Kiddushin 28a (כח.) — the Talmud in English

And what

about the oath of

a sota,

for the Torah was lenient with regard to her in that [image: exact page location]

she cannot be claimed against by means of one witness—

for if there is one witness who testifies that she secluded herself after the warning, her husband cannot compel her to take an oath— and nevertheless the Torah was stringent with regard to her, saying that

one extends

an additional oath to her concerning the time of betrothal.

If so,

monetary law,

with regard to which the Torah was stringent in that

it can be claimed against by means of one witness—

for if a person claims that another owes him money, and one witness supports him, he can demand that the other take an oath— is it not

an a fortiori inference

that we should be stringent with regard to it also concerning

extending

an oath?

From here it follows that the law of extending an oath was also newly established in monetary law.

Thus far, the Gemara has cited a source for the statement of our Mishna, which says: “And they subject [movable property] the assets that have guaranteed liability to an oath concerning them [by extending the oath].”

The standard example of extending an oath mentioned in our Mishna involves a definite claim. For example: Reuben definitively claims that he purchased movable property and land from Simeon, and one witness supports him. In that case, an oath cannot be imposed concerning the land by itself; however, since Simeon became obligated to take an oath concerning the movable property, an oath concerning the land is extended to him.

And in tractate Shevuot another innovation is brought concerning extending an oath: an oath is extended even on the basis of a doubtful claim, when the claimant does not definitively claim that the defendant owes him money, but merely suspects him, as follows:

The Sages instituted that one partner may make his partner take an oath even on the basis of a doubtful claim. For example, one partner says to the other: “I want you to swear to me that you took nothing of mine.” This oath is called “the oath of the partners.”

A partner has the power to make his partner take the oath of the partners only before they divided the jointly owned property; but after they divided the property between them, he can no longer make him take this oath.

However, if it happened that after they divided the property one of them became obligated to take an oath to the other concerning a different matter, the other can then extend an oath to him even concerning the partnership in the past, saying to him: “Swear to me now that you took nothing of mine during the time that we were partners.”

It can be learned from here that extending an oath was newly established even on the basis of a doubtful claim. And the Gemara clarifies: From where did the Sages learn that extending an oath was newly established even on the basis of a doubtful claim?

The source for extending an oath in monetary law is therefore derived by an a fortiori inference from a sota, as brought in the Gemara above. If so, this must be considered:

And we raise the following objection:

We have found this with regard to a definite claim;

what we have found—that by means of an a fortiori inference from a sota, an additional oath is extended even in monetary law—we have found only with regard to a definite monetary claim. But with regard to a doubtful monetary claim, it is impossible to derive the extension of an oath from a sota, despite the fact that the claim concerning a sota is a doubtful claim. And the reason is as follows: “

The oath of a sota” is fundamentally brought on the basis of a doubtful claim, because when a husband warns his wife and she then secludes herself, the husband suspects his wife, wondering whether she became defiled. He makes her take an oath solely on the basis of a doubtful claim.

Similarly, the extension of the oath also concerns a doubtful claim: for example, he suspects her, wondering whether she became defiled while she was still betrothed, and makes her take an oath concerning this by means of extending the oath, since she became obligated to take an oath concerning adultery during the marriage.

By contrast, “a monetary oath”—such as “the oath based on one witness” or “the oath of one who admits part of the claim”—is fundamentally brought on the basis of a definite claim. For example, Reuben definitively claims that Simeon owes him money, and one witness supports him; or even if no witness supports him, if Simeon admitted part of the claim, he becomes obligated to take an oath concerning the money that he denies.

Since the extension of an oath in monetary law is derived from the extension of an oath in the case of a sota, we must compare it to a sota: just as with a sota, the extension is akin to the principal oath, so too in monetary law, the extension is akin to the principal oath.

And just as the principal oath in the case of a sota concerns a doubtful claim, and the extension likewise concerns a doubtful claim, so too, in monetary law, we can derive it from a sota only when the extension is akin to the principal oath. And just as the principal oath in monetary law concerns a definite claim, so too an extension of an oath in monetary law applies only to a definite claim.

