Bava Metzia 5b — the Talmud in English

And likewise, the law that concerning one suspected with regard to an oath, “the one opposite him takes an oath and collects,” is also only a rabbinic enactment, for in Torah law we find only an oath that exempts one from payment, but one does not take an oath by Torah law in order to collect -

And

the general rule is that the Sages enacted enactments only for laws of Torah origin, but

an enactment for an enactment we do not make.

The Sages did not enact an enactment upon their enactment, and since this oath of Rabbi Naḥman is rabbinic, they did not enact an additional enactment concerning it, that if he cannot take an oath, the one opposite him takes an oath and collects, and therefore Rav Zeira required the law of Rabbi Ḥiyya, for in the case of Rabbi Ḥiyya the oath is by Torah law, and concerning this they enacted that if he is suspected with regard to an oath, the one opposite him takes an oath and collects.

And now the Gemara discusses Abaye’s words, who asked above: How did Rabbi Zeira obligate the shepherd to take an oath? For since it was established through witnesses that he was a robber and had lied in his denial, it follows that he was suspected with regard to money, and one suspected with regard to money is also suspected with regard to an oath.

And we raise an objection: Why did Abaye need to disqualify the shepherd because witnesses came and testified that he had stolen

and let it follow that he was a shepherd!

Could he not have disqualified him because he was a shepherd,

and

as

Rav Yehuda said—

an ordinary shepherd

even if there is no testimony against him that he stole,

is disqualified

as a witness? For an ordinary shepherd takes the animals to graze in the fields of others. And we reject this:

It is not difficult.

Here,

what Rabbi Yehuda said, that an ordinary shepherd is disqualified as a witness, concerns one who shepherds animals

of his own,

his own—and then there is concern that he takes the animals to graze in other fields.

Here,

but when he shepherds animals

of others,

he is not suspected of taking the animals to graze in other fields, and he is fit as a witness. And therefore Abaye disqualified the shepherd as a witness only because witnesses testified that he had consumed two animals belonging to the owner.

A proof of this is:

if you do not say so,

for if you do not say this, but rather say that even one who shepherds the animals of others is suspected of theft, then

we—animals to a shepherd, how do we entrust them!?

How can we entrust our animals to a shepherd so that he will pasture them in the meadow? Is there not concern that he will feed them in the fields of other people and transgress the prohibition of theft?

And is it not written, “You shall not place a stumbling block before the blind,”

and it follows that by entrusting the flock to the shepherd we transgress the prohibition of “You shall not place a stumbling block before the blind,” since because we entrusted our animals to him to pasture, he will transgress the prohibition of theft? -

Rather,

necessarily, a shepherd of his own animals differs from one who shepherds the animals of others: only one who shepherds his own animals is suspected of feeding them in the fields of other people, but one who shepherds animals that people entrusted to him to pasture on their behalf is not suspected of this, since

it is established

for us that

a person does not sin without benefit to himself!

For a person does not sin if he does not profit from the sin; therefore, it is to be assumed that the shepherd did not allow the animals of others to eat until they reached ownerless land, and only for the purpose of improving his own animals does he pasture them unlawfully in the fields of other people.

We learned in the Mishna: Two are holding a garment; this one says, “It is entirely mine,” and this one says, “It is entirely mine,”

this one takes an oath that he has no less than half of it

and so on

and this one takes an oath that he has no less than half of it, and they divide it:

And we are astonished: Is this oath that he must take

taken concerning what he has, or taken concerning what he does not have!?

Must he take an oath concerning the half that he does not have in the garment? Surely he must take an oath concerning half of it, that it is his! Yet from the wording of the Mishna it appears that he does not take an oath that half of it is his, but takes an oath that he has no less than half of this garment.

But this oath is not effective at all, for even one who has nothing at all in the garment can take an oath in this wording, since it is possible that his intention is that he does not have even less than half [for, granted, if he had a third or a quarter of the garment, he could not take an oath that he has no less than half, since the truth is that he has less than half of it [a third or a quarter]; but if he has nothing at all, he can say that he has “less than half” of it, for even one who has nothing at all does not have “less than half” of it]] -

And if so, in order to establish that he has half the garment, he must take an oath that half the garment is his. Why, then, did they enact that he take an oath in the wording that he “has no less than half of it”?

And we answer:

Rav Huna said:

The intention of the Mishna is

that he says—

“An oath that I have [a share] in it,”

I hereby take an oath that I have a portion in this garment—and if you say that this portion concerning which I am taking an oath is less than half the garment—

“and I have no less than half of it,”

I hereby take an oath that I have no less than half. There is no longer concern that his intention is that he has nothing, and even less than half, since he has already sworn that he has a portion in this garment. And we raise an objection:

Let him say, “An oath that it is entirely mine”!?

