Shevuot 48a (מח.) — the Talmud in English

And

one

of the witnesses

says:

I saw the moon

two

marda'ot—the length of the ox-goad—above the ground, at the edge of the firmament

high.

A marda'a is an ox-goad. It is a long stick sharpened at its tip, with which they would prod the animals. This implement had a fixed measure, and therefore the witnesses assessed the height of the moon as so-and-so many marda'ot]

And one

of the witnesses

says:

I saw it

three marda'ot high; their testimony is valid.

Since such an error—from two marda'ot to three marda'ot—is a minor error in which people are liable to err, and they did not intend to lie.

However, if

one says:

The moon was

three

marda'ot high,

and

one witness

says that it was

high

five marda'ot, their testimony is void!

For they contradicted one another. There is no reasonable possibility of erring by so great a difference, and therefore one of them is certainly lying.

However,

each of them may join

with another witness

for different testimony

with other witnesses.

And now this is difficult:

Is it not so

that when we said that each of them may join with another witness for different testimony, the intention was presumably that each may join even

for monetary testimony,

despite the fact that they contradicted one another?

If so, this is difficult according to Rav Ḥisda, who maintains that whenever witnesses contradict one another, they are disqualified for every testimony in the world.

The answer is:

Rava said:

When we said that they may join for different testimony, this does not mean that they may join for other testimony in the world.

Rather,

he and

another

witness

who was not with him in this testimony concerning the new moon

may join for other testimony concerning this new moon

.

That is, if another witness comes and joins the statement of one of these witnesses who contradicted one another, and testifies in accordance with him, then in this manner he is deemed trustworthy.

Since

there are two of them,

that is, two witnesses—the first who initially testified

and

the second, who has now joined him—and opposite them there is

one—

the one witness whom they previously contradicted.

And the statement of one cannot stand in place of two.

However, certainly these two witnesses who contradicted one another may not join together for other testimony.

We learned in our Mishna:

The homeowner said

to

the shopkeeper: Give me produce worth a dinar,

and he gave it to him. The shopkeeper said to the homeowner: Give me the dinar that you owe me in payment for the produce.

The homeowner said to him: I gave it to you! The homeowner must take an oath that he gave him the dinar.

It was taught in a beraita: Rabbi Yehuda said: When

is the homeowner obligated to swear that he indeed paid the dinar

?

When the produce is piled up and lying there, and both of them

are asserting claims concerning it

regarding the payment.

The homeowner claims that he already paid, whereas the shopkeeper claims that he has still not received payment.

However,

if the homeowner has already

slung it

in his

pouch behind him,

he has already acquired possession of the produce and is exempt from the oath. And if the shopkeeper wishes to take the dinar from him, then:

The burden of proof rests upon the one who seeks to take property from his fellow!

We learned in our Mishna:

He said to the money changer: Give me

coins worth a dinar, and he gave them to him. He said to him: Give me the dinar. He said to him: I gave it to you, and you placed it in your cloak-pouch—the homeowner must swear, etc.

This is difficult. Is this law not already explained in the earlier Mishna, concerning a homeowner who purchased produce from a shopkeeper? Why does the Mishna need to add this example of a money changer and a homeowner?

The answer is:

It is necessary!

The Mishna needs to repeat and state this law both with regard to a shopkeeper and with regard to a money changer.

Because

if it had taught us

only

the first one,

the law concerning the shopkeeper, we might have said that

in this case,

only in this case,

the Rabbis say

that the homeowner must swear,

because produce is liable to spoil. [

Produce is liable to rot easily and quickly.]

And since it is liable to spoil, he does not leave it with him. [

And since it would rot, the shopkeeper does not retain it in his possession,]

and therefore it may be said that the shopkeeper cast it into the purchaser’s vessels even before the purchaser paid him, so that the matter would be concluded quickly and he would not retract from the purchase.

But as for coins, which do not spoil, one might say

that

the Rabbis concede

to

Rabbi Yehuda,

who maintains that it is not the practice of a money changer to give the coins before he receives the dinar.

And if so, the homeowner would be exempt from an oath. Therefore, the law concerning the money changer was also stated, to teach us that even in this case the Rabbis dispute Rabbi Yehuda and maintain that the homeowner must swear.

However, if so, why do we need the law concerning the shopkeeper?

