출애굽기 22:10의 탈무드

HALAKHAH: “All who must swear by Torah standards,” etc. One understands from what is said, an oath before the Eternal shall be between them⁵Ex. 22:10., would we not know that if he does not swear, he has to pay⁶Since the entire paragraph is about the obligations of the paid trustee in case the deposit was lost. Only the case in which he does not have to pay is described; from this it follows that in all other circumstances he has to pay.? Why does the verse say, its owner shall take it, and he does not have to pay? But from the moment the owner accepted his oath, he does not have to pay⁷Babli 45a, Bava qamma107a; Mekhilta dR. Ismael Neziqin16, dR. Simeon ben Ioḥai ad loc., (Tosephta 6:7.)
Probably this statement has to be interpreted following the parallels in the Babli and the Mekhilta dR. Simeon ben Ioḥai: The oath grants the trustee absolute immunity. Even if afterwards witnesses are found who prove that the trustee stole the deposit, he cannot be made to pay. This cannot be inferred from the first part of the verse quoted earlier.
Mekhilta dR. Ismael Neziqin treats the statement as paradigm for all oaths prescribed in the Torah and sees in it proof for the statement that “All who must swear by Torah standards do swear not to pay.”. Rebbi Ḥaggai asked before Rebbi Yose: Is this only following Rebbi Meїr or even following the rabbis? Did not Rebbi Assi⁸The Babylonian name of R. Yasa who is named correctly in the parallel, Halakhah 4:14 (Note 118). say in the name of Rebbi Joḥanan: Rebbi Meїr is the one who says that out of a negative one understands a positive? Its owner shall take it, and he does not have to pay, therefore if he does not swear, he has to pay⁹Why should this simple inference be particular to R. Meїr and require R. Joḥanan’s statement?. Rebbi Ḥiyya stated: The unpaid and the paid trustees may stipulate to be like a borrower¹⁰It really should read: The depositor may stipulate with a paid or unpaid trustee that they should be strictly responsible for the deposit like a borrower (Mishnah 8:1). Since this is a money matter, the biblical conditions are only valid if there are no explicit dispositions for deviations from these standards (Bava meṣi`a5:5 Note 81). The verse may be read: If the owner accepts the oath, the trustee does not pay; this leaves open the option that the owner stipulated that he would not accept the oath.. Rebbi Ḥanina said, everybody agrees that in the language of the Torah out of a negative one understands a positive; where do they disagree? In everyday speech¹¹There is no disagreement with R. Meїr in the interpretation of scriptural verses but there is much disagreement in the interpretation of vows and informal texts..

It is written, if a man give to his neighbor a donkey, or an ox, or a sheep²⁵Ex. 22:9. etc. An oath before the Eternal shall be between the two of them²⁶Ex. 22:10.. Stolen, if it was stolen stealing from him²⁷Ex. 22:11. The verse is intentionally misquoted; it is written וְאִם “and if”, not אִם “if”, as noted in the sequel.. Lost, and if, to include the lost one²⁸This is Rebbi Aqiba’s signature argument that all conjunctions which are not absolutely necessary imply an addition which can only be determined by tradition.. So far following Rebbi Aqiba. Following Rebbi Ismael? Rebbi Ismael stated: Since you say that he pays for theft which is close to duress, for loss which is not close to duress not so much more²⁹In the Babli, Bava meṣi`a94b, this is characterized not as a statement of R. Ismael but as a Galilean Amoraic statement in the spirit of R. Ismael. A different argument is in Mekhilta dR. Ismael Neziqin16, (ed. Horovitz-Rabin p. 305).?

