שבועות דף מז ע"ב

Granted, if you say that his father in such a case is liable, a verse is needed to exempt the heirs; but if you say that his father in such a case is also exempt, why do I need a verse about the heirs?^[1]

אביו כי האי גוונא מיחייב - He is liable to an oath, and since he cannot swear, for he does not know, he must pay. That is why a verse was needed to exclude the heir, exempting an heir who makes this claim.

And Rav and Shmuel,^[2] what do they expound from this “oath of Hashem”?

They need it for what was taught: Shimon ben Tarfon says: “The oath of Hashem shall be between the two of them” — this teaches that the oath rests upon both of them.^[3]

Shimon ben Tarfon says: From where is there a warning against one who assists an adulterer?

לעוקב אחר המנאף - One who makes himself the adulterer’s agent, to arrange women for him for adultery.

The verse states (Shemos 20:13) “You shall not commit adultery” — you shall not cause adultery.^[4]

(Devarim 1:27) “And you murmured in your tents” — Shimon ben Tarfon says: You spied out and disparaged the abode of the Omnipresent.^[5]

תרתם - You spied out the land.

וגיניתם - You disparaged the place where He rested His Shechinah among you.

(Devarim 1:7) “Up to the great river, the river Euphrates” — Shimon ben Tarfon says: Draw close to the anointed one, and become anointed.^[6]

קרב לגבי דהינא ואידהן - If you touch one anointed with oil, you too will be anointed by touching him. That is, the Euphrates is smaller than the other three rivers, for it is listed after them, last: “and the fourth river is the Euphrates” (Bereishis 2). Yet here it is called “the great river,” because it is mentioned here together with Eretz Yisrael, which is important, so it too is mentioned with importance. Dehina means oil and anointing: “it is made fat with fat” (Yeshayahu 34) is rendered in the Targum itdehina.

The school of Rabbi Yishmael taught: A king’s servant is like the king.^[7]

And the shopkeeper with his ledger, etc.^[8]

מתני' לא שאמר לו כתוב על פינקסי כו' - Only where there are grounds for the claim, where the homeowner admits that he told him, “Give, etc.”^[9]

שניהם נשבעין ונוטלין מבעל הבית - For the shopkeeper says to him: The workers are not trusted by me with an oath; you trusted them, since you did not tell me to give them before witnesses. And likewise the workers say to him: The shopkeeper is not trusted by us with an oath.

It was taught: Rebbi said: Why this trouble of an oath?

גמ' טורח שבועה זו למה - Since both come to court, a false oath will come out from between them. And Rebbi did not explain what he holds: whether they take without an oath, like Ben Nanas, or the shopkeeper loses through the workers’ oath.

Rabbi Chiya (bar Abba) said to him: We have already learned it: Both swear and take from the homeowner.

תנינא שניהם נשבעין ונוטלין - You already taught us, and stated it anonymously in the Mishnah: both swear and take.

Did he accept it from him, or did he not accept it from him?

קיבלה מיניה - Did Rebbi accept it from Rabbi Chiya and retract, or not?

Come and hear: For it was taught: Rebbi says: The workers swear to the shopkeeper.

ת"ש - When Rebbi explained what he holds in this case, he said: the workers swear to the shopkeeper that they received nothing from him. Evidently he did not accept it, and he holds that the shopkeeper loses, for he should have given to them before witnesses.

And if it is so, it should have said “to the homeowner”!

ואם איתא - That he accepted it, it should have said that they swear to the homeowner. For what business do they have with the shopkeeper regarding an oath, since he goes back and collects from the homeowner?

Rava said: The workers swear to the homeowner in the presence of the shopkeeper, so that they will be ashamed before him.^[10]

אמר רבא - In truth he accepted it from him, and this is what he means: the workers swear to the homeowner in the presence of the shopkeeper, that is, before the shopkeeper, as the Gemara goes on to explain.

It was stated: Two sets of witnesses that contradict each other^[11] — Rav Huna said: This one comes by itself and testifies, and that one comes by itself and testifies.

המכחישות זו את זו - Two say: He killed; and two say: He did not kill.

