Shevuot 41a (מא.) — the Talmud in English

And the one who teaches it with regard to the latter clause

holds

, here,

in the case presented in the latter clause, he is obligated to take an oath because

there is a monetary basis to the claim.

For it is certain to us that there was a monetary transaction between them, and therefore we administer an oath to him to ascertain that the matter was concluded properly.

But there,

in the first clause,

where there is no monetary basis to the claim,

as we have no knowledge whatsoever of the transaction between them—for the defendant claims that he did not borrow from him at all—in such a case

the Sages did not

institute an oath of heset. Since the entire matter under discussion arose only as a result of the plaintiff’s claim, without our having previously known what had transpired between them, the court did not find it necessary to apply their institution and impose their oath.

The Gemara asks:

What difference is there between an oath mandated by the Torah

one who admits to part of the claim

and an oath

mandated by the Sages,

such as an oath of heset?

There is a difference between them—

reversing

the

oath.

Does the defendant have the right to demand that the oath be reversed and imposed upon the plaintiff—to say to him: “You take an oath and collect what you are claiming from me,” instead of my taking an oath and being exempt from your claim?

This is the distinction between them:

With

an oath

mandated by the Torah, we do not reverse the oath,

but the defendant must take an oath when he admits to part of the claim, and thereby be exempt from the claim. He may not reverse it and impose it upon the plaintiff.

With

an oath

mandated by the Sages, we do reverse it.

The defendant may demand that the plaintiff take an oath of heset in his place and then collect. Thus, this is the difference between an oath mandated by the Torah and an oath mandated by the Sages.

The Gemara challenges this:

But according to Mar bar Rav Ashi, who says that even with an oath mandated by the Torah we reverse the oath,

if so, there is no difference between the oaths, and the Gemara’s question returns:

What difference is there between

an oath

mandated by the Torah and

an oath

mandated by the Sages?

There is a difference between them—

descending upon his property.

If he does not wish to take the oath and does not wish to pay, the court enters and collects from his property.

This rule—that the court descends upon his property—applies only when his refusal to take the oath and pay was with regard to

an

oath

mandated by the Torah—

then

we descend upon his property

and collect from it the amount of the claim.

But if he refused to take an oath of heset, which is

mandated by the Sages,

then

we do not descend upon his property.

We do not collect from him. This is the difference between an oath mandated by the Torah and an oath mandated by the Sages according to Mar bar Rav Ashi.

The Gemara challenges this:

But according to Rabbi Yosei,

who says that if one is obligated to take an oath

mandated by the Sages, we likewise descend

upon his property and collect from it, the question returns: What is the difference between an oath mandated by the Torah and an oath mandated by the Sages?

The Gemara proves that Rabbi Yosei indeed maintains that even in a matter mandated by the Sages, the court descends upon his property.

As we learned in the Mishna: The found property of a deaf-mute, an imbecile, and a minor,

who cannot acquire through a legally effective acquisition under Torah law—nevertheless, if someone takes from them the found object they discovered,

there is

a prohibition of

robbery for the sake of the ways of peace

alone, since according to Torah law they did not acquire the found object.

Rabbi Yosei says:

This is

full-fledged robbery! And Rav Ḥisda said:

Rabbi Yosei does not mean that a deaf-mute, an imbecile, and a minor acquire a found object and that their acquisition is effective under Torah law, so that one who robs them is committing full-fledged robbery.

Rather, his intention is that the prohibition against taking the found object from them is not merely because of “the ways of peace”;

it is full-fledged robbery by rabbinic law!

And what practical difference does it make

whether the prohibition against robbing them is because of the ways of peace or because it is full-fledged robbery by rabbinic law? -

To remove it

from the robber

through judges,

by means of the court. According to the Sages, who maintain that the prohibition against robbing a deaf-mute, an imbecile, or a minor is because of the ways of peace, this is merely a prohibition. The court, however, will not intervene to forcefully remove the object from the one who seized it.

But according to Rabbi Yosei, who maintains that it is full-fledged robbery, it is treated like any robbery, and the court removes the stolen object from the robber.

If so, it is proven that according to Rabbi Yosei, even in the case of robbery by rabbinic law, the court descends and collects from his property. The same applies to one who is obligated by rabbinic law to take an oath but refuses to take it: the court descends upon his property. If so, according to Rabbi Yosei there is no difference between a monetary obligation mandated by the Torah and one mandated by the Sages, since in both cases the court descends upon his property.

If so, according to Rabbi Yosei it is difficult:

What

practical difference

is there between

an oath

mandated by the Torah and

an oath

mandated by the Sages?

The answer is:

There is a difference between them

when the defendant

who

is

opposite him

—opposite the plaintiff—

is suspected with regard to oaths.

For example, it is known about him that he robbed someone or the like, and he cannot take an oath.

Now, if the oath was

mandated by the Torah

and the defendant opposite him was

suspected with regard to an oath,

the Sages instituted

that we reverse the oath for him.

They exempted the suspect from the oath

and placed

its obligation

upon the other party,

the plaintiff, who must take the oath and collect from the defendant.

But if the suspect was obligated to take an oath

mandated by the Sages,

we do not reverse and impose the oath upon the plaintiff, because an oath of heset

itself is an institution

that the Sages instituted in order to administer an oath to him.

This rule—that the oath is reversed when the defendant cannot take it—is itself an institution of the Sages.

And we do not make one institution in order to support another institution!

The plaintiff would then suffer a loss without any oath (Rashi).

Now,

according to the Sages who disagree with Rabbi Yosei,

who maintain that the court does not descend upon the property of one who seizes the found object of a deaf-mute, an imbecile, or a minor,

who said

that

with

the robbery of a deaf-mute, an imbecile, or a minor, which is

rabbinic, we do not descend upon his property,

and therefore, with regard to one obligated to take an oath by rabbinic law who does not wish to take it, the court does not descend upon his property and remove the money from him,

what do we do to him,

to one who refuses to take an oath of heset?

