Shevuot 38b (לח:) — the Talmud in English

Or perhaps, he is liable for each and every one

of the four claims of each of the five claimants

,

for a total of twenty sin-offerings

? Come and hear: As Rabbi Ḥiyya taught

: There are here twenty sin-offerings!

And the Gemara analyzes

: What are the circumstances? If he specified

to each of the claimants that he owed him neither a deposit, nor misappropriated property, nor stolen property, nor a lost item, then obviously he is liable for twenty sin-offerings. What, then,

did Rabbi Ḥiyya come to teach us by stating a number!?

Rather, is it not

speaking here of a case in which he

did not specify

each of his four denials to each of the five claimants, and nevertheless he is liable for twenty sin-offerings.

Conclude from this

that one who denies a claim to one person and specifies his four denials to him, and then says to the other claimants: “And not to you, and not to you” —

it is considered a specification

with regard to each of the claimants! We learned in the Mishna: If the father said to the one who raped or seduced his daughter:

“You raped

or

seduced my daughter,”

Rabbi Shimon exempts him! The view of the Baḥ and the Sma is cited in Terumat HaKeri, section 1: One who admits to a fine outside a court, since he is not exempted through his admission—for he did not admit before a court—becomes liable for the fine on the basis of his own admission, since this admission does not exempt him. Terumat HaKeri raised the following difficulty: The law of an oath concerning a deposit applies both before a court and outside a court. Even Rabbi Meir concedes that although one who is made to swear by others does so only in court, nevertheless, one who swears on his own initiative swears even outside a court. Yet our Mishna is dealing with one who swears on his own initiative, as he answered “Amen.” If so, since when one admits outside a court he is liable, why should he not be liable for denying the claim? After all, he denied a claim for which he would have become liable on the basis of his own admission?

Rabbi Ḥiyya bar Abba said that Rabbi Yoḥanan said: What is the reason for Rabbi Shimon’s

exemption? After all, his oath also included the claims for humiliation and diminution of value, which are monetary claims?

And he answered:

Since the principal

claim

he is making is a claim for a fine!

Rava said:

I will give

an analogy

to

Rabbi Shimon’s statement. To what may it be compared?

To a person who said to another: “Give me the wheat, barley,

and spelt that I have in your possession.” The other said to him: “I swear that you have no wheat in my possession!” And it turned out that it was only wheat that he did not have

in his possession;

as for the barley and spelt, he did have them in his possession

—he is exempt

from an offering for an oath,

because when he swore with regard to the wheat, he swore truthfully!

Since he swore that he did not have wheat in his possession, he swore truthfully.

The analogy is as follows: When a person claims, “You raped and seduced my daughter,” his primary intention in making the claim is the fine, despite the fact that his claim also includes the monetary obligations for humiliation and diminution of value. It follows that his oath concerns the fine, and he is exempt from an offering for it.

Abaye said to him:

Are the cases comparable? There, he denied the wheat claim; he did not deny the barley and spelt claim.

But here,

he denied the entire matter.

For when he says, “I did not rape or seduce,” he is denying the entire claim brought against him, and this claim includes the monetary claim for humiliation and diminution of value!

Rather,

Rabbi Shimon’s ruling

is comparable only to one who says to another: “Give me the wheat, barley, and spelt that I have in your possession. I swear that you have nothing in my possession at all!” And it turned out

that only

the wheat was not in his possession; as for the barley and spelt, he did have them in his possession, and he is liable

because he denied a monetary claim!

If so, Rabbi Shimon’s ruling still requires explanation.

Rather, when Ravin came

from Eretz Yisrael to Babylonia,

he said in the name of Rabbi Yoḥanan: According to Rabban Shimon, it is a fine that he is claiming,

and not humiliation and diminution of value.

Therefore, he is entirely exempt for denying the claim for humiliation and diminution of value.

According to the Rabbis—

he is also claiming humiliation and diminution of value!

With regard to what do they disagree?

Rabbi Shimon and the Rabbis.

Rav Pappa said: Rabbi Shimon holds that a person does not set aside something whose amount is fixed ,

a person does not refrain from claiming an item whose amount is fixed—the fine of fifty sela, which is a fixed sum for every act of rape—and

claim something whose amount is not fixed, namely, humiliation and diminution of value.

And the Rabbis hold that a person does not set aside something from which, if he admits

he would not be exempt—that is, humiliation and diminution of value, which are monetary obligations—and

claim something from which, if he admits, he is exempt,

namely, a fine.

We have completed the chapter Shevuat HaPikadon.

