003b הכל ממירין פרק ראשון תמורה ג ע"ב - HAKOL MEMIRIN CHAPTER ONE TEMURAH

They do not clear him^[1], but an earthly court flogs him and clears him.

אין מנקין אותו - as it is written, "for Hashem will not clear."

Rav Pappa said to Abaye: But say instead that he should have no clearing at all?

נקיות כלל - that the earthly court does not flog him.

He said to him: If so, let the verse^[2] write only "will not clear" and drop "Hashem"? It is only the heavenly court that does not clear him; the earthly court flogs him and clears him.

We know there is a vain oath^[3] and a false oath. How do we know that a false oath is punished with lashes?

אשכחן שבועת שוא - As written (Shemot 20:7), "who takes His name in vain": this is the vain oath, e.g., one who swears to change what is known to a person.

שבועת שקר - explained below what it is.

מנלן - that he is flogged for it.

Rabbi Yochanan himself derived it: "for vanity" is written twice. If it does not apply to the vain oath, apply it to the false oath, which is punished with lashes.

Rabbi Avahu objects: what does a false oath look like^[4]?

If we say he swore "I will not eat" and then ate, there he did an act.

מעשה עבד - And rightly he should be flogged, since he ate and did an act.

But if he swore "I will eat" and did not eat, is such a one flogged^[5]?

ולא אכל - since that is not an act.

וכי האי גוונא מי לקי - A rhetorical question.

But it was stated^[6]: one who swears "I will eat this loaf today," the day passes, and he did not eat it.

Rabbi Yochanan and Resh Lakish^[7] say: he is not flogged.

Rabbi Yochanan says he is not flogged, because it is a prohibition with no act^[8], and one is not flogged for a prohibition with no act.

Resh Lakish says he is not flogged, because it was a warning given in doubt^[9], and one is not flogged for a warning given in doubt.

משום דהויא התראת ספק - For if he had been warned, "Beware that you do not eat the loaf you swore about," he could say: that warning does not concern me; I still have time, and the whole day is still mine. Even after the day has passed he could say: I forgot; I remembered neither the oath nor the warning. So he is not flogged.

Rather, Rabbi Avahu said: let it be "I ate and did not eat." And why does the verse include "I ate and did not eat" among false oaths^[10] more than "I will eat and did not eat"?

תהא באכלתי ולא אכלתי - That is, let it be a false oath, of one who swore he did not eat and did eat, or that he ate and did not eat. Here there is no act at all, since he swore about the past.

ומאי שנא אכלתי ולא אכלתי - That is, why does the verse exclude "I will eat and did not eat" from lashes more than "I ate and did not eat"? In both there is no act at all.

Rava said: explicitly, the Torah included a false oath like a vain oath^[11]. Just as a vain oath concerns the past, so a false oath concerns the past.

שבועת שקר דומיא דשבועת שוא - As derived above: "for vanity" is written twice.

מה שבועת שוא שהיא לשעבר - Just as a vain oath concerns the past: when he swears on a stone column that it is silver, this concerns the past, because before he swore it was stone, as it is now. For a vain oath one is flogged, as said above, the earthly court flogs and clears him. So too a false oath about the past, namely "I ate and did not eat," as opposed to "I will eat and did not eat," which concerns the future.

Rabbi Yirmeya objected to Rabbi Avahu: "An oath that I will not eat this loaf"; "an oath that I will not eat it"; "an oath that I will not eat it, and he ate it, is liable only once." This is an oath of utterance^[12]: for a deliberate violation one is flogged, and for an inadvertent one he brings an olah-v'yored offering.

שבועה שלא אוכל ככר זו וכו' - since he swore three times that he would not eat that loaf.

אינו חייב אלא אחת - as we say in Shevuot that an oath does not take hold upon an oath.

וזו היא שבועת ביטוי - since the verse says, "to utter with the lips to do evil or to do good" (Vayikra 5:4). This is the oath of utterance: he utters with his lips that he will not eat that loaf, but he does not take anything from his fellow. For the oath of testimony and the oath of a deposit, one brings a guilt offering for a deliberate violation, as for an inadvertent one.

This word excludes what? Surely it excludes "I ate and did not eat" from lashes.

למעוטי מאי - That is, a deliberate violation is not liable to lashes.

לאו למעוטי אכלתי ולא אכלתי - Even though it is an oath of utterance, one is not flogged, since "to do evil or to do good" is written, which implies the future and excludes the past, such as "I ate and did not eat." And even so, how is it a false oath?

