that about which he testifies.

The oath imposed by one witness is not comparable to the oath imposed by the witnesses, because the oath of one witness is concerning that about which the witness testified [and the defendant swears to deny it],

you can say that in the case of witnesses, he swears concerning that which he denied.

For in Rabbi Hiyya’s ruling, he does not swear at all concerning that about which the witnesses testified and which they obligate him to pay; rather, he swears in order to exempt himself from liability for the half concerning which the witnesses did not testify—

To this one can respond:

his own mouth proves it,

for with regard to every oath of one who admits to part of a claim, although his admission is what obligates him to take an oath, nevertheless the oath does not concern the admission but that which he denies—

If so, one cannot refute Rabbi Hiyya’s ruling by saying that the oath does not concern that about which the witnesses testify, since even one who admits to part of a claim does not swear concerning that which he admitted, but concerning something else!

And the case returns—

If we refute the case of one witness by saying, “What is there to say concerning one witness? He swears concerning that about which he testifies,” then his own mouth will prove it. And if we refute the case of his own mouth by saying, “What is there to say concerning his own mouth? It is not subject to contradiction or refutation,” then one witness will come and prove it, and so the argument goes around in a circle. It follows that one cannot say that anyone who does not resemble his own mouth in that he is subject to contradiction cannot obligate a person to take an oath, since one witness also obligates a person to take an oath.

And

this one is not like that one,

for one witness does not possess the stringency found in a person’s own mouth, since he is subject to contradiction. Necessarily, the fact that a person’s own mouth is not subject to contradiction is not the reason that it can obligate a person to take an oath, since we find that even one who lacks this stringency can obligate a person to take an oath—

Likewise, one cannot say that anyone who does not resemble one witness [who does not swear concerning that about which the witness testifies] cannot obligate a person to take an oath, since we find that a person’s own mouth obligates him to take an oath.

And

this one is not like that one,

for the oath of a person’s own mouth does not possess the advantage found in the case of one witness, since he swears concerning that which he did not admit. Necessarily, it is not necessary to swear specifically concerning the admission or the testimony.

Therefore, we must find the common denominator of one witness and a person’s own mouth, by virtue of which they have the power to obligate a person to take an oath—and then we can derive, through the “common denominator,” that anyone who resembles them will have the power to obligate a person to take an oath!

And this is it:

the common denominator between them,

which exists in a person’s own mouth and in one witness [and by virtue of which they have the power to obligate a person to take an oath], is

that through a claim and denial,

that is, through the claimant’s claim and the defendant’s denial,

they come,

the litigants come to court —

and he swears.

I too will bring witnesses,

one can derive from this that the testimony of witnesses

that

they too

come through a claim and denial—

and he swears!

And we raise an objection:

What is there to say concerning the common denominator between them? The defendant has not been established as a denier,

for there is a common element in a person’s own mouth and in one witness that does not exist in Rabbi Hiyya’s ruling: Both when the admission is from his own mouth and when there is one witness, the defendant has not been established in our eyes as a liar [because one witness is not trusted to contradict him and establish him as a denier]. If so, perhaps only one who has not been established as a denier can be trusted to take an oath—

You can say that in the case of witnesses, the defendant has been established as a denier.

Whereas when witnesses testify against the defendant’s claim, the defendant has been established as a denier, since the witnesses have demonstrated that he lied when he denied everything. From where do we know that he should be believed with regard to the oath?

And we wonder:

And in the case of witnesses, has he been established as a denier!?

Does the defendant become a denier merely because of the witnesses who contradict his claim?

But Rav Idi bar Avin said that Rav Hisda said: One who denies a loan,

if one person claims that another should repay his debt, and the latter denies the debt, and afterward it becomes clear through witnesses that the defendant lied—

is fit

the defendant

to testify.

Although it has become certain that he lied, he is nevertheless not disqualified from testifying, because perhaps he did not intend to steal. Rather, at the time of the claim he had no money, and therefore he rejected the lender’s claim by asserting that the matter had never occurred, while his true intention was to repay him later. Therefore, he does not have the status of a robber—

All this, however, applies to a loan, where it is possible to assume that at the time of the claim he had no money with which to pay. But if one gives an object or money to another for safekeeping, and the latter denies

the deposit,

claiming that the matter never occurred, and afterward it becomes clear through witnesses that he lied—

he is disqualified from testifying.

In this case, one cannot assume that he lacked money with which to pay, since he was forbidden to remove the deposit from his possession. Necessarily, his intention was to steal it! [And below the Gemara establishes that there were witnesses that at the time of the claim the deposit was in his possession; for otherwise, it would still be possible to assume that the deposit had been lost or stolen, and that at the time of the claim he had no money with which to compensate the owner for it].—

If so, although the witnesses testify against him, he has not been established as a denier and he can take an oath.

Rather,

if you wish to refute the derivation by means of the “common denominator” from a person’s own mouth and one witness—

refute it in this manner!

What is there to say concerning the common denominator between them? They are not subject to the law of refutation.

For if they are refuted, it is impossible to impose upon them the punishment stated with regard to conspiring witnesses: “You shall do to him as he plotted to do to his brother.” For a single witness who is refuted is exempt from punishment. Likewise, in the case of an admission by a person’s own mouth, the principle of “as he plotted” is entirely inapplicable.

You can say that in the case of witnesses, they are subject to the law of refutation.

If their testimony is refuted, they are liable to the punishment of “as he plotted.”

And we answer:

That is not difficult. For

For

Rabbi Hiyya does not consider “the law of refutation” a refutation.

