Shevuot 34a — the Talmud in English

Furthermore, it is a kal va-chomer: And what

oath of

the deposit

is the more stringent one,

in which it made women like men, relatives like non-relatives, disqualified persons like qualified persons,

so that all of them are liable for a sacrifice if they swore and denied his claim,

and

the defendant is liable for a sacrifice

for

each and every one

of his oaths, and even if he returned and swore about that same claim several times, and the defendant is liable for a sacrifice for his oath whether the oath

was in a court or not in the presence of a court,

and nevertheless

the verse speaks

pisaniye

only of a monetary claim.

Oath of

testimony, which the verse made lenient in it,

which the verse made less stringent,

for it did not make

women like men, relatives like non-relatives, disqualified persons like qualified persons, and one is liable only for one

even for five oaths if he administered them

in the presence of a court—is it not the case that it does not speak

Pisaniye

only of a monetary claim

alone?!

And if you reject the derivation by means of a binyan av from the oath of the deposit or the kal va-chomer, and say:

What [can be said] about the deposit, in which it did not make one who was administered an oath like one who swore

[as will be explained below], and likewise it did not make

one who acted intentionally like one who acted inadvertently; you can say concerning testimony that it did make one who was administered an oath like one who swore, and one who acted intentionally like one who acted inadvertently,

[as we explain below]—

The verse therefore says “‘you sin’” and “‘you sin’”

in both of them

for a gzera shava—

it is said here

in testimony:

“If a person sins

and hears the voice of an oath, and he is a witness,”

and it is said there: “If a person sins

and denies his fellow concerning a deposit,”

just as there it speaks only of a monetary claim, so too here it speaks only of a monetary claim!

Rabba bar Ulla raised an objection

to Rabbi Eliezer’s derivation from the instances of “or”:

The “or, or”

stated in the oath of

expression

“or

a person who swears to do harm

or

to do good”

will prove

that it is not specifically a monetary claim,

for they contain “or,” and there is an oath with them, and there is no koen with them, and they speak of a claim that is not monetary,

and shall we derive from them concerning the oath of testimony that it applies to all claims?

And we answer:

It is logical that it should have been derived from the deposit, for it shares “you sin,”

the “you sin” stated in testimony being learned by a gzera shava

from “you sin”

in the deposit!

And we object:

On the contrary,

from the oath of

expression it should have been derived, for it shares

a

sin-offering

we should learn it

from a sin-offering,

for the sacrifice of the oath of testimony and the oath of expression is a sin-offering, whereas for the oath of the deposit one is liable for a guilt-offering?!

And we answer:

Rather, it is logical that it should have been derived from the deposit, for it shares:

a.

Sin.

That is: We derive “you sin” by a gzera shava from “you sin.”

b.

Intention.

In both of them one is liable for intentional action, whereas concerning the oath of expression it is written: “and it was concealed.”

c.

You claimed it and denied it.

In both of them the oath comes through a claim and a denial, which is not so concerning the oath of expression.

d.

And you transgressed it.

In both of them the oath concerns only the past, whereas concerning expression it also concerns the future.

And we object:

On the contrary, it should have been derived from expression, for it shares:

a.

A sin-offering.

In both of them the liability is a sin-offering, whereas concerning the deposit the liability is a guilt-offering.

b.

That it descends.

In both of them one is liable for a sliding-scale offering, whereas concerning the deposit one is liable for a fixed sin-offering.

c. For a fifth. In both of them there is no liability for a fifth, whereas concerning the deposit he is liable to add a fifth.

And we answer:

These

similarities of testimony to the deposit

are more numerous

than the similarities of testimony to expression [here four and here three].

We learned in a beraita:

Rabbi Akiva says: “And it shall be, when he is guilty of one of these”—

there is one of these for which he is liable, and there is one of these for which he is exempt. How so? If they claimed money from him—

he is liable; if they claimed another matter—

he is exempt.

And we challenge this:

But let us reverse it,

and make him liable for the sacrifice of the oath of testimony for testimony concerning another matter, and exempt him in a monetary claim?

And we answer:

Rabbi Akiva

relies upon Rabbi Eliezer’s instances of “or,”

which deal with a monetary claim, except that Rabbi Akiva added to Rabbi Eliezer’s words that one is not liable for every monetary claim, as he goes on to explain.

And the Gemara explains:

What is the difference between them

between Rabbi Eliezer and Rabbi Akiva [that is: what is the monetary claim for which Rabbi Eliezer obligates and Rabbi Akiva exempts]?

There is a difference between them concerning one who administers an oath to witnesses of land,

who claims from them that they testify that land belongs to him.

According to Rabbi Eliezer they are liable

for an oath involving denial of testimony concerning land,

whereas according to Rabbi Akiva they are exempt,

for this is the purpose of the limitation: there is one of these for which he is exempt.

