Shevuot 42b (מב:) — the Talmud in English

But the Gemara argues that this explanation cannot be accepted, because it is not possible to establish the dispute between the Sages and Rabbi Eliezer ben Yaakov as referring to an adult who comes with his father’s claim, and for such a case to be defined as one in which a person “takes an oath based on his own claim,” on the grounds that it is “a claim of others and his own admission.”

But

all of them,

all the claims for which one becomes liable because of an admission of part of the claim—

are likewise claims of others and his own admission!

What, then, did Rabbi Eliezer mean by saying, “There are times when a person takes an oath based on his own claim”? In every case of a claim and an admission, this is the situation! Therefore, the Gemara retracts its previous explanation and says that this case does not involve an adult who comes with his father’s claim. Rather, it concerns a case in which the claimant is an actual minor.

However, this does not refer to an ordinary claim by a minor. For we already learned in the first clause that “one does not take an oath based on the claim of a minor,” since the minor’s giving is not considered giving, such that his claim would be considered a claim sufficient to require an oath concerning one’s admission and denial.

Rather, the case concerns a minor who comes with his father’s claim. And his claim is considered a valid claim, since his father’s giving is considered giving.

As for Rabbi Eliezer’s statement, “There are times when a person takes an oath based on his own claim,” this is because ordinarily a minor’s giving is not considered giving, and his claim with regard to himself is not considered a claim. Therefore, Rabbi Eliezer ben Yaakov refers to anyone who takes an oath based on the claim of a minor as one who “takes an oath based on his own claim,” even in a case in which the minor comes and makes a claim on the basis of his father’s giving, and his claim is considered a valid claim.

But if so, over what did Rabbi Eliezer ben Yaakov and the Sages disagree, and why did the Sages exempt him and call him one who “returns a lost object”?

Rather: They disagree regarding

the principle of

Rabba’s ruling:

For Rabba said: Why did the Torah say that one who admits to part of a claim must take an oath?

After all, if he had denied the entire claim, he would have been believed even without an oath, since one who denies the entire claim is exempt from taking an oath. If so, now that he admits to part of the claim, let us believe him without an oath, since he is in the category of one who “returns a lost object.” For if he had wished to lie, he could have denied the entire claim and thereby been exempt from an oath.

Rabba answered this: He is not one who returns a lost object, because

there is a presumption that a person does not have the audacity to be brazen before his creditor.

A person does not have the audacity to deny his debt in the presence of the creditor and claim that the matter never occurred. Therefore, he is not considered one who returns a lost object. For in truth,

this one,

the person who admitted to part of the claim,

wanted to deny the entire claim.

He wanted to lie further and deny everything, but

the reason that he did not deny it

was the entire debt

is that he does not have the audacity to be brazen before his creditor

and deny the whole claim.

And since he was unable to deny the entire claim, he is not considered one who returns a lost object. He must therefore take an oath concerning his claim, because he admitted to part of it!

But if you say that we suspect him of lying, how can we believe him through his oath? For it is an established principle that one who is suspect with regard to money is also suspect with regard to an oath—

Your answer is: He is not at all suspect with regard to money,

and he wanted to admit the entire claim.

His primary desire is to acknowledge the entire claim.

And the reason that he did not acknowledge it,

the entire claim, is that he is currently unable to pay it all,

and therefore, in the meantime,

he is merely postponing him,

he is avoiding his creditor by denying part of the claim—

thinking: Until I have money, I will pay him.

His intention is to repay the debt once he has the money.

But the Merciful One said: Impose an oath upon him!

The Torah made him liable for the oath of one who admits to part of a claim,

so that he will acknowledge the entire claim,

in order that he acknowledge the entire debt.

He is not considered suspect with regard to money, since he does not intend to steal the money, but rather to return it at a later time.

From this point onward, Rabbi Eliezer ben Yaakov and the Sages disagree concerning Rabba’s statement:

Rabbi Eliezer ben Yaakov held—

it makes no difference whether it is he or whether it is his son

of the claimant—

he does not have the audacity

to deny the entire claim.

Therefore, he is not one who “returns a lost object,”

since he does not have the audacity to deny the claim.

But the Sages hold: It is in the presence

of the creditor himself

that he does not have the audacity

to deny the claim.

But in the presence of his son he does have the audacity

to deny the entire claim.

