Makkot 3

מאי ניהו דלא עשו מעשה היינו דרבה אימא וכן אמר רב נחמן

The Gemara is puzzled by this: What is the meaning of the statement: The money remains in the possession of the owner? It means that they did not perform an action. That is identical to the reasoning of Rabba, and it is not an additional explanation. The Gemara emends the formulation of the presentation of the statement. Say: And likewise Rav Naḥman says: Know that it is so, as the money remains in the possession of the owner. Rav Naḥman is not disagreeing with Rabba; he merely formulates the statement differently.

אמר רב יהודה אמר רב עד זומם משלם לפי חלקו מאי משלם לפי חלקו אילימא דהאי משלם פלגא והאי משלם פלגא תנינא משלשין בממון ואין משלשין במלקות

§ Apropos the statement of Rabbi Akiva in the baraita, Rav Yehuda says that Rav says: A conspiring witness pays according to his share. The Gemara asks: What is the meaning of: Pays according to his share? If we say that it means that this witness pays half of the sum that the set conspired to render another liable to pay with their testimony, and that witness pays the other half, we already learned this in a mishna (5a): When punishing conspiring witnesses, one divides the punishment of money among them, but one does not divide the punishment of lashes among them; each receives the full thirty-nine lashes.

אלא כגון דאיתזום חד מינייהו דמשלם פלגא דידיה ומי משלם והא תניא אין עד זומם משלם ממון עד שיזומו שניהם

Rather, the Gemara explains that the expression: Pays according to his share, means that in a case where only one of the set was rendered a conspiring witness, the halakha is that he pays his half of the sum. The Gemara asks: And does he pay at all in that case? But isn’t it taught in a baraita: A conspiring witness pays money only when both were rendered conspiring witnesses? If only one was rendered a conspiring witness, he does not pay.

אמר רבא באומר עדות שקר העדתי כל כמיניה כיון שהגיד שוב אינו חוזר ומגיד

Rava says: The statement is not referring to a case of conspiring witnesses; rather, Rav’s statement applies to the case of one who says: It was false testimony that I testified. The Gemara asks: Is it in his power to have this statement accepted by the court? That runs counter to the principle: Once a witness stated his testimony he may not then state a revision of that testimony.

אלא באומר העדנו והוזמנו בבית דין פלוני כמאן דלא כרבי עקיבא דאי כרבי עקיבא הא אמר אף אינו משלם על פי עצמו

The Gemara answers: Rather, Rav’s statement applies to the case of one who says: We testified and were rendered conspiring witnesses in such and such a court. Since he was already convicted as a conspiring witness, it is as though he is admitting an obligation to give monetary restitution, and he is therefore liable to pay his share. The Gemara asks: In accordance with whose opinion is this halakha? It is not in accordance with the opinion of Rabbi Akiva, since if it were in accordance with the opinion of Rabbi Akiva, doesn’t he say: A conspiring witness also does not pay based on his own admission?

אלא באומר העדנו והוזמנו בבית דין פלוני וחוייבנו ממון

The Gemara answers: Rather, Rav’s statement applies to the case of one who says: We testified and were rendered conspiring witnesses in such and such a court and we were rendered liable to pay a specific sum of money. In that scenario, Rabbi Akiva would concede that one pays on the basis of his own admission. Once the court rendered him liable to pay a specific sum, his admission is not that he is liable to pay a fine, in which case he would be exempt. Once the court actually instructed them to pay, the debt has the status of any other monetary restitution, and one does pay monetary restitution based on his own admission.

סלקא דעתך אמינא כיון דלחבריה לא מצי מחייב ליה איהו נמי לא מיחייב קא משמע לן

The Gemara explains the novel element in Rav’s statement: It might enter your mind to say that since he is unable to render his fellow witness liable to pay based on his admission, as only the testimony of two witnesses is capable of doing so, he too is not liable to pay based on that admission. To counter this, Rav teaches us that his admission that he owes money renders him liable him to pay.

