Shevuot 46b (מו:) — the Talmud in English

And he said:

the one who took them: “These utensils

are purchased property in my possession,”

because I bought them from him—he is not deemed credible, even with an oath.

But this statement

that he is not deemed credible when he says, “They are purchased property in my possession,”

applies only

when—

a. This concerns

a homeowner who is not accustomed to selling his utensils. But

if

the homeowner is accustomed to selling

his

utensils—

he is deemed credible

when the one who took them says, “They are purchased property in my possession,” since presumably he acquired them from the homeowner.

b.

And

even with regard to a homeowner

who is not accustomed to selling his utensils, the statement likewise applies only

that he is not

deemed credible

when he says, “They are purchased property in my possession,”

when

he took

objects that people do not generally

take

to conceal

under the folds of a garment.

Since he concealed them, it is evident that he took them unlawfully, and for that reason he hides these objects.

Therefore, when these two deficiencies are present in the one who took them—(a) he took them from a homeowner who is not accustomed to selling his utensils, and (b) he took objects that are not ordinarily concealed—he is not deemed credible!

But

if he took

objects that people generally conceal

under the folds of a garment, he is

deemed credible.

Since he acted as people ordinarily act, his conduct does not indicate that he took them unlawfully.

c.

And

with regard to utensils

that people do not generally conceal, [namely,

if he concealed them, as was explained above, he is not deemed credible,]

the statement likewise applies

that he is not deemed credible because he concealed them only when the one who took them is

a person who is not discreet,

meaning that he ordinarily walks in the marketplace with his possessions exposed in his hands and does not make a practice of concealing them. Here, when he concealed the objects he took, it is therefore evident that he took them unlawfully, and for that reason he concealed them.

But

when the one who took them is

a discreet person,

who ordinarily conceals his possessions, he is deemed credible when he says, “They are purchased property in my possession.” Since

that is his usual practice,

this is the way he handles his possessions when they are concealed with him. Consequently, his concealing them is not evidence that he took the utensils unlawfully.

d.

And the statement

that the one who took them is not deemed credible [even when the homeowner is not accustomed to selling his utensils, even when the objects are not ordinarily concealed, and even when he himself does not ordinarily conceal possessions],

applies only

when

this one,

the homeowner, says that they are

loaned objects

in the possession of the one who took them—that he did not sell them to him, but lent them to him.

And this one,

the one who took them,

says that they are purchased property

in his possession, and not loaned property.

But with regard to

a case where the homeowner claims that

they are stolen,

saying, “You stole them from me,”

he has no authority to establish this claim;

the homeowner is not deemed credible. Because

we do not establish a person as a thief,

we do not presume the man to be a thief—

we do not establish him as such!

e.

And the statement

that the one who took them is not deemed credible to say in all these cases, “They are purchased property in my possession,”

applies only to objects that are ordinarily lent or rented.

The homeowner claims that he lent them to him and did not sell them to him. In such a case, he is not deemed credible, since it is evident that these utensils are in his possession as loaned objects and not as purchased property.

But

if the one who took them is holding

objects that are not ordinarily lent or rented, the one who took them is deemed credible,

even if they are concealed, and even though he is a person who is not discreet.

The homeowner cannot claim against him, “I lent them to him.”

Rav Yehuda brings proof for his statement:

For Rav Huna bar Avin sent:

If one is holding

objects that are ordinarily lent or rented,

and the claimant who seeks to remove those utensils from him claims that he lent them to him, while he,

says, ‘They are purchased property in my possession,’

he is not deemed credible!

As in the case where Rava removed a pair of wool-shearers [Rava removed a pair of shears used by wool workers]

and books of aggada

[and books of aggada] from

orphans.

The claimant claimed that he had lent these utensils to their father, and even brought witnesses that they had belonged to him. Rava removed them from the orphans because these objects were

objects that are ordinarily lent or rented.

This proves that the father of the orphans was not deemed credible to claim, “They are purchased property in my possession,” even with an oath. For had he been deemed credible, we would have made the claim on behalf of the orphans that the objects had been purchased by their father and would have exempted them.

It follows that with regard to objects ordinarily lent or rented, the holder is not deemed credible to claim, “They are purchased property in my possession.”

Rava said:

The law that we learned above—that the robbed party takes an oath and collects—does not apply only to the robbed party, such that only he can take an oath and collect.

Rather,

even a watchman

of the house who witnessed the robbery

takes an oath

concerning it, and the watchman’s oath is sufficient to remove the objects from the robber’s possession.

And likewise,

even the wife of a watchman takes an oath!

Rav Pappa raised a dilemma: His hired worker,

a permanent employee of the homeowner,

and

likewise

his day laborer,

who is a temporary worker—both of whom live in the homeowner’s house but are not responsible for his possessions.

