Shevuot 42a (מב.) — the Talmud in English

He said to him

the borrower:

And

if

I did not repay you

this debt by giving you merchandise worth

one hundred kavs

afetzai

[a substance used in processing hides]

that were worth

[at the time]

six per six?

six zuz?

Each kav was worth six zuz, so it follows that I repaid you six hundred zuz through those one hundred kavs of afetzai, the sum that I owed you.

The creditor said to him

:

No! They were worth four each

zuz

at the time

each of these kavs of afetzai.

Therefore, even according to your claim that you gave me the afetzai, you repaid me only four hundred zuz in value, and you still owe me two hundred.

Two witnesses came

to testify concerning the value of the afetzai, how much it had been worth when he gave it to him, and they said:

Indeed, they were worth four each

zuz per kav

at the time!

It follows that he repaid only four hundred. The creditor stands and demands the two hundred that remain of his debt, while the borrower says: “I repaid you everything. Indeed, if I did not repay you with afetzai, I repaid you with money. In any event, I repaid you everything!”

Rava said:

The borrower is no longer deemed credible to say that he repaid everything, since he

has been established as a liar!

For two witnesses contradicted his claim that he had repaid the afetzai at a value of six zuz per kav.

Once he has been established as a liar, he is no longer deemed credible to claim “I repaid” with regard to this monetary debt. The claimant therefore prevails by law, and the borrower must pay the remaining two hundred.

Rami bar Hama said:

He has not been established as a liar in a case of this kind, because

you have said:

With regard to anything that is not incumbent upon a person to remember, he does not pay attention to it,

and this borrower was not required to remember precisely how he repaid him; rather, he remembered the matter of the repayment in general and did not attend to the details.

Therefore, when he was sued, he stated an approximate price, believing that this was the market price [since, in any event, the principal form of repayment had been through the afetzai].

Rava

said

to him: The fixed market price

the established selling price

is remembered by people,

and it follows that he lied in his claim [since he was contradicted by witnesses], and therefore he has been established as a liar with regard to this monetary claim.

There was a certain man who said to another: Give me one hundred zuz that I have outstanding against you,

that you owe me,

and here is the document

as proof of your debt.

The defendant said to him

:

I repaid you

in the presence of witnesses!

He said to him

the claimant: Those zuz that you repaid me—

they were for another debt,

for a different debt that you owed me, and I received them from you for that debt. But as for the debt recorded in this document—you have still not repaid it.

Rav Naḥman said: The document has been compromised,

its force to collect this debt has been invalidated, since the creditor admitted that he had received some payment and is not deemed credible to say: “You did not repay me; they were for another debt.”

Rav Pappa said: The document has not been compromised,

for the creditor did not admit that he had repaid this debt recorded in the document.

The Gemara raises an objection:

According to Rav Pappa,

who maintains that the document has not been compromised,

what is different

in this case

from the case of one who said to another—

Give me one hundred zuz that I have outstanding against you

as a loan,

and here is the document

as proof of your debt?

The defendant said to him

:

Did you not give me money for oxen?

Did you not give me this money so that I could purchase oxen, slaughter them, sell their meat, and divide the profit with you?

And

his fellow further claimed to him: Not only did you give me the money so that I could purchase oxen, but

you came and sat at the butcher’s stall.

You came and sat in the place where the meat was cut and sold to the buyers,

and you received your money

from the proceeds of the sale of the oxen’s meat!

And the claimant said to him

:

Those

zuz that I took from the proceeds of the meat, I did not take them for my investment in the oxen; rather,

they were for another debt,

and I took them from you for another debt that you owed me,

and Rav Pappa said: The document has been compromised.

That document, which was written concerning the money given for the purchase of the oxen, has been weakened, and the defendant need not repay.

The difficulty is: What is different above, in the case of a creditor, where Rav Pappa maintains that the claimant is deemed credible to say, “Those payments were for another debt”?

