Shevuot 42b — the Talmud in English

But the Gemara argues that it is impossible to establish this explanation, 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 that such a matter should be defined as one who “swears on the claim of himself,” since “the claim of others and his own admission” is.

But behold,

all of them

, all the claims concerning which one becomes liable because of an admission concerning part [of the claim]—

are also the claim of others and his own admission!

And what is [the meaning of] that which Rabbi Eliezer said, “There are times when a person swears on the claim of himself”? Behold, in all claims and admissions it is so! Therefore, the Gemara retracts [its previous explanation] and says that indeed this is not referring to an adult who comes with his father’s claim; rather, the case under discussion is one in which a genuine minor claims against him.

However, this is not referring to an ordinary claim of a minor. For we already learned in the first clause that “one does not swear on the claim of a minor,” since his giving [of the money] is not considered giving, until his claim is considered a claim sufficient to impose an oath concerning his admission and denial.

Rather, the case under discussion is one of a minor who comes with his father’s claim. And his claim is a claim, since his father’s giving [of the money] is giving.

And that which Rabbi Eliezer said, “There are times when a person swears on the claim of himself,” is because ordinarily a minor’s giving is not giving, and his claim concerning himself is not a claim. Therefore Rabbi Eliezer ben Yaakov calls everyone who swears on the claim of a minor one who “swears on the claim of himself,” even in a case in which the minor comes and claims by virtue of his father’s giving, and his claim is a claim.

However, if so, in what do 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 concerning

the ruling of

Rabba:

For Rabba said: Why did the Torah say that one who admits to part of the claim must swear?

Behold, if he had denied everything, he would have been believed even without an oath. For one who denies everything is exempt from an oath. If so, now, when he admits to part [of the claim], let us believe him even without an oath, since he is in the category of “one who returns a lost object.” For if he had wanted to lie, he would have denied everything and been exempt from an oath.

And concerning this Rabba answered that he is not one who returns a lost object. For

there is a presumption: a person does not have the audacity to face his creditor.

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

this one,

the one who admitted to part [of the claim],

wanted to deny all of it.

He wanted to lie further and deny everything,

and the fact that he did not deny it

—the entire debt—was

because he does not have the audacity to face his creditor

and deny everything.

And since he was unable to deny everything, he is not considered one who returns a lost object. And he is obligated to swear concerning his claim, because he admitted to part [of it]!

And if you will say: If we suspect him of lying, how will we believe him through his oath? Behold, we hold that one who is suspected concerning money is also suspected concerning an oath—

Your answer: He is not at all suspected concerning money,

and he wanted to admit the whole of it to him.

His primary desire is to admit to the entire claim.

And the fact that he did not admit it to him,

the whole [claim], is because at present he is unable to pay the whole [amount].

And therefore, in the meantime,

he is merely evading him,

he is evading his creditor by denying part [of the claim]—

he thought: Until I have money, I will pay him.

And his intention is to repay his debt when he has the money.

And the Merciful One said: Place an oath upon him!

The Torah obligated him in the oath of one who admits to part [of the claim],

so that he will admit it all to him,

so that he will admit the entire debt.

And he is not considered suspected concerning money, for he does not intend to steal the money, but rather to return it after some time.

And from now on, Rabbi Eliezer ben Yaakov and the Sages disagree concerning Rabba’s words:

Rabbi Eliezer ben Yaakov holds—

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].

And the Sages hold: It is before his face

of the creditor himself

that he does not have the audacity

to deny [the claim].

But before his son he does have the audacity

to deny everything.

And since he does not have the audacity,

and does not deny everything but admits to part [of the claim]—behold,

he is one who returns a lost object,

and is exempt by Torah law through the migo of one who denies everything.

And now the words of the Mishna, “They swear on the claim of a minor,” are explained—we established them according to Rabbi Eliezer ben Yaakov, who holds that “a person swears on the claim of himself.”

That is, [the case is] a minor who comes with his father’s claim, and he is not exempt from an oath, since a person does not have the audacity even before the son of his creditor. Therefore he is not like one who returns a lost object—and he swears.

But now the Gemara asks:

Can you establish it

for our Mishna

according to Rabbi Eliezer ben Yaakov?

For it teaches

in the

first clause

of our Mishna: If the claimant claimed from him:

“A hundred dinars are owed to my father by you.”

And the defendant answered him:

“You have only fifty dinars in my possession; he is exempt,”

the defendant

“because he is one who returns a lost object,”

And it is proven that our Mishna is not according to Rabbi Eliezer, but according to the Sages, who hold that concerning the claimant’s son, the defendant does have the audacity. Therefore, when he admits, he is one who returns a lost object and is exempt through the migo that he could have denied everything.

And it is difficult: How did we establish this Mishna according to Rabbi Eliezer, who holds that if the claimant is the son of the creditor, he is not one who returns a lost object?

