תלמוד על שמות 22:8

If he said, I am paying, one may suspect that possibly he took it for himself¹⁷One forces him to swear a rabbinic oath that the article is not in his possession.. If he said, I am swearing, but then he saw that other oaths were added¹⁸Since once a person is required to swear by biblical standards, the opposing party can make him swear on any other claims even if those claims alone would not be sufficient to force an oath: Soṭah 2:6, Notes 166–169. and he said, I am paying, one is suspicious¹⁹The oath required from every non-payor. For rabbinic oaths one cannot force additions; cf. Rosh Šebuot7, end of Section 18 (Alfasi Šebuot 7, # 1186.). Rebbi Yose said, the Torah did not impose an oath on him to restrict him but to ease for him; for if he wants to pay, he shall pay, and if he wants to swear, he shall swear²⁰Ex. 22:7–8. R. Yose denies the possibility of the imposition of a rabbinic oath if there is no case for a biblical oath.. If he had witnesses that it was forcibly stolen²¹Then he does not pay without swearing an oath., to that case refers what Rebbi Eleazar said: If somebody sells his claims of fines to someone else, he did not do anything²²If the trustee pays even though he is not required to swear in order to be freed from payment, he did not acquire the right to claim double restitution from the thief. If the thief is caught, he has to pay double to the owner of the object who then will return to the trustee what the latter had paid and retain the amount of the fine for himself.. If he had witnesses that it was stolen because of negligence, he comes under the category of “he shall pay”²³Ex. 22:8 explicitly obligates the trustee for damages caused by his negligence. In this case, the Mishnah does not apply and there is no statement that the claims were transmitted to the trustee.. If afterwards the stolen object was found, to whom does [the thief] pay? To the first, or to the second, or to both of them?

¹³Babli 3b. From where that civil cases are heard by three [judges]? The owner shall go to the judge,¹⁴Ex. 22:7. he added here one judge. Before the judge,¹⁵Ex. 22:8. these are two. Whom the judges will find guilty, these are three¹⁶Since the paragraph mentions judge three times., the words of Rebbi Joshia. Rebbi Jonathan said, the first mention introduces the subject; one does not infer anything from introductions¹⁷This is a generally accepted principle (Babli loc. cit.). The expression which introduces a subject always is necessary and cannot be considered additional or extraneous to the subject at hand.. But before the judge, there is one. Whom the judges will find guilty, there are two. No court may be even-numbered,¹⁸The duty of the court is to decide matters based on incomplete information. The possibility of a deadlock would defeat the purpose for which the court was convened. Therefore, no court may be even-numbered. If any of the judges did abstain from voting, the case would have to be tried anew with another judge substituting for the abstaining judge. so one adds another one; this makes three.

Rebbi Abba, Rav Jehudah in the name of Samuel: In any case where two [witnesses] make him liable to pay money, a single witness sets him up for an oath¹⁴In the Babli, 40a, this is a tannaitic statement commented upon by Samuel.. But do not two [witnesses] make him liable for real estate¹⁵Since anything can be decided upon the testimony of two witnesses, possession of real estate can be transferred without documentary proof by the testimony of witnesses. Similarly, real estate can be attached in foreclosure for unpaid fines upon the testimony of two witnesses.? It is a difference since one does not swear about real estate. But do not two [witnesses] make him liable for a fine? There is a difference since one does not swear about a fine. But do not two [witnesses] make him liable for a peruṭah? Is it so? Have we not stated: “A judicial oath is about a claim of two silver coins and the acknowledgment of one peruṭah.” Our Mishnah, when he swears by his own formulation. What (Rebbi)¹⁶A slip of the scribe’s pen; the first generation Samuel only had a medical, not a rabbinic degree. Samuel said, when he swears by the formulation of others. Rav Ḥisda and his group disagree. “A judicial oath”, any judicial oath. There is no difference whether he swears by his own formulation or he swears by the formulation of others, he cannot be liable except for a claim¹⁷It is not clear whether the sentence is incomplete and one should add “of at least two oboloi”, or that only the situation of monetary claim and denial can be adjudicated by judicial oath, to support the opponents of R. Joḥanan in the next paragraph. The interpretation of the statement in the Babli has no relation to the discussion here..

