תּלמוד אויף שמות 22:8

MISHNAH: A judicial oath¹In the case of a claim not proven by witnesses or documents where the defendant disputes part of the claim, the judges will impose an oath on the defendant that he owes not more than he admitted. The basis is Ex. 22:8, where the expression where he says, this is it is read as partial admission on the part of the defendant. The oath cannot be required by biblical standards if the defendant rejects the claim in its entirety; it cannot be administered by rabbinical standards if the amount in dispute or the amount admitted are below a certain threshhold. is about a claim of two silver coins²“Silver” denotes the smallest silver coin struck in Hasmonean times, the obolos, ¹/₆ of a denar. The silver half- oboloi minted in Yehud in Persian times had long disappeared when the Mishnaic system of currency was formulated. and the acknowledgment of one peruṭah³A copper coin of Hasmonean times, of varying weight, but in the Mishnah assumed to be ¹/₃₂ of an obolos. Half- peruṭot have been found.. If the acknowledgment is not of the kind of the claim he is not liable⁴This is explained in Mishnaiot 3 ff.. How is this? “You are holding two silver coins for me;” “I am holding only one peruṭah.” He is not liable⁵Since the claim to be adjudicated is 2 oboloi minus 1 peruṭah, i. e., 63 peruṭot, the statutory minimum of 64 peruṭot is not reached; the oath cannot be imposed by rabbinic rules.. “You are holding two silver coins and a peruṭah for me;” “I am holding only one peruṭah.” He is liable⁶Since the claim in dispute is a full two oboloi.. “You are holding a mina for me,” “I am not holding anything for you,” he is not liable⁷Since the claim is rejected in its entirety, it must be proven by documents or witnesses; the oath cannot be imposed by biblical standards.. “You are holding a mina for me,” “I am holding only 50 denar for you,” he is liable. “You are holding a mina for my father,” “I am holding only 50 denar for you,” he is not liable since he is like one returning a lost object⁸Since a son cannot swear in place of his father, the son would have to accept a declaration by the defendant that he had owed to the father but returned everything to the latter during his lifetime; the defendant has to be believed if he admits part of the claim..

HALAKHAH: “If two people hold on to one stole,” etc. ⁷A parallel but different text is in Ketubot 2:1, Notes 12–15. It was stated: One person said to another, give me the mina⁸The Greek mina of 100 drachmas (denars). Zuz, “half sheqel” is the talmudic name of the denar. which you owe me. He answered, it never happened. He went and brought witnesses that the other owed him 50 zuz. The elder Rebbi Ḥiyya said, the confession of the witnesses is the same as his own confession; he has to swear about the remainder⁹A similar text, formulated as R. Ḥiyya’s statement, is quoted in the Babli, 3a. The oath required here is the biblical “oath imposed by the judges”, Mishnah Ševu‘ot 6:1 based on Ex. 22:8. The rabbinic interpretation of the biblical expression אֲשֶׁר יֹאמַר כִּי הוּא זֶה is “if he [the defendant] agrees that there be a case.” If the defendant in a civil suit, in which there are no witnesses or documents, denies the entire claim, he does not have to swear a biblical oath (he may have to swear a rabbinical oath). But if he agrees to part of the claim, he has to swear a biblical oath to free himself from the remainder. Only if the claim is advanced as tentative, then any admission by the defendant is a gift to the claimant and by rabbinic rule no oath of any kind is due. (Cf. Giṭṭin 5:3, Note 84).. Rebbi Joḥanan said, the confession of the witnesses is not the same as his own confession that he should have to swear¹⁰Since Ex. 22:8 insists on the defendant’s agreeing to part of the claim, witnesses can never force a judicial oath. This opinion is not mentioned in the Babli. In Ketubot(loc. cit. Note 7), R. Joḥanan denies that the oath is biblical; its rules cannot be determined by biblical arguments.. Rebbi La said, Rebbi Ḥiyya the elder’s statement is implied by “if two people hold on to one stole”. Since he holds on to half of it, is it not as if he brought witnesses that one half belongs to him? Could one not say that he swears and collects¹¹The argument is refuted. Since each party claims the entire stole, each one is disputing half of a claim. There is no claimant nor defendant; even R. Ḥiyya must agree that the oath imposed by the Mishnah is not biblical.? Is this a similar case¹²For R. Ḥiyya, the case of the baraita is biblical; R. La’s argument is impossible. (In Ketubot, R. La quotes R. Joḥanan’s statement in the next paragraph.)?

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?