The Gemara answers: The case

there is different—

since he said

the defendant

“You gave me money for oxen,”

and the claimant admitted that he had given him the money for the purchase of oxen. And he also said to him,

“And you took it from the oxen,”

you took it from the proceeds of the meat’s sale; and the claimant likewise admitted this, except that he claimed that he had taken the proceeds of the oxen’s meat as repayment of another debt. Since that is the case,

the

document is compromised.

But

here,

with regard to a promissory note, although the creditor admitted receiving payment,

perhaps they were for another debt,

and he admitted receiving them as repayment of another debt. For there is no proof that this payment was for the debt recorded in this document.

What was the conclusion

concerning the dispute between Rav Naḥman and Rav Pappa regarding the claim that the payment was for another debt?

Rav Pappi said: The document has not been compromised;

the document is not weakened when the creditor admits that he received payment and says that it was for another debt.

Rav Sheshet, son of Rav Idi, said: The document has been compromised!

And the halakha is:

The document has been compromised!

And this applies

only where the document has been compromised and the creditor is not deemed credible, namely, where

he repaid him

the creditor

in the presence of

witnesses,

but

he did not mention the document to him,

the borrower did not remind the creditor that he had the document in his possession and that he was required to return it—and only in such a case is he not deemed credible, since there are witnesses that he repaid him properly.

But if

he repaid him privately,

between the two of them without witnesses, the creditor is deemed credible.

For there is a

migo,

since

he could

the creditor

have said, “It never happened,”

and my debt was not repaid at all,

he can also say

that this payment that you repaid me

was for another debt,

while the document in my possession has not yet been paid.

And

this law is

like

the incident

of Avimi, son of Rav Abbahu,

who repaid his debt without witnesses and did not take back his document, after which the creditor claimed that the payment he had received was for another debt, and he was forced to repay the debt a second time.

There was a certain

borrower

who said to his fellow,

the creditor,

“You are deemed credible by me whenever you say to me, ‘You did not repay me!’”

You are deemed credible to me whenever you say that I did not repay you and that you did not receive payment from me, whereas I will not be able to say against you that I repaid you.

And he told him this at the time of the loan and in the presence of witnesses, so that this grant of credibility would have legal force.

The borrower went

and

repaid him

his debt

in the presence of witnesses.

Now the creditor claims that he was not repaid, and claims that he is deemed credible in this matter by virtue of the grant of credibility that the borrower gave him at the time of the loan and in the presence of witnesses.

Abaye and Rava both said

that the creditor is deemed credible even against the testimony of the two witnesses who say that he repaid him, because

he granted him credibility!

This grant of credibility overrides the testimony of the witnesses, since its meaning is that only he will be deemed credible concerning the repayment—even witnesses will not be deemed credible as he is.

Rav Pappa challenged this: Granted

that

he granted him credibility

the borrower to the creditor

more than himself,

more than he believed himself. For he told him in advance that as long as the creditor said that he had not been repaid, the creditor would be deemed credible against him.

However,

more than witnesses—

did he grant him credibility!?

Surely his words did not mean to grant the creditor absolute credibility, even greater than that of two witnesses. Therefore, he is exempt from repaying him a second time.

There was a certain

borrower

who said to his fellow,

the creditor:

“You are deemed credible by me as two witnesses

as two people

whenever you say, ‘I was not repaid.’ The borrower went

and

, he repaid him in the presence of three

in the presence of three people. Now the creditor claims that he did not repay him.

Rav Pappa said: He granted him credibility as two, but he did not grant him credibility as three,

for he gave credibility to the creditor only to the extent of two and no more. Therefore, when there are three who say the opposite of the creditor, the three are deemed credible against him, since the creditor himself is deemed credible only as two.

Rav Huna, son of Rav Yehoshua, said to Rav Pappa: Granted that the Sages say that we follow the majority of opinions

and give precedence to the greater number of people’s opinions, believing three more than two—

That statement applies

only

with regard to estimation,

that is, when one wishes to estimate and assess the value of an object, and a minority of people say it is worth one amount while the majority say that its value is different;

then,

the more numerous

they are,

the more expert they are.

