Shevuot 40b — the Talmud in English

And likewise, if

he admitted to part of the real estate, he is exempt

, since one does not swear concerning real estate. [As will be explained below in the Gemara, 42b.] Even an admission to part of a claim concerning real estate does not lead to an oath.

But if he admitted

to part of the movable property

—

he is liable to take an oath even concerning the real estate, since the obligation of the oath is extended from the movable property, concerning which one does take an oath, also to the real estate, concerning which one does not take an oath!

And the Gemara infers:

The reason

that he is exempt when the claimant demanded

movable property and real estate

and he admitted to one of them and denied the other is because

real estate is not subject to an oath,

since one does not swear concerning real estate.

But

if he demanded

movable property and movable property

of two types and he admitted to one and denied the other, for this is

analogous

to the claim

of movable property and real estate

and he admitted to him one type out of the two, he should be

liable!

Since it is only in the case of movable property and real estate that he is exempt, for the aforementioned reason that one does not swear concerning real estate. But when this reason does not apply, as in the case of movable property, concerning which one does swear, he should take an oath. And it is thereby demonstrated that an admission to one type out of a claim of two types renders him liable!

And the Gemara rejects this: No,

the same law applies that even movable property and movable property

of two types is

also exempt

if he admitted only to one of them.

And the reason that it teaches movable property and real estate

and not movable property and movable property is this:

it teaches us that when he admitted to part of the movable property, he is liable

for an oath

even concerning the real estate!

And the Gemara raises an objection to this:

What does it teach us

by this law, that if he admitted to part of the movable property he is liable for an oath even concerning the real estate?

Is it coming to teach us the law that the real estate is

joined

[dragged along] to be sworn concerning it together with the movable property?

But we already

learned

this law in tractate Kiddushin [26a]: “Property that does not have guarantee

joins

[drags along]

property that has guarantee, to swear concerning it”?

And if so, why did it repeat this law here?

And the Gemara answers:

Here

, this teaching here, is

the principal one, since

the entire tractate deals with the laws of oaths.

That one,

in tractate Kiddushin,

was brought incidentally! [There we learned: Property that does not have guarantee is acquired incidentally to property that has guarantee. And incidentally to that law, it stated the law of “joining”; but its principal place is here.]

And Rabbi Hiyya bar Abba said in the name of Rabbi Yohanan

—he disagrees with Rav Naḥman bar Yitzḥak, who said in the name of Shmuel, and holds that

if he claimed wheat and barley from him and he admitted to one of them

—

he is exempt!

And the Gemara raises an objection:

But Rabbi Yitzḥak said, “Correct,”

and added and said:

“And so said Rabbi Yohanan,”

and if so, it is demonstrated that Rabbi Yohanan holds like Rav Naḥman bar Yitzḥak in the name of Shmuel, and not as Rabbi Hiyya bar Abba reports him here!?

And the answer is:

They are amoraim according to Rabbi Yohanan.

The amoraim disagree concerning Rabbi Yohanan’s view: does he hold that if one claimed wheat and barley and the other admitted to one of them, he is liable, or that he is exempt?

Come and hear: If he claimed wheat from him and he admitted to him with regard to barley

—

he is exempt. And Rabban Gamaliel renders him liable!

And they infer:

The reason

of the Rabbis who disagree with Rabban Gamaliel is

that

only in the case of

“he claimed wheat from him and he admitted to him with regard to barley”

is he exempt.

But

if he demanded from him

wheat and barley and he admitted to him with regard to one of them

—

he is liable.

And the Gemara rejects this: No,

the same law applies that even

if he demanded

wheat and barley, he is also exempt; and the reason that it teaches it this way is— -

to inform you of the force of Rabban Gamaliel,

that even an admission not of the type of the claim renders him liable for an oath.

Come and hear: If he claimed movable property and real estate and he admitted with regard to the movable property and denied the real estate.

Or he admitted

with regard to the real estate and denied the movable property, he is exempt. If he admitted to part of the real estate

—

he is exempt. If he admitted to part of the movable property —

he is liable!

