Shevuot 37a (לז.) — the Talmud in English

Rav Kahana encountered them and said

to them: If he intentionally

denied under oath concerning a deposit and they forewarned him

before he swore,

what is

his liability? Is he liable for a korban or for lashes [since he intentionally violated a negative commandment after being forewarned], or for both together?

The basis of the uncertainty is:

Since it is a novel law

that was introduced with regard to an oath concerning a deposit,

that

indeed,

throughout the Torah we do not find

a person who violates a prohibition

intentionally bringing a korban,

for a korban is given only for an unwitting transgression,

and here he brings a korban

intentionally, therefore it is possible that his only liability is a korban.

It makes no difference whether they forewarned him

before he transgressed and swore,

or whether they did not forewarn him.

He swore intentionally without forewarning, and the Torah introduced the law that his liability is a korban and not another punishment.

Or perhaps, this is what

is meant: that one becomes liable for a korban for an intentional oath only

where they did not forewarn him,

in which case he is exempt from lashes, since lashes are imposed only following forewarning.

But where they did forewarn him

and he is liable for lashes,

he is lashed,

but

he does not bring a korban.

Since two liabilities, a korban and lashes, are not imposed upon him.

Or perhaps—

we impose both

—a korban and lashes?

The Gemara below presents several approaches for resolving Rav Kahana’s uncertainty:

A.

They said to him: We have learned it,

this uncertainty was taught in a beraita.

As it was taught:

An oath concerning a deposit is more stringent than it

[an oath of testimony]

is.

And its stringency is that

one is liable for its intentional violation to receive lashes, and for its unwitting violation to bring an asham worth two shekels!

From

the fact

that it says to him

that he is liable

for its intentional violation to receive lashes, it follows

that you learn that the case under discussion is one

where they forewarned him,

and therefore he is lashed.

And it says—

lashes, yes; a korban, no!

And what is the stringency

of the punishment of lashes for an intentional oath concerning a deposit, compared with the punishment of a korban for an oath of testimony?

For a person prefers to bring a korban,

[to bring] a korban, despite the financial expense,

and not to be lashed!

Therefore, the punishment of lashes is more severe than the obligation to bring a korban.

Rava bar Itai said to them

the Sages: Your proof from this beraita is not a proof, since this beraita follows only Rabbi Shimon and not the Sages. For

who is the tanna

of the earlier chapter

who says, “Intentional denial under oath concerning a deposit is not given for atonement”—

Rabbi Shimon.

According to him, one who intentionally swears concerning a deposit is liable only for lashes.

But according to the Sages, he also brings a korban

when he swears intentionally, in addition to the lashes.

Rav Kahana said to the Sages: Set that aside!

That is, do not force yourselves to establish the beraita as following Rabbi Shimon, as Rava bar Itai established it. Rather, you can establish it even according to the Sages, who hold that intentional denial under oath concerning a deposit is given for atonement through a korban. Nevertheless, you cannot resolve from here the uncertainty I posed to you: What is the liability of one who intentionally swears concerning a deposit when he was forewarned? For

I

myself am the one

who taught it,

as I taught that same beraita in the following form,

and this is how we taught it:

An oath concerning a deposit is more stringent than an oath of testimony, because with an oath concerning a deposit, both its intentional and its unwitting violation—

a

two-shekel asham!

And what is the stringency

of one over the other? [For in an oath of testimony as well, one is liable for a korban for both an intentional and an unwitting violation.]

For there,

with regard to an oath of testimony, the witness can bring

a sin-offering worth a danka,

that is, at the low cost of only one-sixth of a dinar.

But here,

with regard to an oath concerning a deposit, he must bring

a two-shekel asham!

And if you ask me:

Why not derive from it

that when one acts intentionally and was forewarned, his liability is only a korban and not lashes?

Your answer is:

Perhaps

the case is

where they did not forewarn him.

For this beraita came only to state the stringency of an oath concerning a deposit over an oath of testimony; it did not come to state the law of an oath concerning a deposit in every circumstance. Therefore, even if one is liable for lashes when he was forewarned, this law was nevertheless not mentioned in the beraita, since it is speaking of a case in which he was not forewarned.

b.

