Bava Metzia 5a — the Talmud in English

And we raise an objection:

And according to the one who says

that in an admission of part in the manner of

“hillekh,” he is exempt

from the oath of one who admits part, raise a difficulty—

Why was a verse needed to exclude land from the oath?

Why were we required [in Shevuot 42b] to expound from the verse and exclude that there is no obligation of an oath in a claim concerning land? But

is not all land hillekh?

For anyone who admits concerning a claim of land, it is as though he said “hillekh,” since immediately upon his admission, the land stands in the possession of its owner—

And if so, even without the exclusion that one does not swear concerning land, there would be no obligation of an oath concerning land by virtue of “hillekh”?

And we answer:

He can say to you:

Although anyone who admits concerning land is as though he said “hillekh,” nevertheless

a verse was needed;

the Torah’s novelty that “one does not swear concerning land” is needed for

a case

where he claimed two plots of land from him, and the claimant admits to him regarding one field, and for a case

where he dug in it,

where he dug up and damaged the land concerning which he admitted—

For example, where he dug in it

round pits

[a round pit],

trenches

[a long and narrow pit],

and caves

[a pit with a roof], since he damaged the land, his admission is not considered “hillekh,” for he is not returning in its entirety that same land which he received.

Alternatively,

the exclusion that one does not swear concerning land is needed for

a case where he claimed from him,

where he claimed from him also

utensils and

also

land, and he admitted concerning the utensils,

and the latter admitted concerning the claim of the utensils but did not say concerning them “hillekh,”

and denied concerning the land.

And concerning this case the Torah made known that although his admission was concerning movable property [and concerning it he did not say “hillekh”], nevertheless he is exempt from an oath, because he denied concerning land, and one does not swear concerning a denial of land.

Come and hear

to prove that hillekh is liable for an oath, from this:

For Rami bar Hama taught—

Every bailee who makes a claim that exempts him from paying, such as an unpaid bailee who claims “it was stolen,” or a paid bailee who claims “it was taken by force majeure,” or a borrower who claims “it died because of the work,” is liable for an oath—and this is the “oath of bailees.”

And Rami bar Hama holds that in order for the

four bailees

to become liable for an oath,

they need

their claim to contain

a partial denial and a partial admission,

and if they do not deny part and admit part, they are not liable for an oath—and the four bailees are:

an unpaid bailee, a borrower, a paid bailee, and a renter!

And the reason for the matter is that the passage concerning one who admits part was written in the Torah within the passage concerning bailees, and the Gemara expounded that a bailee becomes liable for an oath only if he admits part and denies part.

And in order that there be an admission and a denial, the bailee must deny one cow entirely, and claim that he never received it [or claim, “I returned it to you”], and admit concerning another cow that it is in his possession, and he is obligated to return it [but the claim “it was taken by force majeure,” or “it was stolen,” or “it died because of the work,” is considered neither an admission nor a denial]—

And if so, it follows that the bailee does not swear concerning the claim “it was taken by force majeure” or “it was stolen,” unless the owner claimed three cows from him: concerning one he denied, concerning one he admitted, and concerning the third he claims that it was stolen or taken by force majeure—and only in this situation, since there was an “admission” and a “denial,” he is obligated to swear concerning the claim “it was taken by force majeure” or “it was stolen.”

And the Gemara proves:

What are the circumstances?

How did he admit to him concerning one cow?

Is it not

the case

where he said to him, “hillekh,”

“This is your cow concerning which I admit to you”?

And it is proved that even in a situation where he says to him “hillekh,” he is liable for the oath of one who admits part!

And we reject this:

No!

Actually, hillekh exempts one from an oath, and here it is a case where the bailee admitted but did not say “hillekh,” such as

where he said to him

the owner said to the bailee:

“I gave you three cows, and all of them died,”

all three cows

through negligence. And he said to him,

the bailee claimed to the owner:

“One,”

concerning one cow that you claim from me, I say that

“it never happened,”

but you gave me only two cows.