No: it concerns the inadvertent violator who brings an offering; "I ate and did not eat" brings no offering. This follows Rabbi Yishmael^[13], who holds one is liable only for the future. But "I ate and did not eat" is flogged?

לא מייתי קרבן - Because "to do evil or to do good" refers to the offering. But if so, in any case one is liable to lashes, like the vain oath.

דאמר - [Rabbi Yishmael], in Shevuot (25a), says one is liable only for the future.

Let us say the later clause: "This is a vain oath: for a deliberate violation one is flogged, for an inadvertent one he is exempt.

זו היא שבועת שוא - The latter clause of that Mishnah above: "this is a vain oath, etc."

"This" excludes what? Surely it excludes "I ate and did not eat" from lashes.

This "this" concerns the inadvertent violator, who is exempt from an offering, whereas "I ate and did not eat" brings an offering. This follows Rabbi Akiva, who holds one brings an offering for the past.

But you said the first clause^[14] is Rabbi Yishmael?

Rather, from the later clause it is Rabbi Akiva. The first clause too is Rabbi Akiva, and its exclusion is not "I ate and did not eat" but "I will eat and did not eat." And what is the difference?

ורישא לאו למעוטי אכלתי ולא אכלתי - For "I ate and did not eat" one certainly brings a guilt offering for an inadvertent violation.

ומאי שנא - That is, it excludes "I will eat and did not eat" from the offering, and includes "I ate and did not eat" from the later clause, which is liable for an offering. The answer: it is reasonable that the first clause excludes "I will eat and did not eat."

Because it applies to the future and excludes the future, it applies to the future and excludes the past^[15].

דקאי בלהבא - That is, it speaks of "I will not eat" as the future, and excludes "I will eat and did not eat."

אבל קאי בלהבא וממעט לשעבר - As an exclamation, e.g., "I ate and did not eat."

Rabbi Yochanan said to the tanna: do not teach "and say," because by his speech he performs an act.

לא תיתני מימר - It is in the category of other negative commandments that involve no act.

דבדבורו עושה מעשה - That is, he turns unconsecrated food into consecrated property^[16].

One who curses his fellow with the Name^[17]: how do we know it?

Rabbi Elazar said in the name of Rabbi Oshaya: the verse says, "If you do not keep" (Devarim 28:58), and it is written, "Hashem will make your plagues wondrous^[18]" (Devarim 28:59). I do not know what "wondrous" means; when the verse says, "the judge shall cast him down and strike him before him" (Devarim 25:2), say that this "wondrous" means lashes.

אם לא תשמור לעשות וגו' - Until "to fear the Name": that he should be in awe of not bringing the Name to vanity. So one who curses his fellow with the Name brings the Name to vanity, and it is written, "Hashem will make your plagues wondrous," meaning he will receive lashes; that is the meaning of lashes.

Perhaps this applies even to a true oath? But it is explicitly written, "an oath of Hashem shall be between them^[19]" (Shemot 22:10).

אפילו שבועת אמת - For the verse warns that even a true oath should not be made in the Name of Heaven; and if one does, "Hashem will make your plagues wondrous": he will receive lashes.

בהדיא כתיב - That it is permitted to do so.

Perhaps those rules are about appeasing one's fellow?

לפייס חבירו - So that he will not press him for money; but for lashes one is flogged, since he brings himself into an oath.

But for lashes you cannot say so. You say it is written, "and by His name you shall swear" (Devarim 6:13); that verse is needed for what Rav taught: from where do we know one may swear to uphold the mitzvot? Because it says, "I have sworn and I will keep, to observe Your righteous judgments" (Tehillim 119:106). Is there not another verse, "and cleave to Him^[20], and swear by His name" (Devarim 10:20)?

ובשמו תשבע - That a true oath is permitted to be made.

לקיים המצוה - So that he cannot retract, as it says, "I have sworn and I will keep^[21]." Therefore this verse, "and by His name you shall swear," is needed to teach that one who swears to uphold a mitzvah is permitted.

הכתיב קרא אחרינא ובשמו תשבע - For two verses are written, "and by His name you shall swear": one in Va'etchanan and one in Eikev. One is needed for an oath to uphold a mitzvah, and the other for a true oath.

Then what is it coming for? For one who curses his fellow with the Name. Say instead: for one who brings the Name of Heaven to vanity. Is one who curses his fellow with the Name worse than one who brings the Name of Heaven to vanity?

אלא למאי אתא - This "if you do not keep" etc.

למקלל את חבירו בשם - For certainly one is flogged, even though he does no act.

