Bava Metzia 4a — the Talmud in English

You can say that with witnesses, he swears concerning that which he denied.

Whereas in the ruling of Rabbi Hiyya, the oath is not concerning that about which the witnesses testified, for his oath is in order to be exempt from the second half, concerning which the witnesses do not testify. And if so, from where does Rabbi Hiyya derive authority to be stringent and introduce such an oath? which is not at all similar to the oath of one witness.

And for this reason the Gemara rejects, and says that Rabbi Hiyya’s ruling is not derived from one witness—

Rather, Rav Pappa said:

Rabbi Hiyya’s ruling

comes,

is derived,

from the rolling of an oath through one witness—

For the Gemara in Kiddushin [27b] expounds from the verse that wherever a person becomes obligated to take an oath, the claimant may demand of him that he also swear concerning other claims that he has against him, and he is obligated to swear to him even concerning claims that in themselves do not carry an obligation of an oath. And this is the law of “rolling an oath”: the claimant rolls additional oaths upon the defendant along with the oath to which he became obligated.

And likewise, if the defendant became obligated to take an oath through the testimony of one witness, the claimant can roll other additional oaths upon him concerning claims that do not carry an obligation of an oath.

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

But the Gemara rejects:

What is there concerning the rolling of an oath through one witness? The oath causes another oath to follow.

It is impossible to derive Rabbi Hiyya’s ruling from the rolling of an oath through one witness. For the rolling oath is not on account of the power of the one witness; rather, since the witness obligates an oath concerning that about which he testified, this oath causes additional oaths to follow it. And if so, we have not found that one witness obligates an oath concerning that about which he did not testify. Rather, the oath that the witness obligated the defendant to take enables the claimant to obligate him to take an additional oath, also concerning that about which the witness did not testify—

Can you say this with witnesses, since they obligate a monetary payment?

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

And for this reason the Gemara retracts, and says that the kal va-chomer is not from the rolling of an oath, but it is as we said at the outset: the kal va-chomer is from one witness. And even though we rejected it with: What is there 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—about this one can say:

his mouth proves it,

for we find that his mouth obligates him to take an oath even concerning that which he did not admit.

And although we rejected this proof, for

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

for the power of his mouth is greater than the power of witnesses: witnesses do not have the power to nullify the admission of his mouth, whereas witnesses who were contradicted or refuted have their testimony annulled—

To this refutation one can answer,

one witness proves it, who

even though he

is subject to contradiction,

for if witnesses came and contradicted him, his testimony is annulled,

and

nevertheless

he obligates him to take an oath.

He can obligate him to take an oath—

And if so, one can no longer refute that witnesses cannot obligate him to take an oath because they are subject to contradiction, for in the case of one witness we see that even one who is subject to contradiction can obligate an oath—

But it is still difficult, for one cannot prove Rabbi Hiyya’s ruling from the oath of one witness.

For

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

For the oath that one witness imposes is not similar to the oath that the witnesses impose, because the oath of one witness is an oath concerning that about which the witness testified [that he swears in order to deny it],

whereas you can say this with 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 be exempt from that half concerning which the witnesses do not testify—

To this one can answer,

his mouth proves it,

for in every oath of one who admits to part, even though his admission is what obligates him to take an oath, nevertheless the oath is not concerning the admission, but concerning that which he denies—

And if so, one cannot refute Rabbi Hiyya’s ruling by saying that the oath is not concerning that about which the witnesses testify, for even one who admits to part does not swear concerning that which he admitted, but concerning another matter!

And the matter returns—

If we refute with: What is there concerning one witness? He swears concerning that about which he testifies—his mouth will come and prove it. And if we refute with: What is there concerning his mouth? It is not subject to contradiction and refutation—one witness will come and prove it. And it goes around repeatedly. It follows that it is impossible to say that one who is unlike his mouth in that he is subject to contradiction cannot obligate an oath, for one witness also obligates an oath.

And

this one’s aspect is not like that one’s aspect,

for one witness does not have the stringency that his mouth has, for it is subject to contradiction. Necessarily, the fact that his mouth is not subject to contradiction is not the reason on account of which it can obligate an oath, for we find that even one who does not possess this stringency can obligate an oath—

And likewise it is impossible to say that one who is not like one witness [who does not swear concerning that about which the witness testifies] cannot obligate an oath, for we find that his mouth obligates an oath.

And

this one’s aspect is not like that one’s aspect,

and the oath of his mouth does not possess the advantage that exists with one witness, for he swears concerning that which he did not admit. Necessarily, it is not necessary to swear specifically concerning the admission or the testimony.

And therefore, we must find the common denominator of one witness and his mouth, on account of which they have the power to impose an oath; and consequently we will be able to derive through “the common side” that anyone who is similar to them will have the power to impose an oath!

And this is

the common side among them,

which exists with his mouth and one witness [on account of which they have the power to impose an oath]—

that through a claim and a denial,

on account of 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 a denial—

and he swears!

And we raise an objection:

what is there concerning the common side among them? The defendant was not established as a denier,

for there is a common aspect in his mouth and in one witness that does not exist in Rabbi Hiyya’s ruling. Namely, both with his mouth and with one witness, the defendant was not established in our eyes as a liar [because one witness is not trusted to contradict him and establish him as a denier]. And if so, it is possible that only one who was not established as a denier is trusted to swear—

Can you say this with witnesses, since he was established as a denier?

Whereas when witnesses testify against the defendant’s claim, the defendant has indeed been established as a denier, since it was clarified through witnesses that he lied in denying everything; and from where do we have that he is trustworthy concerning the oath?

And we are astonished:

And with witnesses, was he established as a denier!?

Does the defendant become a denier through the witnesses who contradict his claim?