The oath of the judges is the oath that the court imposes upon the defendant. This oath differs from the other oaths that we learned in the preceding chapters, in that the oaths mentioned above, such as the oath of testimony or the oath concerning a deposit, are taken by a person of his own accord, in order to exempt himself from the claimant’s demand. The oath of the judges, however, is not taken by the person on his own initiative; rather, the court is obligated to administer the oath to him.

Included among the oaths discussed in this chapter are four

oaths:

A. The Torah-mandated oath of one who admits to part of a claim [Exodus 22:7–8, whose subject will be explained below in this chapter]: When one person claims that another owes him a maneh, and the latter denies part of the claim and admits to part of it—that is, he “admits to part of the claim”—he is obligated to take the oath of “one who admits to part of a claim,” which is one of the oaths of the judges.

B. The Torah-mandated oath of bailees [Exodus 22, there], when a person deposits an item with another to guard it, such as with an unpaid bailee, and the bailee claims that the deposit was stolen or lost from him: The bailee must swear that he was not negligent with it, that he did not unlawfully take control of it, and that the deposit is not in his possession.

C. The oath imposed on the basis of the testimony of one witness, which is derived through exegesis [below, 40a]: When one person claims money from another and the latter denies the claim, and one witness testifies in support of the claimant, the defendant must swear in order to contradict the witness.

D. The oath of heset instituted by the Sages. This is the case when the defendant denies the entire claim, and by Torah law he is exempt both from an oath and from payment; nevertheless, the Sages obligated him to swear in order to appease the claimant.

Our Mishna, as well as the main subject of the chapter, deals with the above oath of one who admits to part of a claim, which is mandated by Torah law.

Mishna:

A.

The oath of the judges,

which they administer to one who admits to part of a claim, is administered only if the

claim

of the claimant was at least

two

silver

coins.

And

if

the admission

to part of the claim made by the defendant, through which he becomes liable to an oath, is required to be at least

the value of a peruta.

But if the claim is less than two silver coins, or the admission is less than a peruta, he is exempt from an oath.

B.

The admission must likewise concern an item of the same type as the claim; one may not claim an item of one type and have the other admit to an item of another type [as will be explained below in the Mishna].

And if the admission is not of the same type as the claim—

he is exempt

from an oath.

How,

is an admission of the same type as the claim?

If the claimant says:

“I have two silver coins

in your possession,”

“in your possession,”

and the defendant answers:

“You have only a peruta in my possession,”

which is a copper coin—

he is exempt

from an oath. Since the claimant demanded silver and the defendant admitted to a copper coin, these are two different types. Therefore, this admission is not of the same type as the claim.

But if he claimed from him:

“I have two silver coins and

also

a peruta

in your possession,”

“in your possession,”

and the defendant answered:

“You have only a peruta in my possession,”

he is liable

to take an oath.

For he made one claim that included both silver and a copper peruta, and he admitted to the copper peruta, which is part of the claim. This admission is therefore considered an admission of the same type as the claim, and he is liable.

C.

If he claimed from him:

“I have a maneh in your possession,”

and the latter answered:

“You have nothing in my possession,”

he is

exempt,

since he denied the entire claim. One who denies the entire claim is exempt from an oath by Torah law.

But if the claimant says:

“I have a maneh in your possession,”

and the defendant answers:

“You have only fifty dinars in my possession,”

he admits to part of the claim and

is liable

to take the Torah-mandated oath of one who admits to part of a claim.

D.

If the son who inherited from his deceased father claims from him:

“A maneh

is

owed to my father

who deposited it

with you,”

and the depositary answers:

“You have nothing in my possession

from your father’s inheritance

except fifty dinars,”—

he is exempt

from an oath

because he is like one who returns a lost object.

For he could have been brazen before him, denied the claim, and contradicted it. A person is not brazen only toward his creditor. But toward the creditor’s son, who is not the creditor but merely his heir, he can be brazen!

And by the very fact that he admits to the son’s claim and responds to it, the matter is considered as though he were returning a lost object. Just as the Sages exempted one who returns a lost object from an oath—for example, when a person returns a lost object to its owners, and the owners claim that this is not the entire amount of the lost object and demand the whole amount, the Sages exempted him from an oath for the sake of the betterment of the world, so that finders would not fear that they would be made to swear and would consequently refrain from returning lost objects —

The same applies here: The Sages exempted him from taking an oath so that a person would not refrain from returning a debt to heirs out of fear that the heirs might make him swear.

The claimant said:

“I have a maneh in your possession.”

And the defendant admitted and

said to him

in the presence of witnesses:

“Yes.”

The next day

the claimant returned and

said to the defendant: “Give it to me,”

meaning that same maneh concerning which you admitted to me yesterday. And the defendant then said:

“I already gave it to you,”

and repaid my debt.

