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 47a-b: Gambling and its repercussions in halacha
Among the people who are nishba ve-notel – who can take an oath affirming the veracity of their claim and collect – are plaintiffs whose adversaries in court are people who are suspect and cannot take an oath themselves. Thus, in cases where the defendant would ordinarily have been obligated to take an oath and free himself from payment, if the defendant is a gambler like a dice player, or mafrichei yonim – “people who make birds fly” – he cannot. Similarly, if he is someone who markets produce from the Sabbatical year, the plaintiff will take an oath in court and collect.
The Gemara in Masechet Sanhedrin (25a) offers two explanations for mafrichei yonim – “people who make birds fly.” One approach is to explain that it is pigeon racing; the other approach suggests that it is ara – that is, training a pigeon to entice other birds to follow it. The Ran explains that these two reasons are dependent on how we define the underlying problem with gambling. The Mishnah taught that a mesachek be-kuvya – a dice player – is disqualified from testifying in court. Rami bar Hama taught that the problem with a dice player is one of asmachta – when gambling, neither side thinks that he will lose which will lead to a situation where the winner takes the loser’s money against his will. It is possible that in different types of betting players recognize different levels of possibility that they might lose. The Mishnah therefore needs to mention different types of gambling separately. Rav Sheshet, on the other hand, taught that the problem with a dice player is that he is eino osek be-yishuvo shel olam – that someone who makes his living by gambling is not involved in positive community activities. This explanation applies equally to dice playing and pigeon racing, so according to this approach we must have an alternative explanation for the case of mafrichei yonim.
The practice of ara – where a hunter trains his animals to entice others to return with it – would be permissible in settings where the animal brings wild animals back to its owner. The problem comes when the trained bird entices domesticated birds to return with it. Those domesticated birds that grow up in dovecotes are considered to be the property of the person who raises them – at least on a rabbinic level. Thus, someone who lives in a city or another populated area and trains his birds to bring home other birds, is assumed to be a thief and cannot be trusted to testify in court.
Shevuot 48a-b: Taking an oath when there is no claim
According to the Mishnah there are a number of people who the court will require to take an oath even though there is no claim against them. These people include:
- Sharecroppers who get a percentage of the produce
- An apotropus – a legal guardian appointed by a parent or by the courts to protect the interests of orphans
- A woman who is in charge of the financial workings of the household
- A ben bayit – someone who is a consistent guest and has free access to a household
The Gemara on today’s daf clarifies that there has to be some level of claim, and that the Mishnah’s intent is to teach that even if there is a ta’anat shema – even if the plaintiff raises a suspicion – it is enough for the court to obligate the defendant to take an oath. While ordinarily the bet din will only take seriously a ta’anat bari – a claim that is made by the plaintiff with certainty – given the close relationship that exists in these cases we recognize that a person might feel that it is his right to take something extra and the court is willing to require an oath based on a weaker claim.
With regard to the ben bayit, the Gemara quotes a baraita that explains that we will not obligate someone to take an oath simply because he comes and goes in the home on a regular basis, rather the Mishnah is referring to someone who has a position of financial responsibility in the home, e.g. he brings in and out workers or merchandise. The Me’iri explains that an ordinary ben bayit cannot be made to swear that he did not take anything from the house, since we do not work with the assumption that people are thieves. It is only if there is reason to suspect that the individual may believe that he is within his rights in taking something that we are willing to suspect him of overstepping his rights.
Shevuot 49a-b: Neither a borrower nor a lender be….
The final perek of Masechet Shevuot begins on today’s daf. Perek Arba’ah Shomerim focuses on the oaths required by the Torah when someone is holding someone else’s property, either because he was watching it for him or because he had permission to use it.
According to the Torah (Shemot 22:6-12), the level of responsibility for which a shomer – someone who accepts responsibility to guard his friend’s object – is liable, depends on the personal gain that the shomer receives. The Mishnah on our daf enumerates four types of shomrim and their level of responsibility. They include:
- A shomer chinam: who does not derive any personal gain or benefit from watching the object. In the event that the shomer chinam performs his duty responsibly and the object is lost or stolen, he can take an oath that he guarded it properly and he will be free of any further responsibility (see Shemot 22:6-7).
- A sho’el: – who borrows the object for his own use, without payment. He is responsible for anything that happens to the animal, and will have to pay full restitution to the owner (see Shemot 22:13). Only if the animal died in the course of normal work will he be free of responsibility to pay, if he takes an oath that that is what happened.
- A shomer sakhar: – who gets paid for watching the object, and
- A socher: – who pays rent to use the object.
According to the tanna of our Mishnah, in these last two cases the shomer will be responsible if the object is lost or stolen, but not if an ones – an unexpected accident – takes place. The Torah’s examples of ones are if the animal dies, breaks a leg or is taken captive, and if the shomer sachar or socher takes an oath to that effect, they will not have to pay.
The case of socher does not appear in the Torah, and the Gemara presents a disagreement between the tanna’im as to whether he is similar to a shomer sachar as appears in the Mishnah, or to a shomer chinam.
The laws of the four shomrim are discussed at length in Masechet Bava Metzia and they are mentioned here in the context of explaining their obligations regarding the oaths that they must take.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.
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