But Rav Idi bar Avin said in the name of Rav Hisda: one who denies a loan,

one whom his fellow claimed to repay his debt, and the latter denied the debt, and afterward it became clear through witnesses that the defendant lied—

is fit

the defendant

for testimony.

And although it became certain that he lied, nevertheless he is not disqualified for testimony, for perhaps he did not intend to steal, but at the time of the claim he did not have money, and therefore he rejected the lender with the claim that it had never happened, but his true intention was to return it to him later. And for this reason the law of a “robber” does not apply to him—

However, all this applies to a loan, where it is possible to attribute that at the time of the claim he did not have money to pay. But one who gives an object or money to his fellow to guard, and the latter denies

a deposit,

and claims that it never happened, and afterward it became clear through witnesses that he lied—

is disqualified for testimony.

For in this case it is impossible to attribute and say that he does not have money to pay, for it was forbidden for him to remove the deposit from his possession; necessarily, his intention was to steal! [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 attribute that the deposit was lost or stolen, and at the time of the claim he did not have money to pay its value].—

And if so, even though the witnesses testify against him, he is not established as a denier and can swear.

Rather,

if you have a refutation to raise against the derivation from “the common side” of his mouth and one witness—

raise it in this manner!

What is there concerning the common side among them? They are not subject to the law of refutation.

For if they were refuted, it would not be possible to carry out upon them the punishment stated concerning conspiring witnesses, “you shall do to him as he schemed to do to his brother”—for one witness who was refuted is exempt from punishment. And likewise, with the admission of his mouth, “as he schemed” has no relevance at all.

Can you say this with witnesses, who are subject to the law of refutation?

For if their testimony is refuted, they are liable for the punishment of “as he schemed.”

And we answer:

This is not difficult.

For

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

Rabbi Hiyya did not regard this objection as a refutation. And the reason is that the essential concept of refutation applies to one witness just as it does to two witnesses, for if his testimony is refuted, his testimony is annulled. If so, the power of one witness is equal to the power of two witnesses. And as for the fact that one witness has the advantage that the “punishment” of refutation does not apply to him, Rabbi Hiyya held that this is not an advantage, and his power is not greater on account of this than that of two witnesses.

Rather,

if you have an answer against Rabbi Hiyya’s words, this is how you should answer:

This

that he says, “And the tannai teaches likewise,”

this is what Rabbi Hiyya brought as support for his ruling from our Mishna: in our Mishna, each one of them claims the entire cloak, and we are witnesses [by virtue of their holding it] that each one has half a cloak. And for this reason they swear, in accordance with Rabbi Hiyya’s words, that witnesses who testify concerning part of the claim impose an oath concerning the remainder—

Are they comparable!?

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

there,

in Rabbi Hiyya’s ruling [where he says, “You have a maneh with me,” and the other says, “You have nothing with me,” 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,

for 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 owes fifty and repaid fifty], in this case—

Rabbi Hiyya would not require him to swear.

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

But

here

in our Mishna, surely

just as we are witnesses with regard to this one,

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

we are witnesses with regard to this one.

We are witnesses that his fellow has half the cloak. And in a place where there is testimony on behalf of both sides, Rabbi Hiyya did not say that one must swear.

And even so,

it is stated in the Mishna that

they swear!

And necessarily, this oath is not on account of Rabbi Hiyya’s ruling; rather, this is a rabbinic enactment, that despite our being witnesses that the half is his, he must nevertheless swear, so that each person will not go and seize his fellow’s cloak and say, “It is mine!” -

And if so, it is difficult: how did Rabbi Hiyya prove his ruling from our Mishna!?

And we answer:

Rather, when it was said, “And the tanna teaches it,”

what Rabbi Hiyya brought as proof from our Mishna is not proof for this ruling that Rabbi Hiyya stated. Rather,

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

It is proof for another ruling that Rabbi Hiyya stated -

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

For Rabbi Hiyya said,

if one claims money from his fellow and says to him,

“You have a maneh in my possession,” and the other says, “You have only fifty zuz in my possession” —

“And here it is!”

at the very time of the claim, he gives him those fifty that he admits he owes him —

he is liable

for the oath of one who admits part of the claim!

What is the reason? Even heilekh is considered like an admission of part of the claim!

And 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 Rav Sheshet will maintain below].

And the tanna teaches 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, “The whole of it is mine”; they divide it. -

At this stage the Gemara understood that the oath in our Mishna is an oath from the Torah! And the reason for the oath is that each one denies the claim of his fellow, who claims from him the entire cloak, while we are witnesses that the claim is partially justified, and that half the cloak is his [for he is holding half the cloak before us]. Therefore, the defendant must swear with regard to the other half, just as Rabbi Hiyya said: one who denies everything, while witnesses testify that he is liable for part, must swear with regard to the remainder. (And although above the Gemara rejected that the oath of the Mishna is on account of Rabbi Hiyya’s ruling — see the note below.)

But here,

in the case of two holding a cloak,

since he is holding it,

since each of them is holding half the cloak [

we are witnesses that what he is holding ]]

is “here it is.”

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

And

nevertheless

it teaches: he must swear,

and it is proved that even where he says to him, “Here it is,” he is liable for an oath from the Torah, that of one who admits part of the claim.

And Rav Sheshet said,

if one claims money from his fellow, and the latter admits part, and at the time of the claim he 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,” those coins concerning which he admits,

at the time he said to him, “Here it is,” this is

like the creditor is holding them.

It is as though the money is already in the creditor’s possession, and since the fifty that he admits to him are as though they are in the borrower’s possession, it emerges that he claims only fifty, while

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

and with regard to these fifty the defendant denies everything; and one who denies everything does not swear —

therefore, there is no admission of part

of the claim.

And for this reason there is no admission of part here, and he does not swear!