And since he does have the audacity,

and does not deny the entire claim but admits to part of it—he is

one who returns a lost object,

and is exempt by Torah law through the migo that he could have denied the entire claim.

This explains the statement of the Mishna, “One takes an oath based on the claim of a minor,” which we established according to Rabbi Eliezer ben Yaakov, who holds that “a person takes an oath based on his own claim.”

That is, the case is one of a minor who comes with his father’s claim, and the defendant is not exempt from an oath because a person does not have the audacity to be brazen even in the presence of his creditor’s son. Therefore, he is not considered one who returns a lost object, and he takes an oath.

But now the Gemara asks:

Can you establish it

our Mishna

according to Rabbi Eliezer ben Yaakov?

For it teaches

in the

first clause

of our Mishna that if the claimant demands:

“You have one hundred dinars belonging to my father in your possession,”

and the defendant answers him:

“You have only fifty dinars in my possession; you are exempt,”

the defendant is exempt

because he is one who returns a lost object.

It is thus evident that our Mishna is not according to Rabbi Eliezer, but according to the Sages, who hold that when the claimant is the plaintiff’s son, the defendant does have the audacity to deny the claim. Therefore, when he admits to part of it, he is one who returns a lost object and is exempt through the migo that he could have denied the entire claim.

This is difficult: How did we establish this Mishna according to Rabbi Eliezer, who holds that when the claimant is the son of the creditor, the defendant is not considered one who returns a lost object?

The Gemara answers:

There,

in the first clause, the case is one in which

he did not say

the claimant in his demand,

“It is certain”

that

to me

you owe my father; rather, he comes with a claim based on uncertainty.

Whenever a claimant comes with a claim based on uncertainty, the defendant should be exempt from an oath, since the Sages instituted that he is like one who returns a lost object. He is exempt for the sake of the proper ordering of society.

But

here, where the Mishna speaks of those who take an oath to a minor, the case is

one in which

the minor said:

the minor said:

“It is certain to me,”

I know with certainty, that you owe my father! Whenever a claimant comes with a definite claim, the defendant is not exempt by virtue of the Sages’ enactment; rather, he takes an oath like anyone who admits to part of a claim.

Shmuel said:

The statement of our Mishna that one takes an oath

to a minor

does not refer to the Torah oath of one who admits to part of a claim. Rather, it concerns a different oath.

That is, the Sages instituted that one who comes

to collect from the property of a minor

by means of a document that he holds against him must take an oath. For the Sages instituted that one who comes to collect from the property of orphans may collect only by taking an oath that their father had not already paid him. It is with regard to this oath that our Mishna speaks when it says that one takes an oath to a minor.

And this is likewise the explanation of the continuation of the Mishna, which says that one takes an oath

with regard to consecrated property.

That is, one takes a rabbinic oath to someone who comes

to collect

his debt

from consecrated property.

For example, the borrower consecrated to the Temple property that was subject to the lender’s lien. The lender then came to collect his debt from the consecrated property. Even in this case, the law is that he may collect from the consecrated property only by taking a rabbinic oath.

The Gemara asks: How can the statement of our Mishna be established as referring to “a minor,” meaning the oath of one who comes to collect from the property of a minor?

But this law concerning the oath of one who comes to collect from the property of a minor

we already learned

in a Mishna below: One who comes to collect

from the property of orphans may collect only by taking an oath!

Two statements,

this duplication,

why do I need it?

It teaches us

the duplication of this law teaches us

as

the ruling

of the elder Abaye.

For the elder Abaye taught: Orphans, concerning whom

the Sages

said

that one who comes to collect from them must take an oath, include even orphans who are

adults. Needless to say,

orphans who are

minors,

from whom one certainly may collect only by taking an oath.

If so, it is evident that one Mishna discusses the law of adult orphans, from whom one may collect only by taking an oath, whereas the other Mishna speaks of minors.

And the law of the elder Abaye, which the Sages instituted with regard to adult orphans, applies

both with regard to an oath

that one may collect from them only by taking an oath

and with regard to inferior-quality land,

such that one who collects from them may collect only from ziborit land.

The Gemara further asks Shmuel, who explained the statement of our Mishna,

“with regard to consecrated property,”

as referring to one who comes

to collect from consecrated property,

and may collect only by taking an oath.

But

we already learned

below:

“From liened property, one may collect only by taking an oath.”