Rather, the Gemara’s assumption that according to Rabbi Eliezer they are liable for denial of testimony concerning land is based on the one who says, below, that Rabbi Eliezer obligates witnesses of land because he follows his own position that land is like movable property with regard to the law of robbery, and therefore also in testimony land has the same law as movable property. But

according to Rabbi Yohanan, who says there that one who administers an oath to witnesses of land is exempt even according to Rabbi Eliezer, here, what difference is there between Rabbi Eliezer and Rabbi Akiva?

There is a difference between them—

witnesses concerning a fine.

Rabbi Akiva, who added to Rabbi Eliezer’s derivation from the instances of “or” and said that there are monetary claims for which one is not liable, exempts witnesses concerning a fine from the oath of testimony, even though they caused the claimant to lose the money of the fine, whereas Rabbi Eliezer obligates them, just as he obligates concerning the oath of the deposit for a fine [below, 37b].

We learned in a beraita:

Rabbi Yose the Galilean says: “And he is a witness, or he saw, or he knew”—

the verse speaks of testimony that is established through seeing without knowledge, and through knowledge without seeing.

There is no such testimony except in a monetary claim.

Rav Pappa said to Abaye: Shall we say that Rabbi Yose the Galilean,

who holds that there is no testimony without seeing and knowledge [except testimony concerning money],

does not hold like Rabbi Aha,

who obligates even on the basis of circumstantial assessment alone?

For it was taught: Rabbi Aha says: A camel that is rutting

[striking with its feet]

among camels, and a dead camel is found beside it—

it is known that this one killed it!

And he is liable to pay its owner, even though there are no witnesses who saw with their own eyes that he killed it, because we follow circumstantial assessment, for it is logical that the one who struck with its feet is the one who killed it.

For if he holds like Rabbi Aha,

who judges according to circumstantial assessment and says “it is known that this one killed it” even without witnesses seeing it, then

in capital cases as well it can be found

to judge according to circumstantial assessment and to make the murderer liable on the basis of assessment alone, even without seeing,

as in the case of Rabbi Shimon ben Shetah.

For it was taught: Rabbi Shimon ben Shetah said: “I shall see consolation, if I did not see a certain man running after his fellow into a ruin, and I ran after him and found a sword in his hand, with blood dripping

from it,

and a dying man writhing! I said to him: Wicked one! Who killed this man?”—

“Either I or you. But what can I do, for your blood is not delivered into my hand, since the Torah said: ‘By the mouth of two witnesses or three witnesses shall the dead man be put to death.’ Rather, the Omnipresent will exact payment from you!” They said: They did not move from there before a snake bit him, and he died!

That is: There was here a circumstantial assessment, without seeing, for it was known that this one killed him. The entire deficiency was that Rabbi Shimon ben Shetah was one witness, and the court could not accept his testimony. But had another witness joined him, they would have killed the murderer, because it is possible to judge even on the basis of circumstantial assessment. Whereas according to Rabbi Yose the Galilean, capital cases are judged only on the basis of the witnesses’ seeing.

Abaye said to Rav Pappa: Even if you say

Rabbi Yose the Galilean

holds like Rabbi Aha

with regard to circumstantial assessment in capital cases, and if so one finds “knowledge” without seeing, nevertheless Rabbi Yose the Galilean’s derivation still exists, that the section of the oath of testimony is established only in a monetary claim.

For

granted, knowledge without seeing

can be found even in capital cases, on the basis of circumstantial assessment.

But seeing without knowledge—how can it be found

in capital cases? For if the witness saw the killing but does not know that the murderer killed an Israelite [only for whom he is put to death], how can he testify? For

does he not need

the witness

to know whether

the murderer

was a gentile who killed, or an Israelite whom he killed,

and likewise, does he not need to know

whether he killed a terminally ill person or

a

whole person? And without these pieces of knowledge, his testimony does not make the killer liable! And since in the section of the oath of testimony it is written “or he saw or he knew,” and we expound that he is liable even for seeing without knowledge, necessarily this section speaks only of a monetary claim, for in a claim concerning other matters testimony without knowledge is not accepted!

And now the Gemara proves from Rabbi Yose’s words, who said that the oath of testimony applies only to testimony that can be established through seeing without knowledge, or through knowledge without seeing—

infer from this that Rabbi Yose the Galilean holds that one who administers an oath to witnesses concerning a fine,

whom he claims should testify about rape and seduction,

—

is exempt

the witness who swore from a sacrifice.

For if it enters your mind that he is liable,

it is difficult:

Granted that we find knowledge without seeing

in the case of rape and seduction on the basis of circumstantial assessment. But

seeing without knowledge,

how do we find it? For

do the witnesses not need

to

to know

whether

he had relations with a gentile woman

the man who had relations, or

had relations with an Israelite woman?

And likewise, whether

he had relations with a virgin

or

had relations with a non-virgin?

And since we do not find testimony of seeing without knowledge in a fine, witnesses concerning a fine are not included in the section of the oath of testimony, according to Rabbi Yose the Galilean.

Rav Hamnuna was sitting before Rav Yehuda, and Rav Yehuda was sitting and asking him:

One who claimed against his fellow and said—

“You owe me one hundred zuz; I made you swear in the presence of so-and-so and so-and-so!”