An alternative formulation [

in the straightforward understanding of Rav Kahana’s uncertainty]:

Ta shma:

We learned in our Mishna:

One is not liable for its unwitting violation

of the oath of the deposit alone,

but for its intentional violation, for what are they liable? —

A guilt-offering worth two shekels!

And the Gemara analyzes this:

Is it not

that the manner in which he becomes liable for its intentional violation is

when witnesses warned him,

which proves that when he acted intentionally and they warned him, he is liable only for a sacrifice?

The Gemara rejects this: No.

Here, too, it is referring to a case where they did not warn him!

Rather, he acted intentionally without a warning. If so, nothing can be proven from our Mishna.

c. [According to the version of Rav Hai Gaon]

Ta shma:

We learned in the Sifre of the school of Rav, From where is it derived that a nazirite is prohibited from becoming impure, and that if he rendered himself impure intentionally he is liable to bring a sacrifice? You say by means of a kal va-homer: Just as in the case of an oath of a deposit, where one who violates it unwittingly is not liable to bring a guilt-offering, one who violates it intentionally is liable to bring a sacrifice; in the case of a nazirite, where one who became impure unwittingly is liable to bring a guilt-offering, is it not logical that he should be liable to bring a sacrifice when he does so intentionally?

And in the Sifre they refuted this kal va-homer:

No; if you said this with regard to an oath of a deposit,

it is because

he is not flogged

when he violates it intentionally; therefore he brings a guilt-offering.

Can you say this with regard to a nazirite who became impure,

intentionally,

who is flogged? And since he is flogged, he should not bring a sacrifice. The verse therefore states: “And he shall make atonement for him for the sin that he committed by reason of the dead”!

And the Gemara analyzes this:

From the fact that it says

that a nazirite who became impure

is flogged, by inference

this means that the case under discussion is one

where they warned him,

since if there had been no warning, there would be no lashes.

And it says: Can you say this with regard to an oath of a deposit,

where even when they warned him

he is not flogged? But he does bring a sacrifice!

This proves that when one acts intentionally and with a warning, he brings a sacrifice but is not flogged.

The Gemara rejects this:

What does “he is not flogged” mean

with regard to an oath of a deposit? It means

that he is not exempt

from his punishment

by lashes

alone. Rather, he is liable to bring a sacrifice together with the lashes, and through this he achieves atonement.

However, this rejection is difficult. Since, if so,

by inference, a ritually impure nazirite is exempt through lashes

that he receives, and does not bring a sacrifice; and this cannot be so. For

here,

in the case of an impure nazirite,

a sacrifice is explicitly written concerning him

in the Torah! [And apparently this teaches that he is exempt only through a sacrifice.]

The answer is:

There,

the reason

that he brings a sacrifice

is

so that naziriteship in purity can take effect upon him

[that is, so that the naziriteship that he now begins to count will begin in a state of purity]. This is not a sacrifice for atonement, but only in order to purify him; and it is therefore properly stated that the nazirite’s atonement is achieved through lashes alone. The sacrifice, by contrast, is not intended to atone for him.

They said

those

Sages

who had been asked by Rav Kahana

before Rabba

their question. Rabba said to them:

From the fact that Rav Kahana raised his uncertainty concerning the case mentioned above, in which witnesses warned the defendant not to deny the deposit under oath but rather to admit it and return it, it follows that there are witnesses who know the truth—that the deposit is in his possession. For this reason they warn him not to swear falsely. If so,

by inference

you learn from Rav Kahana’s words

that when they did not warn him, but there are witnesses

who know that his denial is false, nevertheless he

is liable

to bring a sacrifice. This is difficult: Why is he liable? His denial did not help him obtain exemption, but

it is merely a denial of words!

For there are witnesses who will testify that his denial is untrue, and consequently he remains liable for the deposit; his denial accomplishes nothing! And the Gemara analyzes Rabba’s question concerning Rav Kahana’s uncertainty:

Apparently, Rabba holds that

one who denies a monetary obligation concerning which there are witnesses is exempt

from bringing the sacrifice for an oath of a deposit!