מתני׳ מעידין אנו את איש פלוני שגירש את אשתו ולא נתן לה כתובתה והלא בין היום ובין למחר סופו ליתן לה כתובתה

MISHNA: In the case of witnesses who said: We testify with regard to a man called so-and-so that he divorced his wife and did not give her payment of her marriage contract, and they were then rendered conspiring witnesses, the question arises with regard to the manner in which the sum of their payment is calculated. It is not possible to render the witnesses liable to pay the entire sum of the marriage contract, as they can claim: But isn’t it so that either today or tomorrow, i.e., at some point in the future, he may divorce his wife or die and ultimately he will be liable to give her payment of her marriage contract? That being the case, the witnesses did not conspire to render him liable to pay a sum that he would otherwise not be liable to pay.

אומדין כמה אדם רוצה ליתן בכתובתה של זו שאם נתאלמנה או נתגרשה ואם מתה יירשנה בעלה

The sum of their payment is calculated as follows: The court assesses how much money another person would be willing to give in order to purchase the rights to this woman’s marriage contract, cognizant of the uncertainty that if she was widowed or divorced the purchaser will receive payment of the marriage contract but if she dies, her husband will inherit from her, and the one who purchased her marriage contract will receive nothing.

גמ׳ כיצד שמין אמר רב חסדא בבעל

GEMARA: The mishna establishes that the payment of the conspiring witnesses is calculated based on the sum that one would be willing to pay for rights to payment of the marriage contract, taking into consideration the uncertainty whether he will ultimately receive that payment. The Gemara asks: How does the court assess that sum? Rav Ḥisda says: One calculates the sum in terms of the husband: How much would one be willing to pay for the husband’s rights to the marriage contract based on the likelihood that his wife will die first and he will inherit from her?

רב נתן בר אושעיא אומר באשה

Rav Natan bar Oshaya says: One calculates the sum in terms of the wife: How much would one be willing to pay for the wife’s rights to the marriage contract based on the likelihood that the husband will die first or divorce her?

אמר רב פפא באשה ובכתובתה

Rav Pappa says: One calculates the sum in terms of the wife, as Rav Natan bar Oshaya said, and the assessment is done in terms of the sum of her marriage contract. One does not include in the calculation any usufruct property that the wife brought with her into the marriage, the profits of which belong to the husband, despite the fact that as a result of the testimony of the conspiring witnesses the husband would lose his rights to those profits. One calculates the sum only in terms of her marriage contract.

מתני׳ מעידין אנו באיש פלוני שהוא חייב לחבירו אלף זוז על מנת ליתנן לו מכאן ועד שלשים יום והוא אומר מכאן ועד עשר שנים

MISHNA: In the case of witnesses who said: We testify with regard to a man called so-and-so that he owes another person one thousand dinars that he borrowed on the condition that he is to give the money back to him from now until thirty days have passed, and the borrower says that he borrowed that sum but it was on the condition that he is to give the money back to him from now until ten years have passed, and they were rendered conspiring witnesses, here too, it is not possible to render the witnesses liable to pay the entire sum.

אומדים כמה אדם רוצה ליתן ויהיו בידו אלף זוז בין נותנן מכאן ועד שלשים יום בין נותנן מכאן ועד עשר שנים

Rather, the court estimates how much money a person would be willing to give so that he would keep a loan of one thousand dinars in his possession, and one calculates the difference between that sum in a situation where he would be required to give the money back from now until thirty days have passed, and that same sum in a situation where he would be required to give the money back from now until ten years have passed. That difference is the sum that the testimony of the conspiring witnesses sought to have the borrower lose; therefore, it is the sum that they must pay.

גמ׳ אמר רב יהודה אמר שמואל המלוה את חבירו לעשר שנים שביעית משמטתו

GEMARA: Rav Yehuda says that Shmuel says: In the case of one who lends money to another for a period of ten years, the Sabbatical Year abrogates the debt (see Deuteronomy 15:1–11) and absolves the borrower of the obligation to repay it.

ואף על גב דהשתא לא קרינן ביה לא יגש סוף אתי לידי לא יגש

And even though now, during the Sabbatical Year, we do not yet read concerning his loan the prohibition: “He shall not exact it of his neighbor and his brother, because the Lord’s release has been proclaimed” (Deuteronomy 15:2), as the time for repayment has not yet arrived, ultimately, when the time for repayment arrives, he will come to a situation where the prohibition “He shall not exact it” applies. Therefore, like all other debts it is abrogated by the Sabbatical Year.

