Kiddushin 28a — the Talmud in English

And what

about the oath of

a sotah,

which the Torah eased concerning her in this:

that she was not given to be claimed by one witness,

for if there is one witness testifying concerning her that she secluded herself after the warning, her husband cannot claim from her that she swear, and nevertheless the Torah was stringent concerning her, saying that it

rolls

upon her an additional rolling of an oath concerning the time of the betrothal.

If so,

monetary law,

concerning which the Torah was stringent, in that

it was given to be claimed by one witness,

for if a person claims that his fellow owes him money and one witness supports him, he has the power to claim an oath from his fellow, and

is it not a logical inference

that we should be stringent in it also with regard to

rolling

within it a rolling of an oath?!

And from here also the law of the rolling of an oath in monetary law was newly established.

Until here the Gemara brought a source for the words of our Mishna, which says: “And they make [movable property] the property that has guaranteed responsibility swear concerning them [through a rolling of an oath].”

The ordinary example of the rolling of an oath brought in our Mishna is with a definite claim. For example: Reuven claims with certainty that he purchased movable property and land from Shimon, and one witness supports him. In that case, concerning the land by itself it is impossible to impose an oath, but since Shimon became obligated to swear concerning the movable property, an oath concerning the land is rolled upon him.

And in Tractate Shevuot an additional innovation concerning the rolling of an oath is brought: an oath is rolled even concerning a doubtful claim, when the claimant does not claim with certainty that the defendant owes him money, but merely suspects him, as follows:

The Sages enacted that a partner can make his partner swear even on the basis of a doubtful claim. For example, when one partner says to his fellow: “I want you to swear to me that you took nothing of mine.” And this oath is called “the oath of the partners.”

The partner does not have the power to make his partner swear the oath of the partners except before they divided the jointly owned property; but after they divided the property between them, he can no longer make him swear.

But if it happened that after they divided [the property], one of them became obligated to swear to his fellow concerning another matter, then his fellow can roll an oath upon him even concerning the matter of the partnership in the past, and say to him: “Swear to me now that you took nothing of mine during the time that we were partners.”

And it is possible to learn from here that the rolling of an oath was newly established even for a doubtful claim. And the Gemara clarifies: From where did the Sages learn that the rolling of an oath was newly established even for a doubtful claim?

Thus, the source for the rolling of an oath in monetary law is learned by a kal va-chomer from a sotah, as was brought in the Gemara above, and if so, we must discuss:

And we raised the matter:

We have found a definite claim,

what we have found—that it is possible to learn by a kal va-chomer from a sotah that an additional oath is rolled also in monetary law—we have found only concerning a definite claim in monetary law. But concerning a doubtful claim in monetary law, it is impossible to learn the rolling of an oath from a sotah, even though the claim of a sotah is a doubtful claim. And the reason for the matter is:

“The oath of a sotah” essentially comes on the basis of a doubtful claim, for when a husband warned his wife and she secluded herself, the husband suspects his wife: “Perhaps she became defiled.” And he makes her swear on the basis of a doubtful claim alone.

And similarly, the rolling of the oath also comes on the basis of a doubtful claim: for example, he suspects her: perhaps she became defiled while she was betrothed, and he makes her swear concerning this through a rolling of an oath [since she became obligated to swear concerning promiscuity during the marriage].

But, in contrast, “the oath concerning money” [such as “the oath of one witness” or “the oath of one who admits part of the claim”] essentially comes on the basis of a definite claim. For example, Reuven claims with certainty that Shimon owes him money, and one witness supports him; or even if no witness supports him, if Shimon admitted part of the claim, he thereby becomes obligated to swear concerning the money that he denies.

And since the rolling of an oath in monetary law is learned from the rolling of an oath in a sotah, we must compare it to a sotah: just as in a sotah the rolling is similar to the essence of the oath, so in monetary law the rolling is similar to the essence.

And just as the essence of the oath in a sotah comes on the basis of a doubtful claim, and likewise the rolling comes on the basis of a doubtful claim, so similarly in monetary law, we have the power to learn it from a sotah only when the rolling is similar to the essence of the oath. And just as the essence of the oath in monetary law comes on the basis of a definite claim, so the rolling of an oath in monetary law comes only on the basis of a definite claim.

And therefore we must discuss:

In

a

doubtful

monetary claim [such as with partners who divided [the property], and as above],

from where do we know

that there too they roll an oath?

