Shevuot 47a (מז.) — the Talmud in English

The answer is:

The tanna

in our Mishna taught

the oath of vainness

and anything similar to it!

And even an oath of expression that one swore concerning the past is likewise false like it. And one who swears it falsely is also included among all those suspected of violating an oath, whom our Mishna enumerated.

We learned in our Mishna:

If one of them was a dice player—

the other, against whom the claim was made, takes an oath and collects!

And the Gemara asks:

Why do I need this additional case?

We already learned that one who swears falsely and one who lends with interest are disqualified, did we not?

The answer is:

The tanna taught a disqualification by Torah law. And

for this reason

he teaches

also the disqualification of a dice player, whose disqualification is

by rabbinic law.

But by Torah law, this is not considered robbery.

We learned in our Mishna:

If both of them were suspected—

the oath returns to its place; this is the statement of Rabbi Yosei. Rabbi Meir says: They divide it!

Rava said to Rav Naḥman: How do we learn it?

How do you recite the wording of the Mishna? Does Rabbi Yosei say that they divide it, or does Rabbi Meir say that they divide it?

He said to him,

Rav Naḥman:

I do not know!

Rava returned and asked him:

What is the halakha?

He said to him: I do not know!

It was stated: Rav Yosef bar Minyomi said that Rav Naḥman said—

Rabbi Yosei says: They divide it! And likewise Rav Zevid bar Oshaya taught—

Rabbi Yosei says: They divide it!

Some say: Rav Zevid taught in the name of Rabbi Oshaya—

Rabbi Yosei says: They divide it! Rav Yosef bar Minyomi said: Rav Naḥman carried out a practical ruling—

They divide it!

And Rav Naḥman acted in accordance with Rabbi Yosei and ruled that they divide it!

We learned in our Mishna:

The oath returns to its place!

And the Gemara asks:

To where did

the oath return?

And it answers:

Rabbi Ami said:

Our Sages in Babylonia said: The oath returns to Sinai!

That is to say, the oath has returned, and the court does not administer an oath to him, nor do they collect money from him. Rather, he is bound by the oath of Mount Sinai with which the Holy One, blessed be He, adjured Israel concerning “You shall not rob.” And he will exact payment from the one who denies owing money to his fellow!

Our Sages in Eretz Yisrael said: The oath returns to the one obligated by it—

to the defendant who admitted to part of the claim; and since he is unable to swear, he pays!

Rav Pappa said: Our Sages in Babylonia

are

Rav and Shmuel.

Our Sages in Eretz Yisrael

are

Rabbi Abba.

The proof that “our Sages in Babylonia” are Rav and Shmuel is from this teaching,

as we learned:

And likewise orphans

who come to collect their father’s debt

may not collect

from the defendant who owes the debt

except by means of an oath!

And we considered it: From whom

will they collect by means of an oath?

If you say

that they collect

from the borrower

and collect money that their father lent to this borrower, by means of the promissory note in their possession, and this is what was stated—that they must swear the Mishnaic oath that their father did not inform them and did not tell them that this debt had been repaid—this is puzzling. Why must they swear? Their

father,

the orphans’ father, if he had been alive, would have

taken

his debt

without an oath. And they,

the orphans, are we to require them to collect only

by means of an oath?

Rather, this is what it means: And likewise orphans,

the orphans of the lender, who come to collect

from the orphans

of the borrower—

may collect only by means of an oath.

And Rav and Shmuel both say: They taught

this law, that orphans collect from orphans by means of an oath,

only

in a case

where

the

lender died during the lifetime of the

of the

borrower.

When his sons inherited the debt, their father was not yet obligated to take an oath, since the borrower was still alive.

But

if

the borrower died during the lifetime of the

of the

lender, the lender had already become obligated to take an oath to the borrower’s sons,

since anyone who comes to collect from the property of orphans may collect only by means of an oath.

And

the law is that

a person may not bequeath

money concerning which he was obligated to take

an oath to his sons.

The borrower’s sons are exempt from both an oath and payment.

We therefore learn that anyone who is obligated to take an oath but cannot do so—neither he nor the opposing party can swear—does not swear, and the claimant does not collect. Rather, the oath returns to Sinai, and the lender’s heirs lose the money.

The same is true when both parties are suspected with regard to an oath: Since neither the claimant nor the defendant can swear, the claimant loses!

It is thus clear that Rav and Shmuel hold that one who is obligated to take an oath but cannot swear is exempt. The oath returns to Sinai.

And

our Sages in Eretz Yisrael,

who hold that when one is obligated to take an oath but cannot swear, the oath returns to the one obligated by it, and since he cannot swear, he pays—this refers to

Rabbi Abba!

