Bava Metzia 5b (ה:) — the Talmud in English

-

And

the general rule is that the Sages instituted enactments only for matters of Torah law, but

we do not institute an enactment for an enactment.

The Sages did not institute an enactment concerning their own enactment, and since this oath of Rabbi Nahman is rabbinic, they did not institute an additional enactment concerning it, namely, that if he is unable to take the oath, the other party takes an oath and collects , and therefore Rav Zeira required the ruling of Rabbi Hiyya, since in the case of Rabbi Hiyya the oath is by Torah law, and concerning this the Sages instituted that if he is suspect with regard to an oath, the other party takes an oath and collects.

The Gemara now discusses Abaye’s statement. Above, he asked: How could Rabbi Zeira obligate the shepherd to take an oath? Since witnesses established that he was a robber and had lied in his denial, he is found to be suspect with regard to money, and one who is suspect with regard to money is also suspect with regard to an oath.

We ask: Why did Abaye need to disqualify the shepherd because witnesses came and testified that he had robbed? -

Let him derive it from the fact that he was a shepherd!

He could have disqualified him simply because he was a shepherd,

and

as

Rav Yehuda said:

an ordinary shepherd

even if there is no testimony that he robbed],

is disqualified

as a witness, because an ordinary shepherd takes the animals to graze in other people’s fields. We reject this:

It is not difficult.

Here,

what Rabbi Yehuda said—that an ordinary shepherd is disqualified as a witness—concerns one who herds

his own animals,

his own; in that case, there is reason for concern that he takes the animals to graze in other people’s fields.

Here,

but when he herds

other people’s animals,

he is not suspect of taking the animals to graze in other people’s fields, and he is fit to serve as a witness. Therefore, Abaye disqualified the shepherd as a witness only because witnesses testified that he had consumed two of the owner’s animals.

Proof of this is the following:

For if you do not say so,

if you do not say this, but rather say that even one who herds other people’s animals is suspect of robbery, then

how can we entrust our animals to a shepherd!?

How can we entrust our animals to a shepherd so that he will pasture them in the meadow? There is reason for concern that he will feed them in other people’s fields and violate the prohibition against robbery,

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

and consequently, by entrusting the flock to the shepherd, we violate the prohibition “You shall not place a stumbling block before the blind,” since by giving him our animals to pasture, we would cause him to violate the prohibition against robbery -

Rather,

it must be that one who herds his own animals differs from one who herds other people’s animals: Only one who herds his own animals is suspect of feeding them in other people’s fields, whereas one who herds animals entrusted to him by others to pasture on their behalf is not suspect of this, since

we have an established presumption that

that

a person does not sin when he derives no benefit from the sin!

A person does not sin if he gains nothing from the sin. Therefore, we may assume that the shepherd did not allow other people’s animals to eat until they reached ownerless land; it is only for the improvement of his own animals that he herds them unlawfully in other people’s fields.

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

We wonder: Is this oath that he is required to take

an oath concerning what he possesses, or an oath concerning what he does not possess!?

Is he required to take an oath concerning the half of the garment that he does not possess? Surely he should take an oath concerning half of it, that it is his! Yet the wording of the Mishna implies that he does not take an oath that half of it is his; rather, he takes an oath that he has no less than half of this garment.

But this oath is not effective at all, because even one who owns nothing of the garment can take an oath in these words. It is possible that his intention is that he does not possess even less than half of it—for granted, if he possessed a third or a quarter of the garment, he could not swear that he had no less than half, since the truth is that he possesses less than half of it—a third or a quarter. But if he possesses nothing, he can say that he has no “less than half” of it, since even one who possesses nothing has no “less than half” of it] -

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

We answer:

Rav Huna said:

The intent of the Mishna is

that he says:

I swear that I have a share in it;

I swear that I have a share in this garment—and if you say that this share concerning which I am swearing is less than half of the garment—

I have no less than half of it—

then I am swearing that I have no less than half. There is no longer concern that his intention is to say that he possesses nothing, not even less than half, since he has already sworn that he has a share in this garment. We ask:

Let him say: “I swear that it is all mine”!

Why does he not swear that the entire garment is his, in accordance with his claim, “It is all mine” ? We answer:

Do we give him all of it?

If he takes such an oath, will he receive the entire garment? He will receive only half of it, since his fellow is also holding it. Therefore, we do not make him swear that it is all his, because if he were to take such an oath, it would cast aspersion on the court: He swore that the entire garment was his, yet the court ruled that half was his. But the Gemara still asks:

Let him say: “I swear that half of it is mine”!

Why does he swear using the wording, “I have no less than half of it,” rather than swearing, “Half of it is mine,” in accordance with what he takes?

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

undermines his own statement.

He contradicts his statement that he made, “It is all mine.”

We ask:

Now,

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

he likewise undermines his own statement!

Here too he contradicts his statement, since at first he said, “It is all mine,” whereas now he says only, “I have no less than half of it.”

We answer: This is the wording of the oath:

He says: “It is all mine,” -

and according to your words,

since you do not believe me that it is all mine, I swear

that I have a share in it,

that I have a share in this garment,

and I have no less than half of it;

this share of mine is not less than half.

Accordingly, in his oath he does not contradict his statement that he said, “It is all mine,” since even while taking the oath he continues to claim, “It is all mine.”

We ask:

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

since each of them is holding the garment,

why is this oath necessary?

Why do they need to take an oath? Is it not the halakha that in every monetary doubt, the object is not removed from the possession of the one holding it, and he need not take an oath?

Rabbi Yohanan said:

In truth, according to the strict law, it is not necessary to take an oath, and

this oath

that we learned in our Mishna

is an enactment of the Sages,

in order

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

and therefore they instituted an oath to establish that half the garment is indeed his, and that he did not seize it from his fellow.