“And one,”

the second cow that you claim,

“died through force majeure,”

and I am exempt from paying [and concerning this cow he is obligated to swear],

“and one,”

the third cow that you claim,

“died through negligence, for I must pay you.”

I admit that I must pay you for it. And it follows that

it is not hillekh,

for the cow concerning which he admitted died, and all his admission is only concerning the obligation of its value.

And now the Gemara continues to discuss the first law of Rabbi Hiyya: one who claims one hundred zuz from his fellow, and the borrower denies and says, “You have nothing in my possession,” and there are witnesses testifying that the defendant indeed borrowed from the claimant, but the amount of the loan was only fifty zuz, he gives him fifty zuz, as the witnesses testified, and concerning the remaining fifty the defendant swears that he does not owe him. And this oath is learned by a kal va-chomer from one who “admits part.”

Come and hear,

come and hear a proof, from this

which the father of Rabbi Aptoriki taught,

who taught the law

of the first Rabbi Hiyya

in the opposite manner:

One who claims from his fellow:

“A maneh

[one hundred zuz]

is owed to me by you! And the latter”

denies and

says: “You have nothing in my possession”—

and the witnesses testify concerning him that he has fifty zuz,

that there are witnesses testifying that the defendant indeed borrowed from the claimant, but the amount of the loan was only fifty zuz—

It is possible

that you might say,

“Let him swear”

the borrower

“concerning the remainder,”

concerning the remaining fifty zuz that the lender claims from him [and as Rabbi Hiyya made known]—

The verse states,

in the verse in which the law of the oath of one who admits part was made known,

“Concerning every lost article, about which he says, ‘It is this.’”

And the language “about which he says” implies that only

for the admission of his mouth,

that he himself admits concerning part of the claim,

do you obligate him

an oath,

but

not

do you obligate him

the oath of one who admits part

for the testimony of witnesses,

who testify that part of the lender’s claim is correct.—

And it is explicit from the teaching in this beraita that it is the opposite of Rabbi Hiyya’s words.

And the Gemara is astonished at the very challenge from the words of the father of Rabbi Aptoriki in the beraita against Rabbi Hiyya:

But is it so that

a teaching

(слова мудреца эпохи Мишны, приведенные в барайте)

do you cast

[you raise a difficulty]

against Rabbi Hiyya?!

Is it not that

Rabbi Ḥiyya is a tanna

considered as such,

and he disagrees!

He has the authority to disagree with the words of the tannaim in the beraita.

But the Gemara still claims:

But the verse says so!

For he proved this law from the language of the Torah, which implies that only if he himself admitted part is he liable for an oath. And what will Rabbi Hiyya answer to this?

And we answer:

That

verse comes to teach

concerning one who admits part of the claim.

That is, Rabbi Hiyya too admits that the verse comes to teach us only the fundamental law, that one who admits part of the claim is liable for an oath—but from this law we learn by a kal va-chomer that even if he denied everything, and witnesses testified that he is liable for part, he is liable for an oath . [And as we learned above, 3b].

And now the Gemara explains:

And the father of Rabbi Aptoriki,

how did he prove from the verse that there is no obligation of an oath through the testimony of witnesses? Is it not that Rabbi Hiyya too admits that the verse speaks only of one who admits part, but he learns by a kal va-chomer to the testimony of witnesses?—

He can say to you: It is written “

he”

and it is written “

this.”

The Torah lengthened its language and wrote, “about which he says, ‘It is this.’” If the verse had come only to teach the law of one who admits part, it would have sufficed for it to write, “about which he says, ‘It is,’” or “about which he says, ‘this.’” And from the duplication of the language, “he” and “this,” one must learn that one verse

comes

to

teach

the fundamental law of

one who admits part of the claim,

that he is liable for an oath,

and one

verse comes

to

exclude

the testimony of witnesses,

to teach us

that he is exempt

from an oath.