מתיב רב כהנא אומדים כמה אדם רוצה ליתן ויהיו אלף זוז בידו בין ליתן מכאן ועד שלשים יום ובין ליתן מכאן ועד עשר שנים ואי אמרת שביעית משמטתו כולהו נמי בעי שלומי ליה

Rav Kahana raises an objection from the mishna: Rather, the court estimates how much money a person would be willing to give so that he would keep a loan of one thousand dinars in his possession, and one calculates the difference between that sum in a situation where he would be required to give the money back from now until thirty days have passed, and that same sum in a situation where he would be required to give the money back from now until ten years have passed. And if you say that the Sabbatical Year abrogates a ten-year loan, the conspiring witnesses need to pay the borrower the entire sum of the loan as well, as their testimony sought to render the borrower liable to pay a debt that by right should be entirely forgiven.

אמר רבא הכא במאי עסקינן במלוה על המשכון ובמוסר שטרותיו לבית דין דתנן המלוה על המשכון והמוסר שטרותיו לבית דין אין משמיטין

Rava said: What are we dealing with here in our mishna? We are dealing with debts that are not abrogated with the passing of the Sabbatical Year, e.g., in the case of one who lends money on the basis of collateral, or in the case of one who transfers his promissory notes to the court for collection. As we learned in a mishna (Shevi’it 10:2): In the cases of one who lends money on the basis of collateral and one who transfers his promissory notes to the court for collection, the Sabbatical Year does not abrogate those loans. In those cases, the debt would not have been forgiven during the Sabbatical Year. Therefore, the conspiring witnesses are not liable to pay the entire sum.

איכא דאמרי אמר רב יהודה אמר שמואל המלוה את חבירו לעשר שנים אין שביעית משמטתו ואף על גב דאתי לידי לא יגש השתא מיהא לא קרינן ביה לא יגש

There are those who state another version of this discussion: Rav Yehuda says that Shmuel says: In the case of one who lends money to another for a period of ten years, the Sabbatical Year does not abrogate the debt. And even though when the time for repayment arrives he will come to a situation where the prohibition “He shall not exact it” applies, now, in any event, during the Sabbatical Year we do not yet read the prohibition of “He shall not exact it” concerning his loan.

אמר רב כהנא אף אנן נמי תנינא אומדין כמה אדם רוצה ליתן ויהיו אלף זוז בידו בין ליתן מכאן ועד שלשים יום ובין ליתן מכאן ועד עשר שנים ואי אמרת שביעית משמטתו כולהו נמי בעו שלומי ליה

Rav Kahana says: We learn this ruling in the mishna as well: The court estimates how much money a person would be willing to give so that a loan of one thousand dinars will be in his possession, and one calculates the difference between that sum in a situation where he would be required to give the money back from now until thirty days have passed, and that sum in a situation where he would be required to give the money back from now until ten years have passed. And if you say that the Sabbatical Year abrogates a ten-year loan, then the conspiring witnesses should pay the borrower the entire sum of the loan as well, as their testimony sought to render the borrower liable to pay a debt that by right should be entirely forgiven. The fact that they are not required to pay the entire sum proves that a ten-year loan is not abrogated by the Sabbatical Year.

אמר רבא הכא במאי עסקינן במלוה על המשכון ובמוסר שטרותיו לבית דין דתנן המלוה על המשכון והמוסר שטרותיו לבית דין אין משמיטין

Rava said: No proof may be cited from there, as what are we dealing with here in our mishna? We are dealing with debts that are not abrogated with the passing of the Sabbatical Year, e.g., in the case of one who lends money on the basis of collateral, or in the case of one who transfers his promissory notes to the court for collection. As we learned in a mishna (Shevi’it 10:2): In the cases of one who lends money on the basis of collateral and one who transfers his promissory notes to the court for collection, the Sabbatical Year does not abrogate those loans. In those cases, the debt would not have been forgiven during the Sabbatical Year. Therefore, the conspiring witnesses are not liable to pay the entire sum.

ואמר רב יהודה אמר שמואל האומר לחבירו על מנת שלא תשמטני שביעית שביעית משמטת לימא קסבר שמואל מתנה על מה שכתוב בתורה הוא וכל המתנה על מה שכתוב בתורה תנאו בטל

§ And Rav Yehuda says that Shmuel says with regard to abrogation of debts: In the case of one who says to another the stipulation: I am lending you money on the condition that the Sabbatical Year will not abrogate my debt, even if the borrower agrees to that stipulation, the Sabbatical Year abrogates the debt. The Gemara suggests: Let us say that Shmuel holds that the lender who proposed that stipulation is one who stipulates counter to that which is written in the Torah, and in the case of anyone who stipulates counter to that which is written in the Torah, his stipulation is voided.

