Shevuot 44b — the Talmud in English

For it was stated: A finder of a lost object.

A person who found a lost object and watches over it by force of the mitzva of returning a lost object,

Rabba said:

his status is

that of a gratuitous bailee

and he is exempt in a case of theft and loss,

and Rav Yosef said:

his status is

that of a paid bailee—

by virtue of the reward of the mitzva.

And according to this, the dispute of the tannaim is as follows: Rabbi Eliezer held like Rabba, for he is only a gratuitous bailee; therefore the lender swears that he was not negligent and takes his money. Whereas Rabbi Akiva held like Rav Yosef, that he is liable for theft and loss by the law of a paid bailee.

Rather, now it is necessary to be uncertain: It is certain that Rabbi Akiva does not hold Rabba’s ruling, since Rabbi Akiva obligates the lender with regard to the pledge. But is it possible to establish Rav Yosef’s words also according to Rabbi Eliezer, and they did not dispute his words, or

shall we say

that his status

according to Rav Yosef

is a dispute among

tannaim

?

And the Gemara resolves:

No,

the words of Rav Yosef were not disputed

with regard to a finder of a lost object

who is occupied with a mitzva.

Everyone holds Rav Yosef’s position,

that he is a paid bailee in exchange for the mitzva, and he is liable for theft and loss.

And here,

with regard to a lender

who needs the pledge

to use it, and through this he deducts from the borrower’s debt the rental value of the pledge. And in this manner

they dispute.

One master,

Rabbi Akiva held

he performs a mitzva,

since while he is using the pledge, the debt is continually decreasing, and it is a mitzva. And he is a paid bailee on account of this mitzva.

And the other master,

Rabbi Eliezer,

held

where the lender uses [the pledge] for himself—

he does not perform a mitzva.

Since he intends for his own benefit. And therefore he is a gratuitous bailee.

And the Gemara still clarifies:

shall we say

that Samuel’s words—that if the lender lost the pledge, he lost the loan, even if the pledge was worth less than the loan—

are like these

tannaim:

One who lends money to his fellow against a pledge, and the year of

the

Shemitta

[and the law is that a loan against a pledge is not canceled by the Sabbatical year, since the verse “he shall not press” does not apply to it, for he does not press him but collects from the pledge],

even though it is not worth

the pledge

more than half

of the debt—

it is not canceled

[below it will be explained whether the intention is that it does not cancel that half or the entire debt]

the words of Rabban Shimon ben Gamliel.

Rabbi Judah the Prince says: If his pledge was equal to his debt, it is not canceled. And if not, it is canceled.

And the Gemara analyzes this:

What is the meaning of “it is not canceled” that the first tanna says? If you say

that it is not canceled only

corresponding to it

of the pledge, but it does cancel the remainder of the loan against which there is no pledge,

by implication, Rabbi Judah the Prince

who disagreed and said that if the pledge is not equal to the entire debt, it is canceled,

held “corresponding to it”

of the pledge

is also canceled,

and the entire debt is canceled, including that which corresponds to it—the half against which there is a pledge.

And if so, this is difficult:

Rather, why does he seize

the lender

the pledge,

for there is a pledge against half the debt, and why should he not seize half the debt through it, and it would not be canceled?

Rather, is it not

that when the first tanna says that if there is a pledge against half of it, it is not canceled, this means

against the whole [debt].

And this is in accordance with Samuel, who holds that although the pledge is not worth the entire debt, it is considered as though it were worth the entire debt. And the borrower need not return anything to him from the debt until he returns the pledge to him. Therefore, it is not canceled at all.

And they dispute with regard to Samuel’s [ruling]:

For the first tanna holds like Samuel: even if the pledge is worth half, he does not cancel the entire debt. And Rabbi Judah the Prince does not hold Samuel’s ruling; therefore, he does not cancel except corresponding to the amount that the pledge is worth.

And the Gemara rejects:

No,

none of these tannaim holds like Samuel. And the first tanna also holds that

in every case, corresponding to it,

only the portion of the debt against which there is a pledge is not canceled. For the pledge made against half of the debt does not thereby become a pledge for the entire debt.

And in this they dispute: The first tanna holds, “corresponding to it.”

That is, corresponding to the pledge it is not canceled, while the remainder is canceled.

And Rabbi Judah the Prince held

that even

corresponding to it

of the pledge

is also canceled.

For this pledge does not make the debt as though it had been collected into his hand.

And when you say—

for what purpose does he seize the pledge,

if not for the purpose that the debt should be as though it had been collected into his hand?

Your answer is:

as a mere record of matters,

so that there should be between them, between the lender and the borrower, a reminder of the debt, and not as a pledge for collection. Therefore, since it is not called as though it had been collected into his hand, the entire debt is canceled.

We have completed upon you the chapter “The Oath of the Litigants.”

In the previous chapters, the laws of an oath from the Torah were explained, which one takes in order to be exempt from a monetary claim. For example, a bailee who claims that he did not lay his hand upon the object deposited with him, but rather it was lost from him through unavoidable circumstances, takes the bailee’s oath in order to be exempt from paying for the object. And so is the law with all the oaths that are from the Torah: the oath is not in order to extract money, but only in order to be exempt from payment.

Below, in the Gemara (45a), this matter will be learned from the verse stated concerning the bailee’s oath (Exodus 22:10), “Its owner shall take it, and he shall not pay.” And the Gemara expounds: “Its owner shall take it”—the owner of the deposit shall take the oath from the bailee; and consequently, “he shall not pay”—the bailee, since he is exempted through this oath.

And the Sages added and instituted the “oath of those who take,” [called the “Mishna’s oath,” whose law and reasons are explained below, in the Mishna and Gemara]. And through this oath, those enumerated in the Mishna below can take money through their oath, and not merely be exempt from the claim.