It is more reasonable that the object’s value is as the majority says.

But with regard to testimony,

when the borrower granted the creditor credibility as two witnesses,

one hundred are like two, and two are like one hundred.

It does not depend on the number of people who say that he repaid or did not repay; rather, it depends on the force of credibility that the Torah granted to witnesses!

There is no distinction here between two and one hundred. Therefore, once the borrower granted the creditor the credibility of two witnesses, he gave him the force of credibility of two witnesses, and there is no difference between two and three.

Another version: There was a certain

borrower

who said

to his fellow,

the creditor:

“You are deemed credible by me as two witnesses whenever you say, ‘I was not repaid.’”

He went

the borrower

and repaid him in the presence of three.

Rav Pappa said:

He granted him credibility as two; he did not grant him credibility as three!

Rav Huna, son of Rav Yehoshua, challenged this—

Two are like one hundred, and one hundred are like two.

But

if he said to him

the borrower to the creditor: You are deemed credible to me

as three, and he went

and

the borrower repaid him in the presence of four,

the creditor is no longer deemed credible.

For

once he descended

the borrower

to

the number of

opinions,

meaning, to a number of people such that he believed the creditor only when that number was present, he did not grant him credibility as witnesses, since with witnesses there is no practical difference between two and three; rather, the borrower was precise about the number of opinions and granted the creditor’s claim the force of only three “opinions”—

He descended to the realm of opinions!

Therefore, if he repaid him in the presence of four “opinions,” the four opinions take precedence over the three, and the creditor is not deemed credible against them.

We learned in our Mishna:

One does not administer an oath based on the claim of a deaf-mute

or an imbecile or a minor. And one does not administer an oath to a minor.

The Gemara discusses this: Why does one not administer an oath based on their claims?

The verse says

in the passage concerning one who admits to part of a claim:

“When a person gives money or vessels to another to safeguard

—the owner of the house shall draw near to the judges [to take an oath]”—

and we derive from here that only the giving of an adult obligates an oath, but the giving of a minor does not,

and

because

the giving of a minor

is considered

nothing!

Therefore, even if the minor makes a definite claim that he gave his fellow a loan or a deposit [and even if he makes this claim after reaching adulthood], and the other admits to part of it, the defendant is not obligated to take an oath, because the giving that the minor gave him is nothing.

We further learned in the Mishna:

But one does administer an oath to a minor and to the Temple treasury!

The Gemara raises a difficulty:

But did you not say at the beginning—

one does not administer an oath based on the claim of a deaf-mute, an imbecile, or a minor?!

Rav said:

the latter clause, which states that one takes an oath in response to the claim of a minor, is referring to

a

case in which

the

minor comes and makes a claim

by

virtue of

his father’s claim.

For example, a minor heir comes and claims that his father gave the defendant a loan or a deposit. Since there is no deficiency in the father’s giving, as there would be in the giving of a minor, and the minor now comes and makes a claim by virtue of his father’s inheritance, the defendant is therefore obligated to take an oath concerning his claim.

But the first clause is speaking of a case in which the minor comes with a claim of his own, concerning an item that he himself gave; in such a case the defendant does not take an oath, because the giving of a minor is considered to have no legal significance.

And

the fact that the latter clause states that one takes an oath in response to the claim of a minor who comes with his father’s claim follows the view of

Rabbi Eliezer ben Ya’akov.

But according to the Rabbis, one does not take an oath in response to the claim of a minor under any circumstances, even when he comes with his father’s claim.

As it was taught in a beraita: Rabbi Eliezer ben Ya’akov says: Sometimes a person takes an oath

the oath of partial admission

in response to his own claim,

and not in response to the claim of the plaintiff.

How

does he take an oath in response to his own claim?

