Babylonian Talmud

Rodkinson 1918 — source 17, scan section 58

that to the defendant, and it is in accordance with R. Eliezar b. Jacob, who said in the following Boraitha: There is a case where one has to swear for his own claim — viz. : " Your father had with me a mana, but I paid him a half," then he has to swear for his own claim ; the sages, however, say that here he is but returning a lost thing, hence, he is free. And to the question, Does not R. Eilezar agree that the defendant here is returning a lost thing, Rabh said: It treats here of a claim made by a minor after the death of his father. But again, the Mishna states ex- pressly that there is no oath to the claim of minors? Rabh 88 THE BABYLONIAN TALMUD. meant to say: He was as a minor in his father's business, but already of age when putting in the claim. But then how is the expression above " for his own claim " to be understood, as here it is not his claim but that of the plaintiff? It must, therefore, be said that they differ concerning what was said by Rabha (Middle Gate, p. 4) with regard te a biblical oath that " one is not so bold as to deny the whole," etc.: R. Eliezar holds that one is not bold concerning the son (of the deceased) also, and therefore he is not regarded as returning a loss, while the rabbis hold that one is not bold only in face of the party himself, but is so with relation to the son of same> and therefore he is con- sidered as returning a loss. But how can you explain the Mishna in accordance with R. Eliezar b. Jacob, does not the Mishna state in its first part: If one claims, my father had with you a mana, and the answer is, I have no more than 50 dinar, he is free because he only returns a loss? There it speaks of a case when the heir did not claim: " I am certain," while in the case of our Mishna the minor is supposed to claim that he is certain. Samuel, however, says: Our Mishna's case is when the minor has real estate and one puts in a claim that his father owes him money, in this case even if the plaintiff has a document, he must swear that the minor's father has not paid it ; the same is the case with the sanctuary.* MISHNA //. : One does not swear to the following: To slaves, written documents, arable lands, and sanctified objects; nor is thereto applied the payment of double amount, or of fouf and five-fold. The gratuitous bailee need not swear, the bailee on payment need not pay damages. R. Simeon holds that one is obliged to swear to objects of the sanctuary, for whose security he is liable, but not to those for which he is not responsible. R. Mair says: There are things attached to the land and yet not considered land ; but the sages do not agree with him therein. How so? I have transferred to you ten vines laden with grapes. Nay; there were only five; and he must swear according to R. Mair, while the sages hold that everything attached to the soil is to be regarded as the land itself. One swears but to things capable of being measured, weighed, and counted. How so? I have transferred to you a house full of fruit, or, I have handed you a purse full of money. I know . . — . ™ ■ —J * The further discussion on this point appears in its proper places. TRACT SHEBUOTH (OATHS). 89 not how much there was, but you are at h'berty to take back whatever you left there; he is free; but if plaintiff says: They were reaching the cornice, and the defendant rejoins: Only up to the window, latter is liable. GEMARA: Whence is this deduced? From [Exod. xxii. 8]: "For all manner of trespass": general, "ox, ass, lamb, raiment"; particulars, " for any manner of lost thing"; again general, and there is a rule that wherever particulars appear be- tween generals, it must be judged in the sense of the particulars: and as these are movables each having in body a value, so also all other cases must be equal to these; except real estate, which is not movable, slave, who are equalled to real estate, documents which though movable are in body of no value, and finally the sanctuary which is excluded because of the verse " his neighbor. " " Double -amount, four and five- fold,'* etc. The reason here is that the Scripture speaks of four and five-fold, and as in the case of double-amount an oath does not apply; it remains only the case of three and four-fold which is not mentioned in the Scripture. *' A gratuitous bailee need not swear J" Whence is this de- duced? From what the rabbis taught [Exod. xxii. 9]: " If a man deliver unto his neighbor": general, " an ass," etc.; par- ticular, "to keep"; general, and on the basis of the above- mentioned rule the particulars appearing between generals ren- der the whole to be judged in their sense : as the particulars here are movables each having in body a value, etc. (as above). " A bailee on pay.'' Also this is deduced from the just-cited verse and on the basis of the same rule regarding particulars appearing between generals. " R, Mair says : There are things attached," etc. From this we see that R. Mair does not hold that what is attached to the land is itself considered land. Now, why is here the point of difference illustrated by laden vines, and not by vines as such? Said R. Jose b. Hanina: The Mishna speaks of grapes that were ready for the press. R. Mair holds: As they are ready for pressing they are no longer considered attached to the soil, but as already pressed in which case an oath applies, while the sages do not share this opinion. " One swears but to things capable of being measured," etc. Said Abayi: Provided he says " a house full," etc., but if he says, " this house was full," then his claim is definite and recog- nized. Said Rabha to him : If this were so, why the illustration 90 THE BABYLONIAN TALMUD. in the last part of the Mishna with " cornice " and " window " stated by plaintiff and defendant respectively, and not with " a house" and " this house"? Therefore, says Rabha, there is no liability of an oath unless the claim concerned a certain measure or weight, and the confession was made also to measure or weight. There is a Boraitha in accordance with Rabha: " I have a kur of grain with you." Nay; you have nothing with me; he is free. " I have with you a big chandelier." Nay; you have only a small one; he is free. However, if he says: " I have with you a kur of grain," and the answer is: Only a lethech ; "or a chandelier of ten pounds," and the answer is: One of only five pounds, he is liable. Because the rule underlying this judging is: One is not liable unless the claim was for a certain measure* weight or number, and the confession was to the same effect* Now, what is the addition of the rule for in the Boraitha? To indicate that " this house fulV means also a measure. But why is it not a partial confession if he confesses to a small chan-