And we answer: From that

which was taught: Rabbi Shimon ben Yohai says: An oath was stated outside,

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

and an oath was stated inside,

concerning a sotah, who swears inside the Temple courtyard. And the laws of the oath that is outside [monetary law] can be learned from the laws of the oath that is inside [a sotah] by the learning of “what do we find”:

What,

just as with

the oath stated inside, the Scripture made in it

the

doubt like a certainty,

so that they roll an oath upon it concerning a doubtful claim as though it were definite,

so too the oath

stated outside, the Scripture made in it

the

doubt like a certainty.

And just as they roll an oath in monetary law concerning a definite claim, so they roll concerning a doubtful claim.

Until here the Gemara explained the source of the law of the rolling of an oath.

And now the Gemara explains how great the power of the rolling of an oath is:

We learned in the Mishna that although one does not swear concerning land by itself, nevertheless, by virtue of the rolling of an oath, the claimant has the power to obligate the defendant to swear concerning it.

And we raised the matter:

To what extent

is the power of

the rolling of an oath,

to roll an oath concerning a matter about which one does not swear?

And we answer:

Rav Judah said that Rav said:

The rolling of an oath extends so far

that

even if

he said to him—

the claimant to the defendant, after he became obligated to him to swear—

“Swear to me

also

that you are not my slave,”

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

And the Gemara assumed that the claimant claims against the defendant: “Swear to me that you are not my Canaanite slave” , and one does not swear concerning Canaanite slaves. And Rav taught us that although one does not swear concerning slaves by themselves, nevertheless one swears concerning them through the rolling of an oath. [

And below the Gemara will explain why there is an innovation in the claim “You are my slave” more than in a claim concerning land ].

And we object: Do they roll an oath concerning such a claim?! Surely,

that person—we place him under a ban!

For one who makes such a claim against his fellow, the court places him under a ban! And as is explained in the beraita:

For it was taught:

A

one who calls his fellow “Canaanite slave”—

shall be under a ban.

The court places him under a ban as a punishment that is measure for measure: since he demeaned the honor of a Jewish person, others too will demean his honor. [

b] One who calls his fellow

“mamzer”—

receives the forty.

He is lashed with forty lashes by rabbinic enactment, and this is a punishment less severe than a ban.

ג] One who calls his fellow

“wicked”

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

may descend with him to his life.

That is, he is permitted to hate him, and even to diminish his livelihood and descend upon his trade.

These are the words of the beraita up to here.

And it is explained in the beraita that one who calls his fellow “a Canaanite slave” is punished for this with excommunication. If so, this is difficult: how did Rav say that one who says to his fellow, “You are my slave,” they impose an oath upon him by means of gilgul? And we answer:

Rather, Rava said:

the words of Rav Yehuda said in the name of Rav above should be explained in another way:

And thus Rav said: the power of the rolling of an oath is greater than the principal 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 by means of gilgul [because one who calls his fellow a “Hebrew slave” is not punished with excommunication, and therefore there is no reason not to impose an oath upon him by means of gilgul].

And from Rava’s words it is demonstrated that one who claims against his fellow and says that he is his Hebrew slave does not swear a “principal oath” on this claim, but specifically through gilgul. [And thereby the power of the rolling of an oath is greater than the power of the principal oath]. And the reason that one does not swear a principal oath on the claim, “You are my Hebrew slave,” is because a person was likened to land, and one does not swear concerning land.

And we object: indeed, concerning one who says to his fellow, “You are my Canaanite slave,” there is room to say that one does not make him swear on this claim, because a Canaanite slave’s body is acquired by his master like his ox and his donkey, and therefore this is like one who claims his fellow’s body. And a person was likened to land, and one does not swear concerning him,

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

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

this is a substantial claim!

That is, the claim, “You are my Hebrew slave,” is a claim that obligates a principal 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,

for he claims that his fellow is obligated to work for him for six years or pay him money in place of his labor [and to leave through “deduction of money.”] And what difference does it make that a person’s body was likened to land? Does he not claim his body, but only a monetary claim!

And we answer:

Rava,

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

his reasoning

elsewhere.

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

by his master [although he is not actually like his ox and his donkey]. And it follows that one who claims, “You are my Hebrew slave,” is like one who claims that his body belongs to him; and a person was likened to land, and therefore one does not swear concerning him a principal oath.

And Rav Yehuda taught us that the power of the rolling of an oath is so great that although one does not swear a principal oath concerning the claim, “You are my Hebrew slave,” nevertheless one swears concerning it by means of gilgul.

