Gittin 51b — the Talmud in English

And we answer:

he

[Rabbi Yitzḥak],

who speaks in accordance with Rabbi Eliezer ben Yaakov,

who disputes the Mishna and holds that one who returns a lost item is not exempt from an oath when he is being sued with a definite claim. [And the words of Rabbi Eliezer ben Yaakov will be explained at the end of the sugya.]

For it was taught in a beraita: Rabbi Eliezer ben Yaakov says: There are times when a person swears

without a claim, but

because

of

his own claim.

How so:

one who says to his fellow:

I have a hundred dinars belonging to your father in my possession

[which I borrowed from him],

and I fed him half of it

[I returned half to him],

he must swear

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

because

of

his own claim.

And below, the words of Rabbi Eliezer ben Yaakov and his reason will be explained.

And the Sages say: He is not

considered

anything but one who returns a lost item, and

therefore

he is exempt

from the oath.

Now the Gemara holds, in explaining the beraita, that no one is suing him at all, and therefore he is considered “one who swears on the basis of his own claim”

And we raise an objection:

But

does

Rabbi Eliezer ben Yaakov not hold

[does he not maintain] that

one who returns a lost item is exempt

from an oath, because of the rectification of the world, and is he not concerned that the finder will refrain from returning a lost item if it is possible that they will require him to swear

!? Rav said

[he answered]:

when he is being sued

[his] son, the

minor

of the deceased. And he is not considered “one who returns a lost item,” as will be explained below, and therefore he is obligated to swear.

And we raise an objection: The claim of a

minor—is there any substance in it

[does it have substance]!?

But we learned in the Mishna: One does not swear on the basis of the claim of a deaf-mute, an imbecile, or a minor.

As it is stated [Exodus 22:6–7]: “When a man gives his fellow money or vessels to guard, etc., and the master of the house shall approach the judges”—for an oath. And we expound: “a man,” but not a minor [and a deaf-mute and an imbecile are like a minor, since they do not possess legal understanding].

Thus, an oath was stated only with regard to a man, and not with regard to a minor.

And if he is being sued by a minor, what is the reason of the Sages

!?

What minor

did Rav mean when he said this? The

adult

son of the deceased; and he can make him swear.

And why did he call him

Rav

a minor?

Because

with regard to matters belonging to his father

he is like a

minor,

for he is not familiar with his affairs.

And we challenge this:

If so,

why did Rabbi Eliezer call it, “swearing on the basis of

his own claim”?

Is it not, according to your words,

the claim of another

[the son of the deceased]

that it is!?

And we answer: This is what he is saying: Sometimes a person swears on the basis of

the claim of another, and

because of

his own admission,

that he still owes half.

And we raise an objection: Behold,

all claims

[in a case of one who admits to part of the claim]

are also the claim of another and his own admission.

And why did Rabbi Eliezer say that only “sometimes” does a person swear on the basis of his own claim

!? And what is the reason of the Sages, who exempt him here from an oath more than in other cases of one who admits to part of the claim

!?

Rather,

in fact, it is when a minor is suing him. Nevertheless, he is obligated to swear, since his claim derives from his father’s giving; yet he is called “one who swears on the basis of his own claim,” since elsewhere the claim of a minor is not considered a claim.

And that which we learned, “One does not swear on the basis of the claim of a minor,” applies only when the minor deposited the item with him. But if an adult deposited it and died, he must swear, even though his son, the minor, is now suing him.

And if you say: If so, in what did the Sages dispute Rabbi Eliezer ben Yaakov

!? It may be said that they dispute

the

words of

Rabba,

[they dispute them], as will be explained below.

For Rabba said

[explained]:

For what reason did the Torah say: One who admits to part of the claim must swear,

and we do not exempt him because he is considered one who returns a lost item by not denying everything ?

Because there is a

certainty:

a person does not brazenly deny

his debt

in the presence of his creditor.

And

therefore: Even though

this

man

in its entirety

was in debt, he

wanted

[wishes]

to deny it to him,

he does not do so.

And this

[the reason for the matter]

that he did not deny it is that a person does not brazenly deny in the presence of his creditor,

and therefore we do not say that he is one who returns a lost item by not denying everything, for he cannot brazenly deny everything, but only part of it.

And if you say: How can we make him swear? Does he not wish to rob his fellow? And one who is suspect with regard to money is also suspect with regard to lying in his oath

!? It may be said that in truth he does not wish to rob his fellow, since he did not deny the entire debt.

And in its entirety

[the debt]

he wants to admit it to him

[he wishes to admit and pay].

And the reason that he did not admit it to him

in its entirety

is that he is merely evading him

[he is presently evading him], and

he thinks

“I will not rob him; rather, I will evade him”

until there are

[there will be]

coins for me, and I will repay him

all my debt.

And

therefore,

the Merciful One said

[the Torah],

place

[impose] an oath upon him,

so that

[in order]

he will admit it to him,

now,

in its entirety.

Now the Gemara returns to explain the dispute between Rabbi Eliezer ben Yaakov and the Sages in accordance with Rabba’s words, that one who admits to part of the claim swears because he cannot brazenly deny everything.

Rabbi Eliezer ben Yaakov holds: It makes no difference whether it is with him

[with his creditor],

and it makes no difference whether it is with his son

[the claimant of his father’s debt], whether an adult or a minor,

he cannot brazenly deny

everything.

And therefore: He is not one who returns a lost item,

and he should not be exempt from an oath because he did not deny everything.

And the Sages hold: It is with him that he cannot brazenly deny,

and therefore he is obligated to swear,

but with his son,

even a minor,

he can brazenly deny

everything,

and since he does not brazenly deny

[since he does not deny, even though he can brazenly deny],

he is one who returns a lost item,

and he is exempt from an oath. And just as with regard to the son of his creditor, even his minor son, Rabbi Eliezer holds that he cannot brazenly deny everything and therefore is obligated to swear.

Thus, with regard to one who returns a lost item, Rabbi Eliezer holds that he cannot brazenly deny everything when the loser makes a definite claim against him, and therefore he swears and is not exempt on the grounds that he is one who returns a lost item.

And this is what we said above: “He [Rabbi Yitzḥak] speaks in accordance with Rabbi Eliezer ben Yaakov,” for when he is being sued by the minor son of the deceased, he resembles one who returns a lost item.