Babylonian Talmud

Rodkinson 1918 — source 11, scan section 32

above support, however, can be dismissed thus : In the case of an admission in part, there is no suspicion at all. The defend- ant merely had not the whole amount in cash, but only a part of it, and he taught : I will admit now only the part I have in cash, and the remainder I will give afterwards. And it is as Rabba stated before, p. 238. This can also be proved from the state- ment of R. Idi bar Abin in the name of Hisda : " One who denies falsely a money loan is nevertheless qualified to be a witness, but whoever denies a deposit (which was given to him only to take care of, and he falsely denies it) is disqualified to be a wit- ness." But why shall we not say if he denies a deposit, that merely he could not find it then, and therefore he denies it, in- tending, however, to return it when it will be found ? He is dis- qualified only in the case where there are witnesses that the deposit was in his house when he denied it, and he had knowl- edge of it, or the witnesses testified that he was holding it in his hand. But did not R. Shesheth say : " For the following three things : (a) That I have not neglected it, (b) I have not made use of it, and (c) I am positive it is not under my control, the oath was given " ? (This is the case of a gratuitous bailee, who is not liable when it is stolen.) Now, why then should he be trusted with the oath ? Let " the theory of because " he is suspected in a case of money, he should also be suspected in an oath, also be applied here. Say, then, that such a theory we do not practise. Abayi, however, says that the reason for the statement in our Mishna, to make them both swear, is not as R. Johanan explains, because in such a case an oath would not be trusted to him, but we suppose that his claim is because he has an old loan of money, which is forgotten by the other, and therefore he takes possession of the garment claiming it is his, because in reality all personal property is a security for the loan. If it is so, let them take the garment without an oath ? We are not supposing a certain loan, but that he is in doubt about it. But when he is doubtful, and he nevertheless takes possession of his neighbor's property, let him be suspected, that he will also swear in such a case ? Said R. Shesheth, the son of R. Idi : Usually men restrain themselves TRACT BABA METZIA (MIDDLE GATE). 9 from taking an oath on a doubtful thing, although they are not averse to taking possession of property doubtfully, because money can be returned, which is not the case with an oath. R. Sera propounded a question : " When one of the two holders overcame the other and took it away, what is the law ? " Let us see how was the case ? If the other party keeps silence, then he admits ; and if he objects, what more could he do, when his opponent is stronger than he ? The case was, that previously he was silent, and afterwards he objected, and the question is : Shall we assume that because he was silent he has admitted, or perhaps the reason he kept silent previously was because it was done in the presence of the rabbis, who could testify in the case? Said R. Na'hman : Come and hear (in addition to our Mishna, there is a Boraitha, as follows) : " All this is said only when both are holding the garment ; but if only one holds it, and the other claims the ownership of it, the rule that the plaintiff is to bring evidence applies here also." Now, let us see ; if one would claim ownership of personal property which is in the possession of an- other, the statement of the Boraitha would be entirely superfluous, as it is self-evident. We must say, then, that the case was as R. Zera stated it. Nay ; this can be explained as follows : They appear before the court when one took possession of the whole garment, and the other put only his hand upon a small piece of it. In such a case an oath is necessary, even according to the theory of Symmachus, who says that doubtful money is to be divided without an oath ; he would agree, however, in this case, because the laying of one's hand upon a piece of it counts for nothing. If the law were that of one overcome, and took possession in the presence of the court, and the court decided that it should be taken away from him, and in the meantime he had consecrated it, there is no question but that such an act at that time cannot be considered. But if the court would decide to leave it in his possession, should he have overcome the other, and he as yet not taking possession of it, consecrated it, what is the law ? Shall we say, because the master says elsewhere : " The consecration by word of mouth only is equivalent to delivering to a common per- son," in our case shall his mere word of mouth be considered as equivalent to his overcoming and taking it away (and then the thing is certainly consecrated), or perhaps it is not so, because it is not yet in his possession, and it is written [Lev. xxiv. 14] : " And if a man sanctify his house," of which it is to be inferred that, as his house is under his control, so he can consecrate it, so lo THE BABYLONIAN TALMUD. everything which is under his control, but not otherwise, can be consecrated, and in our case it is not yet under his control? Come and hear : There was a bath-house about which two parties quarrelled, each of them claiming it was his property. Then one of them arose and consecrated it. And R. Hanania and R. Aushia and other rabbis did not use this bath any more. And R. Aushia said to Rabba : " When you go to see R. Hisda in Kopri, question him about this case." When Rabba went to Kopri, he passed by Sura, and he questioned R. Hamnuna, and the latter answered him thus : It is decided in a Mishna [Thaharoth, Chap. IV., 12], which states : " If there is a doubt about a first-born, be it of a human being or of an animal, clean ones (which are allowed to be eaten) or unclean ones, the rule that the plaintiff must bring evidence is applied to it." And a Boraitha, in an addition to this Mishna, states : " They are nevertheless prohibited from shearing their wool and to use them for labor." Now, it is certain that if the priest took it away, the court would not compel him to return it, because then he would be the defendant, and the other party must bring evidence. And still, even when the priest did not yet take it away, it is said that it must not be used for labor, as stated above. (Hence we see that even when it is doubtful, it is never- theless consecrated.) Rejoined Rabba : " You compare this with the consecration of a first-born ! There is a difference, as its con- secration comes by itself without being consecrated by a human being, and therefore it must be used for labor, no matter under