שבועות מז

שבועות מז

וְכֹל דְּדָמֵי לֵיהּ.

and any oath that is similar to it, i.e., that is clearly a falsehood, disqualifies one from further oath taking.

הָיָה אֶחָד מֵהֶן מְשַׂחֵק בְּקוּבְיָא. הָא תּוּ לְמָה לִי? תְּנָא פְּסוּלָא דְּאוֹרָיְיתָא, וְקָתָנֵי פְּסוּלָא דְּרַבָּנַן.

§ The mishna teaches: If one of the litigants was a dice player, or one who lends with interest, or among those who fly pigeons, or among the vendors of produce that grew during the Sabbatical Year, then the litigant opposing him takes an oath and receives payment of his claim. The Gemara asks: Why do I need these additional examples of a person who is suspect with regard to oath taking? The Gemara explains: The mishna first teaches examples of people who are disqualified by Torah law, and then teaches examples of those who are disqualified by rabbinic law.

הָיוּ שְׁנֵיהֶן חֲשׁוּדִין. אֲמַר לֵיהּ רָבָא לְרַב נַחְמָן: הֵיכִי תְּנַן? אֲמַר לֵיהּ: לָא יָדַעְנָא. הִלְכְתָא מַאי? אֲמַר לֵיהּ: לָא יָדַעְנָא.

§ The mishna teaches: If both litigants were suspect, the oath returned to its place; this is the statement of Rabbi Yosei. Rabbi Meir says: Since neither can take an oath, they divide the disputed amount. Rava said to Rav Naḥman: How is it actually taught? What is Rabbi Yosei’s opinion and what is Rabbi Meir’s opinion? Rav Naḥman said to him: I do not know. Rava asked him: What is the halakha? Rav Naḥman said to him: I do not know.

אִיתְּמַר: אָמַר רַב יוֹסֵף בַּר מִנְיוֹמֵי, אָמַר רַב נַחְמָן, רַבִּי יוֹסֵי אוֹמֵר: יַחְלוֹקוּ. וְכֵן תָּנֵי רַב זְבִיד בַּר אוֹשַׁעְיָא, רַבִּי יוֹסֵי אוֹמֵר: יַחְלוֹקוּ. אִיכָּא דְּאָמְרִי: תָּנֵי רַב זְבִיד אָמַר רַבִּי אוֹשַׁעְיָא, רַבִּי יוֹסֵי אוֹמֵר: יַחְלוֹקוּ. אָמַר רַב יוֹסֵף בַּר מִנְיוֹמֵי: עֲבַד רַב נַחְמָן עוֹבָדָא – יַחְלוֹקוּ.

It was stated that Rav Yosef bar Minyumi says that Rav Naḥman says that Rabbi Yosei says: They divide the disputed amount. And similarly, Rav Zevid bar Oshaya teaches that Rabbi Yosei says: They divide the disputed amount. The Gemara records a slightly different version of this tradition: There are those who say that Rav Zevid teaches that Rabbi Oshaya says that Rabbi Yosei says: They divide the disputed amount. Rav Yosef bar Minyumi said that Rav Naḥman ruled in an actual case that the litigants divide the disputed amount.

חָזְרָה שְׁבוּעָה לִמְקוֹמָהּ. לְהֵיכָן חָזְרָה? אָמַר רַבִּי אַמֵּי, רַבּוֹתֵינוּ שֶׁבְּבָבֶל אָמְרוּ: חָזְרָה שְׁבוּעָה לְסִינַי, רַבּוֹתֵינוּ שֶׁבְּאֶרֶץ יִשְׂרָאֵל אָמְרוּ: חָזְרָה שְׁבוּעָה לַמְחוּיָּב לָהּ.

§ Rabbi Yosei rules in the mishna that in a case where both sides are suspect and cannot take an oath, the oath returned to its place. The Gemara asks: To where did it return? What is meant by the oath returning to its place? Rabbi Ami said that our Sages in Babylonia say: The oath returned to Sinai, where God administered an oath to the Jewish people that they would keep the mitzvot of the Torah, including the prohibition against robbery. The litigant who is robbing the other will be punished by God, not the court. Our Sages in Eretz Yisrael said: The oath returned to the one who was initially liable to take it, i.e., the defendant, and since he is disqualified from taking an oath, he must pay.