And the Gemara infers:

The reason

that he demanded

movable property and real estate

and because

real estate is not subject to an oath, but

if he demanded

movable property and movable property

of two types,

analogous to movable property and real estate

—

he is liable!?

And the Gemara rejects this inference:

The same law applies that even

if he demanded movable property and movable property, he is

also exempt; and this teaches us

—

that if he admitted to part of the movable property, he is liable even concerning the real estate!

And it raises an objection:

What does it teach us, “joining”? Have we not already learned: “It joins property that has guarantee, to swear concerning it”?

And the answer is:

This is the principal one; that one was brought incidentally!

Rabbi Abba bar Memel raised an objection to Rabbi Hiyya bar Abba

[who holds that if he claimed wheat and barley and he admitted to one of them, he is exempt]:

He claimed

that he owed him

an ox, and he admitted to him with regard to a sheep;

he claimed

a sheep, and he admitted to him with regard to an ox

—

he is exempt. If he claimed an ox and a sheep and he admitted to him with regard to one of them —

he is liable,

and it is thereby demonstrated that an admission to one of the two types renders him liable!?

He said to him:

This is in accordance with whom? It is Rabban Gamaliel,

but the Rabbis disagree with this and hold that he is exempt.

And he objected to him:

If it is Rabban Gamaliel

who stated this beraita,

even the first clause

—when he claims an ox from him and he admits to him with regard to a sheep—

also

should be in accordance with the words of Rabban Gamaliel, who renders him liable. And why is he exempt?

Rather, in accordance with whom is this? It is Admon!

He requires an admission of the type of the claim. However, he holds that if he demanded two different types from him and he admitted to him with regard to one of them, he is liable.

And do not

say that I am merely

deflecting you

generally,

but it is an established teaching in the mouth of Rabbi Yohanan

—

in accordance with whom is this? It is Admon!

who stated this law.

Rav Anan said in the name of Shmuel: If he claimed wheat

and wished to continue his claim and demand barley from him as well, but before he continued, the defendant

preceded

him and denied, saying: “You have no wheat with me,”

and he admitted to him with regard to barley

that he owed him,

The court examines this:

If

his preceding admission with regard to barley was made

deceptively,

so that his admission concerning the barley would not be an admission to part of a claim of wheat and barley, then he is

liable

for the oath of one who admits to part.

But if he intended

to answer him concerning the claim of wheat and to admit to him concerning the barley because, in his view, he owed it to him, and he did not hasten to admit with regard to barley in order to become exempt from an oath, but truly believed that he did not owe him wheat, then he is

exempt

from an oath.

And Rav Anan said in the name of Shmuel: If he claimed

that he owed him

two needles

that were not worth two silver coins, but less than that,

and he admitted to him

only

with regard to one of them

—

he is liable

for an oath. [ [ [A0171]]And why? But we learned in our Mishna that the claim must be at least two silver coins! Rather, the explanation is: ]

[And why? Did we not learn in our Mishna that the claim must be for at least two silver? Rather, the explanation is:]

Therefore movable property was singled out

and written especially in the verse, “When a man gives to his fellow silver or vessels to guard,” and Scripture did not suffice to write only “silver,” but added and wrote “vessels,” to teach us that it is possible to claim them—

for what they are

worth,

and to become liable concerning them even if they are worth any amount. For the importance of vessels exists even when they are not worth two silver coins, since their importance lies in their use and not in their monetary value! [ [A0178]]But from now it is difficult: if “vessels” were not written, how would we learn that the object claimed must be two, when above, on 39b, we learned: “Just as vessels are two, so everything is two”?

[But now a difficulty arises: If “utensils” were not written, how would we learn that the item being claimed must be two, since we already learned above (39b), “Just as utensils are two, so too everything is two”?

Rashi explained that according to the words of the Gemara here, Scripture should have written: “When a man gives to his fellow silver coins to guard.” And we would say: Just as silver coins are two and are important, so too all claims must consist of two and of something important. And it wrote “vessels” to teach us that they are important in themselves, and they need not together be worth two silver coins].