Rav Hanina said to Rabba: A beraita supports you—

it is stated concerning liability for an oath of a deposit:

“And he denies it”—

with regard to a deposit, and he is liable;

except for

a person holding money belonging to brothers, who

admits to one of the brothers

that he has a share in this money, which he was required to return, while denying it to the second brother.

Or

he

admits to one of the partners,

while denying it to the other partners.

In both of these cases, he renders himself liable through his admission for the money, but he admits only to one of the claimants and not to all of them. In practice, through his denial he gains nothing.

“And he swore falsely”—

except for one who borrowed against a document, and one who borrowed in the presence of witnesses.

For he cannot exempt himself from his debt through his oath, since there are witnesses and a document concerning the matter!

This proves that when one merely denies words, and the denial does not exempt him from the money—for in any event he is liable for it [whether through his admission to one of the brothers or one of the partners, or through the testimony or the document]—there is no liability for the sacrifice for an oath of a deposit.

Rabba said to

Rav Hanina:

If that is the reason, it does not support you.

There is no proof from this beraita, with which you wished to prove my position, -

because it is possible to establish the words of this beraita as referring to one who does not deny the monetary obligation but admits it,

saying, “I borrowed,”

but

“I did not borrow in the presence of witnesses.”

Or

“I borrowed,”

but

“I did not borrow against a document.”

Since he is not denying the monetary obligation itself but only the witnesses or the document, he is exempt from a sacrifice.

Rabba adds proof that this is the meaning of the beraita:

From where

do we know that this is so, that the case concerns one who admits to the monetary obligation?

From the fact that it teaches

in the beraita, as a derivation from the verse,

“And he denies it”—

except for one who admits to one of the brothers or to one of the partners!

This

case, where he admitted

to one of the brothers—what are the circumstances?

If you say that he admitted to him

that brother

with regard to his half—

only his own share—why do we exempt him from the sacrifice?

There is the denial concerning the other brother,

concerning the second brother’s share, and for this denial he should be liable to bring a sacrifice.

Rather, is it not that they said to him,

the brothers who were claiming from him:

“You borrowed from both of us” [

you borrowed from the two of us together].

And he said to them: “No, I borrowed the entire sum from one of you”

the entire amount,

so that it is merely a denial of words,

for he admits to the debt but disputes with them from whom he owes it.

And since the first clause [

which concerns one who admits to one of the brothers]

is a denial of words, the latter clause [

which concerns one who borrowed against a document or in the presence of witnesses]

is likewise merely a denial of words,

and not a denial of the debt itself.

The Gemara presents several ways to prove that Rabba’s view is incorrect.

(Mnemonic: obligation, groups belonging to the homeowner, the stringency of a nazirite)

a.

Ta shma

from our Mishna:

He is not liable for its unwitting violation—

of an oath of a deposit.

And for what is he liable for its intentional violation?—

A guilt-offering worth two shekels!

And the Gemara analyzes this:

Is it not referring to intentional violation

by means of

witnesses,

who warn him, knowing of the debt, and this is difficult for Rabba, who exempts one who denies a monetary obligation concerning which there are witnesses [and apparently this also resolves Rav Kahana’s question, establishing that the liability is only for a sacrifice]?

The Gemara rejects this:

No!

The intention of the Mishna is

intentional violation itself,

where he himself knows that he is lying, without witnesses warning him.

b.

Ta shma

from the latter clause of our Mishna, where we learned:

There were two groups of witnesses

who were summoned by a certain person to testify against his fellow that he owed him money; if

the first group denied

the testimony,

and afterward the second group denied it,

both are liable

to bring the sacrifice for an oath of testimony,

because the testimony could have been established through both groups,

and since both denied the testimony, they caused him to lose money!

And the Gemara analyzes this:

Granted, the second group should be liable, since the first group had already denied

and could no longer testify. Consequently, when the second group denied, the claimant’s monetary interests depended solely on their testimony.