and where it could be maintained that the whole amount is due solely to that party Symmachus abides by the principle that 'Disputed money of doubtful ownership should be divided without an oath', how much more readily would he abide by that principle in a case where [as in our Mishnah] it can be said that the disputed object belongs to both [and that therefore it should be divided between them without an oath]? It can still be maintained that our Mishnah is in agreement with Symmachus. For the oath imposed upon disputants in our Mishnah is only rabbinical [not Biblical].1 This is expressly maintained by R. Johanan. For R. Johanan says: This oath is an institution of the Sages, intended to prevent anyone from going out and seizing a neighbour's garment, declaring it to be his own.
Shall it be assumed that our Mishnah is not in agreement with R. Jose? For does not R. Jose say:2 If so, what loss does the fraudulent claimant incur? Therefore let the whole amount be retained [by the Court] until 'the coming of Elijah'?3 But [as a counter-question] would not the same difficulty arise in regard to the Rabbis [who are opposed to R. Jose]? For seeing that these Rabbis maintain that the balance4 should be retained [by the Court] until 'the coming of Elijah'. would they not accordingly give the same decision concerning the disputed garment [in our case], which is like the disputed balance [in the other case]? — What a comparison! In the other case, where it is certain that the disputed balance belongs to one of the claimants only, those Rabbis rightly decided that the amount in question should be retained till 'the coming of Elijah'; whereas here [in our Mishnah], where it can be assumed that the garment belongs to both,5 the [same] Rabbis would agree that it should be divided among the two claimants when they have taken the oath. But in regard to R. Jose the argument is the other way. If R. Jose decided in his case, where each claimant is undoubtedly entitled to one hundred [zuz],6 that the money should be retained till 'the coming of Elijah', how much more readily would he decide so in our case [where it can be assumed that only one of the disputants is entitled to have the garment]? — The Mishnah can still be in agreement with R. Jose. For in his case one of the disputants is bound to be a fraud,7 whilst in our case no one can say for sure that one of the disputants is a fraud,8 as it is possible that both picked up the garment simultaneously. If you wish it, I could argue thus: In his case, R. Jose penalised the fraudulent claimant [in making him forfeit his hundred] so that he may confess the truth, but in our case [where the dispute is about a found article] what real loss would the fraudulent incur [on the garment being forfeited] that could induce him to confess the truth?9 [But the question arises:] Assuming this argument is right with regard to a found article, how can it apply to a bought article?10 The first answer is hence the best.11
[Now the question arises:] According to the views of either the Sages or R. Jose [who agree that the fraudulent person should not be allowed to benefit by his fraud] how is it that in the case of the shopkeeper and his credit-book12 the decision is that both take the oath and receive payment [from the householder] and we do not say that the money should be taken from the householder and retained [by the Court] until 'the coming of Elijah', since it is certain that one of the parties13 is guilty of fraud? — In this case there is a special reason for the decision given. The shopkeeper can say to the householder: 'I carried out your instructions — what have I to do with your employee? Even if the employee swears — I do not believe his oath. You trusted him, in that you did not tell me to give him the goods in the presence of witnesses.' The employee, on the other hand, can say [to the householder]: 'I have done the work for you — what have I to do with the shopkeeper? Even if he swears — I do not believe him.'14 Therefore they both swear and receive payment from the householder.
R. Hiyya taught: [If one says to another,] 'You have in your possession15 a hundred zuz belonging to me', and the other replies, 'I have nothing belonging to you', while witnesses testify that the defendant has fifty zuz belonging to the plaintiff; the defendant pays the plaintiff fifty zuz, and takes an oath regarding the remainder,16 for the admission of a defendant ought not to be more effective than the evidence of witnesses,17 a rule which could be proved by a Kal wa-homer.18 And our Tanna teaches this: WHEN TWO HOLD A GARMENT AND ONE OF THEM SAYS 'I FOUND IT' ETC. … [BOTH HAVE TO SWEAR]. Now this is just the same [as the case where there are witnesses], for when we see a person holding a garment we presume that it is his, and we are in the position of witnesses who can testify that each claimant is entitled to the half he is holding. And yet each claimant has to swear.
