Shevuot 40b (מ:) — the Talmud in English

And likewise, if

he admitted liability with regard to part of the land, he is exempt

since one does not take an oath concerning land. [As will be explained below in the Gemara, 42b,] even an admission with regard to part of land does not lead to an oath.

But if he admitted liability

with regard to part of the utensils—

he is liable

to take an oath even concerning the land, since the obligation to take an oath arising from the utensils, concerning which one does take an oath, extends also to the land, concerning which one does not take an oath!

And the Gemara infers:

The reason

that he is exempt when the claimant sued him for

utensils and land

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

land is not subject to an oath,

since one does not take an oath concerning land.

But

if he sued him for

utensils and utensils

of two different types, and he admitted liability with regard to one and denied liability with regard to the other—which is

analogous

to a claim for

utensils and land

in which he admitted liability with regard to one of the two types, he should be

liable!

Since it is only with regard to utensils and land that he is exempt, for the aforementioned reason that one does not take an oath concerning land. But when that reason is absent, as in the case of utensils, concerning which one does take an oath, he should take an oath. And it is thus proven that an admission with regard to one type out of a claim involving two types renders him liable!

The Gemara rejects this: No,

the same הדין applies: even in the case of utensils and utensils

of two different types, he is

also exempt

if he admitted liability with regard to only one of them.

And the fact that it teaches the case of utensils and land

and not utensils and utensils is

to teach us that when he admitted liability with regard to part of the utensils, he is liable

to take an oath

even concerning the land!

The Gemara raises a difficulty concerning this:

What does it teach us

with this law, that if he admitted liability with regard to part of the utensils, he is liable to take an oath even concerning the land?

Is it coming to teach us the law that the land is

made subject to an oath

that it is dragged along to be included in the oath together with the movable property]?

But we already

learned

this law in tractate Kiddushin (26a): “Property that does not have a guarantee,

makes subject to an oath

and drags along

property that has a guarantee, so that one must take an oath concerning it”?

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

The Gemara answers:

Here

this teaching

is the primary one, since

the entire tractate deals with the laws of oaths.

That teaching

in tractate Kiddushin

was brought incidentally! [There we learned: Property that does not have a guarantee is acquired incidentally to property that has a guarantee. And incidentally to that law, it stated the law of being made subject to an oath; but its primary place is here.]

And Rabbi Hiyya bar Abba said that Rabbi Yohanan said

—he disagrees with Rav Naḥman bar Yitzḥak, who said that Shmuel said, and maintains that

if one claimed wheat and barley from another, and the latter admitted liability with regard to one of them

—

he is exempt!

The Gemara raises a difficulty:

But Rabbi Yitzḥak said, “Correct,”

and he added and said:

“And so said Rabbi Yohanan,”

and if so, it is proven that Rabbi Yohanan maintains the same view as Rav Naḥman bar Yitzḥak said in the name of Shmuel, and not as Rabbi Hiyya bar Abba reports it here!?

The answer is:

There are amoraim who disagree with regard to the opinion of Rabbi Yohanan.

The amoraim disagree as to whether Rabbi Yohanan maintains that if one claimed wheat and barley from another, and the latter admitted liability with regard to one of them, he is liable or exempt.

Come and hear: If one claimed wheat from another and the latter admitted liability with regard to barley—

he is exempt. But Rabban Gamliel deems him liable!

And they infer:

The reason

for the exemption according to the Rabbis who disagree with Rabban Gamliel is

that

only when

he claimed wheat and the latter admitted liability with regard to barley

is he exempt.

But

if he claimed

wheat and barley and the latter admitted liability with regard to one of them

—

he is liable.

The Gemara rejects this: No!

The same הדין applies: even if

he claimed

wheat and barley, he is also exempt; and the fact that it teaches it in this manner

is to convey the force of Rabban Gamliel’s opinion,

who maintains that even an admission not of the same type as the claim renders one liable to take an oath.

Come and hear: If one claimed utensils and land and he admitted liability with regard to the utensils and denied liability with regard to the land.

Or he admitted liability

with regard to the land and denied liability with regard to the utensils, he is exempt. If he admitted liability with regard to part of the land—

he is exempt. If he admitted liability with regard to part of the utensils—

he is liable!

And the Gemara infers:

The reason

that he claimed

utensils and land

and that

land is not subject to an oath is that

if he claimed

utensils and utensils

of two different types,

analogously to utensils and land—

—

he is liable!?

The Gemara rejects this inference:

The same הדין applies: even if

he claimed utensils and utensils, he is

also exempt; and this is what it teaches us

—

that if he admitted liability with regard to part of the utensils, he is liable even concerning the land!

The Gemara raises a difficulty:

What does it teach us about making property subject to an oath? We already learned: “It makes property that has a guarantee subject to an oath”?

The answer is:

This is the primary teaching; that one was brought incidentally!

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

[who maintains that if one claimed wheat and barley and the latter admitted liability with regard to one of them, he is exempt].

He claimed

that the other owed him

an ox, and the latter admitted liability with regard to a sheep;

he claimed

a sheep, and the latter admitted liability with regard to an ox

—

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

he is liable,

and it is thus proven that an admission with regard to one of two types renders him liable!?

He said to him:

This is the opinion of Rabban Gamliel,

but the Rabbis disagree and maintain that he is exempt.

He raised a difficulty against him:

If this is the opinion of Rabban Gamliel,

who stated this beraita,

even the first clause,

in which he claims an ox and the other admits liability with regard to a sheep,

also

should follow the opinion of Rabban Gamliel, who deems him liable; why, then, is he exempt?