זו באה בפני עצמה ומעידה - In another testimony, and likewise the other. Even though one of them is disqualified, you may not disqualify either this one or that one, since you do not know which of them is disqualified. But one from this set and one from that set are not trusted together in a single testimony, for whichever way you look at it, one of them is disqualified. That is why he used this wording, comes by itself and testifies.

Rav Chisda said: What do I need with false witnesses?

בהדי סהדי שקרי למה לי - Since one of them is disqualified, neither of them is trusted for any testimony.

Two lenders, two borrowers and two documents — that is their dispute.

This is the reading: “Two lenders and two borrowers and in two documents, that is their dispute”; and we do not read “all agree.”

ב' מלוין וב' לווין וב' שטרות - One of these two sets signed on this document and the other signed on that one. According to Rav Huna both documents are valid, and according to Rav Chisda both are invalid.

A lender, a borrower and two documents — the holder of the document has the lower hand.^[12]

מלוה ולוה ושני שטרות - One man has two documents for two loans against his fellow, one signed by this set and one by that. The holder of the document has the lower hand according to both Rav Huna and Rav Chisda; they do not disagree here. For he comes against him by force of two sets, one valid and one invalid, and you can neither disqualify both nor validate both. Therefore he collects the smaller document, and loses the larger, because the borrower tells him: This is the invalid one; and out of doubt we do not take money from him. But whichever way you look at it, the smaller one is collected, for a hundred is included in two hundred.

Two lenders, one borrower and two documents — that is our Mishnah.^[13]

שני מלוים ולוה אחד - That is the Mishnah: two lenders each produced his document against one borrower, and of these two sets one signed on this and one on that. We do not ask what Rav Huna says about it, for it is our Mishnah, which teaches: they swear and take from the homeowner. Even though we know that one of them is lying, we cannot make either of them lose, and the court attends to them to collect for them. So too for Rav Huna, who holds regarding two lenders and two borrowers that this one comes and testifies and that one comes and testifies, the same applies to two lenders and one borrower. Even though, whichever way you look at it, this poor borrower is struck by one of these documents through invalid testimony, you cannot make either lender lose, since you do not know which is the invalid one.

Two borrowers, one lender and two documents — what is the law?

שני לווין ומלוה אחד - This lender produced two documents, this one signed by this set and that one by that set.

מאי - What does Rav Huna say here? Do we say: since it is one man who brings them before us, we do not attend to him, for whichever way you look at it he has brought an invalid document before us; this borrower pushes him off to that one and that one to this one, and he loses? Or perhaps, since he is claiming against two borrowers, this one comes and testifies and that one comes and testifies? For Rav Chisda there is no question, for even with two lenders, two borrowers and two documents it is invalid, and all the more so with two borrowers and one lender.

It remains unresolved.^[14]

Rav Huna bar Yehudah raised an objection:

אי אמרת בשלמא אביו כי האי גוונא מיחייב - This is difficult according to the one who says in Perek HaSho’el (Bava Metzia 97b) that where one says, “I have a maneh in your hand,” and the other says, “I do not know,” he is liable, because a certain claim is stronger.^[15] How does he explain this verse? If it speaks of “fifty I know and fifty I do not know,” in that case the father has no obligation of an oath, only a monetary obligation, since a certain claim is stronger. One can answer that he explains it like Rav and Shmuel, nearby. Alternatively, this is what the verse means: “The oath of Hashem shall be between the two of them” where it applies, and one who cannot swear pays; but not so the heirs, who are exempt when they cannot swear.

חלה על שניהם - The one who imposes the oath is punished even if the law is on his side, as Rashi explained at the beginning of HaDayanim (above, Shevuos 39b). And so it appears, for there it expounds in a beraisa, “and it shall come to the thief”: this is one who deceives people, claiming money from one who does not owe him. And after that it asks, the one who imposes the oath, why does he stand under “Depart”? and answers: because of the teaching of Rabbi Shimon ben Rabbi Tarfon. Since it needed to bring this one and left the beraisa itself, it is because it speaks even where the law is on his side.