And the other,

Rabbi Hiyya, says to you that there is no exclusion here concerning the testimony of witnesses, but rather—

one

comes

to

teach us the fundamental law of

one who admits part of the claim

that he is liable for an oath,

and one

comes

for one who admits from the type of the claim,

to teach that in order to become liable for the oath of one who admits part, the admission must be of the same type as that which the claimant claims from him; but if he claimed wheat from him, and he denied the wheat and admitted barley to him, he is exempt .—

And the other,

the father of Rabbi Aptoriki, the law of

one who admits from the type of the claim, he does not have!

He does not hold that for an oath to be obligatory the admission must be of the type of the claim. And therefore he can expound from the verse that through the testimony of witnesses there is no obligation of the oath of one who admits part.

And he holds

the father of Rabbi Aptoriki

like Rabban Gamliel.

For we learned: He claimed wheat from him, and he admitted barley to him, he is exempt; and Rabban Gamliel obligates:

That shepherd,

an incident involving a shepherd,

for they would entrust

animals to him every day in the presence of witnesses.

For they would entrust sheep to him for safekeeping every day, in the presence of witnesses —

One day,

one day

they entrusted to him

the sheep

without witnesses,

without witnesses.

In the end,

he said to them,

at the end of the day he said to them:

“It never happened!”

Today I did not receive sheep from you for safekeeping. And afterward

witnesses came,

witnesses came,

they testified concerning him that he ate two of them,

and testified that the shepherd ate two animals from the owners’ flock on that day—

Rabbi Zeira said: If the law is in accordance with the first statement of Rabbi Hiyya,

if the halakha is according to Rabbi Hiyya, that witnesses who testify concerning liability for part of the claim obligate him to swear concerning the remainder as though he himself admitted part, the same law applies here, since the witnesses testified that he is obligated to return the value of the two animals that he ate—

he swears concerning the remainder.

The shepherd is obligated to swear concerning the rest of the flock, concerning which he denies and says, “It never happened.”

Abaye said to him: If the law is so,

and if the halakha is according to Rabbi Hiyya, does he also here

swear

the shepherd concerning the remainder?

But,

here there are witnesses who

he is a robber,

for it was established through witnesses that he lied when he said, “It never happened.” And one suspected concerning money cannot swear—

But according to Rabbi Hiyya’s ruling, he is not considered suspect concerning money, since Rabbi Hiyya stated his ruling with regard to a loan, and there there is reason to attribute the borrower’s denial not to his desire to steal it from him, but rather to the fact that he has no money with which to repay; therefore, he evades him for a short time, until he has what with which to repay. For this reason, he is not suspect concerning money or the oath. And even in a case where he denies a deposit, there is reason to attribute that the deposit was lost from him, and he evades him for a short time, until he finds the deposit or until he obtains money to pay its value—which is not so here, where there are witnesses that he ate two animals that do not belong to him, and he is a robber; therefore, he cannot swear.

And we answer:

He said to him

Rabbi Zeira said to Abaye: My intention was not to say that the shepherd will swear and be exempt, for he is suspect concerning money and cannot swear. Rather,

I meant: the other party.

