Shevuot 41a — the Talmud in English

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

holds that only

here,

in the case brought in the latter clause, he is obligated to swear because

there is a monetary basis.

For it is certain to us that there was a monetary transaction between them, and therefore we have him swear and ascertain that the matter ended according to law.

But there,

in the first clause,

where there is no monetary basis,

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

they did not

institute the oath of heset. Since the entire matter under discussion arose only through the plaintiff’s claim, without our previously knowing what had been between them. In this, the court did not require its enactment and its oath.

The Gemara asks:

What difference is there between an oath from the Torah

one who partially admits the claim

and an oath

from the Sages,

such as the 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, and to say to him: “You swear and take what you claim from me,” instead of my swearing and being exempt from your claim?

And this is the distinction between them:

With

an oath

from the Torah, we do not reverse the oath,

but the defendant is obligated to swear when he admits part of the claim, and to become exempt from the claim. He does not have the right to reverse it and impose it upon the plaintiff.

With

an oath

from the Sages, we reverse it.

The defendant may demand that the plaintiff swear an oath of heset in his place and take. If so, this is what distinguishes an oath from the Torah from an oath from the Sages.

The Gemara objects:

And according to Mar bar Rav Ashi, who says that with an oath from the Torah also we reverse the oath,

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

What difference is there between

an oath

from the Torah and

an oath

from the Sages?

There is a difference between them—

descending upon his property.

For if he does not wish to swear and does not wish to pay, the court descends and collects from his property.

And this law, that they descend upon his property, applies only when his refusal to swear and pay was

with

an oath

from the Torah—

then

we descend upon his property

and collect from it the amount of the claim.

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

from the Sages,

then

we do not descend upon his property.

And they do not collect from him. And this is the distinction between an oath from the Torah and an oath from the Sages according to Mar bar Rav Ashi.

The Gemara objects:

And according to Rabbi Yosei,

who says that if he is obligated to swear

from the Sages also we descend

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

The Gemara proves that Rabbi Yosei indeed holds that even in a law from the Sages they descend upon his property.

For we learned: The lost object of a deaf-mute, an imbecile, and a minor,

who cannot acquire through an acquisition that takes effect by Torah law—nevertheless, if someone robs from them the lost object that they found,

there is in it

a prohibition of

robbery because of the ways of peace

alone, for by Torah law they did not acquire the lost object.

Rabbi Yosei says:

This is

complete robbery! And Rav Hisda said:

Rabbi Yosei does not intend to say that a deaf-mute, an imbecile, and a minor acquire a lost object and that their acquisition is effective by Torah law, and therefore one who robs them commits complete robbery.

Rather, our intention is to say that the prohibition against taking the lost object from them is not merely because of “the ways of peace,” but

it is complete robbery by their words!

And what practical difference is there

whether the prohibition against robbing them is because of the ways of peace or because of complete robbery by their words? —

To take it out

of the robber’s possession

by judges,

through the court. Now, according to the Rabbis, who hold that the prohibition of robbing a deaf-mute, an imbecile, and a minor is because of the ways of peace, this is merely a prohibition. The court, however, will not undertake to take it out by force from the one who snatched it.

But according to Rabbi Yosei, who holds that it is complete robbery, it is treated like all robbery, and the court takes the robbery out of the robber’s possession.

And if so, it is proven that according to Rabbi Yosei, even with robbery by their words, they descend and collect from his property. The same applies to one who is obligated to swear by their words but refuses to swear: his law is that they descend upon his property. If so, according to Rabbi Yosei there is no distinction between a monetary debt obligated by Torah law and one by the Sages, and in both they descend upon his property,

And if so, according to Rabbi Yosei it is difficult:

what

practical difference

is there between

an oath

from the Torah and

an oath

from the Sages?

And the answer:

There is a difference between them

when the defendant

who

is

opposite him,

opposite the plaintiff, is

suspect concerning the oath.

For example, they know that he robbed and the like, and he cannot swear.

Now, if the oath was

from the Torah

and the defendant opposite him was

suspect concerning the oath,

the Sages enacted

that we reverse the oath for him.

They exempted the suspect from the oath,

and placed

its obligation

upon the other one,

upon the plaintiff, that he swear and take from the defendant.

But if the suspect was obligated to swear an oath

from the Sages,

they do not reverse it and impose the oath upon the plaintiff, because the oath of heset

itself is an enactment

that the Sages enacted to make him swear.

And this law, that they reverse the oath when the defendant cannot swear, is also an enactment of the Sages.

And we do not make an enactment for an enactment!

And the plaintiff would lose without any oath (Rashi).

Now,

according to the Rabbis who disagree with Rabbi Yosei,

who hold that with one who snatches the lost object of a deaf-mute, an imbecile, and a minor they descend upon his property,

who said

that

with

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

from the Sages, we do not descend upon his property,

and therefore also one obligated to swear by the Sages who does not wish to swear—the court does not descend upon his property and take it from him,

what do we do to him

who refuses to swear an oath of heset?