אָמַר רַב פָּפָּא: רַבּוֹתֵינוּ שֶׁבְּבָבֶל – רַב וּשְׁמוּאֵל, רַבּוֹתֵינוּ שֶׁבְּאֶרֶץ יִשְׂרָאֵל – רַבִּי אַבָּא. רַבּוֹתֵינוּ שֶׁבְּבָבֶל רַב וּשְׁמוּאֵל – דִּתְנַן: וְכֵן הַיְּתוֹמִין, לֹא יִפָּרְעוּ אֶלָּא בִּשְׁבוּעָה. וְהָוֵינַן בַּהּ: מִמַּאן? אִילֵּימָא מִלֹּוֶה – אֲבוּהוֹן שָׁקֵיל בְּלָא שְׁבוּעָה, וְאִינְהוּ בִּשְׁבוּעָה?! אֶלָּא הָכִי קָאָמַר: וְכֵן הַיְּתוֹמִין מִן הַיְּתוֹמִין – לֹא יִפָּרְעוּ אֶלָּא בִּשְׁבוּעָה.

Rav Pappa said that the term: Our Sages in Babylonia, refers to Rav and Shmuel; and the term: Our Sages in Eretz Yisrael, refers to Rabbi Abba. The fact that the term: Our Sages in Babylonia, refers to Rav and Shmuel is as we learned in the mishna (45a): And likewise, orphans may collect a loan with a promissory note inherited from their father only by taking an oath; and we discussed it (see 48a), asking: From whom do they collect a debt by taking an oath? If we say that they collect this way from the borrower, i.e., those who borrowed from their fathers, that would not make sense. Their father would take payment with the promissory note without taking an oath, and they collect only by means of taking an oath? Don’t orphans have privileged status? Rather, this is what the mishna is saying: And even orphans do not collect with their father’s promissory note from the borrower’s orphans, except by means of taking an oath.

וְרַב וּשְׁמוּאֵל דְּאָמְרִי תַּרְוַיְיהוּ: לֹא שָׁנוּ אֶלָּא שֶׁמֵּת מַלְוֶה בְּחַיֵּי לֹוֶה; אֲבָל מֵת לֹוֶה בְּחַיֵּי מַלְוֶה – כְּבָר נִתְחַיֵּיב מַלְוֶה לִבְנֵי לֹוֶה שְׁבוּעָה, וְאֵין אָדָם מוֹרִישׁ שְׁבוּעָה לְבָנָיו.

Rav Pappa continues: And Rav and Shmuel both say that the Sages taught that the lender’s orphans need to take an oath in order to be paid by the borrower’s orphans only when the lender died during the lifetime of the borrower, and the lender’s children had an opportunity to collect directly from the borrower without taking an oath. But if the borrower died during the lifetime of the lender, the lender has already become liable to take an oath to the children of the borrower, since one can collect from orphans only by means of an oath, and a person cannot bequeath an oath, i.e., a debt that requires the taking of an oath in order to be collected, to his children, and no payment is made. The lender’s children cannot take the oath that their father would have taken, that the promissory note has not been paid. The only oath they can take is that their father never told them that it had been paid, and that is insufficient once the father became liable to take an oath. From here it is clear that Rav and Shmuel hold that when no oath can be taken, the oath returns to Sinai, and the court takes no action.

רַבּוֹתֵינוּ שֶׁבְּאֶרֶץ יִשְׂרָאֵל רַבִּי אַבָּא – דְּהָהוּא גַּבְרָא דַּחֲטַף נְסָכָא מֵחַבְרֵיהּ; אֲתָא לְקַמֵּיהּ דְּרַב אַמֵּי, יְתֵיב רַבִּי אַבָּא קַמֵּיהּ. אַיְיתִי חֲדָא סָהֲדָא דְּמִחְטָף חַטְפֵהּ מִינֵּיהּ, אֲמַר לֵיהּ: ״אִין, חֲטַפִי – וְדִידִי חֲטַפִי״.

The fact that the term: Our Sages in Eretz Yisrael, refers to Rabbi Abba is as the following story illustrates. As there was a certain man who snatched a piece of cast metal from another. The one from whom it was taken came before Rav Ami while Rabbi Abba was sitting before him, and he brought one witness who testified that the other man did, in fact, snatch it from him. The one who snatched it said to him: Yes, it is true that I snatched it, but I merely snatched that which was mine.

אָמַר רַבִּי אַמֵּי: הֵיכִי לִידַיְּינוּ דַּיָּינֵי לְהַאי דִּינָא? נֵימָא לֵיהּ ״זִיל שַׁלֵּים״ – לֵיכָּא תְּרֵי סָהֲדִי. נִפְטְרֵיהּ – אִיכָּא חַד סָהֲדָא. נֵימָא לֵיהּ ״זִיל אִישְׁתְּבַע״ – כֵּיוָן דְּאָמַר ״מִיחְטָף חֲטַפִי״, הָוֵה לֵיהּ כְּגַזְלָן.