It was said, if its owners were with him, he does not have to pay³⁸Ex. 22:14. If the borrower had asked not only for the use of an animal and/or agricultural or mechanical implements but also had asked their owner to help him in his work, then the disposition over animals or tools never was transferred to the borrower; in case the animal died or it and the tools broke or were taken by force the borrower does not have to pay. But if the authority over animal and/or tools was transferred, the borrower has to pay if anything happens to them.. Does he have to swear? Rebbi Ze`ira said, he swears. Rebbi Ḥanina and Rebbi La both are saying, he does not swear<sup>39</sup>The Babli does not treat the question, which seems to be that even though the owner retains the power of disposition over his property, the borrower might have to swear that he was not in any way the cause of the accident.. A baraita supports Rebbi Ḥanina and Rebbi La: “Breakage, abduction, and death for which he is not liable in the cases of the paid keeper and the renter<sup>40</sup>Since Ex. 22:9 excuses the paid keeper in the case of an unobserved accident but requires an oath that the keeper did never ever use the animal or object for himself (or the renter that he never overstepped the conditions of his lease)., and the borrower with the owner is not liable, without the owner is liable<sup>31</sup>Ex. 22:13.; loss and theft where the paid keeper and the renter are liable, is it not that a fortiori the borrower be not liable with the owner but liable without the owner<sup>41</sup>There is no verse referring to the responsibility of the borrower for cases of loss and theft but it cannot be less than that of breakage, etc. It cannot be more since the conclusion of a logical argument cannot be stronger than the premise.?” For him who says it is obvious that he swears, should he not have to pay<sup>42</sup>Since the oath would absolve from payment, it is clear that R. Ze`ira holds that the borrower has to pay if he cannot swear. But this contradicts the argument of the baraita since it also applies to the case where the owner works with the borrower.? Rebbi Ḥanina⁴³This is the late Amora R. Ḥinnena, not the early R. Ḥanina mentioned earlier. in the name of Rebbi Yudan: A baraita supports Rebbi Ze`ira. “The borrower, for whom the Torah was restrictive, with the owner is not liable, without the owner is liable; the paid keeper, for whom the Torah was lenient, a fortiori with the owner should not be liable, without the owner should be liable.<sup>44</sup>In fact his responsibility depends on whether there was a formal act of transfer of responsibility, Note 4.” If you are saying, his problem was swearing, he should have stated “the paid keeper and the renter<sup>45</sup>Since in general the paid keeper and the renter follow the same rules. But since the renter pays the owner for the use, in matters of payment there is reason to differentiate between the two..” That means he only needs it for payment. It is difficult for Rebbi Ze`ira: the borrower swears if the owner was with him; if the owner was not with him he must pay. The unpaid keeper swears, whether the owner was with him or was not with him⁴⁶Ex. 22:8.. You are saying that where the borrower pays the paid keeper swears⁴⁷If the loss was because of the unlawful actions of third persons.. Where the paid keeper swears, the unpaid keeper should not be liable. Where the paid keeper pays, the unpaid keeper swears⁴⁸If the loss was because of the negligence of the keeper, when the object was lost, or probable negligence, when it was stolen.. What do you state about an unpaid keeper when the owner be with him⁴⁹As stated before, if there was no formal transfer of responsibility, the unpaid keeper does not even swear.? But some are asking, what do you state about an unpaid and a paid keeper, whether or not the owner be with him⁵⁰Since the distinction is made only for the borrower, we do not even know whether such a distinction is of any relevance for the other kinds of keepers.? Rebbi Abin said, any word of criminality^46,Ex. 22:8.⁵¹This explicitly excludes the distinction about the participation of the owner for paid and unpaid keeper; the previously quoted baraitot are contradicted.. Rebbi Mana said, do we not find that the Torah treated loss and theft equally for the borrower? Therefore, we shall treat breakage, abduction, and death equally both for the unpaid and the paid keepers⁴²Since the oath would absolve from payment, it is clear that R. Ze`ira holds that the borrower has to pay if he cannot swear. But this contradicts the argument of the baraita since it also applies to the case where the owner works with the borrower..

⁵³The remainder of the Halakhah does not refer to Mishnah 8:1 but to Bava meṣi`a3:13. There exists a full parallel in the Escurial ms. of Neziqin(E), reproduced above, and a not quite complete version published by R. H.Y.D. Azulai almost 200 years before the discovery of E; cf. Bava meṣi`a3:13, Note 89. The Leiden ms. there quotes only the first line followed by “etc.” This justifies considering the text of E as second source for the text here.
A short parallel to the discussion here is in the Babli, Bava meṣi`a44a. What is the reason of the House of Shammai? Any word of criminality<sup>46,</sup>Ex. 22:8.<sup>54</sup>Mishnah Bava meṣi`a3:13 states that according to the House of Shammai, a keeper becomes unfaithful and liable for any and all damages to the deposit if he thinks of appropriating it for his own use; according to the House of Hillel only the actual taking triggers liability. The House of Shammai include in “word of criminality” also unspoken words which would prevent the keeper from swearing to his innocence.. How do the House of Hillel explain the reason of the House of Shammai? “Criminality,” any word of criminality. Explain it if he appropriated it through an agent⁵⁵Giving orders certainly involves words. If the order was criminal, the person giving the order can no longer swear truthfully that he did not take the deposit even if he himself never touched it..

