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Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 5a

Now according to him who says that 'Here they are' does not require an oath, why is it necessary to derive from a Scriptural verse the exemption of land from the law of oath,1  since all land [available to the creditor is as if the debtor said,] 'Here they are'?2  — He can answer you: The derivation from the Scriptural verse is necessary where [the debtor] has dug pits, ditches and caves [thereby destroying the value of the land], or where one claims vessels and land, and the claim in regard to the vessels is admitted, while the claim in regard to the land is disputed.3

Come and hear: Rami b. Hama teaches: Four kinds of bailees require to put forward a partial denial and a partial admission [in order to be liable to an oath]: the gratuitous bailee, the borrower, the paid bailee, and the hirer.4  How is it to be understood? Is it not that the bailee says to the claimant, 'Here it is'?5  — No. [It refers to a case where] the owner says to the bailee, 'I handed you over three cows, and they have all died through your negligence', while the bailee says to the owner, 'One I never received; one died through an accident, and one has died through my negligence, for which I am willing to pay you', so that it is not like [an offer to return the animal by saying.] 'Here it is.'

Come and hear what the father of R. Apotoriki taught, as a refutation of the first [law of] R. Hiyya: [If one says to another,] 'You have a hundred [zuz] in your possession belonging to me', and the other says, 'I have nothing belonging to you,' and witnesses testify that the defendant owes the plaintiff fifty [zuz] — I might think that the defendant ought to swear regarding the rest; therefore the Scriptural text tells us, for any manner of lost thing, whereof he saith that it is this,6  [indicating thereby that] you impose [an oath] on him7  in consequence of his own admission, but you do not impose [an oath] on him in consequence of the evidence of witnesses!8  — Do you wish to refute R. Hiyya by citing a Baraitha [that contradicts his view]? R. Hiyya is a Tanna, and he may disagree with it. But [the Baraitha] quotes a Scriptural text? — That [text] refers to one who admits part of the claim. And the father of R. Apotoriki?9  — He will answer you: [The text] says, it, and it also says, this10  — one term is [meant to apply] to him who admits part of the claim, and the other [is meant to indicate] that in the case of witnesses giving evidence [regarding part of the disputed claim] the defendant is free from taking an oath]. And the other?11  — He applies one term to him who admits part of the claim, and the other [he utilises for the purpose of proving] that the admission [of part of the claim involves an oath only if the admission] refers to the same kind of object as is claimed [by the plaintiff]. And the other?12  — He does not share the view that the admission has to refer to the same kind of object, for he is of the opinion of Rabban Gamaliel, as we have learned:13  If the plaintiff claims wheat, and the defendant admits barley, the defendant is free [from taking an oath], but Rabban Gamaliel obliges [the defendant to take an oath].14

There was a shepherd to whom people entrusted cattle every day in the presence of witnesses. One day they handed it over to him without witnesses. Subsequently he gave a complete denial [of the receipt of the cattle]. But witnesses came and testified that he had eaten two of the cattle. Said R. Zera: If the first [law of] R. Hiyya is valid, [the shepherd] ought to swear regarding the remainder.15  Abaye, however, answered him: If [the law were] valid, would [the shepherd be allowed to] swear? Is he not a robber?16  — [R. Zera] replied: I mean, his opponent should swear.17  But even if R. Hiyya's law is rejected, should we not impose an oath [upon the claimant] because of the view of R. Nahman, as we have learned:18  [If one says to another,] 'You have in your possession a hundred [zuz] belonging to me,' and the other says, 'I have nothing belonging to you,' he is free [from taking an oath]; but R. Nahman adds: We make him take 'an oath of inducement'?19  — R. Nahman's rule is [only a Rabbinical] provision, [made irrespective of the law],