שם שמים לבטלה - But one who curses his fellow with the Name is not flogged. And it is an argument a fortiori (kal v'chomer).

This is our question: say it refers to one who brings the Name of Heaven to vanity; lashes would suffice for him.

But one who curses his fellow with the Name: since he does two things, bringing the Name of Heaven to vanity and distressing his fellow, lashes will not suffice for him.

דהיכא דקא עביד תרי איסורי - That when one commits two prohibitions, lashes are not enough for him; and although he was flogged, he is still not atoned by lashes alone.

Tosafot

שבועה שלא אוכל ככר זו שבועה שלא אוכלנה ואכלה אינו חייב אלא אחת - Tosfos: [The Gemara] mentions first "an oath that I will not eat this loaf." Had it said "an oath that I will not eat it, an oath that I will not eat," he would be liable twice: "that I will not eat it" covers the whole, and when he then says "an oath that I will not eat," it is general. Shevuot (27) explains why it taught "that I will not eat it" twice.

ומאי שנא - Tosfos: Rashi explains: "what is the difference that he excludes 'I will eat and did not eat' from the offering, and includes 'I ate and did not eat' from the later clause that is liable for an offering?" This is not right: if he had said to exclude "I will eat and did not eat," there would be no difficulty at all; but if he had said the reverse, you would have a difficulty. R"Y explained: "what is the difference that he reads it like R' Akiva but holds like R' Yishmael, the first clause excluding 'I ate and did not eat' from the offering and the later clause excluding 'I will eat and did not eat' from lashes"; and he answers: it concerns the future.

ומקלל חבירו בשם מנלן - Tosfos: "if you do not keep to do" and its warning comes from here: "do not curse the deaf" (Vayikra 19:14); or also from this verse itself.

Notes

1. 1. "Clear" (menakin): to free the guilty from his guilt. The Gemara says the heavenly court does not clear him, but an earthly court does, by flogging him.
2. 2. The verse "Hashem will not clear him who takes His name in vain" (Shemot 20:7). The Gemara asks why "Hashem" is written, since only the heavenly court does not clear.
3. 3. A vain oath (shevu'at shav) is sworn about a known fact, e.g., that a stone is silver. A false oath (shevu'at sheker) is sworn falsely about a past matter, e.g., "I did not eat" when he did.
4. 4. Rabbi Avahu asks for an example of a false oath. The following lines work out that it concerns an oath about the past.
5. 5. A rhetorical question; the answer is no. An oath about a future act, not yet violated when sworn, carries no lashes.
6. 6. The Gemara quotes a teaching that was stated by the Amoraim about an oath to eat the loaf that day, and discusses it below.
7. 7. Resh Lakish, who agrees with Rabbi Yochanan's ruling but gives a different reason (a warning in doubt).
8. 8. A lav she-ein bo ma'aseh is a prohibition violated without any act; one is not flogged for it.
9. 9. A warning in doubt (hatra'at safek): a warning that is not clearly addressed to the transgression, e.g., he was told not to eat while still having time. Lashes require a clear warning.
10. 10. A false oath about the past: "I ate and did not eat." The Gemara asks why this case is included rather than the future case; see Rashi.
11. 11. Rava: the verse "You shall not swear falsely by My name" (Vayikra 19:12) includes the false oath, and the Gemara compares it to the vain oath of Shemot 20:7.
12. 12. An oath of utterance (shevu'at bitui, Vayikra 5:4): swearing with the lips to do or not do something. Deliberate violation brings lashes; inadvertent violation brings an olah-v'yored offering.
13. 13. Rabbi Yishmael holds that one is liable only for the future. Rashi cites Shevuot 25a.
14. 14. The "first clause" (reisha) and "later clause" (seifa) are the two halves of the Mishnah cited earlier; the vain oath is the later clause.
15. 15. Qa'i belahava: the verse speaks of the future; it excludes the past, what has already happened.
16. 16. Hekdesh by speech: a spoken declaration can consecrate unconsecrated food, so speech is itself a deed.
17. 17. A new subject: cursing another with the Divine Name, and whether this is punished with lashes.
18. 18. Devarim 28:58-59: "If you do not keep... Hashem will make your plagues wondrous." Devarim 25:2 speaks of the judge striking the guilty before him.
19. 19. Shemot 22:10: in a dispute over a deposit, an oath before Hashem settles the claim; a true oath is permitted.
20. 20. Devarim 10:20: "Him you shall fear... to Him you shall cleave, and by His name you shall swear."
21. 21. Tehillim 119:106: "I have sworn and I will keep it, to observe Your righteous judgments."