Rather, this is the opinion of Admon!

He requires the admission to be of the same type as the claim, but maintains that if one claimed two different types from another and the latter admitted liability with regard to one of them, he is liable.

And do not

say that I am merely

giving you a forced answer

in general,

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

—

this is the opinion of Admon!

who stated this law.

Rav Anan said that Shmuel said: He claimed wheat

and intended to continue his claim and also claim barley. But before he continued,

the defendant preempted him

and denied liability, saying, “You have no wheat in my possession,”

and admitted liability with regard to barley

that he owed him,

The court investigates this:

If

his having preempted the claimant and admitted liability with regard to barley was done

deceptively,

so that his admission with regard to barley would not constitute an admission with regard to part of a claim for wheat and barley, then he is

liable

to take the oath of one who admits liability with regard to part of the claim.

But if he intended

to respond to the claim concerning wheat and to admit liability with regard to barley because, in his view, he owed him the barley, and he did not hasten to admit liability with regard to barley in order to exempt himself from an oath, but genuinely believed that he did not owe him wheat, then he is

exempt

from an oath.

And Rav Anan said that Shmuel said: He claimed

that the other owed him

two needles

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

and he admitted liability

only

with regard to one of them

—

he is liable

to take an oath.

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

Therefore utensils emerged

and were written specifically in the verse, “When a man gives his fellow money or utensils to safeguard.” The verse did not suffice to write only “money”; rather, it added and wrote “utensils” to teach us that they may be claimed

according to what they are worth,

and one may become liable with regard to them even when they are worth any amount. This is because the significance of utensils exists even when they are not worth two silver, since their significance lies in their use and not in their monetary value!

[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, the verse should have written: “When a man gives his fellow money to safeguard.” We would then say: Just as money is two and is significant, so too all claims must involve two items and something significant. The verse wrote “utensils” to teach us that they are significant in themselves and need not be worth two silver.]

Rav Pappa said: He claimed utensils

that were not worth two silver

and a peruta, and he admitted liability with regard to the utensils and denied liability with regard to the peruta

—

he is exempt!

But if he

admitted liability with regard to the peruta and denied liability with regard to the utensils, he is liable!

Even though they are worth only any amount, it was already stated: “Therefore utensils emerged according to what they are worth”; their monetary value is not required, since the fact that they are utensils itself makes them something significant with regard to the possibility of admitting or denying liability concerning them.

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

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

One is in accordance with Rav, who said: The denial of a claim must involve two silver.

Therefore, when he denied liability with regard to the peruta, he is exempt.

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

Therefore, when he admitted liability with regard to the peruta and denied liability with regard to the utensils, he is liable.

It was stated in the Mishna:

“I have one hundred dinars in your possession.” “You have nothing in my possession”—

—

he is exempt!

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

an oath instituted by the Sages that one who denies the entire claim must swear that his denial is true.

What is the reason

that the Sages instituted this oath? Since the claimant wishes to extract money from him, the burden of proof rests upon the claimant; why, then, should the defendant take an oath?

Rather,

there is a presumption that a person does not make a claim unless the other owes him.

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 must take an oath by rabbinic ordinance.

The Gemara raises a difficulty:

On the contrary,

in opposition to the claimant’s presumption, there is a presumption in favor of the defendant, since

there is a presumption that a person does not brazenly make a claim in the presence of his creditor,

and why not place the defendant’s presumption against the claimant’s presumption and return the law to its fundamental principle, that the burden of proof rests upon the one who seeks to extract something from another?

The answer is: This presumption, that a person does not brazenly deny in the face of his creditor, is not a strong and sufficient presumption. The defendant does not intend to evade payment and exempt himself from the entire debt [which is the matter concerning which it was said that he would not do so],

but

he is merely evading him temporarily

[he is evading the claimant].

And

he reasoned

: “I will deny it for now

until I have

the money for repayment

and I will repay him,

and therefore we do not rely on the presumption that a person does not brazenly deny in the face of his creditor; rather, we obligate him to take an oath.”

And the Gemara proves this:

Know

that indeed we say that he is merely evading him, from the fact

that Rav Idi bar Avin said that Rav Ḥisda said: One who denies a loan

—

is fit to serve as a witness.

That is, even if witnesses came and testified that he had borrowed money, he is still not suspected of robbing another of his money; rather, he remains presumed fit and is fit to testify. For his denial is not intended to rob and exempt himself from the debt; rather, he is evading the claimant until he has the possibility of repaying.

But,

the one who denies a deposit

that was entrusted to him

is disqualified from bearing witness!

When witnesses come and testify that the deposit was indeed entrusted to him, he is certainly suspected of robbery, and his denial cannot be attributed to evasion—for the deposit is in his possession.

Rav Haviva teaches

the law of the oath of inducement

with regard to the latter clause

of our Mishna.

As we learned in the latter clause:

“I have a maneh with you.” He said to him: “Yes.” The next day he said to him

the claimant

“Give it to me.”

The defendant said

“I gave it to you”—

he is exempt. And

concerning this

Rav Nahman said: They administer to him an oath of inducement,

by rabbinic ordinance, that he indeed repaid the debt.

And the Gemara analyzes:

The one who teaches

the law of the oath of inducement [that the claimant says to him, “I have a maneh with you,” and he immediately denies the entire claim]

with regard to the first clause

of our Mishna, where, even in a case in which we had no knowledge whatsoever of the debt apart from the claimant’s demand, the defendant is required to take an oath,

all the more so

does he teach the law of the oath of inducement

with regard to the latter clause,

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