And we wonder: 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 was likened to land, and we have already learned in our Mishna that an oath is rolled onto 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 to be learned from the words of the Mishna? And we answer:

You might have said

that without Rav Yehuda’s words, you could say that specifically concerning a claim of

land

[for example, Reuven claims to Shimon, “I bought your field from you,” and Shimon denies 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 claim—for if he had sold his field to Reuven, everyone would know about it, and therefore he need not swear—there is nothing in his words, because

people commonly sell discreetly; if he did sell, it has no public notice.

That is, people may sell their fields discreetly, and therefore even if Shimon sold his field, there is no public notice of it, and consequently he must swear by means of the rolling of an oath.

And all this applies to a claim of land.

But

this one,

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

“If he was sold, he would have public notice!”

If he had been sold as a slave, surely public notice of this would have gone out; and since there is no public notice of it, surely he was not sold as a slave! And we might have thought to say that the defendant’s claim is correct, and an oath is not rolled onto him.

Therefore,

it teaches us

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

Mishna:

Our Mishna deals with the acquisition of exchange.

Generally, acquisition by exchange is performed by giving a “cloth.” For example: Reuven, who wishes to purchase a vessel from Shimon for ten zuz, gives Reuven a cloth to Shimon, and it is as though they exchanged the cloth and the vessel with one another. And immediately when Shimon receives the cloth, at that moment Reuven acquires the vessel, wherever it is [even before he has drawn it into his domain], and he becomes obligated to pay Shimon its value, ten zuz.

And since Reuven acquires the vessel immediately: a. Neither of them can retract from the acquisition.

b. If the vessel burns before it reaches Reuven’s hand, and Reuven, the buyer, comes and claims to Shimon, the seller: “I did not receive the vessel from you; therefore I will not pay you ten zuz”—there is nothing in his words, for Reuven already acquired the vessel while it was still in Shimon’s domain. And this is as though the vessel had come into his hand and had burned in his domain. Therefore Reuven is obligated to pay the ten zuz that he undertook to pay in exchange for the vessel.

The source for acquisition by exchange is what is stated in the Scroll of Ruth [4:7]: “And this was formerly done in Israel concerning redemption [the sale] and concerning exchange, to establish 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 established.

The verse mentioned only a shoe with regard to exchange, and our Mishna discusses the status of other objects: whether they can serve as a “cloth” for acquisition by exchange.

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

Everything that is made money for another

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

once this one acquired

the seller, the currency, at that moment

this one became obligated

the buyer

for the

losses of

his exchange.

That is: the purchase is acquired by the buyer wherever it is, and if the purchase is lost through unavoidable circumstances, 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 money that he stipulated with him.

The Mishna needed to teach us that acquisition by exchange applies also to currency, because if the buyer gave the currency as an acquisition through money, he would not acquire the purchase until he drew it. Therefore, we might have thought to say that in a similar case, even if the currency was given as an exchange, it does not acquire. Consequently, the Mishna needed to teach us that currency does acquire the purchase if it was given as an acquisition by exchange. And the tanna explains:

“How?”

And simply, the question “How?” refers to the first clause, and the tanna asks as follows: How does currency become an exchange?

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

In any event, in his answer the tanna explains another mode of acquisition by 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 drew the ox [or when the owner of the ox drew the donkey], at that moment its exchange was acquired by his fellow. Therefore,

“this one became obligated”

[his fellow]

for the

losses of

his exchange.

Gemara:

In tractate Bava Metzia, the amoraim disagreed whether currency can effect acquisition by exchange: some say that currency can effect acquisition by exchange, and some say that it cannot. And the halakha was established that currency cannot effect exchange. And the Gemara raises a difficulty against this from the words of our Mishna:

And we consider this:

“Exchange—what is it?”

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

currency!

!

We explained the Gemara according to the version before us. Rashash emended the wording of the Gemara to read, “Everything that is made money for another—what is it? Currency.” [And this is likewise the version in the Gemara of Bava Metzia 46a and in the Ritva here]. If so, is it

learned from this

from our Mishna that

currency becomes an exchange?

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

And we answer:

Rav Yehuda said: “Everything that is made money for another” is not acquisition by exchange with currency; rather, it should be explained in another way:

This is what he means:

“This is what he means,”

this is what the tanna intended to say:

“Everything

whose price is assessed in relation to another,”

every object such that when the buyer gives it to the seller as money, it has no known value from its own nature, but must be assessed in relation to another object—that is, all objects except currency: their value is not known, but they must be assessed in money, how much money they are worth [unlike currency, for when it is given, its value is clear, and it does not require assessment in relation to another object].