Shevuot 38b — the Talmud in English

Or perhaps, for each and every one

of the four claims of each of the five claimants

he is liable,

and in total, twenty sin-offerings!

Come and hear: for Rabbi Hiyya taught —

Here there are twenty sin-offerings!

And the Gemara infers:

What are the circumstances? If he specified

to each one of the claimants that he owed him neither a deposit nor an entrustment nor theft nor a lost object, then it is obvious that he is liable for twenty sin-offerings. And is it

Rabbi Hiyya who came to inform us a count!?

Rather, is it not

the case here

that he did not specify

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

Infer from it

that one who denies to one claimant and specifies to him his denials, and afterward says to the other claimants: “And not to you, and not to you” —

it is specification

for each one of the claimants! We learned in the Mishna: If the father said to the rapist or seducer:

You raped

or

you seduced my daughter —

Rabbi Shimon exempts!

Rabbi Hiyya bar Abba said that Rabbi Yohanan said: What is the reason of Rabbi Shimon

who exempts? Yet included in his oath were also humiliation and impairment, which are monetary claims?

And he answered:

Since the principal

of his claim

is a fine that he is claiming!

Rava said:

I will give

an analogy

for his words,

to what is Rabbi Shimon’s position comparable —

To a person who said to his fellow: Give me wheat, barley,

and spelt that I have in your possession! He said to him: An oath that you have no wheat in your possession! And it was found that it was wheat that he did not have

[and it was found that he did not have wheat in his possession]

but he does have barley and spelt, —

he is exempt

from an oath-offering,

for when he swore concerning wheat, he swore truthfully!

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

And the analogy is: when a person claims, “You raped and seduced my daughter,” his principal intention in the claim is the fine, even though included in his claim there is also the money of humiliation and impairment. It follows that his oath is concerning a fine, for which he is exempt from an offering.

Abaye said to him —

Are they comparable? There, concerning wheat, he denied to him; concerning barley and spelt, he did not deny to him.

But here,

it is the entire matter that he denied to him.

For when he says, “I did not rape and seduce,” he denies the entire claim brought against him, and included in this claim is also the monetary claim of humiliation and impairment!

Rather,

the ruling of Rabbi Shimon

is comparable only to one who says to his fellow: Give me wheat, barley, and spelt that I have in your possession. An oath that you have nothing at all in your possession! And it was found,

and it was found that only

wheat was what he did not have; but he does have barley and spelt, and he is liable

because he denied money!

And if so, the ruling of Rabbi Shimon still requires explanation.

Rather, when Ravin came

from the Land of Israel to Babylonia,

he said in the name of Rabbi Yohanan: According to the words of Rabban Shimon, a fine

is what he claims,

and not humiliation and impairment. Therefore, he is entirely exempt for denying humiliation and impairment.

According to the words of the Sages —

he also claims humiliation and impairment!

With regard to what do they disagree?

Rabbi Shimon and the Rabbis.

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

that a person does not leave off claiming a fixed amount, namely, a fine of fifty silver pieces, which is a fixed sum for every rape,

and claim something whose amount is not fixed, namely, humiliation and impairment.

And the Rabbis hold that a person does not abandon something for which, when he admits

he is not exempt, namely, humiliation and impairment, which are money,

and claim something for which, when he admits, he becomes exempt,

namely, a fine.

We have returned to you, chapter “The Oath of Deposit”

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 above, such as the oath of testimony or the oath of a deposit, are sworn by a person of his own will, in order to free himself from the claim of the claimant. However, the oath of the judges: a person does not swear on his own initiative; rather, the court is obligated to make him swear.

Included among the oaths discussed in this chapter are

four oaths:

A. The oath of one who admits part of the claim, stated in the Torah [Exodus 22:7–8, and its matter will be explained below in this chapter]: when a person claims against his fellow that he owes him a maneh, and the latter denies part of the claim and admits part of it—that is, “one who admits part of the claim”—he is obligated to swear the oath of “one who admits part of the claim,” which is one of the oaths of the judges.

B. The oath of bailees, stated in the Torah [ibid.], if a person deposited an object with his fellow to guard it, such as an unpaid bailee, and the bailee claims that the deposit was stolen or was lost from him, the bailee shall swear that he was not negligent with it, that he did not send his hand to use it, and that the deposit is not in his possession.

C. The oath concerning one witness, learned by exposition [below, 40a]: when a person claims money from his fellow and he denies it, and one witness testifies in accordance with the claimant’s words, the defendant shall swear in order to contradict the witness.

D. The oath of heset, which the Sages instituted. It is when the defendant denies the entire claim, and according to the Torah is exempt both from an oath and from payment; the Sages obligated him to swear, in order to appease the mind of the claimant.

Our Mishna, and the main subject of the chapter as well, deal with the oath of one who admits part of the claim mentioned above, which is from the Torah.

Mishna:

1.

The oath of the judges,

which they administer to one who admits part of the claim—they administer it only if the

claim

of the claimant was at least

two

silver coins,

of money.

And

if the

admission

of part of the claim, which the defendant admitted and through which he becomes liable for an oath, needs 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.