Rabbi Ami said: How should judges rule in this case? If they were to say to the one who snatched the metal: Go pay for it, that would not be the correct ruling, because there are not two witnesses who saw him snatch it, and the court does not force payment based on the testimony of one witness. If they were to accept his claim and exempt him entirely, that would not be the correct ruling, because there is one witness who testified against him. If they were to say to him: Go take an oath, which is the usual response to counter the testimony of one witness, once he said that he did in fact snatch it, and there is no proof that it is his, he is like a robber, and the court does not allow a robber to take an oath.

אֲמַר לֵיהּ רַבִּי אַבָּא: הָוֵה מְחוּיָּב שְׁבוּעָה וְאֵין יָכוֹל לִישָּׁבַע, וְכׇל הַמְחוּיָּב שְׁבוּעָה וְאֵינוֹ יָכוֹל לִישָּׁבַע – מְשַׁלֵּם.

Rabbi Abba said to him: He is one who is liable to take an oath who is unable to take an oath, and anyone who is liable to take an oath who is unable to take an oath is liable to pay. This illustrates that Rabbi Abba holds that the oath returns to its place, i.e., to the defendant, who is disqualified from taking oaths, and that consequently he must pay.

אָמַר רָבָא: כְּוָותֵיהּ דְּרַבִּי אַבָּא מִסְתַּבְּרָא, דְּתָנֵי רַבִּי אַמֵּי: ״שְׁבֻעַת ה׳ תִּהְיֶה בֵּין שְׁנֵיהֶם״ – וְלֹא בֵּין הַיּוֹרְשִׁין. הֵיכִי דָּמֵי?

Rava said: It stands to reason that the halakha is in accordance with the opinion of Rabbi Abba; as Rabbi Ami teaches this baraita: The verse states that “the oath of the Lord shall be between them both” (Exodus 22:10), but not between their heirs. What are the circumstances in which one would be liable to take an oath, but his heirs would be exempt?

אִילֵימָא דְּאָמַר לֵיהּ: ״מָנֶה לְאַבָּא בְּיַד אָבִיךָ״, וְאָמַר לֵיהּ: ״חַמְשִׁין אִית לֵיהּ וְחַמְשִׁין לֵית לֵיהּ״ – מָה לִי הוּא וּמָה לִי אֲבוּהָא?

If we say that it is where the lender’s son said to the borrower’s son: One hundred dinars that belonged to my father were in the possession of your father, as a loan, and you must repay me, and the borrower’s son said to him: He had a debt of fifty, and the other fifty he did not have to pay him, i.e., he did not owe it, that is difficult. Under these circumstances, what does it matter to me if it is he, the borrower’s heir, or his father, the original borrower? Since the son is admitting that he owes part of the money and denying the rest with certainty, he is liable to take an oath, just like his father would have been.

אֶלָּא לָאו דְּאָמַר לֵיהּ: ״מָנֶה לְאַבָּא בְּיַד אָבִיךָ״, אָמַר לֵיהּ: ״חַמְשִׁין יָדַעְנָא וְחַמְשִׁין לָא יָדַעְנָא״?

Rather, is it not that the lender’s son said to the borrower’s son: One hundred dinars that were my father’s were left in the possession of your father, and you must repay me, and the borrower’s son said to him: Concerning fifty dinars, I know that my father owed them, but I do not know anything about the other fifty dinars.

אִי אָמְרַתְּ בִּשְׁלָמָא אָבִיו כִּי הַאי גַוְונָא מִיחַיַּיב, אִיצְטְרִיךְ קְרָא לְמִיפְטַר גַּבֵּי יוֹרְשִׁין; אֶלָּא אִי אָמְרַתְּ אָבִיו כִּי הַאי גַוְונָא נָמֵי פָּטוּר, קְרָא גַּבֵּי יוֹרְשִׁין לְמָה לִי?

Rabba continues: Granted, if you say that his father, in a case like this, would be liable to take an oath, due to his partial admission, then the verse was necessary to exempt the heirs from taking the oath. But if you say that in a case like this, his father is also exempt from taking an oath, why do I need a verse about exempting the heirs? Evidently, an oath reverts to one who is liable to take it, and when he cannot take that oath he must pay the claim against him.