והא איתמר האומר לחבירו על מנת שאין לך עלי אונאה רב אומר יש לו עליו אונאה ושמואל אומר אין לו עליו אונאה

The Gemara asks: But wasn’t it stated that there is a dispute between Rav and Shmuel concerning this matter? In the case of one who says to another the stipulation: I am selling you this item on the condition that you have no claim of exploitation against me if I charge you more than the item is worth, Rav says: The buyer has a claim of exploitation against him, as one cannot stipulate to waive the halakha of exploitation. And Shmuel says: He has no claim of exploitation against him. Apparently, according to Shmuel, one may stipulate to waive a Torah law in monetary matters, as it is tantamount to waiving his rights to money due him and it is not in effect counter to that which is written in the Torah.

הא איתמר עלה אמר רב ענן לדידי מפרשא ליה מיניה דשמואל על מנת שאין לך עלי אונאה אין לו עליו אונאה על מנת שאין בו אונאה הרי יש בו אונאה

The Gemara answers: Wasn’t it stated with regard to that halakha that Rav Anan said: It was explained to me personally by Shmuel himself that the matter depends on the formulation of the stipulation. If the seller stipulates: On the condition that you have no claim of exploitation against me, then the buyer has no claim of exploitation against him, as it is as though he is waiving his right to money due him. But if the seller stipulates: On the condition that there is no prohibition of exploitation in this transaction, there is a prohibition of exploitation in that transaction.

הכא נמי על מנת שלא תשמטני בשביעית אין שביעית משמטתו על מנת שלא תשמטני שביעית שביעית משמטתו

Here too, if the lender stipulated to the borrower: I am lending you money on the condition that you will not abrogate the debt during the Sabbatical Year, the Sabbatical Year does not abrogate his debt, as the borrower is merely waiving money due him. But if he stipulated: On the condition that the Sabbatical Year will not abrogate my debt, the Sabbatical Year abrogates the debt, as that is a stipulation to nullify the halakha of the Sabbatical Year concerning that loan, and one may not stipulate counter to that which is written in the Torah.

תנא המלוה את חבירו סתם אינו רשאי לתובעו פחות משלשים יום סבר רבה בר בר חנה קמיה דרב למימר הני מילי במלוה בשטר דלא עבד איניש דטרח דכתב שטר בציר מתלתין יומין אבל מלוה על פה לא אמר ליה רב הכי אמר חביבי אחד המלוה בשטר ואחד המלוה על פה

§ Apropos the loan discussed in the mishna, the Gemara cites a Sage who taught: One who lends money to another for an unspecified period is not permitted to demand repayment from him less than thirty days after the loan took place. The Gemara comments: Rabba bar bar Ḥana, who was seated before Rav, thought to say: This statement applies only with regard to a loan with a promissory note, as a person does not typically exert himself to write a promissory note for a loan whose duration is less than thirty days. But with regard to a loan by oral agreement, no, it may be for less than thirty days. Rav said to him: This is what my uncle, Rabbi Ḥiyya, said: This halakha applies to both one who lends with a promissory note and one who lends by oral agreement. If one fails to establish a time for repayment of the loan, he may not demand repayment until thirty days have passed since the loan was given.

תניא נמי הכי המלוה את חבירו סתם אינו רשאי לתובעו פחות משלשים יום אחד המלוה בשטר ואחד המלוה על פה

The Gemara notes: That is also taught in a baraita: One who lends money to another for an unspecified period is not permitted to demand repayment from him less than thirty days after the loan took place, and that is the case with regard to both one who lends with a promissory note and one who lends by oral agreement.

אמר ליה שמואל לרב מתנה לא תיתיב אכרעיך עד דמפרשת לה להא שמעתא מנא הא מילתא דאמור רבנן המלוה את חבירו סתם אינו רשאי לתובעו פחות משלשים יום אחד המלוה בשטר ואחד המלוה על פה

The Gemara relates: Shmuel said to Rav Mattana: You shall not sit on your feet until you have explained this halakha; explain it immediately. From where is this matter that the Sages stated derived: One who lends money to another for an unspecified period is not permitted to demand repayment from him less than thirty days after the loan took place, and that is the case with regard to both one who lends with a promissory note and one who lends by oral agreement?