Likewise, the admission must concern something of the same kind as the claim, and he may not claim from him an object of one kind and have him admit to him an object of another kind [as will be explained below in the Mishna].

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

he is exempt

from an oath.

How

is the admission to be of the same kind as the claim?

If the claimant said:

“Two silver coins”

there are

“with me in your possession,”

and the defendant answered him:

“You have nothing with me except a peruta,”

which is a copper coin—

he is exempt

from an oath. Since he claimed silver from him and admitted to him a copper coin, they are two different kinds. Therefore this admission is not of the same kind as the claim.

But if he claimed from him:

“Two silver coins and

also

a peruta”

there are

“with me in your possession,”

and the defendant answered him:

“You have nothing with me except a peruta”—

he is liable

to swear.

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

C.

He claimed from him:

“You have a maneh with me,”

and he answered him:

“You have nothing with me,”

he is

exempt,

for he denied the entire claim. And one who denies everything is exempt from an oath by Torah law.

But if the claimant said:

“You have a maneh with me,”

and the defendant answered him:

“You have nothing with me except fifty dinars”—

he admits part of the claim and

is liable

to swear the oath of one who admits part of the claim, from the Torah.

D.

The son, whose father died and who is his heir, claimed from him:

“A maneh”

there is

“for my father”

that he deposited

“with you,”

and the depositary answered him:

“You have nothing with me”

from the inheritance of your father

“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, and denied and contradicted him. For a person is not brazen only toward his creditor. But toward his son, who is not the creditor but only his heir, he is brazen!

And in the very fact that he admits the son’s claim and relates to his claim, the matter is considered as though he were returning a lost object. Just as one who returns a lost object was exempted by the Sages from an oath—for example, a person returned a lost object to its owners, and the owners claimed that this was not the entire sum of the lost object and claimed the whole amount from him; the Sages exempted him from an oath, for the betterment of the world, so that finders would not fear that they would make them swear and would therefore refrain from returning lost objects —

And the same is true here: the Sages exempted him from swearing, so that a person would not refrain from returning a debt to heirs out of fear that they might make him swear.

The claimant said:

“You have a maneh with me.”

And the defendant admitted and

“said to him”

before witnesses:

“Yes.”

“The next day”

the claimant returned and

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

that same maneh concerning which you admitted to me yesterday! And the defendant had already said to him:

“I gave it to you,”

and paid my debt—

“the defendant is exempt”

from an oath and from payment, although yesterday he admitted it!

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

“You have nothing”

with me, and the matter never occurred! —

He is liable

to give it to the claimant. For yesterday he admitted before witnesses that he owed him. And the admission of a litigant is like one hundred witnesses, and he cannot retract it; even concerning an oath he is not believed, since he has been established as a denier [a liar, and is not believed].

V.

The claimant said:

“You have a maneh with me. He said to him”

the defendant:

“Yes.”

And the claimant said:

“Do not give it to me,”

do not repay me the maneh concerning which you admit to me—

“except in the presence of

witnesses

.”

“The next day,”

when he claimed 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 must give it to him before witnesses, as he agreed with him; therefore, as long as he did not repay him before witnesses, he did not fulfill his condition, and he is liable!

VII.

The claimant said:

“A litra”

a measure of

“gold is with me in your possession,”

and the defendant answered:

“You have nothing with me except a litra”

of

“silver,”

and not of gold as you claim—

“he is exempt,”

because silver and gold are two different kinds, and whenever the thing to which he admits is not of the same kind as the claim, his admission is not considered a binding admission; therefore, he is exempt from an oath and from payment .

But if he claimed from him:

“A gold dinar is with me in your possession,”

and he answered him:

“You have nothing with me except a silver dinar”

or

“a trisit”

or

“a pundeyot”

or

“a peruta,”

which are kinds of coins,

“he is liable”

to pay him what he admitted, while concerning the remainder he is liable to swear the oath of one who admits part of the claim—

“Because everything,”

all types of coins,

“is one kind of coin”

and therefore admission to them is considered an admission of the same kind as the claim.

VIII.

The claimant said:

“A kor of grain”

there is

“with me in your possession,”

and he answered him:

“You have nothing with me except a letekh,”

half a kor of

“legumes!”—

“he is exempt,”

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

But if he said:

“A kor of produce”

there is

“with me in your possession,”

and he answered him:

“You have nothing with me except a letekh”

[half a kor]

“of legumes”—

“he is liable”

for payment of the letekh of legumes. And he is likewise liable for an oath concerning the rest of the produce that he claimed from him, because legumes are included within produce, and the admission is of the same kind as the claim.

IX.

The claimant

claimed that there were

“wheat with him. And he admitted to him”

the defendant

“barley”

that he had with him—

“he is exempt.”

“And Rabban Gamaliel obligates,”

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

10.

One who claims against his fellow the equivalent of full measures of oil

that he has with him,

and the

defendant admitted

to the jugs

—to empty vessels only, but concerning the oil itself, he did not admit to him.

Admon says: Since he admitted to him part of the type of the claim,

for the empty jugs too were included in the claim, “I have measures of oil with you,” and since he admitted to one of the two things claimed by the claimant [a. oil, b. jugs]—

the defendant shall swear

!