Mishna:

All those who take oaths in the Torah, who are obligated in an oath from the Torah [namely, bailees, one who admits to part of the claim, and one against whom there is one witness],

take an oath

in order to be exempt

, and do not pay!

There is no oath from the Torah in order to take money through it; rather, anyone who takes an oath from the Torah takes it only in order to be exempt from a monetary claim.

However, the Sages instituted that, in certain circumstances, it should be possible to take an oath and take money through an oath, as the Mishna explains below.

And these

are the claimants of money for whom the Sages instituted that they

take an oath

an oath by rabbinic ordinance,

and take

money through it:

the hired laborer, the robbed person, and the injured person, [

below the Mishna will explain the circumstance and the law under which each of these takes an oath and takes].

And

so too with every claimant who obligates the defendant to take an oath, and the defendant was

s

standing

opposite him, suspected with regard to an oath.

For example, one who was claiming against his fellow, and the defendant admitted to part of the claim and became obligated in an oath, and the defendant, who stood opposite the claimant, was suspected with regard to an oath and consequently cannot take an oath—the Sages instituted that the claimant take an oath and take!

And

so too is the law with

the shopkeeper

who records the customers’ debts

in his ledger,

and below the Mishna explains the circumstance in which he is entitled to take an oath and take.

The hired laborer

mentioned above, who takes an oath and takes,

how

is this law fulfilled with regard to him?

He said to him,

the worker, the hired laborer, to the householder:

Give me my wage that you have in your possession

because of my work for you! And

he,

the householder

says:

Already

I gave you

your wage

. And

if

the other,

the worker,

says: I did not take it!

he,

the hired laborer

, takes an oath

that he did not receive his wage

and takes

it from the householder. And this is the oath of those who take that was stated in our Mishna: that the hired laborer takes an oath and takes.

Rabbi Yehuda says:

this hired laborer does not take an oath and take, but only

until there is there a partial admission!

How? -

],

He said to him,

the hired laborer:

Give me my wage

in the amount of

fifty dinars

of silver

that I have in your possession. And he, the house

holder

says: You received a dinar

of gold worth twenty-five silver dinars.

Thus, the householder admits to part of the hired laborer’s claim, and consequently becomes obligated in an oath from the Torah, since he admitted to part of it.

And Rabbi Yehuda holds that only in such a case did the Sages institute transferring the oath—that is, taking it from the defendant and imposing it upon the claimant as an oath by rabbinic ordinance, so that he can take his wage through it.

And so is the law, according to Rabbi Yehuda, with all those about whom the Mishna said that they take oaths and take: they take an oath only if there was a partial admission there!

And so we learned above that the

robbed person takes an oath and takes.

How? -

whose laws and rationales are explained below, in the Mishna and Gemara. Through this oath, those listed in the following Mishna can take money by means of their oath, and not merely be exempt from the claim.

There were

witnesses

testifying concerning him,

the robber,

that he entered the house

of the robbed person

to take security from him

to take objects from him as security for his loan debt, and he did this

without permission.

The witnesses did not see with how many objects, or which objects, he left the house of the robbed person; rather, they saw only that he entered with empty hands and left with utensils thrust between the folds of his garment.

He

the robbed person

says: You took my utensils. And he

the robber

says: I did not take

anything!

Thus

he,

the robbed person,

takes an oath and takes

what he claims was robbed from him, for the witnesses testify that he took security from him and took from him without permission. [

And concerning the utensils that he took as security, there is no disagreement between them. Rather, the robbed person claims that he took additional things and hid them beneath the folds of his garment, and therefore the witnesses did not notice them. And they obligate the robber to pay through the oath of the robbed person, because the witnesses saw the robber enter to take security unlawfully.

Therefore, there is room for the robbed person’s claim that he robbed additional things from him that are unrelated to the security and the loan. And therefore they instituted that the robbed person take an oath and take].

Rabbi Yehuda says:

the robbed person does not take an oath and take, but only

until there is there a partial admission.

How

will this admission be? -

He said to him,

the robbed person:

You took two utensils

in addition to the security,

and he

the robber

says: I took only

one utensil,

one!

And he admits to part of the robbery claim that the robbed person makes against him. And he is therefore obligated in the Torah oath of one who admits to part of the claim.

And therefore the Sages transferred the oath and imposed it upon the robbed person, that he take an oath by rabbinic ordinance and take.

The injured person,

whom we learned above takes an oath and takes,

how?

There were

the witnesses

testifying concerning him

the injured person,

that he entered under the hand

of the one who injured him while he was

whole

in his body, without injury,

and left

from the hands of the one who injured him while he was

injured.

And the witnesses did not see the act of injury itself, but saw only that he emerged injured,

and he said to him

the injured person:

You injured me!

And you are obligated to pay me compensation for the damage of my injury!

And he says: I did not

injure

you; rather, you were injured by yourself!

This one

the injured person

takes an oath

that the one who injured him injured him,

and takes

from him compensation for his injury.

Rabbi Yehuda says:

the injured person does not take an oath and take compensation for the injury, but only

until there is there a partial admission!

How? -

Mishna:

He said to him,

the injured person:

You injured me twice.

Two injuries.

And the other

the one who injured

says: I injured you only once.

The one who injured is therefore obligated in the Torah oath, since he admitted to part of the claim. And the Sages transferred the oath and imposed it upon the injured person, and he takes the compensation for the injury. And so we learned

“the one opposite him is suspected with regard to an oath,”

when a person is sued and becomes obligated in an oath to his fellow, and he is suspected with regard to an oath [as the Mishna explains below] -

Thus he, the claimant, takes an oath and takes.

How?

By what does the defendant become suspected concerning an oath?