His status is as follows:

We excommunicate him,

and he remains under excommunication until he takes the oath!

Ravina said to Rav Ashi: This,

this excommunication, imposed without a fixed limit of time until he takes the oath, is more severe than descending upon his property, since this excommunication is as though

he grasped him by his testicles and compelled him to hand over his garment.

[Like a person who grasps his fellow by his testicles and forces him to give him his garment]?!

Rav Ashi said to Ravina:

Rather, what do we do to him,

what can we do to him in order to compel him to pay?

He said to him,

Ravina said to him:

We excommunicate him

for thirty days,

until the time arrives for “striking him.”

The thirtieth day of excommunication is called “the time for striking him.” This is the time when one who has remained under excommunication for thirty days is flogged because he did not trouble himself to arrange for the excommunication to be lifted.

And

on the thirtieth day

we strike him,

flogging him in accordance with the law concerning one who has remained under excommunication for thirty days,

and we release him,

since beyond excommunication and flogging we do nothing further to him; for with regard to monetary obligations mandated by the Sages, the court does not descend upon his property.

Rav Pappa said: With regard to one who produces a document against his fellow,

[he produces a promissory note against his fellow, in which it is written that the latter owes him money,]

and he says to him,

the defendant

: “The document has been paid!”

and now I owe you nothing,

we say to him,

the defendant

: “It is not within your power

to be believed when you claim that it was paid in opposition to the document held by the plaintiff. Rather,

go pay!”

Go and pay.

And if he said,

the defendant

: “Let him sue me;

let the creditor take an oath that I did not repay him,”

we say to him,

the creditor

: “Take an oath before him”

that the debtor did not repay you!

Rav Aḥa, son of Rava, said to Rav Ashi:

If every debtor can require the creditor who produces a document against him to take an oath,

what is the difference between this case,

in which the debtor administers an oath to the creditor in every situation,

and one who discredits his document?

[The law concerning one who discredits his document is stated in the Mishna in tractate Ketubot, 87a. It is the case in which the plaintiff admits that part of the debt recorded in the document has already been paid, thereby discrediting the document from claiming the entire amount written in it; the plaintiff must then take a rabbinic oath concerning the remainder!]

Rav Aḥa, son of Rava, challenged Rav Ashi: According to your words, the plaintiff takes an oath with regard to every document, and not only with regard to a document that has been discredited. What advantage does this case have over one who discredits his document? In either case, we administer an oath to him.

He said to him,

Rav Ashi said to him:

There,

with regard to a document that has been discredited,

even though he himself did not claim

that the creditor should take an oath, but merely claimed that the debt had been paid,

we claim it on his behalf,

and the court obligates the plaintiff to take the Mishna’s oath that the debt was not paid.

However,

here,

with regard to a document that has not been discredited,

we say to him,

the debtor:

“Go pay him! And

only

if he claims

himself, the debtor,

and says, ‘Make him take an oath before me,’ we say to him,

the creditor:

‘Go take an oath before him’

that the debtor did not repay you.” But the court does not administer an oath to him on its own initiative.

And if

the creditor

is a Torah scholar

[a Torah scholar]

—

we do not administer an oath to him!

Rav Yeimar said to Rav Ashi: Does a Torah scholar strip

[remove]

people of their garments

and take money from people gratuitously, without an oath? How can he collect his debt and take money from the debtor without taking the oath required by law?

Rather,

this is the explanation: When a Torah scholar produces a document against his fellow and the debtor says to him, “Take an oath that I did not repay you,”

we do not attend to his case;

the court does not intervene in his case, but removes itself from adjudicating it. It does not administer an oath to him, because doing so would appear to indicate that they suspect him of lying, and this is not consistent with his honor.

On the other hand, they do not collect the debt without his taking an oath, since the defendant has the right to demand an oath from anyone, even from a Torah scholar.

It was stated in our Mishna: The creditor claimed:

“I have one hundred dinars in your possession.”

The defendant said to him: “Yes.” The plaintiff said: “Do not give it to me except in the presence of witnesses.” The next day he said to him: “Give it to me.” The defendant said to him: “I gave it to you”—he is liable, because he was required to give it in the presence of witnesses.

Rav Yehuda said that Rav Asi said: One who lends money to his fellow

by an oral loan and not by a document, and the creditor took care that the loan be made

in the presence of witnesses

so that the debtor would not be able to deny it,

must

the debtor

repay it in the presence of witnesses.

When I stated it

when I stated this halakha

before Shmuel,

he disagreed with this ruling

he said to me: He can

the borrower

say to him: I repaid you in the presence of so-and-so and so-and-so

and thereby fulfilled the stipulation that repayment take place in the presence of witnesses,

but

if those witnesses

the witnesses went overseas!

The Gemara raises an objection to the words of Rav Asi:

We learned:

The claimant said:

“I have a maneh with you.” He said to him

the defendant:

“Yes.”

And by doing so, he admitted to the loan.

The next day

the claimant returned and

said to him: “Give it to me.”

If the defendant said:

“I gave it to you,”

he is exempt!

The difficulty is:

But here, since he claimed it in the presence of witnesses

and the defendant admitted to him the previous day in the presence of witnesses

it is as one who lent him money in the presence of witnesses

that is, it is considered as though he lent him the money in the presence of witnesses. Since the claim and admission are considered to have taken place in the presence of witnesses, it is as though he designated witnesses at the time of the loan,

and yet it teaches: He is exempt

the borrower is exempt from payment even if he did not produce witnesses to the repayment?!