And the Sages say: This admission is not

an admission

of the type of the claim,

for the claimant’s claim was concerning the oil; whereas the jugs are not the subject of the claim.

And if so, it follows that with regard to the essence of the claim, he denied all of it, since the jugs are not included in the claim. Therefore, the admission concerning them is not considered an admission concerning the claim for the oil; rather, it is like, “He claimed wheat from him, and he admitted to him with regard to barley,” and he is exempt.

Rabban Gamliel said: I see the words of Admon.

For they are worthy of being ruled in accordance with him.

11. He claimed

that he owed him

vessels and land, and he admitted

the defendant

with regard to the vessels and denied with regard to the land.

Or

he admitted with regard to the land and denied with regard to the vessels—

he is exempt,

because one does not swear concerning land.

Therefore, even an admission concerning land does not impose upon him an oath of one who admits partially concerning his denial of the movable property. And likewise in the reverse case, an admission concerning movable property does not impose an oath concerning his denial of the land.

And likewise if

he admitted partially concerning the land, he is exempt.

However, if he admitted

partially concerning the vessels—

he is liable

to an oath concerning the part of the vessels that he denied, since denial of part of the vessels imposes an oath, as with every person who admits partially.

And now, because of the obligation of an oath concerning the movable property, he is also liable to swear concerning the land, because

property that has no guarantee,

namely, movable property,

that is, it is not responsible for the owner’s debts, for if it was sold or given as a gift, the creditors do not collect from it; whereas land has a guarantee, and a creditor collects from it—

forces

[draws along]

property that has a guarantee to swear

also

concerning it.

12. One does not swear concerning the claim of a deaf-mute,

for example, where he claimed by gestures, since the deaf-mute mentioned in the Gemara neither speaks nor hears.

And likewise one does not swear concerning the claim of

an imbecile or a minor.

And even if the defendant admitted to him partially concerning his claim, one likewise does not swear.

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

when an adult claimed against him and the minor admitted to him partially concerning the claim.

But one swears for a “minor.”

The Gemara explains that an adult who comes by virtue of his father’s claim, claiming, “My father gave you an object for safekeeping,” or claiming, “My father lent you money,” is called a “minor,” since he comes with the claim of his father, his inheritor; therefore, one swears for him.

And

one also swears

for consecrated property:

when he comes to collect from consecrated property, he may collect only with 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 in the name of Rav: We administer to him the oath stated in the Torah, as it is written

[concerning Abraham our forefather, when he adjured Eliezer]

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

And the Gemara initially understood that his intention was to say that from this verse it follows that he must administer the oath to him with the Explicit Name.

Ravina said to Rav Ashi: In accordance with whom

are the words of Rav Yehuda in the name of Rav stated, that we administer the oath to him with the Explicit Name? Are they

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

for an oath—that is, when he swears, he should swear with the Explicit Name?

He said to him,

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

you may even say

that Rav’s words are also according to the Rabbis,

who say

that it is possible to administer the oath to him

with an appellation,

and it is not necessary to administer the oath to him specifically with the Explicit Name.

For when Rav Yehuda said in the name of Rav that we administer to him the oath stated in the Torah, the intention is not specifically an oath with the Name; rather,

the practical difference

in his words is

that it is necessary to have him take hold of an object

[a sacred object]

in his hand.

And similarly we find in the Torah concerning Abraham our forefather, who adjured Eliezer and said to him, “Please place your hand under my thigh,” and had him take hold of the covenant of circumcision, which was the only mitzva-object that they had at that time.

And 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 with Eliezer and Abraham.

And

the words of

Rava, for Rava said: This judge who administered an oath with

the Name

“the Lord, God of heaven,”

who administered it only in this manner but did not have him take hold of a mitzva-object in his hand—

has become like one who erred concerning a matter of Mishna,

Since the words of the amoraim who stated the law of taking hold of an object are considered as words explicitly stated in the Mishna. Therefore, a judge who did not administer the oath to him with the taking hold of an object

returns

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

And Rav Pappa said: This judge who administered an oath

to the person liable to the oath of the litigants, while he was holding

phylacteries

and not a Torah scroll,

has become

this judge

like one who erred concerning a matter of Mishna.

For one does not administer an oath with the taking hold of an object by virtue of the person swearing holding phylacteries in his hand, but only with a Torah scroll; therefore he

returns

and administers the oath to him with the taking hold of a Torah scroll.

And the Gemara says in conclusion:

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 the oath is administered only with a Torah scroll.

And 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 the obligation of his oath.

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

[phylacteries]

in his hand.

And this is sufficient so that we do not need to return and administer the oath to him, for in the end he held a mitzva-object in his hand.

The Gemara adds further laws concerning the oath:

An oath

of every person shall be performed when he is

standing.

An oath of

a Torah scholar—

when he is

seated.

An oath

of every person should ideally be performed while he is holding

a Torah scroll

in his hand.

However, for

a Torah scholar,

even

ideally—

it is sufficient that he hold

phylacteries.

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

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