Therefore, this must be considered:

With regard to

a

doubtful

monetary claim [such as in the case of partners who divided their property, as above],

from where

do we know that an oath is extended there as well?

And we answer: From that

which was taught in a baraita: Rabbi Shimon ben Yoḥai says: An oath was stated outside

—in monetary law, where the oath is administered in the court, outside the Temple courtyard—

and an oath was stated inside

—in the case of a sota, who takes her oath inside the Temple courtyard. The laws of the oath stated outside [monetary law] can be derived from the laws of the oath stated inside [a sota] by means of “what do we find.”

What

just as with

the oath stated inside, the verse made

the

doubt like certainty,

so that an oath is extended in its case on the basis of a doubtful claim as though it were definite,

so too the oath

stated outside, the verse made

the

doubt like certainty.

And just as an oath is extended in monetary law on the basis of a definite claim, so too it is extended on the basis of a doubtful claim.

Thus far, the Gemara has explained the source of the law of extending an oath.

The Gemara now explains how far-reaching the power of extending an oath is:

We learned in the Mishna that although an oath is not administered concerning land by itself, nevertheless, by virtue of extending an oath, the claimant has the power to obligate the defendant to take an oath concerning it.

And we raise the following objection:

How far

does the power of

extending an oath

extend an oath to a matter concerning which an oath is not administered?

And we answer:

Rav Yehuda said that Rav said:

The power of extending an oath reaches this far:

that

even if

the claimant said to him

after the defendant became obligated to take an oath,

“Swear to me

also

that you are not my slave,”

the defendant is obligated to swear to him that he is not his slave.

The Gemara assumed that the claimant was saying to the defendant: “Swear to me that you are not my Canaanite slave,” and an oath is not administered concerning Canaanite slaves. Rav teaches us that although an oath is not administered concerning slaves by themselves, nevertheless an oath concerning them is administered by means of extending an oath.

The Gemara will explain below why there is a greater novelty in the claim “You are my slave” than in a claim concerning land.

And we challenge this: Can an oath really be extended on the basis of such a claim? After all,

that person—we place him under a ban!

A person who makes such a claim against his fellow is placed under a ban by the court, as explained in the baraita:

As it was taught in a baraita:

a

one who calls his fellow a “Canaanite slave”—

shall be placed under a ban.

The court places him under a ban as a punishment measure for measure: Since he demeaned the honor of a member of Israel, others will likewise demean his honor.

b. One who calls his fellow

a “mamzer”—

receives forty lashes.

He is given forty lashes by rabbinic ordinance, which is a less severe punishment than a ban.

c] One who calls his fellow a

wicked person

—the court does not deal with this matter to punish him, but his fellow himself

may descend with him into his livelihood.

He is permitted to hate him, and even to diminish his livelihood and encroach upon his trade.

This concludes the beraita.

And it is explained in the beraita that one who calls his fellow a “Canaanite slave” is punished for this with nidui. If so, it is difficult: How could Rav say that when one says to his fellow, “You are my slave,” they impose an oath upon him through rolling? And we answer

Rather, Rava said:

The statement of Rav Yehuda citing Rav above should be interpreted in a different manner:

And this is what Rav said: The force of a rolled oath is greater than that of the primary oath, to such an extent that even if he said to him

“Swear to me that you were not sold to me as a

form of

Hebrew slave,”

they impose an oath upon him through rolling [because one who calls his fellow a “Hebrew slave” is not punished with nidui, and therefore there is no reason not to impose an oath upon him through rolling].

And it follows from Rava’s words that one who brings a claim against his fellow, saying that he is his Hebrew slave, does not take a primary oath concerning this claim, but only through rolling. [This demonstrates that the force of a rolled oath is greater than that of a primary oath.] And the reason that one does not take a primary oath concerning the claim, “You are my Hebrew slave,” is that a person is equated with land, and one does not take oaths concerning land.