And this law also includes one who comes to collect from consecrated property, since

what difference is there to me

whether the property is

liened to an ordinary person,

or whether it is

liened to the Most High?

In either case, he may collect only by taking an oath. If so, once again the duplication between the two Mishnayot is difficult.

And the Gemara answers:

It was necessary

to state this in the Mishna concerning one who comes to collect a debt from consecrated property!

For

it might enter your mind to say—

only

in the case of an ordinary person

did they institute an oath, since

a person engages in collusion against an ordinary person,

as when the borrower admits that, supposedly, the debt has not been repaid, and because of this the lender collects from the purchaser, and they divide between them the property that they fraudulently take from the purchaser.

And therefore the Sages instituted an oath, lest the lender and borrower engage in collusion.

But consecrated property

is not so,

for

surely

a person does not engage in collusion against consecrated property.

It could therefore be said that the Sages did not institute an oath when the lender comes to collect his debt from property consecrated to the Most High, since he certainly is truly owed the money. And we are not concerned that the lender and borrower will fraudulently collect from consecrated property.

This teaches us

that the Mishna nevertheless teaches that the Sages were concerned about collusion, and instituted that he must take an oath before collecting from consecrated property.

And this is difficult: Are we concerned that a person may engage in collusion against consecrated property?

But Rav Huna said: If a dangerously ill person consecrated all his property and said

after he had consecrated it:

One hundred dinars

is

owed to so-and-so by me,

and his debt must be paid from the property that I consecrated—

he is deemed credible!

And that other person collects his debt from the consecrated property even without an oath.

And we are not concerned that he says this in order to engage in collusion against consecrated property, and in order to divide with the lender what he collected from the consecrated property as though it were repayment of his debt, for

there is a presumption that a person does not engage in collusion against consecrated property?!

And if so, why here are we concerned about collusion against consecrated property? And the Gemara answers:

They said: That statement applies

only when we are not concerned about collusion when the statement is made by

a dangerously ill person,

since

a person does not sin for the benefit of someone else,

as he is inclined to die and his property will belong to others; therefore, we are not concerned that he will sin for the sake of the property of others.

But

with regard

to

a

healthy

person who comes to collect from consecrated property and take the property for himself,

we are certainly concerned

that the two of them may engage in collusion, and that the borrower will admit that he has not yet repaid the debt—even though he already repaid it—in order to extract money from the consecrated property and divide it between them. We are certainly concerned about this!

Mishna:

And these are matters concerning which one does not take an oath:

slaves and documents,

land,

and consecrated property.

In all these cases, one does not take an oath concerning them—not the oath of one who admits to part of a claim and not the oath of bailees.

Similarly,

there are no

in the case of slaves, documents, land, and consecrated property—

double payments

for their theft,

nor fourfold or fivefold payments

if he slaughtered or sold an animal belonging to consecrated property.

And likewise,

an unpaid bailee

who received all these items into his possession for the purpose of guarding them

does not take an oath

the oath of bailees that he was not negligent with them if they were stolen or lost. Whereas

a [

bailee]

paid bailee does not pay

for them, even if he did not guard them in accordance with the requirements applicable to a paid bailee.

Rabbi Shimon says: Consecrated animals for which he bears liability,

such as when he vowed to bring an offering, set aside an animal as he vowed, and gave it to another person to guard—

one takes an oath concerning them.

Although they are consecrated to the Temple, and one does not take an oath concerning consecrated property, since Rabbi Shimon holds that an item that causes monetary benefit is considered equivalent to money, and he bears liability for them, the term “his fellow” applies to them, and they are considered his property; therefore, one takes an oath concerning them.

But consecrated animals

for which he does not bear liability,

even according to Rabbi Shimon,

one does not take an oath concerning them.

Rabbi Meir says: There are items that are attached to the ground,

on the one hand, because they are attached to the ground, but on the other hand

they are not considered land! And the Sages do not agree with him

in this matter.

How

is their dispute expressed?

The claimant said:

I gave you ten grapevines laden with grapes,

full of clusters of grapes,

and the other

the bailee

says: There were only five,

Rabbi Meir obligates him to take an oath,

like anyone who admits to part of a claim, since he admitted to five out of the ten that the claimant demanded, and Rabbi Meir holds that “anything destined to be harvested is considered as though it has already been harvested.” Since these laden grape clusters are destined to be harvested, their status is as though they had already been harvested. Therefore, they are considered movable property and not land, and for this reason one takes an oath concerning them.