The defendant is exempt

from an oath and from payment, even though he admitted it yesterday!

But if the defendant retracts his admission that he made yesterday, denies it, and says:

“You have nothing

in my possession, and nothing of the sort ever happened”! —

He is liable

to give it to the claimant. For he admitted yesterday in the presence of witnesses that he owed it to him. The admission of a litigant is equivalent to the testimony of a hundred witnesses, and he cannot retract it. Nor is he believed even under oath, since he has been established as a denier [a liar and therefore is not believed].

F.

The claimant says:

“I have a maneh in your possession. He said to him”

the defendant:

“Yes.”

And the claimant says:

“Do not give it to me,

do not repay me the maneh that you admit owing me—

except in the presence of

witnesses

.”

The next day,

when he demanded it from him and

said to him,

the claimant:

“Give it to me,”

the defendant claimed: I already

gave it to you,

and I owe you nothing!—

he is liable

to pay him, because he was required to give it to him in the presence of witnesses, as he had agreed with him. Therefore, so long as he did not repay him in the presence of witnesses, he did not fulfill his condition, and he remains liable!

G.

The claimant says:

“A litra,”

a measure of

gold is in your possession,”

and the defendant answers:

“You have only a litra

of

silver

in my possession, and not gold as you claim”—

he is exempt,

because silver and gold are two different types. Whenever the item to which he admits is not of the same type as the claim, his admission is not considered a binding admission; he is therefore exempt both from an oath and from payment.

But if he claims from him:

“A gold dinar is in your possession,”

and the latter answers:

“You have only a silver dinar in my possession”

or

a trisit

or

a pundeyot

or

a peruta,

which are types of coins,

he is liable

to pay him what he admitted to, while concerning the remainder he must take the oath of one who admits to part of a claim—

Because everything,

all types of coins,

is one type of coin.

Therefore, an admission to any of them is considered an admission of the same type as the claim.

H.

The claimant says:

“A kor of grain

is

in your possession,”

and the latter answers:

“You have only a lethekh in my possession,”

half a kor of

legumes!”—

he is exempt,

because the admission is not of the same type as the claim.

But if he says:

“A kor of produce

is

in your possession,”

and the latter answers:

“You have only a lethekh in my possession”

[half a kor]

of legumes—

he is liable

to pay the value of the lethekh of legumes. He is likewise liable to take an oath concerning the rest of the produce that he claimed from him, because legumes are included in the category of produce, and the admission is of the same type as the claim.

I.

The claimant claimed

that there was

wheat in his possession. And he admitted to him

the defendant

that there was barley

in his possession—

he is exempt.

Rabban Gamliel obligates him,

because he holds that the admission need not be of the same type as the claim.

10.

If one claims against another that he has measures of oil

full ones that the latter has in his possession, and

the

defendant admits

to the jars

but only to empty vessels, while with regard to the oil itself he did not admit the claim.

Admon says: Since he admitted part of the same type as the claim,

for the empty jars were also included in the claim, “I have measures of oil with you,” and since he admitted one of the two things claimed by the plaintiff—the oil and the jars—

the defendant must take an oath

!

And the Sages say: This admission is not

an admission

of the same type as the claim,

for the plaintiff’s claim concerned the oil, whereas the jars are not part of the subject of the claim.

It follows that with regard to the substance of the claim, he denied it in its entirety, since the jars are not included in the claim. Therefore, the admission concerning them is not considered an admission with regard to the claim for oil; rather, it is like a case in which one claimed wheat from another and the other admitted barley, in which case he is exempt.

Rabban Gamliel said: I see the words of Admon.

For they are worthy of being established as the ruling.

11. If one claims

that the other owes him

vessels and land, and the latter admits

the defendant

with regard to the vessels and denies the land,

or

he admits the land and denies the vessels—

he is exempt,

because one does not take an oath concerning land.

Therefore, an admission concerning land does not obligate him to take the oath of one who admits part of a claim with regard to his denial of the movable property. And conversely, an admission concerning movable property does not obligate him to take an oath concerning his denial of the land.

Likewise, if he

admits part of the land, he is exempt.

However, if he admits

part of the vessels—

he is liable

to take an oath concerning the part of the vessels that he denied, since denial of part of the vessels obligates him to take an oath, as is the law in every case of one who admits part of a claim.

Now, by virtue of his obligation to take an oath concerning the movable property, he is also obligated to take an oath concerning the land, because

movable property, which has no guarantee,

that is, movable property, [

meaning that it is not responsible for the owner’s debts: If it was sold or given as a gift, the creditors cannot collect from it. This is unlike land, which does have a guarantee, and a creditor may collect from it.] -

compels [

draws along ]

land, which does have a guarantee, to be included in the oath

also

with regard to it.