The proof is the incident involving

a certain man who seized a silver ingot from his fellow [

a man seized a piece of silver from his fellow ].

The robbed party came

the victim

before Rav Ami,

and at that time

Rabbi Abba was sitting before him,

sitting before Rav Ami.

He brought,

the robbed party brought

one witness

who testified

that he had seized it

the piece of silver from him

from him.

The robbed party demanded that he return the stolen property.

He said to him,

the one who seized it:

Yes, I seized it,

I indeed admit that I seized this object from you, which you are claiming. But

I seized what was mine.

The piece of silver was mine, and I seized my own property!

Rabbi Ami said: How shall the judges judge this case? [

How will the judges decide this difficult case, as will be explained below? ] Perhaps

we should say to him,

to the one who seized it:

Go and pay,

since he himself admitted that he seized it; and if there had been two witnesses to the seizure, he would no longer have been believed to say, “I seized what was mine.” For anyone who seizes an object from another is presumed to be a robber until he brings proof that the object is indeed his.

Therefore, now too, when he admits to the seizure, he is not believed to say that he seized his own property. And apparently the law should be that he return it—is it not the case that

there are not two witnesses

who testify that he seized it?

For this reason, we should believe him by means of a migo, since he could have claimed, “I did not seize it,” and would have been believed. Therefore, it is impossible to tell him to pay.

If so,

let us exempt him,

since he has a migo: Had he said, “I did not seize it,” he would have been exempt. If so, he should be believed when he says, “I seized what was mine,” and be exempt,

However, this too is impossible, since

there is one witness

who testifies that he seized it, and consequently he does not have the migo that he could say, “I did not seize it.” For had he said this, the one witness would have contradicted him, and he would have been obligated to take an oath to contradict the witness.

If so, apparently

we should say to him,

to the one who seized it,

Go and swear

against the testimony of the witness, since the witness obligates him to take an oath.

However, this too is impossible,

since he said

and admitted that

he did seize it—

he thereby confirms the witness’s statement that he indeed seized it. He cannot swear the oath imposed upon him by the witness, namely, that he did not seize it. And for this reason,

this means that

this one who seized it is

like a robber,

who is prepared to swear but cannot swear because he is disqualified from taking an oath.

Similarly, this one who seized the object was also prepared to swear against the witness. But he cannot swear, since he admits to the seizure itself; he merely claims that he seized what was his.

Rabbi Abba said

to Rav Ami: The law is as follows—

The one who seized it was

the one who seized it

obligated to take an oath but unable

to swear; and anyone obligated to take an oath who cannot swear—

pays.

And according to Rabbi Abba, it can be said that even where both the claimant and the defendant were disqualified with regard to the oath, since he is unable to take the oath, he pays.

This is what they said: “Our teachers in Eretz Yisrael” refers to Rabbi Abba: The oath returns to the one obligated to take it, and since he is unable to take the oath, he pays.

Rava said: In accordance with Rabbi Abba

who said that one who is obligated to take an oath but is unable to take it pays—

it stands to reason.

As Rabbi Ami taught: “The oath of the Lord shall be between them,”

between the two litigants, when they are both present before us,

and not between the heirs!

And the Gemara asks:

What are the circumstances

of the obligation to take an oath between the heirs, which was excluded by the above verse? And the Gemara discusses this:

If you say

that the exclusion applies to a case

where he said to him

the creditor’s heir says to the borrower’s heir:

A maneh

there was

with my father

and he gave it

to your father,

and he said to him,

the borrower’s heir:

Fifty

[half a maneh] I know that

he has,

for he received them from your father as a loan,

and fifty

I know that he

does not have,

for he received from him only the fifty that I admitted to you; and it is concerning this case that the exclusion was stated, that the heir does not take an oath—

This matter is perplexing, since

what difference is it whether it is he or his father,

for since he admits to half of the loan and makes a definite claim that he does not owe the other half, he is one who admits to part of the claim. Why, then, is he exempt from taking an oath?

Rather, is it not

certain that the son must take an oath in this case? The exclusion was stated with regard to a different case—

namely,

where he said to him,

the creditor’s heir says:

A maneh

there is

with my father in the possession of your father. He said to him,

the borrower’s heir:

Fifty

of this maneh

I know

[I know that my father borrowed it from your father],

and I do not know about fifty

[I do not know whether he borrowed it or not]. In such a case, the heir should be exempt from both the oath and payment of the remaining fifty that he is claiming from him, because he is not knowledgeable about his father’s affairs.

From this, one may now infer from the words of Rabbi Ami in accordance with the words of Rabbi Abba: One who is obligated to take an oath but is unable to take it pays: