Bava Metzia 5a (ה.) — the Talmud in English

And we raise an objection:

And according to the one who says

that when one admits to part of the claim in the manner of

“Here it is,” he is exempt

from the oath of one who admits to part of a claim, this is difficult:

Why was a verse necessary to exclude land from the obligation of an oath?

Why was it necessary [Shevuot 42b] to expound the verse and exclude a claim involving land, teaching that there is no obligation to take an oath concerning claims of land? For

every item of land is inherently a case of “Here it is”!

For anyone who admits to a claim concerning land is as though he said, “Here it is,” since immediately upon his admission, the land remains in its owner’s possession.

If so, even without the exclusion teaching that one does not take an oath concerning land, there would be no obligation to take an oath concerning land by virtue of the principle of “Here it is.”

And we answer:

He could say to you:

Even though anyone who admits to land is as though he said, “Here it is,” nevertheless,

a verse was necessary

to teach the Torah’s novel ruling that “one does not take an oath concerning land”

in a case

where the claimant demanded two parcels of land from him, and the defendant admitted to him with regard to one field , and in a case

where he dug in it,

meaning that he dug up and damaged the land concerning which he admitted.

For example, where he dug in it

pits [a round pit],

ditches [a long, narrow pit],

and caves [a pit with a roof] ,

since he damaged the land, his admission is not considered “Here it is,” for he is not returning in its entirety the same land that he received .

Alternatively,

the exclusion teaching that one does not take an oath concerning land is necessary

in a case where he claimed,

where he demanded from him both

utensils and

also

land, and he admitted with regard to the utensils,

and the defendant admitted the claim concerning the utensils but did not say “Here it is” concerning them,

and denied the claim concerning the land.

Concerning this case, the Torah teaches that although his admission concerned movable property—and he did not say “Here it is” concerning it—he is nevertheless exempt from an oath, because he denied the claim concerning land, and one does not take an oath concerning a denial of a claim of land.

Come and hear

a proof that “Here it is” entails an oath, from the following:

As Rami bar Ḥama taught:

Any bailee who makes a claim that exempts him from payment—for example, an unpaid bailee who claims, “It was stolen,” or a paid bailee who claims, “It was taken by unavoidable circumstances,” or a borrower who claims, “It died due to the work”—is obligated to take an oath. This is the oath of bailees.

Rami bar Ḥama maintains that in order for the

four bailees

to become obligated to take an oath,

they need

their claim to contain

a denial of part and an admission of part

and if they neither deny part nor admit to part, they are not obligated to take an oath. And the four bailees are:

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

The reason is that the passage concerning one who admits to part of a claim was written in the Torah within the passage concerning bailees, and the Gemara derived that a bailee becomes obligated to take an oath only if he admits to part and denies part.

And in order for there to be an admission and a denial, the bailee must completely deny one cow, claiming that he never received it [or claiming, “I returned it to you”], and admit with regard to another cow that it is in his possession and that he is obligated to return it [but the claim “It was taken by unavoidable circumstances,” “It was stolen,” or “It died due to the work” is considered neither an admission nor a denial].

It follows that a bailee takes an oath concerning the claim “It was taken by unavoidable circumstances” or “It was stolen” only if the owner demanded three cows from him: concerning one he denied, concerning one he admitted, and concerning the third he claimed that it was stolen or taken by unavoidable circumstances. Only in this situation, since there was an “admission” and a “denial,” is he obligated to take an oath concerning the claim “It was taken by unavoidable circumstances” or “It was stolen.”

And the Gemara proves:

What are the circumstances?

How did he admit to him with regard to one cow?

Is it not

a case

where he said to him, “Here it is,”

meaning: This is your cow, concerning which I admit to you?

And it follows that even when he says to him, “Here it is,” he is obligated to take the oath of one who admits to part of a claim!

And we reject this:

No!

In reality, “Here it is” exempts one from an oath. Here, the bailee admitted but did not say “Here it is,” as in the case where

he said to him

the owner said to the bailee:

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

meaning all three cows

due to negligence. And he said to him,

the bailee claimed to the owner:

“One,”

concerning one cow that you are demanding from me, I say that

“It never happened,”

but you gave me only two cows.

“And one,”

the second cow that you are demanding,

“died due to unavoidable circumstances,”

and I am exempt from paying [and concerning this cow he is obligated to take an oath].