HALAKHAH: “One does not swear on the claim of a deaf-and-dumb person, an insane person, or a minor,” etc. It is written: If a man give to his neighbor⁸¹Ex. 22:6., to exclude the minor⁸²Since a minor is not able to act in law, anything the minor may give does not leave his guardian’s power. Since a minor cannot legally give a deposit, he cannot reclaim it nor ask for an oath in connection with such a deposit. The Yerushalmi Ma`aser šeni4:4 (Note 67, Eruvin7:6) finds this in the first words of v. 6, if a man give. Babli 42a; Mekhilta dR. Simeon ben Ioḥai22:6.. So far if a minor gave to him and the minor requested from him. If he gave it as a minor and requested it as an adult? The verse says, his neighbor; only if giving and requesting are equal⁸³If the giving is legal, the request for an oath is legal; this excludes the giving of a deposit by a minor, which is not legal. The Babli (Bava qamma106b) and the Mekhilta derive this from v. 8, before the judges shall come their mutual affair; the oath is possible only if both parties have the same standing.. Rebbi Abba bar Mamal said, is that not obvious by what Rebbi Joḥanan said, one who claims a claim of theft in respect of his neighbor’s lost object is liable? “Where is my lost object?” He told him, it was stolen⁸⁴Halakhah 8:7; Babli Bava qamma106b. A lost an object with enough unique features that the finder would have been required to publicly ask for its owner to come and reclaim it. B found the object. A has witnesses who saw B taking the object. When A comes to ask B, the latter claims that it was stolen. Since Ex. 22:8 lists lost objects as subjects of judicial oaths, it is clear that B has to swear upon A’s request even though A never handed the object to B. This excludes an interpretation like that given in Note 83. (Babli Yoma79b, Yebamot48b, Soṭah8a, Zevaḥim17a,90a,94b, Menaḥot69b, Keritut3b).. Rebbi Abba said, explain it if he told him, you already asked me when you were underage and I was freed from swearing for you⁸⁵An adult can ask for an oath regarding a deposit which he made underage only if the respondent does not claim that he already asked for the deposit back when he was still underage and unable to force an oath.. An oath of the Eternal shall be between both of them⁸⁶Ex. 22:10., to exclude the heir⁸⁷Only the original parties have enough knowledge of the transaction to be able to swear. Heirs can only swear rabbinic oaths, to state that their father did not inform them that the claims were moot or similar formulations. Mekhilta dR. Ismael Mišpaṭim16.. Rebbi Illa in the name of Rebbi Yasa: The baraita is about the heir⁸⁸The baraita explaining the verse between them is directed also to the heirs. Since normally only the defendant has to swear, the expression between them is interpreted as biblical endorsement of the rule that if the defendant is disqualified as a witness he also is disqualified from swearing; in that case the claimant has to swear that he is entitled to the money. Heirs, who cannot swear in cases of claims against the father’s estate, can as claimants force oaths of debtors to the estate. Babli 47b..

Between both of them⁸⁶Ex. 22:10. it will never move from between them. If the one forcing the oath forces the oath lying, at the end it⁸⁹The oath will destroy him. will come over him. If the one swearing swears lying, at the end it will come over him. What is the reason? I shall take it out, oracle of the Eternal Sabaot, and it will come into the house of the thief and the house of him who swears falsely in My Name⁹⁰Sach. 5:5. “It” is the curse mentioned in v. 4., etc. Rebbi Samuel bar Naḥman said, destructive angels have no joints. What is the reason? From roving about the Earth and walking there⁹¹Job2:2, Satan’s answer. Having no joints at knees or ankles, he could never sit down. The order of topics is better in Lev. rabba6(1) where it is explained that the Satan has to move perpetually because he has no joints but the curse of a false oath comes and dwells at length in the house of the swearer.. But here, it will destroy its wood and its stones⁹⁰Sach. 5:5. “It” is the curse mentioned in v. 4.. Come and see, things which the fire will not burn, a vain oath will destroy. Rebbi Jonah said, about falsehood. Rebbi Yose said, even on truth. ⁹²The Aramaic of the following paragraph shows that this is a sermon, rather than a halakhic discussion. In slightly different form Lev. rabba6(1).Ḥaggai was preaching following Rebbi Yose. There was a case about a woman who went to knead dough with another and had two denarii bound into the seam of her head cover. These fell out and were rolled into a loaf. She went back to he house, wanted them and did not find them. She returned to her and said to her, give me the two denarii which fell from me in your house. She told her, I do not know. If she⁹³As always in rabbinic literature, in relating bad things about oneself one always used the third person (“this man, this woman”) instead of the first. The woman must have used an oath formula to be punished for vain oaths. would know of it, she should bury her son. She buried him. When they returned from his grave, she heard a voice saying, if she had not known about them she would not have buried him. She said, if this woman⁹³As always in rabbinic literature, in relating bad things about oneself one always used the third person (“this man, this woman”) instead of the first. The woman must have used an oath formula to be punished for vain oaths. knows about them, she should bury her other son. She buried him. They came to console her and cut one loaf and found two denarii rolled into the loaf. This says, whether innocent or guilty, never swear an oath⁹⁴It is better to pay, or not to sue and not collect money, than force or swear any oath..