What is

the halakha? Can they too take an oath against the robber and remove the objects from his possession?

The Gemara concludes:

Teyku!

Rav Yeimar said to Rav Ashi: If the homeowner claimed

against the robber

with

the claim, “You took from me

a silver cup,”

a silver cup of considerable value,

what is

the halakha? Is the claimant deemed credible to take even such expensive utensils through an oath?

Rav Ashi answered him:

I see: If

the homeowner

is a wealthy person, or

if he

is a trustworthy person,

and therefore

people entrust valuables to him,

entrusting him with expensive utensils and relying on him because of his trustworthiness, then

he takes an oath and collects. But if not—

if he is neither wealthy nor trustworthy and is not entrusted with other people’s property—

no!

We learned in our Mishna:

The injured party—how so?

Rav Yehuda said that Shmuel said: They taught

that the injured party must take an oath in order to collect the payment for his injury from the one who injured him

only

if the injury was

in a place

on his body

where he could injure himself.

For this reason, it is possible that he injured himself. Therefore, he collects payment for the injury only through an oath.

But

if the injury was

in a place where he could not injure himself, he collects without an oath!

The Gemara asks:

And

even if the injury was in a place where he could not injure himself, why does he collect without an oath?

Let us be concerned that perhaps he rubbed himself against a wall,

and was injured as a result, and not by the person who injured him?

The answer is:

Rabbi Hiyya taught:

Our Mishna is speaking of a case in which the injury was as follows:

Witnesses saw him enter his house whole and leave injured, for example,

a bite appeared on his back, and between

[or between]

the elbows

[the elbows]

of his arms.

There is no possibility of attributing this injury to rubbing against a wall. In such a case, he collects without an oath!

The Gemara raises an objection:

Perhaps someone else caused him

this injury, and not the person making the claim?

The answer is:

There is no other person

besides him! We learned in our Mishna:

And when the opposing party is suspected

of violating an oath,

even a vain oath.

The Gemara asks:

What is the meaning of ‘even a vain oath’?

The answer is:

It states the matter by way of ‘it is not necessary.’ It is not necessary

to say that those suspected of

these

oaths—the oaths mentioned in the Mishna, the oath of testimony and the oath concerning a deposit —

which involve monetary denial,

because one who takes these oaths, in addition to taking a false oath, is denying a monetary claim. For one who denies a claim under the oath of testimony,

that is, he swears to his fellow that he does not know testimony that he could give on his behalf, thereby causing his fellow to lose money. And likewise, one who denies a deposit—that is, his fellow claims money that he deposited with him, and he denies having it and swears to that effect, thereby causing him to lose money]—

It is therefore not only one who swears falsely with these oaths who is deemed suspect and may not take an oath again,

but even

one who is suspect with regard to

that

a vain oath—for example, one who swears that a stone is gold; this is a vain oath

also

is disqualified from taking an oath. Despite the fact that

it is merely a denial of words,

and he caused no monetary loss but merely swore an oath without qualification, once again

he is not trustworthy,

having become suspect on account of this oath.

If so, the Gemara asks:

let him teach also,

that one who is suspect with regard to an oath of expression is disqualified from taking an oath—for example, one who swore that he would eat, or one who swore that he would not eat and violated this oath

.

The Gemara answers:

When the Mishna teaches that one is suspect with regard to an oath, it is referring to

an oath

such

that when he swears,

at the time he takes the oath, it is known to the one swearing that -

he is swearing falsely [For example, an oath of testimony, where at the time he swears he knows that he can testify, but nevertheless swears that he has no knowledge of testimony.

And in the case of an oath of deposit, he knows that the deposit is in his possession, but nevertheless swears that it is not in his possession. Likewise, in the case of a vain oath, he knows that he is swearing falsely

].

But with regard to an oath of expression, where it is possible to say

that at the time he swore

that he

was indeed

swearing truthfully,

and his intention was not to lie with his oath, since he could fulfill and carry out what he swore to do—and only afterward did his evil inclination mislead him into violating his oath. And such an oath, which was not false from the outset—

when he took the oath,

and he did not intend to lie in his oath, since he was able to fulfill and carry out what he had sworn. Only afterward did his inclination mislead him into violating his oath. And with regard to such an oath, which was not false from the outset—

it did not teach

in the Mishna; and even if he violated it, he is still not suspect with regard to an oath! But this is difficult:

this works

when he swore an oath of expression concerning the future—that is, he swore

“I will eat,” and [

or

“I will not eat” ]

since when he swore, it was possible that he intended to fulfill his oath.

But when he swore concerning the past,

“I ate,” and [

or

“I did not eat,” ]

since already at the time he swore he knew that he was swearing falsely—

what can be said?

Why was it not mentioned in the Mishna that he became suspect on account of this oath?