He said to

the son of the lender, without the son having made a claim against him:

“I owe your father one hundred dinars, and I fed him half of it.”

I borrowed one hundred from your father and repaid him only fifty [which are part of the claim, like a slice cut from a whole loaf], and I still owe fifty.

He must take an oath

the oath of partial admission.

And this is what it means that he takes an oath in response to his own claim!

Therefore, according to Rabbi Eliezer ben Ya’akov, one must also take an oath in response to the claim of a minor who comes with his father’s claim. For the claim of a minor is no weaker than the case of one who partially admits and takes an oath in response to his own claim, when there is no plaintiff at all, and nevertheless he takes an oath because of it. Therefore, the claim of a minor by virtue of his father’s giving likewise creates an obligation to take an oath.

And the Sages say:

A person never takes an oath in response to his own claim, for

he is merely like one who returns a lost item,

who admitted without being sued,

and is exempt.

That is, the Sages instituted that when one finds a lost item and returns it to its owner, if the loser claims that the lost item had been worth more than what the finder returned to him, the finder does not take an oath, for the sake of the betterment of the world. For if the finder would be required to take an oath, he would not return a lost item.

The same applies to one who takes an oath in response to his own claim: if we obligate one who partially admits on his own initiative to take an oath, he will no longer admit even to part of the claim.

Therefore, according to the Sages, one does not take an oath even in response to the claim of a minor. Since there is no substance to the claim of a minor, it is as though there were no plaintiff at all, and he is exempt from an oath for the sake of the betterment of the world. Therefore, our Mishna must be established as following the view of Rabbi Eliezer ben Ya’akov.

And the Gemara discusses this:

But does Rabbi Eliezer ben Ya’akov not hold

that he does not accept the ordinance instituted by the Sages, that

one who returns a lost item is exempt

from an oath for the sake of the betterment of the world?

Rav said:

Rabbi Eliezer ben Ya’akov is speaking

of a case in which

an orphan

who is a minor

sued him. Therefore, his partial admission to the minor’s claim is not considered like one who returns a lost item, since he did not admit on his own initiative, but only after the minor sued him. Nevertheless, he is still considered to be one who takes an oath in response to “his own claim,” because the claim of a minor [even when he comes with his father’s claim] does not create an obligation to take an oath by virtue of the minor’s claim.

The Gemara raises an objection: A minor!? How can Rabbi Eliezer ben Ya’akov’s statement be established as referring to a case in which a minor sued him?

But you said: One does not take an oath in response to the claim of a deaf-mute, an imbecile, or a minor!?

The Gemara answers:

Actually,

Rabbi Eliezer ben Ya’akov is speaking of a case in which

an adult sued him.

And why is he called “a minor,”

as the Gemara says that the case concerns “a minor who comes with his father’s claim”? It is

because even an adult, with regard to matters concerning his father,

is a minor!

That is, although he is an adult, since he is not familiar with his father’s affairs, his claim is considered like the claim of a minor who is not familiar with the details of his claims. Therefore, Rabbi Eliezer ben Ya’akov regarded the defendant’s oath against such a claim as one who “takes an oath in response to his own claim.”

Nevertheless, in his view, one who partially admits to this claim is not considered like one who returns a lost item, since his admission still came only after an adult had sued him.

The Gemara asks:

If so,

if the case concerns an adult who comes with his father’s claim, why does Rabbi Eliezer ben Ya’akov regard one who takes an oath in response to this claim as one who takes an oath in response to

“his own claim”?

After all, the claim of an adult

is “the claim of others”!

The Gemara explains that this was Rabbi Eliezer ben Ya’akov’s intended meaning: Sometimes a person takes an oath in response to

the claim of others and his own admission.

He worded it as “Sometimes one takes an oath in response to his own claim” because, in this case, where an adult sues him with his father’s claim, the obligation to take an oath does not arise from the plaintiff’s claim in itself, but on account of the defendant’s admission.