Rav Pappa said: If he claimed vessels

that were not worth two silver coins

and a pruta, and he admitted with regard to the vessels and denied the pruta

—

he is exempt!

But if he

admitted to the pruta and denied the vessels, he is liable!

Even though they are worth only any amount, for it was already stated: “Therefore vessels were singled out for what they are worth”; their monetary value is not required, but the very fact that they are vessels already makes them important for the purpose that one can admit to them and deny them.

And the two laws, in the two cases that Rav Pappa taught us,

one is in accordance with Rav, and one is in accordance with Shmuel.

One is in accordance with Rav, who said: The denial of the claim must be two silver coins.

Therefore, when he denied the pruta, he is exempt

. One is in accordance with Shmuel, who said: If he claimed wheat and barley and he admitted to him with regard to one of them, he is liable.

Therefore, when he admitted to the pruta and denied the vessels, he is liable.

It was stated in the Mishna:

“I have a maneh in your possession”; “You have nothing in my possession”

—

he is exempt!

Rav Naḥman said: But they administer to him an oath of heset,

an oath that the Sages instituted, that one who denies everything must swear that his denial is true.

What is the reason

that the Sages instituted this oath? But since the claimant wishes to extract money from him, the burden of proof rests upon him; why should the defendant swear?

Rather,

there is a presumption that a person does not make a claim unless he has a claim against him,

and although this presumption does not have the power to extract money from the defendant, the Sages took this presumption into consideration and instituted that the defendant be obligated to take an oath—from their words.

And the Gemara raises an objection:

On the contrary,

opposite the claimant’s presumption, there is a presumption for the defendant, for

there is a presumption that a person does not brazenly display his face before his creditor,

and why should we not place the defendant’s presumption opposite the claimant’s presumption, so that the law would return to its principle, that the one who seeks to extract from another bears the proof?

And the answer: This presumption—that a person does not brazenly display his face against his creditor—is not a strong and sufficient presumption. For the defendant does not intend to evade and become exempt from the entire debt [concerning which it was stated that he would not do so],

but rather,

he is merely evading him

he is evading the claimant]

And he

thought

: “I will deny it now

until I have

the money for repayment,

and I will repay it

to him.” Therefore, we do not rely on the presumption that a person does not brazenly display his face against his creditor, and we obligate him to swear.

And the Gemara proves:

Know

that indeed we say this rationale, that he is merely evading, from that

which Rav Idi bar Avin said in the name of Rav Hisda: One who denies a loan

—

is fit to serve as a witness.

That is, even if witnesses came and testified that he borrowed, he is still not suspected of stealing money, but remains presumed fit and fit for testimony. For his denial is not intended to steal and exempt himself from the debt, but to evade until he has the possibility of repaying it.

But,

one who denies a deposit

that was entrusted to him

is disqualified for testimony!

When witnesses come and testify that the deposit was indeed entrusted to him, for he is suspected of theft, and there is no basis for attributing his denial to evasion—for the deposit is in his possession.

Rav Haviva teaches

the law of shevuat heset

with regard to the latter clause

of the Mishna.

For we learned in the latter clause:

“A maneh of mine is in your possession.” He said to him, “Yes.” On the following day he said to him

the claimant

“Give it to me.”

The defendant said,

“I gave it to you”—

he is exempt. And

concerning it

Rav Nahman said: We make him swear a shevuat heset

by rabbinic enactment, that he indeed returned the debt.

And the Gemara discusses:

The one who teaches

the law of shevuat heset [that he claims from him, “A maneh of mine is in your possession,” and immediately denies everything]

with regard to the first clause

of our Mishna, that even in a place where we had no knowledge whatsoever concerning the debt except for the claimant’s claim, the defendant is required to swear,

all the more so

he teaches the law of shevuat heset

with regard to the latter clause

where the defendant had already admitted that he borrowed from the claimant, but claimed that he subsequently returned the debt.