“And one,”

the third cow that you are demanding,

“died due to negligence, for I must pay you.”

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

this is not “Here it is,”

since the cow concerning which he admitted died, and his entire admission concerns only an obligation to pay its value.

The Gemara now continues to discuss Rabbi Ḥiyya’s initial ruling: If one claims one hundred dinars from another, and the borrower denies it and says, “I have nothing of yours in my possession,” but witnesses testify that the defendant did in fact borrow from the claimant, although the loan was only fifty dinars, he gives him fifty dinars, as the witnesses testified, and concerning the remaining fifty the defendant takes an oath that he does not owe him. This oath is derived by means of a kal va-chomer from the law of one who admits to part of a claim.

Come and hear,

come and hear a proof from the following:

as the father of Rabbi Aptoriki taught,

who taught

the first ruling of Rabbi Ḥiyya

in the opposite manner:

If one claims from another:

“A hundred” [

one hundred dinars]

“are in your possession! And the other”

denies and

says: “You have nothing in my possession”—

and witnesses testify that he has fifty dinars in his possession,

meaning that witnesses testify that the defendant did in fact borrow from the claimant, although the loan was only fifty dinars—

One might have thought

that you could say:

“Let him take an oath”

the borrower

“concerning the remainder,”

concerning the remaining fifty dinars that the lender is claiming from him [as Rabbi Ḥiyya taught]—

The verse therefore states,

in the verse from which the law of the oath of one who admits to part of a claim is derived:

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

The wording “about which he says” indicates that only

for an admission by his own mouth,

when he himself admits to part of the claim,

do you obligate him

to take an oath,

but

you do not

obligate him

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

because of the testimony of witnesses,

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

The derivation in this beraita is explicit, and it is the opposite of Rabbi Ḥiyya’s ruling.

The Gemara wonders about the very challenge posed by the words of the father of Rabbi Aptoriki in the beraita against Rabbi Ḥiyya:

Is it the case that

a teaching [the words of a tanna taught in a beraita]

are you bringing as an objection [are you challenging]

against Rabbi Ḥiyya?!

After all,

Rabbi Ḥiyya is a tanna

and is considered one,

and he may disagree!

He is entitled to disagree with the words of the tannaim in the beraita.

But the Gemara still asks:

But the verse says so!

He proved this ruling from the wording of the Torah, which indicates that one is obligated to take an oath only if he himself admits to part of the claim. What will Rabbi Ḥiyya answer to this?

And we answer:

That

verse comes to teach

the law of one who admits to part of the claim.

That is, Rabbi Ḥiyya too agrees that the verse comes to teach only the fundamental law that one who admits to part of a claim is obligated to take an oath. But from this law we derive by means of a kal va-chomer that even if he denied everything and witnesses testified that he owed part of the claim, he is nevertheless obligated to take an oath . [As we learned above, 3b.]

The Gemara now explains:

And the father of Rabbi Aptoriki:

How did he prove from the verse that there is no obligation to take an oath when witnesses testify, given that Rabbi Ḥiyya too agrees that the verse speaks only of one who admits to part of a claim, and he derives by kal va-chomer that the same applies when witnesses testify?

He could say to you: It is written

“it is”

and it is written

“this.”

The Torah extended its wording and wrote, “about which he says, ‘It is this.’” If the verse came only to teach the law of one who admits to part of a claim, it would have sufficed to write, “about which he says, ‘It is,’” or, “about which he says, ‘This.’” From the duplication of the wording “it is” and “this,” we learn that one verse

comes

to

teach the fundamental law of

one who admits to part of the claim,

that he is obligated to take an oath,

and one

verse comes

to exclude

testimony by witnesses,

to teach us

that he is exempt

from an oath.

And the other,

Rabbi Ḥiyya, could say to you that there is no exclusion concerning testimony by witnesses. Rather,

one

verse comes

to teach us the fundamental law of

one who admits to part of the claim,

that he is obligated to take an oath,

and one

verse comes

to teach the law of one who admits to the same category as the claim: In order to become obligated to take the oath of one who admits to part of a claim, the admission must concern the same category as that which the claimant alleges. But if he claimed wheat from him, and the defendant denied the wheat but admitted to barley, he is exempt .