To Part b

Original footnotes renumbered.
  1. V. Shebu. 42b; infra 57b.
  2. As land cannot be removed it is always at the disposal of the creditor.
  3. The admission as regards the vessels is not the equivalent of 'Here they are', and the conclusion drawn from the Scriptural verse is necessary to let us know that such a 'partial admission' cannot impose an oath on the disputed landed property, though forming part of the one claim.
  4. V. B.K 107a; infra 98a.
  5. The 'partial admission' can only refer to the animal which the bailee admits to have in his possession, and which he is ready to return to the owner. This is like saying, 'Here it is,' and yet the bailee has to swear.!
  6. Ex. XXII, 8. The term 'It is this' is construed as implying a partial admission. V. Shebu. 39b; B. K. 107a.
  7. V. infra 41b.
  8. This is a direct contradiction to the ruling of R. Hiyya, according to which the evidence of witnesses regarding part of a disputed claim causes an oath to be imposed on the defendant, as inferred by means of a Kal wa-homer from 'partial admission'. V. supra 3a-4a.
  9. How can he apply the text to exclude the case where witnesses give evidence?
  10. [H] one particle of which is superfluous.
  11. R. Hiyya.
  12. The father of R. Apotoriki.
  13. V. infra 100b; B. K. 35b; Shebu. 38b and 40a; cf. Keth. 108b.
  14. If the claim is for wheat, and the admission is for barley, it is not considered a 'partial admission' and does not involve an oath.
  15. For when the denial is partly contradicted by witnesses R. Hiyya imposes an oath.
  16. Who is likely to commit perjury, hence cannot be given an oath. R. Hiyya's law refers to a debt, or pledge, which the defendant denies, not because he has misappropriated it, or used it for himself, but because he does not find it convenient to repay or replace it just then, and intends to do so later. He therefore cannot be regarded as a robber.
  17. And receive payment. v. Shebu. 44b.
  18. Shebu. 38b.
  19. Although no oath is to be imposed on the defendant who denies the whole claim, a Rabbinical oath is put on him in order to induce him to admit the truth, as it is assumed that no one will sue a person without cause.
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Baba Mezi'a 5b

and we do not add one provision to another provision.1  But why not consider the fact simply that he is a shepherd, and Rab Judah says that a shepherd [generally speaking] is unfit [to take an oath]?2  — This presents no difficulty: That case [referred to by Rab Judah,] is one of [a shepherd who feeds] his own flock [and is therefore tempted to let them trespass], but this case [regarding which Abaye asks his question,] is one of [a hired shepherd who keeps] other people's flocks [and has no occasion to trespass]. For if this were not so, how could we entrust cattle to any shepherd? Is it not written, Thou shalt not put a stumbling block before the blind?3  But the presumption is that a man will not commit a sin unless he stands to profit by it himself.4

HE SHALL THEN SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, etc. Does he swear regarding the part which is his, or regarding the part which is not his?5  — R. Huna answers: He has to say, 'I swear that I have a share in it, and that it is not less than half.'6  But let him say, 'I swear that it is all mine!'7  — Do we give him all of it?8  Then let him say, 'I swear that half of it is mine!'-He would impair his own words.9  But does he not now also impair his own words?10  — [No!] He says, 'It is all mine,' [and he adheres to his claim]. But [he adds]. 'According to you, [who do not accept my contention,] I swear that I have a share in it, and that it is not less than half.' But [it is again asked]: Since each one stands [before the Court] holding [the garment], what need is there for this oath? R. Johanan answered: This oath is an institution of the Sages, intended to prevent people from going out and seizing their fellow's garment, declaring it to be their own.11  But should we not say that, since he is suspected of fraud in money matters, he ought also to be suspected of swearing falsely?12  — We do not say that one who is suspected of fraud in money matters must also be suspected of swearing falsely.13  For if you do not concede this, how could the Divine Law lay it down that one who admits part of a claim shall swear [regarding the rest]? We ought to say that, since he is suspected of fraud in money matters, he must also be suspected of swearing falsely? — There he just tries to put the claimant off for a time, according to the view of Rabbah.14  You may infer this15  from what R. Idi b. Abin says in the name of R. Hisda:16  He who denies a loan17  can still be accepted as a witness,18  but he who denies a deposit cannot be accepted as a witness.19  But there is [the law] which Rami b. Hama taught: Four kinds of bailees require to put forward a partial denial and a partial admission [in order to be liable to an oath]: the gratuitous bailee, the borrower, the paid bailee, and the hirer.20  Why do we not say that, since he21  is suspected of fraud in money matters,22  he must also be suspected of swearing falsely?23  — There also he merely tries to put off the claimant,24  for he thinks: 'I shall find the thief and have him arrested,' or, 'I shall find [the animal] in the field and bring it to him.' But if this is so, why is one who denies a deposit unfit to be a witness? Let us say that he is only putting off the claimant, thinking to himself, 'I shall put him off until I may look for it and find it'? — We say that he who denies a deposit is unfit to be a witness only [if it is a case] where witnesses come and testify against him, saying that at that time the deposit was in the house, and that he knew it, or [if it is a case] where he is holding it in his hand.