And the Gemara answers:

There,

in the first clause, it is referring to a case

where he did not say

the claimant in his claim:

“It is certain”

and certain

to me

that you owe my father, but he comes with an uncertain claim.

And anyone who comes with an uncertain claim, the defendant should be exempt from an oath, since the Sages enacted that he is like one who returns a lost object. And he is exempt for the sake of the betterment of the world.

But

here,

where the case is one of those who swear to a minor,

the minor said

:

“It is certain to me,”

it is certain to me, that you owe my father! And whenever the claimant comes with a certain claim, the defendant is not exempt by the enactment of the Sages; rather, he swears like anyone who admits to part [of the claim].

Shmuel said:

That which our Mishna said, they swear

to a minor,

does not refer here to the Torah oath of one who admits to part [of the claim]. Rather, it is referring to another oath.

And it is this: By rabbinic enactment, they impose an oath upon one who comes

to collect from the property of a minor

by means of a document that he has against him. For the Sages enacted that one who comes to collect from the property of orphans may collect only through an oath that his father did not yet repay him! And it is concerning this oath that our Mishna speaks when it says that they swear to a minor.

And likewise is the explanation of the continuation of the Mishna, that they swear

to consecrated property.

That is, they swear a rabbinic oath to one who comes

to collect

his debt

from the property of consecrated property.

For example, the borrower consecrated to consecrated property assets that were subject to a lien for the lender. And the lender came to collect his debt from the consecrated assets; even in this case, the law is that he may collect from the consecrated property only through a rabbinic oath.

And the Gemara asks: How is it possible to establish the words of our Mishna, “to a minor,” as referring to the oath of one who comes to collect from the property of a minor?

But surely 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 through an oath?!

Two [teachings],

this duplication,

why do I need it?

It teaches us

that the duplication of this law teaches us

like

the words

of the elder Abaye.

For the elder Abaye taught: Orphans, concerning whom

the Sages said

that

one who comes to collect from them is obligated to swear, are even orphans

who are adults. And it is not necessary to say

orphans

who are minors,

for certainly one may collect from them only through an oath.

And if so, it is explained that one Mishna discusses the law of adult orphans, from whom as well one may collect only through an oath, whereas the other Mishna speaks of minors.

And the law of the elder Abaye, which the Sages enacted for adult orphans, applies

both with regard to an oath

—that one may collect from them only through an oath—

and with regard to inferior-quality land,

for one who collects from them collects only from inferior-quality land.

And the Gemara further asks Shmuel, who explained the words of our Mishna,

“to consecrated property,”

as referring to one who comes

to collect from the property of consecrated property,

that he may not collect except through an oath.

But

we already learned

below:

“From liened property, they may collect only through an oath.”

And this law also includes one who comes to collect from the property of consecrated property, for

what difference is there to me

between property

liened to an ordinary person,

and what difference is there to me

between property

liened to the Most High? From both he may collect only through an oath. If so, once again the duplication in these two Mishnayot is difficult?

And the Gemara answers:

It was necessary

for the Mishna concerning one who comes to collect from consecrated property!

For

it might enter your mind to say—

only

an ordinary person

is one for whom they instituted an oath. Since

a person makes a ruse against an ordinary person,

that the borrower will admit that, supposedly, the debt has not been repaid, and because of this the lender will seize property from the purchaser, and they will divide between themselves the property that they fraudulently take from the purchaser.

And therefore the Sages instituted an oath, lest the lender and the borrower make a ruse.

But consecrated property

is not so,

for

surely

a person does not make a ruse against consecrated property.

And it could 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 truly owes him. And we are not concerned that the lender and the borrower will collect from consecrated property fraudulently.

It teaches us this

Mishna: nevertheless, the Sages were concerned about a ruse, and instituted that he must swear before collecting from consecrated property.

And it is difficult: are we concerned lest a person make a ruse against consecrated property?

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

after he consecrated it:

A maneh

there

is owed to so-and-so by me,

and he must pay his debt to him from the property that I consecrated—

he is trusted!

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

And we are not concerned lest he says this in order to make a ruse against consecrated property and in order to divide with the lender who collected from the consecrated property as though it were for his debt, for

there is a presumption that a person does not make a ruse against consecrated property?!

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

They said: These words

that we are not concerned about a ruse apply only when he says this as

a dangerously ill person,

since

a person does not sin for someone who is not himself,

for 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 certainly are concerned

lest the two of them make a ruse, and the borrower will admit that he has still not repaid the debt—even though he has already repaid it—in order to take money from the consecrated property, and they will divide it between themselves. And about this we certainly are concerned!

Mishna:

And these are the matters concerning which one does not swear:

slaves and documents,

and land,

and consecrated property.

With regard to all these, one does not swear either the oath of one who admits to part of the claim or the oath of bailees.

