Bava Metzia 98a (צח.) — the Talmud in English

The Gemara raises an objection:

And according to Rav Sheshet, the Mishna is difficult.

For in our Mishna, since the claimant is holding the cloak before us, the case is equivalent to “here it is,” and nevertheless the Mishna states that he must take an oath.

The Gemara answers:

Rav Sheshet could say to you -

The Mishna is a rabbinic enactment.

The oath in our Mishna is not mandated by Torah law; rather, it is a rabbinic enactment, so that everyone should not go and seize his fellow’s cloak. If so, there is still no proof that “here it is” entails liability, for even if “here it is” exempts one, he must take an oath by rabbinic enactment.

The Gemara raises an objection:

And the other one?

How did Rabbi Hiyya prove from our Mishna that “here it is” entails liability? After all, the oath in the Mishna is a rabbinic enactment.

The Gemara answers:

Indeed! It is a rabbinic enactment.

Rabbi Hiyya also holds that the oath in the Mishna is a rabbinic enactment -

however, granted, if you say that according to Torah law “here it is” entails liability,

if, according to Torah law, one who admits part of a claim and says to him, “Here it is,” is liable for an oath, then one can say that

the Sages enacted an oath resembling one mandated by Torah law.

The Sages enacted an oath resembling the Torah oath of one who admits part of a claim -

But if you say that according to Torah law “here it is” exempts one,

but if, according to Torah law, one who says “here it is” is exempt from the oath of one who admits part of a claim - would

the Sages enact an oath that has no equivalent in Torah law?

The Sages would not have enacted an oath that has no parallel in the Torah [for here, the case resembles “here it is”]. Since the Sages nevertheless enacted an oath, it necessarily follows that one takes an oath in a comparable case under Torah law, proving that “here it is” entails liability.

The Gemara answers:

in accordance with Rava’s statement,

as Rava said:

If one says to his fellow:

A maneh

[one hundred dinars]

is owed to me by you

which I lent you,

and the other says: You are owed only fifty

dinars that you lent me,

and as for the rest, I do not know

whether you lent it to me.

The law is that since the borrower admits that he owes fifty, he has made a partial admission and is obligated to take an oath concerning the additional fifty that the claimant demands. Since he cannot take an oath concerning them, as he says that he does not know,

since he cannot take an oath—

he pays,

as anyone who is obligated by Torah law to take an oath, if he cannot take the oath, must pay. This is unlike Rav and Shmuel, who said in the chapter Kol HaNishba'in [Shevuot 47a] that one who is obligated to take an oath but cannot take it is exempt from payment; rather, it is in accordance with the opinion of Rabbi Abba, who disputes them there.

It follows that according to Rava, if the claimant had demanded only fifty, and the defendant had said, “I do not know,” the defendant would have been exempt from payment, in accordance with Rav Naḥman, who does not say that a definite claim is preferable for extracting money from one who has possession. Since the defendant became obligated to take an oath because of the fifty that he admitted, he became obligated to pay the fifty concerning which he had made an uncertain claim. This is what Rav Naḥman intended when he said: One who makes an uncertain claim becomes obligated to pay when there is between them an oath-related claim.

The Gemara accordingly establishes the Mishna in accordance with Rav Naḥman as follows:

The first clause can be found in a case involving two

cows. The first clause of the Mishna, which discusses cases in which the uncertainty is when the cow died, speaks of a case in which he lent two cows.

And the latter clause involves three

cows. The latter clause, which discusses a case in which the uncertainty is which cow died, speaks of a case in which he lent three cows.

The Gemara explains:

The first clause involves two

cows,

as he said to him,

the owner of the cow to the custodian:

I gave you two cows; half the day they were borrowed and half the day they were rented

[half the day as a loan and half the day as a rental] in the first case.

Alternatively,

[or],

one day they were borrowed and one day they were rented

in the second case.

And both of them died during the period of borrowing

[and both of them died during the period of borrowing], and you are obligated to pay me the value of both.

And the borrower said to him: As for one, yes, it died during the period of borrowing

[one of them indeed died during the period of borrowing], and I will pay you its value .

But as for the other, I do not know whether it died during the period of borrowing or whether it died during the period of rental,

and with regard to the second cow, I do not know whether it died during the period of borrowing or during the period of rental, and I am uncertain whether I am obligated to pay you its value.

The law is

that since he cannot take the oath

of one who makes a partial admission,

he pays

even the value of the cow concerning which he is uncertain whether he is liable.

And the latter clause involves three

cows,

as he said to him: I gave you three cows, two as borrowed items and one as a rented item, and those two that were borrowed died

[and the two borrowed cows died], and you must pay me the value of both.