אמר ליה דכתיב קרבה שנת השבע שנת השמטה ממשמע שנאמר קרבה שנת השבע איני יודע שהיא שנת שמטה אלא מה תלמוד לומר שנת השמטה לומר לך [יש] שמטה אחרת שהיא כזו ואיזו זו המלוה את חבירו סתם שאינו רשאי לתובעו בפחות משלשים יום דאמר מר שלשים יום בשנה חשוב שנה

Rav Mattana said to him that it is derived from a verse, as it is written: “The seventh year, the Sabbatical Year, approaches” (Deuteronomy 15:9). The question arises: From the fact that it is stated: “The seventh year…approaches,” don’t I know that it is the Sabbatical Year? Rather, why must the verse state: “The Sabbatical Year”? It is to tell you that there is another period that is like the Sabbatical Year; and which period is it? It is the period in the case of one who lends money to another for an unspecified period, who is not permitted to demand repayment from him less than thirty days after the loan took place. During that period, as during the Sabbatical Year, one may not exact payment for his loan. In what sense can that period be characterized as a year? It is as the Master said: Thirty days in a year are considered a year.

ואמר רב יהודה אמר רב הפותח בית הצואר בשבת חייב חטאת מתקיף לה רב כהנא וכי מה בין זה למגופת חבית אמר ליה זה חבור וזה אינו חבור

§ And Rav Yehuda says that Rav says: One who unwittingly opens a new neck opening in a shirt on Shabbat by cutting through the fabric and threads that kept it closed is liable to bring a sin-offering. By creating the opening he renders the shirt fit to wear, thereby fashioning a utensil on Shabbat. Rav Kahana objects to this: And what is the difference between this and the stopper of a wine barrel, which the Sages permitted piercing on Shabbat in order to serve wine to guests? There too, by piercing the stopper he fashions a utensil. Rava said to him: The cases are not comparable: In this case, that of the neck opening of a shirt, the material closing the neck hole is considered a connecting element, i.e., it is an organic part of the weave of the fabric; and in that case, that of the stopper of the barrel, the stopper is not considered a connecting element, as its purpose is to be removed from the barrel.

ואמר רב יהודה אמר רב שלשת לוגין מים שנפל לתוכן קורטוב של יין ומראיהן כמראה יין ונפלו למקוה לא פסלוהו מתקיף לה רב כהנא וכי מה בין זה למי צבע דתנן רבי יוסי אומר מי צבע פוסלין את המקוה בשלשת לוגין אמר ליה רבא התם מיא דצבעא מקרי הכא חמרא מזיגא מקרי

§ And Rav Yehuda says that Rav says: In the case of three log of drawn water into which one sixty-fourth of a log [kortov] of wine fell, and the color of the water is like the color of wine, and that liquid fell into a ritual bath containing less than forty se’a, although the Sages ruled that three log of drawn water invalidate a ritual bath, in this case the liquid does not invalidate it, because the halakhic status of the liquid that fell into the ritual bath is that of wine, and wine does not invalidate a ritual bath. Rav Kahana objects to this: And what is the difference between this case of water into which wine fell and the case of dye water, as we learned in a mishna (Mikvaot 7:3): Rabbi Yosei says: Dye water in the amount of three log invalidates a ritual bath? The wine, like the dye, colors the water. Rava said to him: The difference is that there the mixture is called dye water, where the water maintains the status of water; here it is called diluted wine.

והתני רבי חייא הורידו את המקוה אמר רבא לא קשיא הא רבי יוחנן בן נורי הא רבנן דתנן שלשת לוגין מים

The Gemara asks with regard to Rav’s statement: But didn’t Rabbi Ḥiyya teach that three log of water into which a kortov of wine fell reduce the ritual bath into a state where it is no longer valid? Rava said that this baraita is not difficult, as this statement of Rav is in accordance with the opinion of Rabbi Yoḥanan ben Nuri, and that baraita taught by Rabbi Ḥiyya is in accordance with the opinion of the Rabbis, who disagree with Rabbi Yoḥanan ben Nuri. As we learned in a mishna (Mikvaot 7:5): In a case where there are three log of drawn water