And the other,

the father of Rabbi Aptoriki, does not accept the law of

one who admits to the same category as the claim!

He does not maintain that, in order to become obligated to take an oath, the admission must concern the same category as the claim. Therefore, he can derive from the verse that testimony by witnesses does not entail an obligation to take the oath of one who admits to part of a claim.

And he holds

the father of Rabbi Aptoriki

in accordance with Rabban Gamliel.

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

There was a certain shepherd,

an incident involving a shepherd,

to whom they would entrust

animals every day in the presence of witnesses.

They would give him animals to guard each day in the presence of witnesses .

One day,

one particular day,

they entrusted them to him

the animals

without witnesses,

without witnesses.

At the end,

he said to them,

at the end of the day he said to them:

“It never happened!”

I did not receive animals from you for safekeeping today. And afterward,

witnesses came,

and witnesses came,

and testified against him that he had eaten two of them,

testifying that the shepherd had eaten two animals from the owners’ flock that day.

Rabbi Zeira said: If Rabbi Ḥiyya’s initial ruling is valid,

if the halakha follows Rabbi Ḥiyya, that witnesses who testify that part of the claim is owed obligate the defendant to take an oath concerning the remainder, as though he himself had admitted to part of it, the same should apply here. Since the witnesses testified that he must return the value of the two animals he ate,

he takes an oath concerning the remainder.

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

Abaye said to him: If that is so,

if the halakha follows Rabbi Ḥiyya, should he also

take an oath

the shepherd concerning the remainder?

But,

here there are witnesses who testify that he

is a robber,

as it has been established by witnesses that he lied when he said, “It never happened.” And one who is suspected concerning money cannot take an oath .

However, in Rabbi Hiyya’s ruling, he is not considered suspected of monetary dishonesty, since Rabbi Hiyya stated his ruling with regard to a loan. There, there is reason to assume that the borrower’s denial is not because he wishes to steal the money, but because he does not have money with which to repay it. Therefore, he evades the lender for a short time, until he has what to repay with, and for this reason he is not considered suspected with regard to money or an oath. Even when he denies having received a deposit, there is reason to assume that the deposit was lost, and that he evades the owner for a short time until he finds the deposit or obtains money with which to pay for it. This is not the case here, since there are witnesses that he ate two animals that did not belong to him; he is therefore a robber and cannot take an oath.

And we answer:

He said to him

Rabbi Zeira said to Abaye: My intention was not to say that the shepherd should take an oath and be exempt, since he is suspected with regard to money and cannot take an oath. Rather,

I was referring to his opponent.

My intention is that the claimant should take an oath as to how many animals he gave the shepherd to watch, and then collect them from him, since this is what we learned in tractate Shevuot [44b]: If the defendant became obligated to take an oath but cannot take the oath because he is suspected with regard to oaths, the Sages instituted that the claimant take an oath in place of the defendant and collect. And since the shepherd became obligated to take an oath by virtue of Rabbi Hiyya’s ruling, but cannot take an oath because he is suspected, the one who deposited the animals should take an oath and recover his animals.

And we challenge this: Surely this oath that the defendant takes is not dependent on Rabbi Hiyya’s ruling, for

even now, when Rabbi Hiyya’s ruling is absent,

even if we adopt the position that the halakha does not follow Rabbi Hiyya,

we should obligate him,

he should be obligated to take an oath

by

virtue

of

the ruling of

Rav Naḥman—

as we learned,

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

a maneh

[one hundred zuzim]

is in your possession,

and the defendant responds to him,

you have nothing in my possession,

and I never borrowed anything from you,

he is exempt

the defendant is exempt from payment.

And Rav Naḥman said,

although according to the fundamental law, one who denies the entire claim is exempt from taking an oath, nevertheless the Sages instituted that

they administer to him the oath of inducement.

He is obligated to take an oath regarding his denial.

If so, even without Rabbi Hiyya’s ruling, since the shepherd is suspected with regard to oaths and therefore cannot take the oath of inducement that the Sages imposed upon one who denies the entire claim, the owner should take an oath against him and collect.

And we reject this: Is not every

ruling

of

Rav Naḥman

that one who denies the entire claim must take an oath—

an enactment

it is only a rabbinic enactment, since by Torah law one who denies the entire claim is exempt from taking an oath—?