Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 4a

while the oath that you would impose by the evidence of several witnesses refers to the remainder of the debt [not included in the evidence], which is denied by the defendant.¹  [In consequence of this refutation] R. Papa says: The inference is really drawn from an 'attached oath'²  [caused by the evidence of] one witness. But [to this also it could be objected]: Is not the 'attached oath' of one witness more weighty, in that [in this case] one oath carries with it another oath,³  while several witnesses only oblige the defendant to pay money?⁴  — The case of 'his own mouth' will prove it.⁵  But [it is again objected]: is not 'his own mouth' more weighty in that it cannot be refuted by a denial [on the part of witnesses]? — The case of 'one witness' will prove it, in that he can be refuted [by other witnesses] and yet he obliges the defendant to take an oath. But [it is objected once more]: [The oath imposed by] one witness refers only to the part of the debt to which the witness testifies [and which the defendant denies], while [the oath that is imposed by] several witnesses refers to the remainder of the debt — [not included in the evidence and] denied by the defendant? — Again the case of 'his own mouth' will prove it.⁶  But [it is again objected]: Is not 'his own mouth' [in a case of admission] more effective in that it cannot be refuted by a denial [on the part of witnesses]? — The case of one witness will prove it, in that he can be refuted by the denial [of other witnesses] and yet he obliges the defendant to take an oath. But [it is objected once more]: [The oath that is imposed by] several witnesses refers to the remainder of the debt denied by the defendant [and not included in the evidence]? — Again, the case of 'his own mouth' will prove it.⁷  And the [former] argument resumes its force. [It is true that] the aspect of one case is not like the aspect of the other case; but both cases have the common characteristic that they arise through claim and denial, and therefore the defendant has to swear. So I adduce that also in the case of 'witnesses,' arising as it does through claim and denial, the defendant has to swear. But [it is again argued]: Have not the other analogous cases the common characteristic that the defendant is not presumed to be a liar, while in the case of 'witnesses' he is presumed to be a liar?⁸  [The objection, however, is at once raised:] Is the defendant really presumed to be a liar when contradicted by witnesses? Has not R. Idi b. Abin said that R. Hisda said: He who denies a loan⁹  can still be accepted as a witness, but he who denies a deposit cannot be accepted as a witness?¹⁰  Therefore argue this way: Have not the other cases the common characteristic that they are not subject to the law of retaliation in case of an alibi,¹¹  while [several] witnesses are subject to the law of retaliation in case of an alibi? — This presents no difficulty: R. Hiyya attaches no importance to the argument from the law of retaliation in case of an alibi.¹²

There is, however, another difficulty: How could it be said that our Tanna teaches the same [as R. Hiyya] — are the two cases at all alike? There [viz., in the case of R. Hiyya] the creditor has witnesses [for half the amount claimed], but the debtor has no witnesses [regarding the other half] that he does not owe him it. For if the debtor had witnesses that he did not owe him anything [of the other half claimed], R. Hiyya would not require the debtor to swear [regarding the other half]. But here [in our Mishnah] we are witnesses for the one party as much as for the other [in regard to the right of either to one half of the garment], and yet both have to swear.¹³

It must therefore be assumed that the statement 'And our Tanna teaches the same' refers to another decision of R. Hiyya. For R. Hiyya says: [If one says to another,] 'You have in your possession a hundred zuz belonging to me,' and the other says, 'I have only got fifty' and [here they are],¹⁴  he has to swear [concerning the disputed amount].¹⁵  For what reason? Because [the offer implied in the words] 'Here they are' is like a 'partial admission' [which necessitates an oath]. And our Tanna teaches the same: TWO HOLD A GARMENT, etc., and although here each one holds [the garment], and we are witnesses that the part that each one holds is like the part of the debt which the defendant [in the other case] is ready to deliver, yet it says that he must swear! R. Shesheth, however, says that [the offer implied in the words] 'Here they are' relieves the debtor of the oath — For what reason? Because the declaration 'Here they are' made by the debtor enables us to regard those [fifty] zuz, which he has admitted to be owing, as if they were already in the hands of the creditor, while the remaining fifty [zuz] the debtor does not admit to be owing, and therefore there is no 'partial admission' [that necessitates an oath].

But according to R. Shesheth there is a difficulty about our Mishnah?¹⁶  — R. Shesheth may reply: [The oath in] our Mishnah is an institution of the Rabbis.¹⁷  And his opponent? [He will say:] Yes, it is an institution of the Rabbis: but if you maintain that according to Biblical Law the offer of 'Here they are' carries with it an oath, then it is right that the Rabbis imposed an oath upon the litigants [in our Mishnah], for they follow herein the principle underlying the Biblical Law. But if you say that the offer of 'Here they are' exempts, according to Biblical Law, [the debtor who made it] from taking an oath, then how can the Rabbis [of our Mishnah] impose an oath which is unlike any Biblical oath?

An objection is now raised:

1. Therefore the inference from one witness to several witnesses does not hold good. As long as it can be shown that there is one aspect from which the case that it treated as the 'minor' for the purpose of the Kal wa-homer can be regarded as a 'major' the inference may be objected to as illogical.
2. V. Kid. 27b. As the evidence of one witness causes an oath to be imposed upon the defendant, a second oath is also imposed upon this defendant if another claim not included in the evidence is raised against him in regard to which, if it stood alone, no oath would have been imposed.
3. The oath imposed by one witness refers to the amount to which the witness testifies and which the defendant denies. It is thus the direct result of the evidence of that witness, and it is weighty enough to cause the 'attached oath' regarding another claim.
4. The sum regarding which the witnesses give evidence has to be paid by the defendant, and thus there is no oath to carry with it another oath.
5. The case of partial admission where the oath is taken though there is no oath to carry it.
6. As above, the Kal wa-homer will be inferred from the case of admission, viz., if the words of his own mouth, which do not oblige him to pay money (a fine), 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.
7. I.e. the case of a partial admission, where the oath is likewise taken regarding the remainder of the amount claimed.
8. One witness cannot stamp the defendant as a liar, as it is just the word of one against that of another. But two or more witnesses are necessarily believed, and the defendant is presumed to have lied. Even if the witnesses refute only part of his statement he is not trusted any more, and should not be allowed to swear regarding the rest.
9. And is refuted by witnesses before swearing. whether he denies the whole loan or only part of it.
10. The reason for the distinction between a loan and a deposit is explained infra 5b.
11. One witness may cause a fine to be imposed upon a defendant, but if the witness is refuted by other witnesses proving an alibi he is not liable to pay the fine.
12. For even though one witness, on being refuted by an alibi, is not liable to suffer the penalty that he intended to impose upon the defendant, he is disbelieved as a result of the refutation, and his evidence is nullified, just as in the case of two witnesses who are refuted by an alibi.
13. Which would show that the oath is not imposed because of a 'partial admission', but is merely an institution of the Rabbis, as indicated above, and is therefore quite different from the oath imposed by R. Hiyya.
14. Helak, [H] i.e., 'I have not spent them, and they are yours, wherever they may be' (Rashi).
15. And we do not say that the virtual delivery of the amount admitted is tantamount to actual payment, so that the denial of the remainder would mean a denial of a whole separate claim, in which case no oath could be imposed.
16. Which imposes an oath, although, as stated above, the position of the litigants is similar.
17. Not a Biblical oath resulting from 'partial admission'.

[When a plaintiff produces a promissory note for] sela's¹  or denarii²  [without any figures], the creditor says, it is for five [sela's or denarii], and the debtor says, it is for three, R. Simeon b. Eleazar says: Seeing that [the debtor] has admitted part of the claim, he must take an oath [for the rest]. R. Akiba says: He is only like a restorer of lost [property],³  and he is free [from taking an oath]. In any case we are told that R. Simeon b. Eleazar says, 'Seeing that he has admitted part of the claim, he must take an oath'. Now the reason is presumably that [the debtor] said 'three', but [if he had said] 'two' he would have been free [from the oath], and seeing that the admission of 'two', for which the note is sufficient evidence, is like [the offer] 'Here they are',⁴  it follows that 'Here they are' does not involve an oath? — No; I could quite well maintain that when he says 'two' he also has to take an oath, and the reason why 'three' is stated is to express disagreement with R. Akiba, who maintains that the debtor [who says 'three'] is like a restorer of lost [property] and free [from taking an oath]. We are thus informed that he is like one who admits part of the claim, and that he has to take an oath.⁵  But if this is so, [and 'two' also involves an oath,] should not R. Simeon b. Eleazar, who says, 'Seeing that he has admitted part of the claim he must take an oath,' have said instead: He also must swear?⁶  — Therefore it must be assumed that 'two' is free, and 'Here they are' involves an oath, but our present case is different, because the written document supports him,⁷  or because the written document has the effect of pledging the debtor's landed property [to the creditor,] and no oath is taken in a dispute connected with mortgaged land.⁸

Some construe the objection from the latter clause: 'R. Akiba says, he is only like the restorer of lost [property], and he is free [from taking an oath].' Now the reason is presumably that he said 'three', but [if he had said] 'two'⁹  he would have had to swear; and seeing that the admission [of 'two'], for which the note is sufficient evidence, is like [the offer] 'Here they are', it follows that 'Here they are necessitates an oath? — No; I could quite well maintain that when he says 'two' he is also free [from taking an oath], and the reason why 'three' is stated is to express disagreement with R. Simeon b. Eleazar, who says that [the debtor] is like one who admits part of the claim, and he has to take an oath: We are thus informed that he is like the restorer of lost [property], and he is free [from taking an oath].

And, indeed, this stands to reason, for if we were to assume that 'two' necessitates an oath, how could R. Akiba dispense with the oath in the case of 'three': this [debtor] could surely employ a ruse, In that he might think: If I say 'two' I shall have to swear; I will say 'three', so that I shall be like a restorer of a loss, and I shall be free. Therefore we must conclude that [if he says] 'two' he is also free. But does not a difficulty arise as regards R. Hiyya?¹⁰  — There¹¹  it is different, for the written document supports him,¹²  or because the written document has the effect of pledging the debtor's landed property, and no oath is taken in a dispute connected with mortgaged land.

Mar Zutra, the son of R. Nahman, then asked: [We learnt:] If one claims vessels and land, and the claim in regard to the vessels is admitted, but the claim in regard to the land is disputed, or the claim in regard to the land is admitted, but the claim in regard to the vessels is disputed, the debtor is free [from taking an oath in regard to the disputed claim]. If he admits part of the claim in regard to the land, he is free [from taking an oath]; if he admits part of the claim in regard to the vessels he is obliged [to take an oath].¹³  Now the reason why [he is free when the claim concerns both land and vessels] is [presumably] that an oath does not apply to land, but where the claim concerns two sets of vessels, in the same way as the claim regarding the land and the vessels,¹⁴  he is obliged to [take an oath]: how is this to be understood? Is it not that the debtor said to the creditor, 'Here they are'? So it follows that 'Here they are' necessitates an oath!¹⁵  — No; I can quite well maintain that [when] two sets of vessels [are claimed] he is also free [from taking an oath], but the reason why 'vessels and land' are mentioned is to let us know that when [the debtor] admits part of the claim in regard to the vessels he is obliged [to take an oath] even as regards the land. What new information does he proffer us? The law of extension of obligation? We have learnt this already:¹⁶  Chattels which do not offer security¹⁷  are attached to chattels which offer security,¹⁸  in regard to the imposition of an oath [upon the debtor]!¹⁹  — [The Mishnah quoted] here²⁰  is the principal place [for this law]; there²¹  it is only mentioned incidentally.²²

1. A sela' equalled in value our crown.
2. A denar =one fourth of a sela'.
3. For sela's would really mean two (the minimum number to which the plural could be applied) and if the debtor says 'three' he admits more than there is evidence for. The third sela' is therefore like a restored loss, in connection with which no oath can be imposed (cf. Git., 48b).
4. [Since the note has the effect of a mortgage on the debtor's landed property, the admission places virtually that land at the disposal of the creditor.]
5. For in the case of the debtor saying 'two', R. Akiba would not have differed, and there would have been no occasion for this comparison with the restoration of a lost object.
6. If 'two' involves an oath, then it was wrong to give 'partial admission' as a reason for the oath, since in such a case there would be no admission apart from what is proved by the written document. On the other hand, it should have been emphasised that 'three' also involved an oath, in spite of the fact that the admission of the third sela' is like the restoration of a lost object to its owner.
7. The witnesses who signed the document support the statement of the debtor, as the document says only 'sela's, which must be taken to mean two.
8. Seeing that 'two' is corroborated by the written document, no oath can be imposed, either in a case of denial or in one of admission, because the document puts the debtor's landed property under a bond, and, as explained in Shebu. 42b, no oath is administered in connection with mortgaged property. But when the debtor says 'three', the dispute about the remainder as well as the admission of the third sela' concern something that is not mentioned in the document, and which does not therefore affect the debtor's landed property.
9. When the debtor could not be said to have restored a loss, as his admission did not go beyond the sum proved by the document.
10. Who teaches that the offer 'Here they are' is like a 'partial admission' and therefore requires an oath. Then why should 'two' not require an oath?
11. In the case of sela's etc.
12. This is why he is free, not because of the similarity to 'Here they are'.
13. In regard to both vessels and land. V. Shebu. 38a.
14. Viz., that the vessels which the debtor admitted to be rightly claimed are placed before the creditor with the offer 'Here they are'.
15. This would contradict the view of R. Shesheth, who says that 'Here they are' does not necessitate an oath.
16. Kid. 26a.
17. Movable belongings, which cannot be mortgaged.
18. Immovable property, which can be mortgaged.
19. When claims arise simultaneously in regard to both kinds of chattels, and an oath is due regarding the movable ones, it is extended also to the immovable ones. V. Kid. 26a.
20. From Shebu. 38b.
21. In Kid. 26a.
22. As the law is stated there regarding the acquisition of movable chattels in conjunction with immovable ones by means of money, document, or actual possession, reference is also made to the extension of the oath from movable chattels to immovable ones.