The answer:

And if it had been stated in this case,

if only the law concerning the money changer had been stated, and not the law concerning the shopkeeper, we might have said that only

in this case,

with regard to the money changer,

Rabbi Yehuda says

that he is exempt from an oath.

But in that case,

with regard to the shopkeeper,

one might say that

Rabbi Yehuda

concedes to the Rabbis

that the homeowner is obligated to swear, since presumably the shopkeeper gave the produce to the homeowner before the homeowner paid him, and for this reason—

it is necessary!

Both of these cases and laws are necessary.

We learned in our Mishna:

Just as they said that a woman who partially admits her marriage settlement

may not collect it without an oath, etc.,

so too, orphans may collect only by means of an oath.

And the Gemara asks:

From whom

may the orphans collect only by means of an oath?

The Gemara analyzes:

If you say

that the orphans of the

lender

may not collect except by means of an oath, this cannot be!

For

their father collected without an oath, and they must collect with an oath?

Rather,

this is what it says: And similarly, the orphans

of the lender, when they come to collect

from the orphans

of the borrower,

may collect only by means of an oath.

And what is their oath? That their father did not instruct them that this document had been paid. Therefore, they collect on the basis of the document, since ordinarily a debt documented in a document has not been paid.

Rav and Shmuel both said: They taught

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

only

when

the lender died during the borrower’s lifetime.

Only afterward did the borrower die.

However,

when

the borrower

died

during the lender’s lifetime,

and

the lender had already become obligated to the borrower’s sons to swear

that the borrower had not paid him—[as is the law with anyone who comes to collect from the property of orphans, that he may collect only by means of an oath]—and afterward the lender died—

the lender’s sons do not collect by means of an oath.

And a person cannot bequeath an oath to his sons!

Because they cannot take the oath that their father was obligated to take—that is, that he had not been paid by the borrower.

They sent

this question

before Rabbi Elazar: What is the nature of this oath?

That is, why should the lender’s orphans lose the debt, and why should we not have them take the heirs’ oath, “We were not instructed by our father that this document had been paid,” and allow them to collect by means of this oath?

He sent them word

Rabbi Elazar: Indeed,

the heirs

of the lender

take the heirs’ oath and collect

from the borrower’s orphans! Rabbi Elazar disputes Rav and Shmuel and maintains that the orphans do inherit their father’s debt, even though they must swear concerning it!

They again

sent

this question

in the days of Rabbi Ami. Rabbi Ami said

that

all this

effort they had made,

sending and going

with this question!

For

if we found a rationale for it, would we not send it to them?

Rather, Rabbi Ami said: Since it has come into our hands,

since the question concerning this law of the heirs’ oath has come before us,

let us say something about it:

If, after the borrower died,

the lender stood

before

the court

and brought a claim against the borrower’s orphans, and the court obligated him to take an oath, as is the law of one who comes to collect from heirs,

and the lender died

—

then

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

in court,

and a person cannot bequeath

money concerning which there is an obligation of

an oath to his sons.

However, if

the lender did not stand

and did not bring a claim against the borrower’s orphans

in court, and died,

then the

heirs

of the lender

take the heirs’ oath

that their father did not instruct them—

and collect!

Since no obligation to take an oath had yet fallen upon their father. Consequently, they are not inheriting money concerning which he was obligated to take an oath.

Rav Naḥman raised an objection: Is it the court that obligates him to take an oath? [

Does the court obligate the lender to swear to the borrower’s orphans in order to collect?]

For

from the time [

the moment]

that he died [

the borrower died,]

the lender became obligated to the borrower’s sons to take an oath.

There is no need for a court ruling in order to obligate him to take an oath. From the moment the borrower dies, he cannot collect from the heirs except by means of an oath?

Rather, Rav Naḥman said: If the ruling of Rav and Shmuel exists—

it exists!

The heirs do not collect by means of an oath, whether their father stood in judgment or whether he did not.

And if the law of Rav and Shmuel does not exist—

it does not exist!

it does not exist!

Now, Rav Naḥman’s statement does not indicate whether the halakha follows Rav and Shmuel or not.

The Gemara proves from this:

Apparently, it is uncertain to him,

as Rav Naḥman is uncertain whom the halakha follows.

If so, this is difficult:

But Rav Yosef bar Minyomi said: Rav Naḥman put the matter into practice

when both parties—the claimant and the defendant—were suspect with regard to an oath, and neither was able to swear. Rav Naḥman ruled:

They divide!