But in the case in which R. Huna says, 'We make him swear that [the article] is not in his possession,'25  why do we not say that since he is suspected of fraud in money matters he must also be suspected of swearing falsely? — There also he may permit himself [to keep the article] by saying [to himself], 'I am willing to pay him for it.' Then R. Aha of Difti said to Rabina: Would he not even so transgress the commandment, Thou shalt not covet?26  — 'Thou shalt not covet' is understood by people to apply only to that for which one is not prepared to pay.

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Original footnotes renumbered.
  1. The Rabbinical provision that when the defendant is likely to commit perjury the plaintiff swears and receives payment, cannot be added to the provision which imposes a Rabbinical 'oath of inducement' (where no Biblical oath is due). The 'oath of inducement' can only be given in cases where in ordinary circumstances a Biblical oath would be imposed.
  2. Because usually a shepherd allows his flock to graze on other people's fields, and thus commits robbery, and why need Abaye seek to disqualify him on the ground that he is actually proved to be a robber?
  3. Lev. XIX. 14. This, taken figuratively, implies that it is wrong to put temptation in the way of one who is likely to succumb to it.
  4. Therefore a hired shepherd, who does not profit by trespassing, will not commit the sin, and he need not generally be regarded as a robber.
  5. The implication is that the terms of the oath are ambiguous. By swearing that his share in it is lot 'less than half', the claimant might mean that it is not even a third or a fourth (which is 'less than half'), and the negative way of putting it would justify such an interpretation. He could therefore take this oath even if he knew that he had no share in the garment at all, while he would be swearing falsely if he really had a share in the garment that is less than half, however small that share might be.
  6. The statement is not negative, but positive, and the claimant swears that his share is at least half.
  7. And thus corroborate his claim; and, although one of the claimants would then be bound to swear falsely, the oath could still be given, according to the majority of the Rabbis, who differ from Ben Nannus (Tosaf.; cf. supra 2b).
  8. It would appear inconsistent on the part of the Court, and to its discredit, to let a claimant swear that he owns the whole garment when he can be awarded only half of it.
  9. His plea that the whole garment is his would be contradicted by his oath that only half of it belonged to him.
  10. For the oath in the Mishnah also refers to half the garment.
  11. V. supra 3a.
  12. What purpose, then, is the oath instituted by the Rabbis to serve? If he is ready to rob his neighbour, he will also be ready to commit perjury.
  13. Perjury is regarded as a greater crime than robbery.
  14. V. supra 3a.
  15. Viz. that he is not suspected of attempted robbery, but of a desire to postpone payment.
  16. Cf. B.K. 105b; Shebu. 40b; supra 4a.
  17. And is refuted by witnesses (before swearing), so that he is proved a liar (but has not committed perjury).
  18. It is obviously assumed that he lied because he wished to postpone payment, and not because he wanted to rob the claimant of what was due to him.
  19. For it could not be said that he only intended to put the claimant off, as a deposit must not be spent, and must be produced intact when claimed, while borrowed money can be spent, and returned when due. If the deposit has been lost, he has only to put this forward as a plea and he is free. His denial therefore renders him unfit as a witness (in accordance with the implication of Ex. XXIII. 1).
  20. Cf. supra 5a.
  21. I.e. the bailee.
  22. In regard to the animal which he denies having received, and which must be regarded in the same light as a deposit — so that it cannot be said that he merely wishes to delay the return.
  23. How could he be given an oath in regard to that animal, if it should have been his intention to rob the owner by the denial?
  24. Whose animal he has lost.
  25. This refers to a bailee who offers to pay compensation for a lost bailment, rather than swear that it has been lost. As it is possible that he wishes to appropriate the article by paying for it, R. Huna says that he must swear that he has not got it. (V. infra 34b).
  26. Ex. XX, 14.
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