His law is:

we place him under a ban,

[we ostracize him,] and he remains in his ban until he swears!

Ravina said to Rav Ashi: This one,

this ban under which they place him without a fixed time until he swears, is more severe than descending upon his property. Since this ban is as though

he seized him by his testicles so that he would give him his cloak!

[Like a person who grasps his fellow’s private parts and compels him to give him his garment]?!

Rav Ashi said to Ravina:

Rather, what do we do to him,

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

He said to him,

Ravina:

We place him under a ban

for thirty days,

until the “time of flogging” arrives.

[The thirtieth day of the ban is called the “time of flogging,” which is the time when they flog one who remained under his ban for thirty days because he did not trouble himself and take care to remove the ban from himself] .

And

on the thirtieth day

we flog him,

they flog him according to the law of one under a ban upon whom thirty days of his ban have passed,

and we leave him,

since beyond the ban and flogging they do nothing to him, for with monetary obligations from the Sages they do not descend upon his property.

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

[he produced a debt document against his fellow, in which it is written that he owes him money,]

and he said 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

you are not believed to claim “paid” against the document in the plaintiff’s possession, but

go, pay!

Go and pay.

And if he said,

the defendant:

Let him make an oath to me,

let the creditor swear to me that I did not pay him,

we say to him,

the creditor:

Swear to him

that the borrower did not pay you!

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

If every borrower can make the creditor who produces a document against him swear,

and what is the difference between this

one who makes the creditor swear in every case

and one who impairs his document?

[The law of one who impairs his document is stated in the Mishna in Tractate Ketubot 87a. It is: when the plaintiff admits that part of the debt appearing in the document has already been paid, and thereby the document is impaired from claiming everything written in it, the plaintiff is obligated to swear concerning the remainder by rabbinic enactment!]

Rav Aha, son of Rava, objects to Rav Ashi: According to your words, the plaintiff swears concerning every document and not only concerning a document that was impaired. What greater force does this one have than if he had impaired his document? In any case they make him swear?

He said to him,

Rav Ashi:

There,

with a document that was impaired,

even though he did not claim it,

the borrower, that the creditor should swear, but only claims “paid,”

we claim it for him,

and the court obligates the plaintiff to swear the Mishna’s oath that the debt was not paid,

but

here,

with a document that was not impaired,

we say to him,

the borrower:

Go, pay him! And

only

if he claims

the borrower himself

and says, “Swear to me,” we say to him,

the creditor:

Go, swear to him

the borrower that he did not pay you . But the court does not make him swear on its own initiative.

And if

the creditor

is a Torah scholar

[a Torah scholar]

—

we do not make him swear!

Rav Yemar said to Rav Ashi: Is a Torah scholar to send away

[strip]

people’s garments

and take money from people for nothing, without an oath? And how can he collect his debt and take money from the borrower without swearing as required by law?

Rather,

this is the explanation of the matter: When a Torah scholar produces a document against his fellow and the borrower says to him, “Swear to me that I did not pay you,”

we do not attend to his case,

the court does not intervene in his judgment, but removes itself from adjudicating it. They do not make him swear, because they would appear to suspect him of lying, and this is not in keeping with his honor.

But, on the other hand, they do not collect the debt without his swearing, since the defendant has the right to demand the oath from every person, even from a Torah scholar.

It was stated in our Mishna: The creditor claimed:

“I have one hundred zuz in your possession.”

The defendant said to him: “Yes.” The plaintiff said: “Give it to me only 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 must give it in the presence of witnesses.

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

a loan by oral agreement and not by a document, and the creditor took care that the loan should be

in the presence of witnesses

so that the borrower would not be able to deny it—

the

borrower

must repay it in the presence of witnesses,

For the very fact that he lent to him in the presence of witnesses is as though the creditor stipulated with the debtor that the repayment would be in the presence of witnesses, and that the debtor would not be trusted to claim, “I repaid,” without bringing his witnesses of the repayment.

When I stated it

when I stated this halakha

before Shmuel,

he disagreed with this law

and said to me: He can

the debtor

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

and by this I fulfilled the condition that the repayment be before witnesses,

and

if these witnesses

went away to the land overseas!

And the Gemara raises a difficulty against the words of Rav Asi:

We learned:

the claimant said:

“I have a hundred [dinars] in your possession.” He said to him

the defendant:

“Yes.”

And by this he admitted to him concerning the loan.

On the following day

the claimant returned and

said to him: “Give it to me.”

If the defendant said:

“I gave it to you”—

he is exempt!

And it is difficult:

But here, since he claimed against him in the presence of witnesses,

and the defendant admitted to him yesterday in the presence of witnesses

it is like one who lent him in the presence of witnesses,

it is considered as though he lent to him in the presence of witnesses. Since the claim and the admission are considered to have been in the presence of witnesses, it is as though he established witnesses at the time of the loan,

and it teaches: He is exempt,

the debtor is exempt from paying even if he did not bring witnesses concerning the repayment?!