And if so, likewise, with regard to orphans who come to collect from orphans, where neither is able to swear, according to Rav Naḥman the ruling should be that they divide, contrary to Rav and Shmuel. Why, then, is Rav Naḥman uncertain whether the halakha follows them or not?

The answer: Rav Naḥman

was speaking in accordance with the position of Rabbi Meir,

who said in our Mishna that the oath returns to its place;

he was saying

that if the ruling is in accordance with Rav and Shmuel, then it exists, and if it is not, then it does not exist.

Indeed, according to Rabbi Meir, one should be uncertain as Rav Naḥman was uncertain: Does the halakha follow Rav and Shmuel, that the oath returns to its place and he does not collect at all, or is the law not in accordance with Rav and Shmuel, but rather the oath returns to the one obligated to take it, and since he cannot swear, he pays?

However:

And as for him,

Rav Naḥman himself—

he does not hold

like Rabbi Meir. Rather, he maintains the position of Rabbi Yosei in our Mishna, and the law is that if they cannot swear, they divide!

And for this reason Rav Naḥman put the matter into practice—that they divide!

Rav Oshaya raised an objection:

A widow who did not collect her marriage settlement after her husband’s death, and returned to her father’s house without demanding support from the orphans, and ultimately

died

without collecting her marriage settlement—the law is that

her heirs

of that widow

mention

and claim and collect her marriage settlement from the husband’s heirs

for twenty-five years

from the husband’s death.

If so, it is proven that the orphans collect the marriage settlement from the husband’s heirs. But if this widow had been alive, she could have collected only by means of an oath, as is the law with anyone who comes to collect from orphans.

And if so, her heirs too would collect by means of an oath. And it is proven that a person bequeaths an oath to his sons, contrary to Rav and Shmuel?

And the resolution:

What are we dealing with here? That

already

swore

the widow to the orphans—

and died

after taking the oath. And when her heirs come to collect, they do not need to take an oath, since they collect by virtue of their mother’s oath.

The Gemara brings proofs from several places contrary to Rav and Shmuel:

Come and hear: He married

a

first wife, and she died.

He married

a

second wife, and he died.

Now his second wife wishes to collect her ketuva, while the heirs of his first wife wish to take the inheritance.

The

second wife and [

or]

her heirs take precedence over the heirs of the first wife.

Since the heirs of the second wife are coming to collect the ketuva, payment of the ketuva debt must precede distribution of the inheritance.

But it is difficult: Why do the heirs of the second wife collect the ketuva? After all, their mother was subject to an oath to the heirs of the first wife, and a person does not bequeath an oath to his sons?

And the resolution:

Here too,

the case is one in which the woman had

already sworn

the wife,

and died

after taking the oath. And now the orphans collect by virtue of their mother’s oath.

Come and hear:

One who wrote to his wife: “I have no claim of a vow or an oath against you or your heirs” — he may not make her swear, nor her heirs; and they collect whatever they claim, even without an oath.

But

if he dies, then

his heirs make her and her heirs and those who come under her authority swear.

That is, those who purchased her ketuva from her and collect it for themselves. And all of these take an oath to the heirs, since he alone exempted them from an oath, but not his heirs.

And from the statement that his heirs make her heirs swear, so that her heirs may collect her ketuva, it is proven that a person bequeaths an oath to his sons, contrary to Rav and Shmuel?

And the resolution:

Rav Shemaya said—

it is taught with regard to different cases:

That is, the law that his heirs make them swear does not apply to every statement in the beraita. Rather, it is as follows:

His heirs make

her

herself swear—

in the case of a widow,

when she comes to collect the ketuva from the orphans; and this oath is stated only with regard to her. However, if she herself dies, her heirs cannot take an oath to his heirs and collect their mother’s ketuva!

And

as for

her heirs—

in the case of a divorcee.

That is, the oath mentioned in the beraita with regard to her heirs applies only when he made her ketuva a debt owed to her by divorcing her during his lifetime.

And if so, she could have collected the ketuva even without an oath. The case is one in which she died before him, and her sons inherited the money of the ketuva without any obligation of an oath applying to it. Her heirs take an oath to his heirs by virtue of the rule that anyone who comes to collect from the property of orphans may collect only by means of an oath. But this is not an obligation of an oath that they inherited from their mother!

Rav Natan bar Hoshaya raises an objection:

It is stated in a beraita:

The son’s power is greater than the father’s power.