And we challenge this: Indeed, concerning one who says to his fellow, “You are my Canaanite slave,” it can be said that no oath is imposed concerning this claim, because a Canaanite slave’s body is acquired by his master like his ox and donkey, and therefore this is like one claiming ownership of his fellow’s body. And a person is equated with land, and one does not take an oath concerning him.

But according to what Rava said, that the statement concerns one who says to his fellow, “You are my Hebrew slave,” this is difficult:

Certainly, a Hebrew slave is not acquired by his master like his ox and donkey, and if so,

this is a substantial claim!

That is, the claim, “You are my Hebrew slave,” is a claim that entails a primary oath, for the claimant is not asserting that the person’s body is acquired by him, but only a monetary claim:

he has a monetary claim against him,

as he claims that his fellow is obligated to work for him for six years or pay him money in place of his labor [and leave through “deduction of money.”] What difference does it make that a person’s body is equated with land? He is not claiming his body; he is making only a monetary claim!

And we answer:

Rava,

who holds that one does not take a primary oath concerning the claim, “You are my Hebrew slave,” follows

his own reasoning

elsewhere.

For Rava said: A Hebrew slave’s body is acquired

by his master [even though he is not literally like his ox and donkey]. It follows that one who claims, “You are my Hebrew slave,” is claiming that his body belongs to him. And a person is equated with land; therefore, one does not take a primary oath concerning him.

And Rav Yehuda teaches us that the force of a rolled oath is so great that although one does not take a primary oath concerning the claim, “You are my Hebrew slave,” one nevertheless takes an oath concerning it through rolling.

And we question this: Since we have explained that a Hebrew slave’s body is acquired,

if so, this is land!

That is, if so, this is like land, since a person is equated with land; and we already learned in our Mishna that an oath is rolled onto a claim concerning land. Why, then, did Rav Yehuda need to teach us that an oath is rolled onto the claim, “You are my slave”? Is this not derivable from the words of the Mishna? And we answer:

Lest you say,

Had Rav Yehuda not said this, you might have said that specifically concerning a claim of

land

[for example, Reuven claims to Shimon, “I bought your field from you,” and Shimon denies this and claims, “I did not sell it to you”], in this case

he

the tanna said that an oath is rolled onto Shimon, the defendant, because Shimon has no other proof that he did not sell his field to Reuven. And even if Shimon claims that he has proof for his assertion—for if he had sold his field to Reuven, everyone would know of it, and therefore he need not take an oath—his words are of no consequence, because

people commonly sell discreetly; if he did sell it, it would have no public announcement.

That is, people may sell their fields discreetly. Therefore, even if Shimon sold his field, the matter would not become known, and he is consequently obligated to take an oath through rolling.

All this applies to a claim concerning land.

But

this—

one who claims to his fellow, “You were sold to me as a Hebrew slave”—the defendant would be exempt from a rolled oath, because he can prove his words and argue against him:

If he had been sold, it would have become known!

If he had been sold as a slave, the matter would certainly have become known; and since it has not become known, he was certainly not sold as a slave. We might therefore have thought that the defendant’s claim is valid, and that an oath is not rolled onto him.

Therefore,

it teaches us

Rav Yehuda teaches us that this is not sufficient proof, and nevertheless an oath is rolled onto him.

Mishna:

Our Mishna deals with acquisition through exchange (kinyan halifin).

Generally, acquisition through exchange is performed by giving a “kerchief.” For example, Reuven wishes to acquire an article from Shimon for ten zuz. Reuven gives Shimon a kerchief, and this is as though they exchanged the kerchief and the article with one another. As soon as Shimon receives the kerchief, at that moment Reuven acquires the article wherever it is [even before he pulls it into his possession], and he becomes obligated to pay Shimon its value, ten zuz.

Since Reuven acquires the article immediately: (a) neither of them can retract from the acquisition.