בהדי סהדי שקרי למה לי - This is difficult: Rava says in Merubah (Bava Kamma 72b) and in Makkos (daf 4) that a zomem witness is a novelty,^[16] for why do you rely on these? Rely on those! On the contrary, accepting those who make them zomemim should be the novelty, for in a contradiction both sets are invalid according to Rav Chisda. And the Ri says that Rava holds like Rav Huna, for at the beginning of Chezkas HaBatim (Bava Basra 31b) it concludes regarding Rav Nachman and Rava that all hold like Rav Huna; and where Rava answers below according to Rav Chisda, he himself does not hold so. And according to what the Gemara there wanted to establish Rava like Rav Chisda, he could have said, “And according to your reasoning.” Moreover, according to the other reason regarding a zomem witness, which explains it as due to the loss to purchasers, he can hold like Rav Chisda. And the halachah follows Rav Huna, since Rav Nachman and Rava are established as holding like him in Chezkas HaBatim; and so ruled Rabbeinu Chananel, because Rav Huna was Rav Chisda’s teacher, as we say in Eilu Metzios (Bava Metzia 33a). Moreover, the Mishnah “one says tall, etc.” apparently supports Rav Huna.

Notes

1. 1. This continues from 47a [Shevuos 47a]. Rabbi Abba holds that one who is obligated to swear and cannot swear must pay. Rava supported him from the beraisa “the oath of Hashem shall be between the two of them, and not between the heirs,” which must speak of an heir who says, “Fifty I know and fifty I do not know.” A verse is needed to exempt the heir only if his father, in the same case, would have to pay.
2. 2. Rav and Shmuel hold that in such a case “the oath returns to Sinai”: the court imposes neither an oath nor payment, and the matter is left to Heaven [Shevuos 47a]. So they do not learn Rabbi Abba’s rule from this verse, and the Gemara asks what they do learn from it.
3. 3. The punishment of the oath reaches both sides: not only the one who swears falsely, but also the one who brought him to swear [Shevuos 39b].
4. 4. The word tinaf, “commit adultery,” is also read as tanif, its causative form: do not cause another to commit adultery. So one who arranges or assists adultery also transgresses. These further teachings of Shimon ben Tarfon are brought because the Gemara has just quoted him.
5. 5. The verse describes the people’s complaint after the spies’ report. Shimon ben Tarfon reads va-teraggenu, “you murmured,” as two words: tartem, “you spied out,” and ginisem, “you disparaged.” They scouted the land and spoke ill of the place of the Shechinah.
6. 6. A proverb: one who touches a person anointed with oil gets anointed too. The Euphrates is the smallest of the four rivers of Eden, yet the verse calls it “the great river” because it is mentioned together with Eretz Yisrael.
7. 7. Another proverb making the same point: one who is attached to someone important shares in his importance.
8. 8. The Gemara returns to the Mishnah [Shevuos 45a]. A homeowner told a shopkeeper to give his workers goods worth a sela on his account. The shopkeeper says he gave, and the workers say they received nothing. The shopkeeper swears and collects from the homeowner, and the workers swear and collect from him too. Ben Nanas objects that one side must then be swearing falsely; rather, both collect without an oath.
9. 9. Rashi here explains the wording of the Mishnah [Shevuos 45a]: the shopkeeper’s ledger alone proves nothing; the case is one where the homeowner admits that he gave the instruction.
10. 10. Facing the shopkeeper, who knows whether he gave them anything, the workers will be ashamed to swear falsely.
11. 11. Two pairs of witnesses give contradictory testimony, for example one pair says he killed and the other says he did not. One pair must be lying, and a lying witness is disqualified, but we do not know which. The dispute is whether each pair may still testify on its own in other matters.
12. 12. “The lower hand”: in a doubt, the holder of a document is the weaker side and collects only what is certain, here the amount of the smaller document.
13. 13. The Mishnah of the shopkeeper [Shevuos 45a]: two claimants, the shopkeeper and the workers, collect from one man, the homeowner, even though one of them is surely lying.
14. 14. Teiku: the question is left unresolved.
15. 15. Bari adif: a certain claim (“you owe me”) outweighs an uncertain answer (“I do not know”), so the defendant pays without any oath arising.
16. 16. Eidim zomemim: witnesses whom a second pair refutes by testifying that they were elsewhere at the time. The second pair is believed, though it is only two against two; Rava calls this a novelty.