Why does he not take an oath that the entire garment is his, in accordance with his claim, which he makes: “It is entirely mine” And we answer:

Do we give him all of it?

Would he receive the entire garment if he took such an oath? Surely he receives only half of it, since his fellow is also holding it. Therefore, we do not make him take an oath that it is entirely his, for if he took such an oath, it would bring disrepute upon the court, since he swore that it was entirely his, while they ruled that half was his. But the Gemara still asks:

Let him say, “An oath that half is mine”!?

Why does he take an oath in the wording, “I have no less than half of it,” and not take an oath, “Half is mine,” in accordance with what he takes?

And we reject this: He should not be made to swear that half is his, since at the outset he claimed, “It is entirely mine,” and if he swears that half is his, he

damages his statement.

He contradicts his statement, in which he said, “It is entirely mine.”

And we raise an objection:

Now,

even now, when he swears, “I have no less than half of it,”

he likewise damages his statement!

Here too he contradicts his statement, since at the outset he said, “It is entirely mine,” and now he says only, “I have no less than half of it.”

And we answer: This is the wording of the oath:

“It is entirely mine,”—

“and according to your words,”

that you do not believe me that it is entirely mine, I hereby take

“an oath that I have [a share] in it,”

that I have a portion in this garment,

“and I have no less than half of it,”

this portion of mine is not less than half.

And if so, in his oath he does not contradict his statement that it is entirely mine, for even at the very time of the oath he continues to claim, “It is entirely mine.”

And we raise an objection:

And since this one is holding and standing, and that one is holding and standing,

since each of them is holding the garment,

why is this oath necessary!?

Why must they take oaths? Is it not the law that in every monetary doubt one does not remove the object from the possession of the one holding it, and he need not take an oath?

Rabbi Yoḥanan said:

In truth, according to the basic law, there is no need to take an oath, and

this oath

that we learned in our Mishna

is an enactment of the Sages,

in order

that each and every one should not go and seize his fellow’s garment and say, “It is mine.”

Therefore they enacted an oath, in order to establish that half the garment is indeed his and that he did not seize it from his fellow.

And we raise an objection: If it is as Rabbi Yoḥanan said, that the reason for the oath is that we are concerned that one of them went and seized his fellow’s garment and claims, “It is mine,” it follows that you suspect them with regard to money,

and

how can you make them take oaths?

Let us say: Since one is suspected with regard to money, he is also suspected with regard to an oath.

Is it not so that one suspected with regard to money is also suspected with regard to an oath? And we answer:

We do not say, “Since one is suspected with regard to money, he is suspected with regard to an oath”!

Even one who is suspected with regard to money can take an oath—and the reason is that the prohibition of an oath is more severe in people’s eyes than the prohibition concerning money, and even one who transgresses prohibitions concerning money recoils from swearing falsely.

And a proof that one suspected with regard to money is not suspected with regard to an oath is:

if you do not say so,

for if we do not say this, it will be difficult:

this which the Merciful One said,

that which the Torah said, that one who

admits

to

part of the claim shall take an oath.

And how does he take an oath? Surely you suspect him with regard to money!

Let us say: Since one is suspected with regard to money, he is suspected with regard to an oath!

Necessarily, even one who is suspected with regard to money is not suspected with regard to an oath.

And we reject this: One cannot prove from the oath of one who admits to part of the claim that one suspected with regard to money is not suspected with regard to an oath, because

there,

in the case of one who admits to part, he is not suspected with regard to money; rather,

he is merely delaying payment,

for there is reason to assume that he does not have money with which to repay, and he is delaying for a short time until he has something with which to repay, but he does not intend to steal. Therefore, he is not suspected with regard to money or with regard to an oath,

and this is like Rabbah,

as Rabbah said above, 3a.

Know

that there is indeed reason to say that he is only delaying payment and does not intend to steal, from this:

Rav Idi bar Avin said in the name of Rav Ḥisda: One who denies a loan,

when he claims against his fellow that he should repay his debt, and the latter denies the loan, and afterward it is established through witnesses that the defendant lied—the defendant

is fit as a witness,

and is not considered a robber, because his intention is only to delay until he has money, and he does not intend to steal -

Indeed, all this applies to a loan, since it is possible to assume that at the time of the claim he has no money with which to pay. But one who gives an object or money to his fellow for safekeeping, and the latter denies it,

as a deposit,

and says, “There were never such things,” and afterward it was established by witnesses that he lied

—is disqualified from testimony.

For in this case it is not possible to assume and say that he has no money with which to pay, for he was forbidden to remove the deposit from his possession.

And we raise an objection: If with regard to a deposit one cannot say, “He is merely evading for the time being,” and one who denies a deposit is disqualified from testimony—

But as for that which Rami bar Hama taught: There are four bailees,

in order that they should become liable for the oath of the bailees,

they require

that there be in them

a partial denial and a partial admission,

and these are the four bailees

—an unpaid guardian, a borrower, a paid guardian, and a renter.

And this is difficult: Since they require a partial denial, they are denying the deposit and are suspected with regard to money; how can they swear?

Let us say: Since one who is suspected with regard to money is suspected with regard to an oath!

[And with a deposit there is no rationale of evasion for the time being.]

And we answer:

There also,

there too, the guardian is not considered suspected with regard to money, because it is possible that he

is merely evading for the time being

and his intention is not to steal. And the reason that he denies is that

he thinks,

the guardian thinks,

“I will find the thief and seize him.”

For in the meantime he will find the thief, seize him, and return the animal to its owners.

Alternatively,

the guardian thinks that in the meantime

“I will find it in the marsh,”

that he will find the animal in the marsh,

“and I will bring it,”

and bring it to the owners — but his intention is not to steal from the owners. Therefore, he is not considered suspected with regard to money or an oath.

And we raise an objection:

If so,

if even with one who denies a deposit it is possible to say that he is evading and does not intend to steal, then

one who denies a deposit

why is he disqualified from testimony?

Why is he disqualified from testimony?

Let us say:

Is it not possible to say that the deposit was lost by him and he has no money with which to pay, and therefore

he is merely evading for the time being;

he is evading in the meantime, and therefore he now denies it, because

he thinks,

he thinks to himself that he will deny it

until

“I search,”

until I search for the deposit,

“and I find it,”

and find it and return it to its owner.

And we answer: In fact, one who denies a deposit is fit for testimony. And

when we say

that what we said is that

one who denies a deposit is disqualified from testimony,

this applies only

when witnesses came,

when witnesses came

and testified concerning him,

and testified about the guardian,

that at that time,

at the time when he denied the deposit,

the deposit was in his house.

At that time the deposit was in his house,

and he knew,

and he knew that the deposit was in his house, and nevertheless he denied it.

Alternatively,

or the witnesses testified

that he was holding it in his hand,

that at the time of the claim the defendant was holding the deposit in his hand — and in these cases he is disqualified from testimony, for it is not applicable to say that his intention was to evade, since the deposit was in his possession and he could return it, and he had no need to evade.

And we raise an objection: If it is as you say, that one who is suspected with regard to money is suspected with regard to an oath, and only where it is possible to say that he is evading is he fit for an oath, this is difficult—

But as for that which Rav Huna said,

concerning a guardian who became liable for the oath of the bailees, and the guardian paid and did not wish to swear, for although he wishes to pay,

they administer to him an oath that it is not in his possession,

he must swear that the deposit is not in his possession. The reason for this oath is that there is concern that perhaps he took an interest in the deposit and wishes to pay for it and take it—

And if you suspect him that his intention is to take the deposit for himself, it follows that he is suspected with regard to an oath, and

let us say: Since one who is suspected with regard to money is suspected with regard to an oath!

And we answer:

There also,

in this case too, he is not considered suspected with regard to money, because his intention is not to steal; rather, he

permits

himself to take the deposit,

and

the reason for this self-permission is that

he says: “I am giving him money!”

I am not stealing the object from him; rather, I am paying money for it, and since this is so, he is not considered a robber and is fit with regard to an oath.

And we raise an objection:

Rav Aha of Difti said to Ravina:

Although he is not suspected of robbery, because he permits himself to do so, he should nevertheless be disqualified for another reason—

But he has transgressed the prohibition of “You shall not covet”!

If you suspect him that he coveted the deposit for himself, it follows that he is suspected of having transgressed the prohibition of “You shall not covet,” and for this reason he should be disqualified from an oath. Just as one who is suspected of the prohibition “You shall not rob” is also suspected with regard to an oath, so too, one who is suspected of the prohibition “You shall not covet” should be suspected with regard to an oath.

And we answer: He is not suspected of having transgressed the prohibition of “You shall not covet,” because

“‘You shall not covet,’ to people, means without money.”

People think that this prohibition applies specifically when one covets an object and takes it without paying money for it, but if he pays for it, he does not transgress the prohibition of “You shall not covet.” Since people think that when one pays money he does not transgress a prohibition, the guardian is therefore not considered suspected with regard to the prohibition, and he is not suspected with regard to an oath .

And now the Gemara brings three proofs that one who is suspected with regard to money is not suspected with regard to an oath!