וְרַב וּשְׁמוּאֵל – הַאי ״שְׁבֻעַת ה׳״ מַאי קָא דָּרְשִׁי בֵּיהּ?

The Gemara asks: And as for Rav and Shmuel, who hold that one who cannot take an oath does not have to pay, and therefore there is no difference between the heirs and the father, what do they derive from this verse: “The oath of the Lord shall be between them both” (Exodus 22:10)?

מִיבְּעֵי לֵיהּ לְכִדְתַנְיָא, שִׁמְעוֹן בֶּן טַרְפוֹן אוֹמֵר: ״שְׁבֻעַת ה׳ תִּהְיֶה בֵּין שְׁנֵיהֶם״ – מְלַמֵּד שֶׁהַשְּׁבוּעָה חָלָה עַל שְׁנֵיהֶם.

The Gemara answers: It is necessary for that which is taught in a baraita: Shimon ben Tarfon says: The verse: “The oath of the Lord shall be between them both,” teaches that when one litigant imposes an oath on the other, and he takes a false oath, the oath applies to them both, i.e., they are both held responsible for the desecration of God’s name.

שִׁמְעוֹן בֶּן טַרְפוֹן אוֹמֵר: אַזְהָרָה לָעוֹקֵב אַחֵר נוֹאֵף, מִנַּיִן? תַּלְמוּד לוֹמַר: ״לֹא תִּנְאָף״ – לֹא תַּנְאִיף.

Since this Sage was mentioned, the Gemara cites some of his other statements. Shimon ben Tarfon says: With regard to the prohibition of following after an adulterer, i.e., providing him with assistance in carrying out adultery, from where is it derived? The verse states: “You shall not commit adultery [lo tinaf ]” (Exodus 20:13). If the verse is vocalized slightly differently, it may be read: You shall not cause adultery [lo tanif ].

״וַתֵּרָגְנוּ בְּאׇהֳלֵיכֶם״ – שִׁמְעוֹן בֶּן טַרְפוֹן אוֹמֵר: תַּרְתֶּם וְגִינִּיתֶם בְּאׇהֳלוֹ שֶׁל מָקוֹם.

Commenting on the verse describing the response of the Jewish people to the spies’ slander of Eretz Yisrael: “And you murmured [vatteragenu] in your tents and said: Because the Lord hated us, He has brought us forth out of the land of Egypt, to deliver us into the hand of the Amorites, to destroy us” (Deuteronomy 1:27), Shimon ben Tarfon says: “Teragenu” is interpreted as though it is composed of two Hebrew expressions: You explored [tartem] the land, and: You disparaged [ginnitem] it, in the tent of the Omnipresent.

״עַד הַנָּהָר הַגָּדוֹל נְהַר פְּרָת״ – שִׁמְעוֹן בֶּן טַרְפוֹן אוֹמֵר: קְרַב לְגַבֵּי דְהִינָא, וְאִידְּהַן. דְּבֵי רַבִּי יִשְׁמָעֵאל תָּנָא: עֶבֶד מֶלֶךְ – כְּמֶלֶךְ.

With regard to the verse: “As far as the great river, the river Euphrates” (Deuteronomy 1:7), Shimon ben Tarfon says: Although it is not the largest river, the Euphrates is called great in accordance with the adage: Draw close to the one anointed with oil and become anointed as well. Because the Euphrates is close to Eretz Yisrael, it is called great. The school of Rabbi Yishmael taught a similar idea: The servant of a king is like a king.

וְהַחֶנְוָנִי עַל פִּינְקָסוֹ כּוּ׳. תַּנְיָא, אָמַר רַבִּי: טוֹרַח שְׁבוּעָה זוֹ לָמָּה? אָמַר לוֹ רַבִּי חִיָּיא (בַּר אַבָּא), תְּנֵינָא: שְׁנֵיהֶם נִשְׁבָּעִין וְנוֹטְלִין מִבַּעַל הַבַּיִת.

§ The mishna teaches that the storekeeper relying on his ledger takes an oath and receives payment. If an employer tells a storekeeper to pay his laborers, and the storekeeper claims he paid them, while the laborers claim that they did not receive payment, both the storekeeper and the laborers take oaths and receive payment from the employer. It is taught in a baraita: Rabbi Yehuda HaNasi said: Why is there the bother with this oath, that it is imposed upon both of them? Rabbi Ḥiyya said to him: We learn in the mishna (see 45a) that both of them take an oath and receive payment of their claims from the employer.