We ask: According to Rabbi Yohanan, since 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,” you find that you suspect them with regard to money,

and

how can you make them take an oath?

Let us say: Since one who is suspect with regard to money is likewise suspect with regard to an oath.

Is one who is suspect with regard to money not also suspect with regard to an oath ? We answer:

We do not say: Since one is suspect with regard to money, he is suspect with regard to an oath!

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

Proof that one who is suspect with regard to money is not suspect with regard to an oath is the following:

For if you do not say so,

if this is not said, it will be difficult to understand

that which the Torah said:

that which the Torah said, that one who

admits

in

part of the claim takes an oath.

How can he take an oath? Do you not suspect him with regard to money?

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

It must be, then, that even one who is suspect with regard to money is not suspect with regard to an oath.

We reject this: The oath of one who admits to part of the claim cannot prove that one who is suspect with regard to money is not suspect with regard to an oath, because

there,

in the case of one who admits to part of the claim, he is not suspect with regard to money. Rather,

he is merely evading him,

because it is reasonable to assume that he does not have money with which to repay, and he is evading him temporarily until he has what to repay with; however, he does not intend to rob him. Therefore, he is not suspect with regard to money or with regard to an oath,

as in the statement of Rabba,

as Rabba said above, 3a.

Know

that there is indeed reason to say that he is merely evading him and does not intend to rob him, from the following:

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

when one claims that his fellow repay his debt, and the latter denies the loan, and afterward it is established by witnesses that the defendant lied—the defendant

is fit to serve as a witness,

and he is not considered a robber, because his intention was only to evade the claimant until he would have money, and he did not intend to rob him -

Indeed, all this applies to a loan, since it is possible to assume that at the time of the claim he did not have money with which to pay. But if one gives an object or money to another to safeguard, and the latter denies that he received it

as a deposit,

and says, “It never happened,” and afterward witnesses established that he had lied

he is disqualified from bearing witness.

For in this case, one cannot assume and say that he had no money with which to pay, since he was forbidden to remove the deposit from his possession.

And we raise an objection: If, in the case of a deposit, one cannot say ishtamutei ka mishtamet, that he is merely evading payment, and one who denies a deposit is disqualified from bearing witness—

Rather, what of that which Rami bar Hama taught: The four bailees,

in order to become liable for the “oath of the bailees,”

must

have among their claims

a partial denial and a partial admission,

and these are the four bailees

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

This is difficult: Since they must make a partial denial, they are denying the deposit and are suspected with regard to money; how can they take an oath?

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

And in the case of a deposit, there is no rationale of ishtamutei.

And we answer:

There too,

the bailee is likewise not considered suspected with regard to money, because it is possible that he

is merely evading payment

and does not intend to steal. And the reason he denies the claim is that he

thinks

the bailee thinks,

“I will find the thief and seize him.”

In the meantime, he will find the thief, seize him, and return the animal to its owner.

Alternatively,

the bailee thinks that in the meantime

“I will find it in the pasture,”

he will find the animal in the pasture,

“and I will bring it,”

and bring it to the owner. He does not intend to steal from the owner. Therefore, he is not considered suspected with regard to money or with regard to an oath.

And we raise an objection:

If so,

if even in the case of one who denies a deposit it is possible to say that he is evading payment and does not intend to steal, then

one who denies a deposit

why is he disqualified from bearing witness?

Why is he disqualified from bearing witness?

Let us say:

Can we not say that the deposit was lost and he has no money with which to pay, and therefore

he is merely evading payment?

He is temporarily evading payment, and therefore now denies the claim, because

he thinks,

he says to himself that he will deny it

until

I search for it,

until I search for the deposit,

and find it,

and then return it to its owner.

And we answer: In fact, one who denies a deposit is fit to bear witness. And

when we say

that

one who denies a deposit is disqualified from bearing witness,

this applies only

when witnesses came

and the witnesses came

and testified against him

and testified concerning the bailee

that at that time

when he denied the deposit,

the deposit was in his house.

At that time, the deposit was in his house,

and he knew,

he knew that the deposit was in his house, and nevertheless 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. In these cases he is disqualified from bearing witness, for one cannot say that his intention was merely to evade payment: The deposit was in his possession, he could return it, and he had no need to evade payment.

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 that he is fit to take an oath only where one can say that he is evading payment—then this is difficult: -

Rather, what of that which Rav Huna said

concerning a bailee who became liable for the oath of the bailees, and the bailee paid rather than take an oath: Although he wishes to pay,

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

he must take an oath that the deposit is not in his possession. The reason for this oath is the concern that perhaps he set his sights on the deposit and wishes to pay for it and take it for himself—

But if you suspect him of intending to take the deposit for himself, it follows that he is suspected with regard to an oath, and

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

And we answer:

There too,

in this case as well, he is not considered suspected with regard to money, because he does not intend to steal; rather, he

deems it permissible

to take the deposit,

and

the basis of his ruling that it is permissible is that he

says: “I am giving him money for it!”

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

And we raise an objection:

Rav Aha of Difti said to Ravina:

Although he is not suspected of robbery, because he deems it permissible for himself, he should nevertheless be disqualified for another reason—

But he has violated the prohibition, “You shall not covet”!

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

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

“‘You shall not covet’—people understand it as referring to a case without payment.”

People assume that this prohibition applies specifically when one covets an object, takes it, and does not pay money for it. But if he pays for it, he has not violated the prohibition of “You shall not covet.” Since people assume that one who pays money does not violate the prohibition, the bailee is not considered suspected of violating it and is not suspected with regard to an oath.

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