And the Sages say: Anything attached to the ground,

even if it is destined to be harvested,

is considered land!

Ultimately, it is land, and one does not take an oath concerning it.

One takes an oath only concerning an item

that is defined

by a

specific

measure, weight, or number!

How

is a defined claim, and how is a claim that is not defined? For example:

A house full

of grain and produce

I gave you

as a deposit.

And I gave you a pouch full

as a deposit, and the other says:

I do not know

how much you deposited with me,

but whatever you deposited—

you may take!

The bailee is exempt from the oath of one who admits to part of a claim.

And even if it is found that the grain in the house does not fill it, since the bailee did not admit to something defined by measure, weight, or number, but made an unspecified admission, saying, “Whatever you deposited, you may take.”

But if

this

claimant

says:

I deposited with you a houseful of grain that reaches

up to the beam

protruding from the wall,

and this

bailee

says: The grain reaches only

up to the window

and no farther—

he is liable

to take an oath! This is because the claim “up to the beam” is a defined claim, since he does not merely claim, “A houseful.” The one who admits likewise makes a defined claim, “up to the window.” Therefore, both the claim and the admission are defined by measure, and he is liable to take the oath of one who admits to part of a claim.

Gemara:

We learned in our Mishna: In the case of slaves, documents, land, and consecrated property, there are no

double payments.

From where do we derive

this law?

As the Sages taught:

It is stated in the passage concerning an unpaid bailee, with regard to the double payment imposed upon a thief or upon a bailee who falsely claims that the deposit was stolen [who claims that the deposit was stolen from him]—and the theft is found in his possession: “Concerning every matter of transgression—concerning an ox, concerning a donkey, concerning a sheep, concerning a garment—concerning every lost item.”

And the Gemara interprets this verse:

“Concerning every matter of transgression”—

a generalization.

“Concerning an ox, and concerning a donkey, and concerning a sheep, and concerning a garment”—

a specification.

“Concerning every lost item”—

it returned and generalized.

And it is an established principle that when the Torah states a law in this manner—first the verse mentions a “generalization” [a general expression, such as “concerning every matter”], then a specification [particular and detailed items], and then the verse returns and generalizes—we derive from it by means of the principle of “generalization, specification, and generalization,” one of the principles by which the Torah is expounded.

And this is how it is expounded:

“A generalization, a specification, and a generalization: you may derive only items similar to the specification.”

That is, the “generalization,” which refers to every item that was stolen and for whose theft one seeks to impose a double payment, is judged according to the “specification,” namely, the items detailed in the verse!

And therefore, the thief is liable to a double payment only when he stole an item similar to the specification in the verse—

Just as the specification

detailed in the verse [an ox, a donkey, a sheep, and a garment] is

an item that is movable property and itself has monetary value, so too, anything that is movable property and itself has monetary value

makes the thief liable for a double payment.

This excludes land,

for one who steals it is exempt from a double payment, since

it is not

movable property,

this excludes slaves, which were equated with land,

and their law is the same as that of land,

and likewise

this excludes documents, which, although they are movable property,

and for this reason one might have been liable for them, nevertheless

the documents themselves do not constitute money! [

For they exist only as evidence.]

And likewise, one who steals from

consecrated property

does not pay a double payment, since “when a man gives to

his fellow,” it is written

in that passage, and consecrated property is not included within the category of “his fellow.”

And we further learned in the Mishna:

“but not fourfold or fivefold payments,”

And the Gemara explains:

What is the reason

that he does not pay fourfold or fivefold payments if he stole one of all these and slaughtered it or sold it?

The Torah states: “fourfold or fivefold payments,” but not threefold or fourfold payments!

Since the thief is exempt for them from the double payment, without the double payment he pays only threefold or fourfold.

This is because the obligation to pay fourfold or fivefold payments includes: a. payment of one animal for the principal; b. one animal as the double payment; c. two or three, in accordance with the law of fourfold or fivefold payments.

And if he is exempt from the double payment, it follows that he pays threefold or fourfold, and this is not what the Torah obligated him to pay!

And likewise we learned:

“An unpaid bailee does not take an oath,”

From where are these matters derived?