קִיבְּלַהּ מִינֵּיהּ, אוֹ לָא קִיבְּלַהּ מִינֵּיהּ? תָּא שְׁמַע: דְּתַנְיָא, רַבִּי אוֹמֵר: פּוֹעֲלִין נִשְׁבָּעִין לַחֶנְוָנִי. וְאִם אִיתָא, לְבַעַל הַבַּיִת מִיבְּעֵי לֵיהּ!

The Gemara asks: Did Rabbi Yehuda HaNasi accept from him that this is the halakha, or did he not accept it from him? Come and hear as it is taught in a baraita: Rabbi Yehuda HaNasi says: The laborers take an oath to the storekeeper that he had not paid them. And if it is so that Rabbi Yehuda HaNasi accepted Rabbi Ḥiyya’s ruling, then Rabbi Yehuda HaNasi should have instead said that the laborers take an oath to the employer.

אָמַר רָבָא: פּוֹעֲלִים נִשְׁבָּעִין לְבַעַל הַבַּיִת – בְּמַעֲמַד חֶנְוָנִי; כִּי הֵיכִי דְּלִיכַּסְפוּ מִינֵּיהּ.

Rava said: Do not conclude that Rabbi Yehuda HaNasi did not accept Rabbi Ḥiyya’s ruling. Rather, interpret his statement as follows: The laborers take an oath to the employer in the presence of the storekeeper, so that they will feel ashamed to lie with him present, since he knows whether or not he paid them.

אִיתְּמַר: שְׁתֵּי כִּיתֵּי עֵדִים הַמַּכְחִישׁוֹת זוֹ אֶת זוֹ – אָמַר רַב הוּנָא: זוֹ בָּאָה בִּפְנֵי עַצְמָהּ וּמְעִידָה, וְזוֹ בָּאָה בִּפְנֵי עַצְמָהּ וּמְעִידָה. רַב חִסְדָּא אָמַר: בַּהֲדֵי סָהֲדֵי שַׁקָּרֵי לְמָה לִי?

§ It was stated about a similar topic that if there were two sets of witnesses who contradict one another, and it is clear that one set must be testifying falsely, Rav Huna says: This set can come by itself and testify about other cases, and that set can come by itself and testify. Neither set of witnesses is disqualified for future testimony, since there is no way of knowing which was lying. Rav Ḥisda said: Why do I need to become involved with lying witnesses? Since each set of witnesses is possibly untrustworthy, both sets are disqualified.

שְׁנֵי מַלְוִין וּשְׁנֵי לוֹוִין וּשְׁנֵי שְׁטָרוֹת – הַיְינוּ פְּלוּגְתַּיְיהוּ; מַלְוֶה וְלֹוֶה וּשְׁנֵי שְׁטָרוֹת – יַד בַּעַל הַשְּׁטָר עַל הַתַּחְתּוֹנָה;

The Gemara cites the circumstances relevant to this dispute. If, after contradicting each other, the two sets of witnesses testified about circumstances involving two distinct lenders, and two distinct borrowers, and therefore two separate promissory notes, each one signed by a different set of witnesses, this sort of scenario is the subject of their dispute. According to Rav Huna both promissory notes are valid, and according to Rav Ḥisda neither is valid. In the case of a single lender, and a single borrower, and two promissory notes, with each signed by a different one of the sets of witnesses, the holder of the promissory note is at a disadvantage and can collect only the lower sum. One of the promissory notes is necessarily not valid, as it is signed by witnesses who testified falsely.

שְׁנֵי מַלְוִין וְלֹוֶה אֶחָד וּשְׁנֵי שְׁטָרוֹת – הַיְינוּ מַתְנִיתִין; שְׁנֵי לוֹוִין וּמַלְוֶה אֶחָד וּשְׁנֵי שְׁטָרוֹת – מַאי? תֵּיקוּ.

In the case of two lenders, and a single borrower, and two promissory notes, this is the same as the mishna, where two claimants who contradict each other come to collect payment from a single person who must pay them both, as the evidence for both claims has a presumption of validity. In the case of two borrowers, and a single lender, and two promissory notes, what is the halakha? Can each of the borrowers claim that the promissory note supporting the claim against him is not valid, as it could have been signed by the untrustworthy set of witnesses; or does each of them have to pay unless he can prove that the promissory note against him was signed by the unfit set of witnesses? The Gemara states: The question shall stand unresolved.

מֵתִיב רַב הוּנָא בַּר יְהוּדָה:

Rav Huna bar Yehuda raises an objection from a baraita: