Masechet Shevuot 40a-46b

August 4, 2010

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.

Shevuot 40a-b: Admitting to barley in the face of a claim of wheat

As we learned above (daf, or page, 38) the halacha is that a kofer bakol – a defendant who totally denies a monetary claim made against him – is believed without being required to bring any further proof; if he is modeh be-miktzat – he denies that he owes all of the money, but admits that he owes part of it – then he must pay the amount that he admits to and then take an oath that he does not owe any more.

According to Shmuel, this ruling applies even in cases where the plaintiff demands two different things; for example, if he claimed that the defendant owed him wheat and barley and the defendant admitted only to the claim that he owed him wheat. Shmuel rules that he will have to pay the wheat that he owed and take an oath that he did not owe the barley.

In a similar case Rav Anan quotes Shmuel as teaching that if the defendant was accused of owing wheat, and he immediately admitted to owing barley we check to see whether he appeared to be doing this in a tricky manner – in order to avoid being considered a modeh be-miktzat – or if he was clarifying the truth. If we find reason to suspect him, then he will be obligated to take an oath on the part that he denies, but if he appears honest in his admission it will suffice to pay the amount that he admits to.

How do we decide if he is being honest or not?

Rashi argues that it is entirely up to the bet din. The court can decide whether he was sincere in his admission or if he will be suspected of acting in this manner in order to avoid the oath that will be imposed on him as a modeh be-miktzat. If they feel that it was the latter situation, they can impose the oath on him. The Ramban says that we need to distinguish between a case where the plaintiff completed his accusation, claiming only that the defendant owed him wheat and the defendant admitted to barley and a case where the plaintiff was in the middle of his claim and the defendant jumped in to his words to make a different admission. In the former case we trust the defendant, while in the latter case his behavior will be viewed with suspicion.

Shevuot 41a-b: Must a loan be repaid in front of witnesses?

Must a loan be repaid in front of witnesses?

When the original loan was made without witnesses, there is certainly no need for witnesses at the time of repayment. If, however, there were witnesses at the time when the loan was made, we find a difference of opinion in the Gemara. Rav Papi quotes Rava as saying that in such a case the repayment must be made in front of witnesses, while Rav Papa quotes Rava as saying that it does not need to be made in front of witnesses unless there was a specific condition made by the lender at the time that the loan was made. Even in such a case, if the borrower claims that he paid the loan back in front of witnesses, he will be believed even if he cannot produce them (e.g. if he says “I paid you back in front of witnesses but they have since traveled across the sea.”).

Although our Gemara concludes with Rav Papa’s statement that the borrower would be believed to say that he paid the loan back in front of witnesses, some of the rishonim had alternative readings of the Gemara. Rabbeinu Chananel as well as the Ri”f and the R”i Mi’Gash had manuscripts that concluded with Rav Papa saying that the borrower is not believed to make such a claim. On the other hand, Rav Saadiah Gaon has the reading that appears in our Gemara, and the Rambam claims that he found 500 year-old manuscripts in Egypt that have that reading.

The Sefer Hafla’ah suggests that that the difference of opinion on this matter stems from different understandings of the meaning of the condition that the lender made at the beginning of the loan. According to the Rambam, he simply was insisting that the repayment be made in a formal way – in front of witnesses – and if the borrower insists that he fulfilled that condition, we have no reason not to believe him. The Ri”f, however, understands that the original condition that was made showed that the borrower was not trusted by the lender, which is why he insisted on witnesses to the repayment. Thus, if the witnesses cannot be found, the borrower cannot be believed.

Shevuot 42a-b: Biblical oaths and Rabbinic oaths

The Mishnah on today’s daf lists a number of payments that will not be subject to Biblical oaths in bet din. Among them are claims of theft of slaves, legal notes, land, and consecrated items. Furthermore, claims made about monetary penalties (for example, double payments when an object is stolen; payments of four or five times the capital when the stolen item was cattle or sheep) will also not lead to an oath. Thus, even in situations where ordinarily the Torah would require an oath, e.g. there was a single witness or the person was modeh b’mikzat – he admitted to owing part of the claim – no oath will be required in these cases.

According to Rabbi Shimon, another case that is removed from the laws of oaths is a case of kodashim – consecrated items that belong to the Temple such that the person holding them is not responsible for them. If, however, he is responsible for them, i.e. he will have to replace them if the animal dies, then the laws of oaths will apply.

The clear ruling of the Mishnah notwithstanding, there was a well known tradition among the Geonim that required an oath in these cases on a Rabbinic level. Rav Hai Gaon excluded kodashim from the Rabbinic oath, however, arguing that oaths only make sense in the context of a challenge or disagreement between people. The Rambam disagrees, requiring an oath even in cases where someone is challenged with regard to kodashim. He argues that we cannot allow people to take kodashim less seriously than they take ordinary monetary situations. The Ri”d distinguishes between a situation where the Temple treasurer is the suspect, where we do not require an oath and a case where an ordinary person is accused of stealing from the Temple, where under circumstances that would ordinarily require that an oath be taken, e.g. if a single witness testified that he stole, he would be required to take an oath on a Rabbinic level.

Shevuot 43a-b: Light fixtures of the ancient world

We have already established that a modeh be-miktzat – a defendant who admits to part of a monetary claim made by the plaintiff – will have to pay what he admits that he owes, and in addition will have to take a Biblical oath that he does not owe the part that he denies.

According to the Mishnah (42b) there are certain limitations to this rule. Specifically, it only applies to claims that are measurable by size, weight or amount. On today’s daf Rava adds that not only the claim made by plaintiff, but also the admission of the defendant must meet this requirement. Thus, the case that is taught in the Mishnah, where the claimant argues that he gave the defendant a kis maleh – a wallet that was entirely full – and in response the defendant says “I do not know what was in the wallet, but I am returning it as I received it,” would not be considered to be a case of modeh be-miktzat, even if it had less than the amount that the plaintiff claims was in it.

The Gemara continues by quoting a baraita that supports Rava’s teaching. One of the examples presented by the baraita contrasts a case where the claim is made that a large menorah was given for safekeeping and the defendant admits to having received a small menorah vs. a case where the claim is made that a menorah weighing ten litrim was given and the defendant admits to a menorah of five litrim. In the first case
there is no need for an oath to be taken, while the second case is considered modeh be-miktzat since the discussion was about the weight of the object.

In explaining the difference between the two cases, Rabbi Shmuel bar Rav Yitzhak suggests that we are dealing with a case of a menorah shel chuliyot – a menorah made of pieces – and that the plaintiff admitted to having received a smaller number of pieces than was claimed.

Shevuot 44a-b: When an oath allows a plaintiff to collect

Although the only oaths that we find in the Torah are those that allow a defendant to swear and free himself from a monetary obligation (see Shemot 22:10), nevertheless the Sages of the Mishnah established oaths that would allow a plaintiff to swear and by doing so, to receive payment. These oaths are described in Perek Kol Ha-Nishba’im, the seventh chapter of Masechet Shevuot, which begins on today’s daf.

There are a number of categories of people who are nishba ve-notel – who take an oath and collect their claim. One such situation is when there are raglayim la-davar – when there are strong reasons to think that the claim of the plaintiff has merit. Such cases include situations like an employee who claims his wages or a storekeeper whose records show that money is owed to him.

Although the Mishnah lists such cases with the words ve-elu nishba’im ve-notlim – “these are the ones who can take an oath and collect,” Tosafot point out that the list is not exhaustive, as we find other cases where a similar rule applies, e.g. a creditor who comes to collect from the children of the person who owes him money after his death.

Tosafot explain that the cases listed in our Mishnah are only those where the oath was instituted by the Sages for the benefit of the plaintiff, that is to say, cases where he would ordinarily have been unable to collect the money owed to him and the oath instituted by the Sages allows him to collect the money that he is owed. There are other cases of nishba ve-notel where the person should have been able to collect even without an oath, and the institution of an oath was an additional demand made on the plaintiff by the Sages. Such cases of nishba ve-notel are not included in our Mishnah.

Shevuot 45a-b: The Sages defend workers’ rights

As we learned on yesterday’s daf the Sages of the Mishnah established oaths that would allow certain plaintiffs to take an oath and to collect money that is owed to them. Among the cases mentioned in the Mishnah are a nigzal and nechbal – someone who was the victim of theft or of violence that led to damage – as well as cases of a worker who claims wages that are due to him.

The Gemara chooses to ask why this arrangement was made for a worker. Apparently the Gemara does not ask about cases of nigzal or nechbal since in those cases we can well understand that the defendant is considered to be potentially unreliable, so the only one we can turn to for a reliable oath is the plaintiff. In the case of a worker and his employer, there is no reason to suspect that one is more reliable than the other, so why should we trust the oath of the worker rather than demand an oath from the employer that would free him of his obligation to pay? Such an oath would parallel the Biblical oaths that always free the defendant from paying!

The first response of the Gemara is that this oath was instituted because the worker needs this wages in order to survive. In response to the challenge of the Gemara that the employer should not be punished out of concern for the needs of workers the Gemara concludes that the oath is given to the worker since the employer is so overwhelmed with the responsibilities of his business and his workers that we assume that the worker is more likely to remember whether or not he was paid.

Although the Gemara introduces this second reason with the word ela – “rather” – which usually indicates that the first reason is rejected and is replaced with the second reason, in this case many rishonim, including Rabbeinu Chananel, the Ri”f and the Ramban, view the two explanations as complementary. Thus, the establishment of an oath in the case of a dispute over wages was instituted because of the Sages concern for the livelihood of the worker; the reason that it was given to the worker rather than to the employer was because the Sages understood that the employer was less likely to remember since he was so busy tending to the affairs of his business.

Shevuot 46a-b: What books are you willing to lend to others?

In a situation where two people argue over the ownership of an object – one claims that he rented it or lent it to the other, and the second one says that he bought it – several different issues must be considered. For example, is this an object that is ordinarily rented or lent?  Even terms like these need to be defined. While the Rambam understands that an object that is rented or lent refers only to things that are made specifically for that purpose, e.g. a very large pot that is not used for ordinary cooking, but would only be used when preparing for an out-of-the-ordinary meal.  Such a pot would be purchased by someone specifically with the intent that it would be available to others for occasional use. Most rishonim, however, understand that concept more broadly and any item that is commonly lent to others would fall into that category.

A specific example of something that is lent or rented is mentioned by the Gemara as something that Rava once collected from orphans – from the children of someone who had borrowed them from another. In that case he made them return a pair of scissors and books of aggadic teaching, both of which are identified as things that are commonly lent or rented.

Rashi understands that the books of aggadic teachings are the only books that we anticipate that someone would lend out, since they are used only occasionally. Books on topics of halacha, however, which are referred to on a regular basis, we assume would not be lent to others, since they would become worn with use. Tosafot reject Rashi’s interpretation and argue that books of aggadic teachings are mentioned because we may have thought that they were not lent to others since they are studied only occasionally. Other books that are commonly referred to are certainly lent out. The Ri”d distinguishes between a Sefer Torah that is not readily lent to others, since there is concern with the erasure of even a single letter; other books, however, are commonly lent without concern.

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The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.