“ ‘You’ excludes one who gives heave from what is not his.” What is the interpretation, one who gives heave from what is not his own, or one who gives heave from what is somebody else’s? Let us hear the following: If he declared his heap as ownerless and then smoothed it and took possession again, if you refer to one who gives heave from what is not his own, his heave is not heave, if you refer to one who gives heave from what is somebody else’s, his heave is heave⁷⁰Mishnah Ma‘serot 1:6 states that tithes and heave are due after threshing, when the grain kernels have been assembled into a heap and the heap was smoothed. It is shown in Ma‘serot, Halakhah 1:1, that property which was ownerless at the moment when heave was due is exempt from heave. This seems to contradict the statement here that if a person declared his grain ownerless before it was smoothed, then gave heave, and only after that again took possession, his heave might be heave. The entire argument is possible only for R. Meïr, since R. Yose holds that property can be abandoned only if another person takes it up (cf. Peah 6:1, Note 17). It follows that any heave given in this case is given only because by rabbinic decree this kind of pro forma abandoning was declared invalid; hence, there is a rabbinic obligation of heave. As the Babli notes (Nedarim 44b), any heave given from the repossessed grain must refer to the heap itself; it cannot possibly be given for unabandoned grain which is obligated by biblical decree (if we assume that heave is a biblical obligation after the Babylonian exile, cf. Ševi‘it Chapter 7, Notes 11 ff.).. Let us hear from the following⁷¹Mishnah Terumah 6:4. Stealing sacred property obligates the thief to pay back the amount taken plus a fine of one fifth (Lev. 5:16). The fifth is computed from above (amount stolen = 4/5 amount paid), which is one fourth from below (amount paid = 5/4 amount stolen). Halakhah 6:4 explains that one fifth has to be given to the Temple, restitution of Temple property, and another fifth to a Cohen, as restitution of heave.: “If he stole Temple heave and ate it, he pays two fifths and the principal because there is no double payment for Temple property⁷²Double restitution is required only for theft from natural persons: (Ex. 22:8) “He shall pay double to his neighbor.”.” Who gave the heave if not the administrator? Is he not giving heave from what is not his⁷³If this argument were valid, no corporation would ever be able to be engaged in agriculture in the Holy Land since it never could tithe.? And you say his heave is heave! The reason must be that he does not give heave from another person’s property. Or should we say, who gave the heave if not a Levite who dedicated his heave? But did not Rebbi Hoshaia state that there is no difference between him who dedicated his ṭevel and him who dedicated his heave? Rebbi Idi said, the administrator is like the owner⁷⁴Any duly authorized person can give heave for any corporation. The question asked at the start is not answered since we did not find a case in which it would make any difference.. This does not follow Rebbi Yose, since Rebbi Yose said the administrator is like any other person⁷⁵This opinion is not supported by any other source in Talmudic literature..

“Since double restitution does not apply to the Sanctuary”. For it was said (Ex. 22:8): “He should restitute double to his neighbor,” but not to the Sanctuary.

And what is the reason of the House of Shammai? “Any talk of criminality.⁸⁸Ex. 22:8. The same argument is in the Babli 44a, Qiddušin 42b; Mekhilta dR. Simeon ben Ioḥai p. 202.” How do the House of Hillel explain “any talk of criminality’? I could think only if he acts alone⁸⁹The trustee is guilty in civil law even if the taking of the depositor’s property was done by the trustee’s agent; Mekhilta dR. Simeon ben Ioḥai p. 202.
This is explained at the start of a lengthy text in Šebuot 8:1 (38c l. 37 – 38d l. 1) which really is a commentary on Mishnah Bava meṣi‘a 3:13. E copies this text here; R. Ḥ. Y. D. Azulai (פתח עינים) published a slightly shorter text from a ms. of R. Menaḥem Lonzano who copied it from a ms. of Yerushalmi Bava meṣia‘. E’s text is an exact copy of Šebuot, and Azulai’s text is identical with these two except for some omissions of repetitions. It seems that these texts are later additions, not original to the text of Neziqin nor in its spirit. The present edition therefore will treat these texts as copies from Šebuot., etc.