Bava Metzia 98a — the Talmud in English

And we object:

And according to Rav Sheshet, the Mishna is difficult.

For in our Mishna, since before us the claimant is holding the cloak, this is like “here it is,” and nevertheless it is stated in the Mishna that he must swear.

And we answer:

Rav Sheshet could say to you —

The Mishna is a rabbinic enactment.

The oath in our Mishna is not an oath from the Torah; rather, it is a rabbinic enactment, so that each person will not go and seize his fellow’s cloak. If so, there is once again no proof that “here it is” entails liability, for even if “here it is” exempts, he must swear by rabbinic enactment.

And we object:

And the other one?

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

And we answer:

Yes! It is a rabbinic enactment.

Rabbi Hiyya too holds that the oath in the Mishna is a rabbinic enactment —

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

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

the Rabbis enact an oath resembling one from the Torah.

For the Rabbis 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,

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 Rabbis enact an oath that has no equivalent in Torah law?

The Rabbis would not have enacted an oath that has no parallel in the Torah [for here this resembles “here it is”]. And if the Rabbis nevertheless enacted an oath, necessarily one swears in a similar case according to Torah law, and it is proved that “here it is” entails liability.

The Gemara answers:

as Rava—![](pamud.bmp "

Exact page location")

for Rava said:

one who says to his fellow:

“A maneh

one hundred dinars]

is owed to me by you,”

which I lent you,

and the other says: “You have only fifty owed by me,”

dinars that you lent me,

“and as for the remainder, I do not know

whether you lent it to me.”

The law is that, since the borrower admits that he owes fifty, he is one who admits to part of the claim, and he is obligated in an oath concerning the additional fifty that was claimed from him; and since he cannot swear concerning them, for he says that he does not know,

since he cannot swear—

he pays,

for anyone who is obligated by Torah law in an oath, if he cannot swear — he must pay. And this is not like Rav and Shmuel, who said in the chapter “All Those Who Swear” [Shevuot 47a] that one obligated in an oath who cannot swear is exempt from paying; rather, it is like the view of Rabbi Abba, who disagrees with them there .

It follows that according to Rava, had the claimant claimed only fifty, and the defendant had said, “I do not know,” the defendant would have been exempt from paying, in accordance with Rav Nahman, who does not say that a certain claim is preferable in order to extract money from one in possession. And because the defendant became obligated in an oath on account of the fifty that he admitted, he became obligated to pay the fifty concerning which he made an uncertain claim. And this is what Rav Nahman intended when he said: one who makes an uncertain claim becomes obligated to pay when there is between them an oath matter.

And the Gemara establishes our Mishna according to Rav Nahman in this way:

You can find the first clause with two

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

And the latter clause with three

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

And the Gemara explains:

the first clause, with two

cows,

for he said to him,

the owner of the cow to the guardian:

“I gave you two cows: half the day as a loan for use and half the day as a rental”

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

Alternatively

or],

“one day as a loan for use and one day as a rental”

in the second case.

“And both of them died during the period of the loan for use”

and both of them died during the period of the loan for use], and you are obligated to pay me the value of both of them.

And the borrower said to him: “One of them, yes, died during the period of the loan for use”

one of them indeed died during the period of the loan for use], and I will pay you its value .

“But the other, I do not know whether it died during the period of the loan for use or whether it died during the period of the rental,”

and concerning the second cow, I do not know whether it died during the period of the loan for use or during the period of the rental], and I am uncertain whether I am obligated to pay you its value or not.

The law is

that since he cannot swear

the oath of one who admits to part of the claim,

he pays

even the value of the cow concerning which it is uncertain whether he is obligated for it.

And the latter clause, with three

cows,

for he said to him: “I gave you three cows, two as a loan for use and one as a rental, and these two that were loans for use died”

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

And the borrower said to him: “Yes, one of the borrowed ones died”

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

“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 this one that remains is the borrowed one,”

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

The law is that he is obligated in the oath of one who admits to part of the claim,

and since he cannot swear—

he pays.

The Gemara explains the Mishna according to Rav Nahman in accordance with Rava’s words, but Rami bar Hama disagrees with Rava and holds that a defendant who says, “I know about fifty, and I do not know about fifty,” is not obligated in the oath of one who admits to part of the claim, because there is no denial here, since the claim “I do not know” is not a denial. And the Torah obligated an oath for one who admits to part of the claim only when there is an admission and a denial.

According to Rami bar Hama, one obligated in an oath who cannot swear can exist only in a case in which he says: “I know about fifty, I do not know about twenty-five, and I did not borrow twenty-five.” Then he becomes obligated in an oath because he admitted to part and denied part, but he cannot swear concerning the twenty-five that he does not know about.

Therefore, according to Rami bar Hama, the Mishna must be established somewhat differently in order to reconcile the view of Rav Nahman.

The substance of Rami bar Hama’s words comes to explain the Torah’s words concerning the oath of guardians.

It is written in the Torah that the guardian swears “concerning every matter of transgression ... which he says: ‘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 Hiyya bar Yosef [Bava Kamma 107a], an intermingling of passages is written here, and the oath of one who admits to part of the claim does not belong to the passage of guardians but to the passage of a loan; and two separate obligations of oaths were stated in the Torah in one verse. When the Torah said “concerning every matter of transgression,” its intention is to obligate the guardian in an oath that he was not negligent with the deposit, and it is not necessary that he admit to part of the claim. And when the Torah said “this is it,” it is speaking of a loan, for if the borrower admits to part of the claimant’s claim, he is obligated in an oath. And this is the halakha.

However, Rami bar Hama’s view is that there is no intermingling of passages here, and every oath of guardians applies only when there is an admission to part of the claim, in accordance with the plain meaning of the verses.

Rami bar Hama further innovated that every oath of one who admits to part of the claim applies only when there is an admission to part and a denial to part. Therefore, the oath of guardians will not apply in a case in which he gave him two cows, and he admits concerning one that he is liable, while concerning one he claims that it was taken by force, because then there is no denial to part, since the claim of an unavoidable accident is not a denial. Rather, the oath of guardians will apply in a case in which the depositor says that he gave him three cows, and the guardian admits concerning one, denies concerning one, and claims concerning the third that it was taken by force .

And according to Rami bar Hama, who said: “The four guardians”

whom the Torah obligated in an oath concerning their claims—a gratuitous guardian with the claim of theft, a paid guardian with the claim of an unavoidable accident, or a borrower with the claim that it died through the work,

require a denial to part and an admission to part

in order to obligate them in an oath, and an admission alone does not obligate, as Rava holds.

We establish the Mishna in this way:

You can find the first clause with three cows, and the latter clause with four

cows. For in all the cases another cow must be added, concerning which there will be a denial.

And the Gemara explains:

the first clause, with three

cows,

for he said to him: “I gave you three cows, half the day as a loan for use and half the day as a rental, alternatively, one day as a loan for use and one day as a rental, and all three of them died, all of them during the period of the loan for use,”

and you are obligated to pay me the value of three cows.

And the borrower said to him: “One”,

concerning one of them I claim that

“such a thing never happened”,

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

“And one”,

and concerning one of them,

“yes,”

indeed, I admit that

“it died during the period of the loan for use,”

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

“And the other”,

concerning the third one,

“I do not know whether it died during the period of the loan for use or whether it died during the period of the rental,”

and I cannot swear concerning it.

The law is

that since he cannot swear—

he pays.

The latter clause, with four

cows,

for he said to him: “I gave you four cows, three as loans for use and one as a rental, and these three borrowed ones died,”

and you must give me the value of three cows.