12. One does not administer an oath concerning the claim of a deaf-mute,

for example, when he made his claim through gestures, since the deaf-mute mentioned in the Gemara can neither speak nor hear.

Likewise, one does not administer an oath concerning the claim of

a mentally incompetent person or a minor.

Even if the defendant admitted part of the minor’s claim, one likewise does not administer an oath.

13. And one does not administer an oath to a minor

when an adult claims against him and the minor admits part of the claim. .

But one does administer an oath to a “minor.”

The Gemara explains that an adult who comes by virtue of his father’s claim, asserting, “My father gave you an object as a deposit,” or, “My father lent you money,” is called a “minor,” since he comes with the claim of his father, his deceased benefactor. Therefore, one administers an oath to him.

And

one does take oaths

for sacred property:

When one comes to collect from sacred property, he may collect only upon taking an oath.

Gemara:

We learned in our Mishna: The oath of the litigants.

And the Gemara asks:

How do we administer the oath to him?

In what manner is this oath administered?

Rav Yehuda said that Rav said: We administer to him the oath stated in the Torah, as it is written [

concerning Abraham our forefather, when he administered an oath to Eliezer ]

“And I will adjure you by the Lord, God of heaven.”

The Gemara initially understands him to mean that this verse indicates that one must administer the oath using the Explicit Name.

Ravina said to Rav Ashi: In accordance with whom

were the words of Rav Yehuda in the name of Rav stated, that one administers the oath using the Explicit Name? Are they

in accordance with Rabbi Ḥanina bar Idi, who said: We require the unique Name

for an oath—that is, when he takes an oath, he must swear using the Explicit Name?

He said to him,

Rav Ashi said to him: There is no need to establish it in this manner. Rather,

you may even say

that Rav’s statement accords with the Rabbis,

who say

that one may administer the oath to him

using an appellation,

and it is not necessary to administer it specifically using the Explicit Name.

For when Rav Yehuda said in the name of Rav that one administers to him the oath stated in the Torah, he did not mean specifically an oath using the Name. Rather,

the practical difference

in his statement is

that one must place an object [

a sacred object ]

in his hand.

As we find in the Torah concerning Abraham our forefather, who administered an oath to Eliezer and said to him, “Please place your hand beneath my thigh,” thereby having him take hold of the covenant of circumcision, which was the only mitzva object they possessed at that time.

This is what Rav Yehuda said in the name of Rav: “We administer to him the oath stated in the Torah”—that he should hold a mitzva object in his hand, as was done with Eliezer and Abraham.

And this is

in accordance with

the statement of Rava, as Rava said: This judge who administered an oath using

the Name

“the Lord, God of heaven,”

meaning that he administered the oath only in that manner but did not place a mitzva object in his hand—

is considered like one who erred with regard to a Mishnaic ruling,

Since the statements of the amoraim who established the law of taking hold of an object are considered as explicit statements in the Mishna, a judge who did not administer the oath while the person took hold of an object—

must return

and administer the oath to him a second time, with him taking hold of an object.

And Rav Pappa said: This judge who administered an oath

to one obligated to take the oath of the litigants while he was holding

tefillin

rather than a Torah scroll

is

this judge

considered like one who erred with regard to a Mishnaic ruling.

For one administers an oath while the person takes hold of an object only when he holds a Torah scroll in his hand, and not tefillin. Therefore he

must return

and administer the oath to him while he takes hold of a Torah scroll.

And the Gemara concludes:

And the halakha is in accordance with Rava,

who says that there is no oath without taking hold of an object. .

But the halakha is not in accordance with Rav Pappa,

who says that one administers the oath only with a Torah scroll.

The Gemara explains:

The halakha is in accordance with Rava—

for he did not take hold of an object in his hand,

and therefore he did not fulfill his obligation with regard to the oath.

But the halakha is not in accordance with Rav Pappa, for he did take hold of an object [

tefillin ]

in his hand.

That is sufficient, and we need not have him repeat the oath, since ultimately he held a mitzva object in his hand.

The Gemara adds further laws concerning an oath:

An oath

taken by any person shall be administered while he is

standing.

An oath taken by

a Torah scholar

shall be administered while he is

seated.

An oath

taken by any person should initially be administered while he is holding

a Torah scroll

in his hand.

However, for

a Torah scholar,

even

initially—

it is sufficient for him to hold

tefillin.

The Sages taught: The oath of the litigants is also recited in its own language.

The oath may be recited in any language that the person taking it understands, as with other matters that may be recited in any language, such as the recitation of the Shema and prayer.