Now why is it necessary to prove by means of a Kal wa-homer that the admission of a defendant ought not to be more effective [in imposing an oath on the defendant] than the testimony of witnesses? — [It is necessary for this reason:] In the case of a [partial] admission [of a claim] you might say that the Divine Law19 has imposed an oath upon him for the reason indicated by Rabbah.20 For Rabbah said: The reason the Torah has declared that he who admits part of his opponent's claim must take an oath21 is the presumption that nobody would take up such an impertinent attitude towards his creditor [as to give a complete denial to his claim]. The defendant [in this case] would have liked to give a complete denial, but he has not done so because he has not been able to take up such an impertinent attitude.
Baba Mezi'a 3b
On the other hand, it may be assumed that the defendant would have been ready to admit the whole claim,1 and that he has not done so because of a desire to put the claimant off for a time, thinking: 'When I shall have money, I shall pay him.' Therefore the Divine Law imposes an oath upon him, so that he may admit the whole claim. But as regards the testimony of witnesses, where this argument does not apply,2 I should have thought that no oath ought to be imposed. Therefore it is necessary to prove by a Kal wa-homer that in this case also an oath is to be imposed. And what is the Kal wa-homer? — [It is as follows:] If [the words of] his own mouth,3 which do not oblige him to pay money, make it necessary for him to take an oath, how much more ought the evidence of witnesses, which obliges him to pay money, make it necessary for him to take an oath? But is it right to say that [the words of] his own mouth do not oblige him to pay money — in view of [the established principle] that the admission of a defendant is equal to the testimony of a hundred witnesses? — What is meant by the payment of money is the payment of a fine.4 [And the Kal wa-homer is as follows:] If [the words of] his own mouth, which do not oblige him to pay a fine, make it necessary for him to take an oath, how much more ought the evidence of witnesses, which obliges him to pay a fine, make it necessary for him to take an oath? [But then it could be argued:] Does not a person's own mouth carry more weight [than the evidence of witnesses] in that it can oblige him to bring an offering,5 while the evidence of witnesses does not oblige him to bring an offering?6 — This objection is not valid: R. Hiyya is of the same opinion as R. Meir, who says that witnesses do make it necessary for the offender to bring an offering, [and he infers it] by means of a Kal wa-homer. For we learnt:7 When two persons say to a third person: 'You have eaten forbidden fat [unawares]', but he says: 'I have not eaten any'. R. Meir maintains that he is obliged to bring an offering, but the Sages8 declare him free. R. Meir argues: If two [witnesses] can bring upon an offender such a severe penalty as death, should they not be able to bring upon him the light penalty of an offering? To this the Sages oppose the argument: Had he desired [to prevaricate] he could have said, 'I did it deliberately', and he would have been free [from bringing an offering].9
But [the argument continues]: Does not a person's own mouth carry more weight [than witnesses] in that it can oblige him [in a case of confession after denial on oath] to bring a guilt-offering?10 But [it is immediately objected]: A guilt-offering is also an offering [and this argument has already been dealt with]! — Then [put it this way]: Does not a person's own mouth [in a case of confession after a denial on oath] carry more weight than witnesses, in that it can oblige him to pay a 'fifth'?11 — This objection is not valid: R. Hiyya is of the same opinion as R. Meir, who says that just as witnesses oblige the offender to bring an offering — because of the Kal wa-homer inference — they also oblige him on the same ground to bring a 'fifth'. But [it can still be objected]: Does not a person's own mouth [in the case of the admission of a debt] carry more weight [than the evidence of witnesses] in that it cannot be refuted by a denial or an alibi proof12 on the part of witnesses, while the evidence of witnesses can be refuted by a denial or an alibi proof on the part of other witnesses? — [The Kal wa-homer must] therefore be derived from 'one witness': If one witness, whose evidence does not oblige a defendant to pay money, obliges him to take an oath,13 how much more should several witnesses, whose evidence does oblige a defendant to pay money, oblige him to take an oath. But [it can be objected]: The oath that is imposed by the evidence of one witness refers only to the part of the debt to which the witness testifies [and which the defendant denies],
- To Next Folio -