Gittin 51b (נא:) — the Talmud in English

And we answer:

he

Rabbi Yitzḥak],

who says in accordance with Rabbi Eliezer ben Yaakov,

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

As it was taught in a beraita: Rabbi Eliezer ben Yaakov says: There are times when a person takes an oath

without being sued, but

because

of

his own claim.

How so?

One who says to his fellow:

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

I borrowed them from him],

and I repaid him half,

I returned half to him],

must take an oath

the 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 reasoning will be explained.

And the Sages say: He is not

considered

anything other than one who returns a lost object, and

therefore

he is exempt

from the oath.

Now the Gemara understands, in explaining the beraita, that no one is suing him at all, and therefore he is considered to be “taking an oath because 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 object is exempt

from an oath, by virtue of the enactment made for the betterment of society, and is he not concerned that the finder will refrain from returning a lost object if it is possible that he will be required to take an oath?

Rav said

he answered]:

When he is sued by

his son

who is a minor

of the deceased. And he is not considered “one who returns a lost object,” as will be explained below; therefore, he is obligated to take an oath.

And we raise an objection: The claim of a

minor—is there any substance to it

is there truly anything to it]!?

But we learned in the Mishna: One does not take an oath based on 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 safeguard, etc., then the owner of the house shall approach the court”—for an oath. And we derive: “a man,” but not a minor [and a deaf-mute and an imbecile are like a minor, since they lack understanding].

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

And if he is being sued by a minor, what is the reasoning of the Sages who exempt him from an oath!?

And we answer:

What does “minor”

mean when Rav says this? The son who is

an adult

of the deceased, and he can cause him to take an oath.

And why did

Rav

call him a “minor”,

because

with regard to matters concerning his father

he is

like a minor,

as he is not familiar with his father’s business affairs.

And we challenge this:

If so, why did Rabbi Eliezer call it taking an oath because of

his

own claim?

According to your words, it is

the claim of another [that of

the deceased’s son]

is it not!?

And we answer: This is what he is saying: Sometimes a person takes an oath because of

the claim of another, and

because of

his own admission,

that he still owes half.

And we raise an objection: After all,

all claims

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

are also the claim of another and his own admission.

Why, then, did Rabbi Eliezer say that only “sometimes” does a person take an oath because of his own claim!?

And what is the reasoning of the Sages, who exempt him here from an oath but not in other cases of one who admits to part of a claim!?

And we conclude:

Rather,

it is indeed when he is being sued by a minor. Nevertheless, he is obligated to take an oath, since the minor’s claim derives from the giving of the object by his father. Yet he is called “one who takes an oath because of his own claim,” since elsewhere the minor’s claim is not considered a claim.

And what we learned, “One does not take an oath based on the claim of a minor,” applies only when the minor himself deposited the item with him. But if an adult deposited it and died, he must take an oath, even though his son, who is now a minor, is suing him.

And if you say: If so, in what way did the Sages disagree with Rabbi Eliezer ben Yaakov!?

One can say that they disagree

with

the words of

Rabba,

as will be explained below.

For Rabba said

explained]:

Why did the Torah say: One who admits to part of the claim must take an oath,

and do we not exempt him because he is considered one who returns a lost object by not denying the entire claim!? Because there is a

presumption

that

a person does not brazenly deny

a debt

in the presence of his creditor.

And

therefore: Although

this

man

the entire

debt

wanted

wishes]

to deny to him,

he does not do so.

And this

is the reason]

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

and therefore we do not say that he is considered one who returns a lost object by not denying the entire claim, since he cannot brazenly deny the entire claim, but only part of it.

And if you say: How can we make him take an oath? After all, he wishes to rob his fellow, and one who is suspect with regard to money is also suspect with regard to lying in his oath!?

One can say: In truth, he does not wish to rob his fellow, since he did not deny the entire claim,

and the entire

debt

he wanted to admit to him

he wishes to admit it and pay it].

And the reason that he did not admit it to him

in its entirety

is that he is merely evading him

he is evading him] for

he thinks

that he is not robbing him, but merely evading him

until there are

he has

money for me, and I will repay him]]

all my debt.

And

therefore,

the Torah said

the Torah],

place

impose] an oath upon him,

so that

[so]

he will admit to him,

now,

the entire debt.

The Gemara now returns to explain the dispute between Rabbi Eliezer ben Yaakov and the Sages in accordance with Rabba’s statement, that one who admits to part of a claim takes an oath because he cannot brazenly deny the entire claim.

Rabbi Eliezer ben Yaakov holds: It makes no difference whether it is with him [with his creditor],

[a claim made by] his creditor

or whether it is with his son [the claimant

the debt of his father], whether he is an adult or a minor

he cannot brazenly deny

the entire claim.

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

and he should not be exempt from an oath on account of not having denied the entire claim.

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

and therefore he is obligated to take an oath,

but with regard to his son,

even if he is a minor,

he can brazenly deny

the entire claim.

And since he does not brazenly deny

and since he does not deny it even though he is able to brazenly deny it],

he is one who returns a lost object,

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

Thus, with regard to one who returns a lost object, Rabbi Eliezer holds that he cannot brazenly deny the entire claim when the loser makes a definite claim against him, and therefore he must take an oath and is not exempt on the grounds that he is one who returns a lost object.

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