Rabbi Hiyya did not regard this objection as a valid refutation. The reason is that the essential concept of refutation applies to one witness just as it does to two witnesses, since if his testimony is refuted, it is nullified. If so, the force of one witness is equal to the force of two witnesses. As for the fact that one witness has an advantage in that he is not subject to the “punishment” of refutation, Rabbi Hiyya maintains that this is not an advantage and that his force is not greater than that of two witnesses on account of it.

Rather,

if you wish to challenge Rabbi Hiyya’s words, this is how you should challenge them:

As for

that which he said, “And a tanna has also taught it,”

that is, Rabbi Hiyya brought support for his ruling from our Mishna: In our Mishna, each of the litigants claims the entire cloak, while we are witnesses [by virtue of their holding it] that each of them possesses half of the cloak. For this reason, they take oaths, in accordance with Rabbi Hiyya’s statement that witnesses who testify concerning part of a claim obligate the defendant to take an oath concerning the remainder—

Are the cases comparable!?

The law of the Mishna is not comparable at all to Rabbi Hiyya’s ruling. For

there,

in Rabbi Hiyya’s case [where one says, “I have a hundred dinars in your possession,” and the other says, “You have nothing in my possession,” and witnesses testify that he has fifty], in this case—

the lender has witnesses.

The lender has witnesses that the borrower owes him fifty, whereas

the borrower has no witnesses that he owes him nothing.

He has no witnesses that he does not owe him the fifty that he denies—

for if the borrower had witnesses

that is, if the borrower had witnesses

that he owes him nothing,

that he indeed does not owe him the remaining fifty that he denies [for example, witnesses came and said: He owed fifty and repaid fifty ], in that case—

Rabbi Hiyya would not require him to take an oath.

Rabbi Hiyya would not obligate him to take an oath, since there are witnesses testifying in accordance with his claim.

But

here

in our Mishna,

just as we are witnesses with regard to this one,

just as we are witnesses that one of them owns half of the cloak, so too

we are witnesses with regard to this one.

We are witnesses that his fellow owns half of the cloak. And where there is testimony supporting both sides, Rabbi Hiyya did not say that one must take an oath.

And even so,

it is stated in the Mishna that

they take an oath!

Necessarily, this oath is not due to Rabbi Hiyya’s ruling; rather, it is a rabbinic enactment that, despite the fact that we are witnesses that each half belongs to one of them, he must nevertheless take an oath, so that everyone should not go and seize his fellow’s cloak and say, “It is mine”! -

If so, it is difficult: How did Rabbi Hiyya prove his ruling from our Mishna?!

The Gemara answers:

Rather, when “and the tanna supports it” was stated,

the proof that Rabbi Hiyya brought from our Mishna was not proof of this ruling that Rabbi Hiyya stated. Rather,

it was stated with regard to another ruling of Rabbi Hiyya.

It was proof of another ruling that Rabbi Hiyya stated -

Here begins the sugya of “heilakh,” called “Rabbi Hiyya the latter.”

For Rabbi Hiyya said:

If one claims money from another and says to him,

“You owe me one hundred zuz,” and the other says, “You have only fifty zuz in my possession” -

“And here it is!”

At the time of the claim, he immediately gives him the fifty zuz that he admits owing him -

he is liable

to take the oath of one who admits part of the claim!

What is the reason? Saying “Here it is” is also considered like an admission of part of the claim!

We do not say that if he gives him the money immediately at the time of the claim, he is not considered one who admits part of the claim [as is the opinion of Rav Sheshet below].

And the tanna supports it,

and the tanna in our Mishna supports this ruling, for it is stated in our Mishna:

“Two are holding a cloak,”

and each claims that the entire cloak is his; they divide it. - [

At this stage, the Gemara understood that the oath in our Mishna is an oath mandated by Torah law! The reason for the oath is that each one denies the claim of his fellow, who claims the entire cloak from him, while we are witnesses that the claim is partially justified and that half the cloak belongs to him [since he is holding half of the cloak before us]. Therefore, the defendant must take an oath with regard to the other half, as Rabbi Hiyya said: One who denies everything, while witnesses testify that he is liable for part, must take an oath concerning the remainder. (Although earlier the Gemara rejected the possibility that the oath in the Mishna is due to Rabbi Hiyya’s ruling, see the note below)] -

But here,

in the case of two holding a cloak,

since they are holding it,

since each of them is holding half of the cloak [

we are witnesses that whatever he is holding ]]

is “here it is.”

At the time that we are witnesses that part of his claim is true and that half of the cloak belongs to him, he is holding half of the cloak before us; this is as though the defendant said to him, “Here it is.”

And

nevertheless

it teaches that he must take an oath,

which proves that even where he says, “Here it is,” he is liable for an oath mandated by Torah law as one who admits part of the claim.

And Rav Sheshet said:

If one claims money from another, and the latter admits part of the claim, and at the time of the claim gives him the part that he admits and says to him,

“Here it is,” he is exempt

from the oath of one who admits part of the claim.

What is the reason? -

Since he said to him, “Here it is,” the money concerning which he admits

when he said “Here it is” is

considered as though the creditor were holding it.

It is as though the money were already in the creditor’s possession. Since the fifty zuz that he admits owing him are considered to be in the borrower’s possession, it follows that the claimant is demanding only fifty zuz, and

with regard to the other fifty, he does not admit;

with regard to those fifty, the defendant denies everything, and one who denies everything does not take an oath -

therefore, there is no admission of part

of the claim.

For this reason, there is no admission of part of the claim here, and he does not take an oath!