(b) If the article burns before it reaches Reuven, and Reuven, the buyer, comes and claims to Shimon, the seller, “I did not receive the article from you; therefore, I will not pay you ten zuz,” his words are of no consequence, since Reuven already acquired the article while it was still in Shimon’s possession. It is as though the article came into his possession and burned in his domain. Therefore, Reuven is obligated to pay the ten zuz that he undertook to pay in exchange for the article.

The source for acquisition through exchange is what is stated in the Scroll of Ruth [4:7]: “And this was formerly done in Israel concerning redemption [a sale] and concerning exchange, to confirm every matter: a man would remove his shoe and give it to his fellow.” That is, the buyer would give his shoe to the seller, and through this the acquisition would be completed.

The verse mentions only a shoe in connection with exchange, and our Mishna discusses the status of other objects: Can they serve as a “kerchief” for acquisition through exchange?

The explanation of the Mishna before us follows the initial assumption in the Gemara:

Anything that can become money for another

[this is a designation for currency, which the buyer customarily gives to the seller as the price of the purchase; if the buyer gave it to the seller as an act of acquisition through exchange],

once this one acquired

the seller, the currency, at that moment

this one became obligated

the buyer

for the

losses beyond his control of

that which he received in exchange.

That is, the purchase is acquired by the buyer wherever it is, and if the purchase is lost through circumstances beyond one’s control, the seller is no longer responsible for it, since the buyer has already acquired it. Rather, the buyer suffers the loss, and he must pay the seller the amount they agreed upon.

The Mishna needed to teach us that acquisition through exchange applies even to currency, because if the buyer gave the currency as an act of acquisition with money, he would not acquire the purchase until he pulled it into his possession. Therefore, we might have thought that likewise, even if the currency were given as an act of exchange, it would not effect the acquisition. Consequently, the Mishna needed to teach us that currency does acquire the purchase when it is given as an act of acquisition through exchange. And the tanna explains:

“How?”

And straightforwardly, the question “How?” refers to the first clause; thus the tanna asks: How does currency become an object of exchange?

However, from the tanna’s answer before us it is evident that this was not his question. The Gemara below will explain the tanna’s question, “How?”

In any event, in his answer the tanna explains another manner of acquisition through exchange:

“If he exchanged an ox for a cow, or a donkey for an ox”—

“Once this one acquired,”

at the moment when the owner of the cow pulled the ox [or at the moment when the owner of the ox pulled the donkey], at that moment the item received in exchange was acquired by his fellow. Therefore,

“this one became obligated”

[his fellow]

for the

losses beyond one’s control of

that which he received in exchange.

Gemara:

In tractate Bava Metzia the amoraim disagreed as to whether currency can effect acquisition through exchange: Some say that currency can effect acquisition through exchange, while others say that it cannot. And the halakha was established that currency cannot effect acquisition through exchange. And the Gemara raises a difficulty against this from the words of our Mishna:

And we inquire:

What is meant by “exchange”?

The acquisition through exchange mentioned at the beginning of the Mishna—what is it performed with? For it is performed with

currency

!

as it is in the version before us. The Rashash emended the wording of the Gemara to read, “Anything that can become money for another—what is it? Currency.” [This is also the version in the Gemara, Bava Metzia 46a, and in the Ritva here.] If so, does

this teach

from our Mishna that

currency becomes an object of exchange?

And it is difficult: How was it ruled in tractate Bava Metzia that currency does not become an object of exchange!?

And we answer:

Rav Yehuda said: “Anything that can become money for another” is not acquisition through exchange with currency; rather, it should be interpreted differently:

This is what he means:

This is what he is saying,

This is what the tanna intended to say:

Anything that is

appraised as money for another,

anything whose value is not known in itself when the buyer gives it to the seller as payment, but must be appraised in relation to another item—that is, all objects except currency. Their value is not known, but they must be appraised in money, to determine how much money they are worth [unlike currency, whose value is clear when it is given and which does not require appraisal in relation to another item].