And likewise

there are no

among slaves, documents, land, and consecrated property—

double payments

for their theft,

nor fourfold and fivefold payments,

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

And likewise

an unpaid bailee

who received all these into his possession in order to guard them,

does not swear

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

a [

bailee]

for wages does not pay

for them, even if he did not guard them according to the law of a paid bailee.

Rabbi Shimon says: Consecrated animals for which he is liable,

such as when he vowed to bring an offering, set aside an animal as he vowed, and gave it to his fellow in order that he guard it—

one swears concerning them.

Although they are consecrated to consecrated property, and one does not swear concerning consecrated property, nevertheless, since Rabbi Shimon holds that something that causes monetary liability is considered like money, and he is liable for them, “his fellow” can be applied to it, and they are like his property; therefore, one swears concerning this.

But consecrated animals

for which he is not liable,

even according to Rabbi Shimon—

one does not swear concerning them.

Rabbi Meir says: There are matters that are on land,

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

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

in this matter.

How

is their dispute?

The claimant said:

I gave you ten laden grapevines,

full of clusters of grapes,

and the other

the bailee

says: They are only five,

Rabbi Meir obligates an oath,

according to the law of anyone who admits to part of a claim, since he admitted to five out of the ten that he claimed, and Rabbi Meir holds that “anything destined to be harvested is considered as though harvested.” And since these laden clusters are destined for harvesting, their law is as though they had been harvested. Therefore, they are considered movable property, and not land, and for this reason one swears concerning them.

And the Sages say: Anything attached to the land

even if it is destined for harvesting—

is like land!

For ultimately it is land, and one does not swear concerning it.

One swears only concerning something

that is defined

by a measure

of a specific kind

and by weight and by number!

How

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

a house full

of grain and produce

I gave you

for safekeeping.

And a purse full I gave you

for safekeeping, and the other says:

I do not know

how much you deposited with me,

but whatever you deposited—

you take!

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

And even if it turns out that the grain in the house does not fill it, for the bailee did not admit to something defined by measure, weight, or number, but merely made an unspecified admission: “Whatever you deposited, you take.”

But if

this

claimant

says:

a house full of grain reaching

up to the lintel

that projects from the wall I deposited with you,

and this

bailee

says: the grain reaches only

up to the window

and no farther—

he is liable

for an oath! Because the claim “up to the lintel” is a defined claim, since he does not make the vague claim “a house full.” And the one who admits likewise makes a defined claim, “up to the window”; therefore, the claim and the admission are defined by measure, and he is liable for the oath of one who admits to part of a claim.

Gemara:

We learned in our Mishna: slaves, documents, land, and consecrated property—there are no

double payments concerning them.

From where do we derive

this law?

For the Sages taught:

It is written in the passage concerning an unpaid bailee, with regard to the obligation of a thief or of a bailee who makes the claim of a thief [who claims that the deposit was stolen from him] to pay double—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” (Exodus 22:8).

And the Gemara expounds:

“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’s law is stated in this manner, that at first the verse states a “generalization” [a general expression, such as “concerning every matter”], and afterward a specification [specific and detailed things], and afterward the verse again generalizes, we derive from it by the hermeneutical principle of “generalization, specification, and generalization,” which is one of the principles by which the Torah is expounded.

And this is how it is interpreted:

“A generalization, a specification, and a generalization: you judge only what resembles the specification.”

That is, the “generalization,” which is every item that was stolen and for whose theft you wish to obligate a double payment, is judged as resembling the “specification,” namely, the things specified in the verse!

And for this reason, the thief is liable for a double payment only when he stole something that resembles the specification in the verse—

What is the specification

specified in the verse [an ox, a donkey, a sheep, a garment]? It is

something movable and whose substance is money; likewise, anything movable and whose substance is money—

the thief is liable for a double payment.

Land is excluded,

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

they are not

movable property,

slaves are excluded, for they were compared to land,

and their law is like its law,

and likewise

documents are excluded, for although they are movable property,

and on this account one might be liable for them, nevertheless,

their substance is not money! [

for they serve only as proof].

And likewise, one who robs from

consecrated property

does not pay double, since “When a man gives to

his fellow,” it is written

in that passage. And consecrated property is not included within “his fellow.”

And further we learned in the Mishna:

and not four and five,

And the Gemara explains:

What is the reason

that he does not pay four-and-five payments if he stole one of all these and slaughtered it or sold it?

The Merciful One said, “four-and-five payments,” and not three-and-four payments!

Since the thief is exempt for them from double payment, it follows that without the double payment he pays only three or four.

And this is because the obligation to pay four-and-five includes within it: a. payment for one animal on account of the principal; b. one animal as double payment; c. two or three, according to the law of four-and-five.

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

And likewise we learned:

an unpaid bailee does not swear,

From where are these matters?