My intention is that the claimant will swear how many animals he gave the shepherd to guard, and will take them from him—for so we learned in tractate Shevuot [44b]: If the defendant became liable for an oath, but cannot swear because he is suspect concerning oaths, the Sages instituted that the claimant will swear in place of the defendant and take. And since the shepherd became liable for an oath by virtue of Rabbi Hiyya’s ruling, but cannot swear because he is suspect, the depositor will swear and take his animals. Tosafot further answered that everywhere the claimant can say to the defendant: You are liable to me for an oath from the Torah, and therefore, either swear or pay; and since you cannot swear, you pay. But the suspect wants to swear willingly, except that we do not allow him to swear; therefore, he has no obligation to make payment, and the other party swears and takes. And the Hazon Ish explained [Hoshen Mishpat, section 9, subsection 3] that according to Torah law, we do not care that the suspect wants to swear, and if he cannot swear, he must pay. Rather, this reasoning that Tosafot wrote is rabbinic: the Sages saw fit to institute, for the benefit of the suspect, that he should not swear. According to his words, there is no essential difference between Tosafot’s two answers; the essential answer is that concerning a suspect, the Sages instituted that the other party should swear. However, in the first answer Tosafot wrote that the reason for the institution is that otherwise they would take all that he possesses, whereas in the second answer they wrote that the reason for the institution is that he wants to swear. And see there in the Hazon Ish, who inferred his words from the language of Tosafot. [And something similar to the words of the Hazon Ish was written in Noda BiYehuda, second edition.] But the Ketzot HaHoshen [section 75, subsection 11] wrote that this reasoning, which Tosafot wrote—that where the defendant wants to swear but cannot, we do not say, “Since he cannot swear, he pays”—is a reasoning from the Torah. It is not merely a reason for a rabbinic institution. And he proved this from the continuation of the sugya. And likewise the Bach wrote in section 92. And in explaining their words, Rabbi Natan Tzvi Finkel wrote in his novellae [and this is likewise in the novellae of Rabbi Shmuel, section 7, at length] that this answer holds that even the oath of a suspect is effective. And when we say that one who is suspect concerning money is also suspect concerning the oath, the intention is not that his oath is not an oath, but that an oath is not entrusted to a suspect, because of the desecration of the Name or because of “before the blind you shall not place a stumbling block.” But if he swears, his oath is effective according to Torah law. Therefore, he is not considered one who “cannot swear”; and even though according to rabbinic law he is disqualified from swearing, and one should make him liable according to the law of anyone who cannot swear, that he pays, nevertheless, since according to the Torah he can swear, the Sages instituted that the other party should swear and take. And concerning the basis of the distinction between Tosafot’s two answers, Rabbi Natan Tzvi Finkel explained that the first answer holds that the essence of an oath is to clarify the event; therefore, the oath of one who is suspect concerning the oath does not clarify the event, and he is considered unable to swear [except that the Sages exempted him]. In their second answer, Tosafot held that the matter of an oath is not to clarify the event; rather, there is a Torah law to swear [so that he will clarify it through his oath; see concerning this in the “Novellae of Rabbi Reuven”]. According to this view, an oath applies also to a suspect, except that Torah law is that an oath is not entrusted to suspects. But because of this he is still not considered one who “cannot swear,” for he wants to swear if we let him, and his oath is an oath. And concerning the essential question of Tosafot, Rabbi Akiva Eiger remarked [in the margins of the Talmud]: Why did Tosafot ask this here? They should have asked it concerning the essential law that was introduced in the Mishna at the beginning of the seventh chapter of Shevuot, that one who is suspect concerning money—the other party swears and takes. And see in the Responsa HaHadashot, section 111, what he answered.

And we challenge: Is this oath that the defendant swears not dependent on Rabbi Hiyya’s ruling? For

now too, even if Rabbi Hiyya’s ruling is not present,

even if we adopt that the halakha is not according to Rabbi Hiyya,

we should obligate him,

he should be obligated to swear

by

virtue

of

the ruling of

Rav Nahman—

as we learned,

as we learned in the Mishna in tractate Shevuot: One who claims from his fellow,

a maneh

a hundred zuz

is owed to me by you,

and the defendant responds to him,

you have nothing with me,

and I never borrowed from you,

he is exempt

the defendant is exempt from paying—

and Rav Nahman said,

even though according to the essential law one who denies everything is exempt from an oath, nevertheless the Sages instituted that

they administer to him an oath of heset.

And he is obligated to swear concerning his denial.

And if so, even without Rabbi Hiyya’s ruling, since the shepherd is suspect concerning the oath, and therefore cannot swear the oath of heset that the Sages imposed upon one who denies everything, the owners will swear against him and take. But the Hazon Ish [section 10, subsection 15] disagreed with the Shakh, based on his approach cited above: that the oath of the other party is not the same oath that the defendant would have had to swear; rather, it is a new oath that the Sages innovated, that the claimant must swear when the defendant is suspect. If so, it makes no difference what the severity of the oath was that the defendant had to swear, for in every case the other party swears only a light rabbinic oath.

And we reject: For all

the

ruling of

Rav Nahman

that one who denies everything must swear—

is an institution,

it is only a rabbinic institution, for according to Torah law one who denies everything is exempt from an oath—