And the borrower said to him: Yes, one of the borrowed cows died

[indeed, one of the borrowed cows died], and I will pay you its value.

But as for the other, I do not know whether the borrowed one died and the one that remains is the rented one, or whether the rented one died and the one that remains is the borrowed one,

and with regard to the other two cows, I do not know whether the borrowed cow died and the one remaining is the rented one, or whether the rented cow died and the one remaining is the borrowed one; I am uncertain whether I am obligated to pay the value of the second cow.

The law is that he is obligated to take the oath of one who makes a partial admission,

and since he cannot take the oath—

he pays.

The Gemara explains the Mishna according to Rav Naḥman on the basis of Rava’s statement. But Rami bar Ḥama disputes Rava and maintains that a defendant who says, “I know that I owe fifty, but I do not know about fifty,” is not obligated to take the oath of one who makes a partial admission, because there is no denial here, since the claim “I do not know” is not a denial. The Torah obligates one who makes a partial admission to take an oath only when there is both an admission and a denial.

According to Rami bar Ḥama, one who is obligated to take an oath but cannot take it can be so only when he says: “I know about fifty, I do not know about twenty-five, and I did not borrow twenty-five.” In that case he becomes obligated to take an oath because he admitted to part and denied part, but he cannot take an oath concerning the twenty-five about which he does not know.

Therefore, according to Rami bar Ḥama, the Mishna must be established somewhat differently in order to explain the opinion of Rav Naḥman.

The essential purpose of Rami bar Ḥama’s statement is to explain the Torah’s words concerning the oath of the custodians.

The Torah states that the custodian takes an oath “concerning every matter of wrongdoing … that he will say: This is it.” [Exodus 22:8]

And the Sages explained that the meaning of the verse “This is it” is an admission to part of the claim.

According to Rabbi Ḥiyya bar Yosef [Bava Kamma 107a], the passages have been intermingled here, and the oath of one who makes a partial admission does not belong to the passage concerning custodians but to the passage concerning a loan; two separate oath obligations are stated in the Torah in one verse. When the Torah said, “concerning every matter of wrongdoing,” it intended to obligate the custodian to take an oath that he was not negligent with the deposit, and it is not necessary for him to make a partial admission. And when the Torah said, “This is it,” it was referring to a loan, for if the borrower admits to part of the claimant’s demand, he is obligated to take an oath. And this is the halakha.

However, Rami bar Ḥama’s opinion is that there is no intermingling of passages here, and every oath of the custodians applies only when there is an admission to part of the claim, as indicated by the plain meaning of the verses.

Rami bar Ḥama further innovated that every oath of one who makes a partial admission applies only when there is an admission to part and a denial of part. Therefore, the oath of the custodians would not apply in a case in which he was given two cows, and he admits with regard to one that he is liable, while concerning the other he claims that it was forcibly taken, because in that case there is no partial denial, since the claim of forcible taking is not a denial. Rather, the oath of the custodians applies in a case in which the depositor says that he gave him three cows, and the custodian admits to one, denies one, and claims that the third was forcibly taken.

And according to Rami bar Ḥama, who said: The four custodians

whom the Torah obligated to take oaths concerning their claims—a gratuitous custodian with a claim of theft, a paid custodian with a claim of forcible taking, or a borrower with a claim that the animal died through the work it was performing—

require a partial denial and a partial admission

in order to obligate them to take an oath; an admission alone does not create an obligation, as Rava maintains.

We establish the Mishna as follows:

The first clause can be found in a case involving three cows, and the latter clause in a case involving four

cows. In every case, another cow must be added, concerning which there will be a denial.

The Gemara explains:

The first clause involves three

cows,

as he said to him: I gave you three cows; half the day they were borrowed and half the day they were rented, or alternatively, one day they were borrowed and one day they were rented, and all three of them died during the period of borrowing

and you must pay me the value of three cows.

And the borrower said to him: As for one

of them, I claim that

it never happened,

and I did not borrow it at all; I borrowed only two cows, and this is a denial.

And as for one

of them,

yes,

indeed, I admit that

it died during the period of borrowing,

and I am obligated to pay for it; this is an admission.

And as for the other,

the third one,

I do not know whether it died during the period of borrowing or whether it died during the period of rental,

and I cannot take an oath concerning it.

The law is

that since he cannot take an oath—

he pays.

The latter clause involves four

cows,

as he said to him: I gave you four cows, three as borrowed items and one as a rented item, and those three borrowed cows died

and you must give me the value of three cows.