Commentary for Shevuot 6:8

שבועת הדיינין – the oath that the judges impose through a partial admission of the claim, it is necessary that the claim not be less than two M’ah of silver, which is one-third of a Denar, and the Denar is six Maot and it has the weight of ninety six [pieces] of intermediate [sized] barley, and it was found that the weight of two Maot were thirty two [pieces/panacles of] barley.

Introduction In the previous three chapters the mishnah discussed oaths which a person takes on his own. Our chapter begins to discuss oaths which are imposed by a court. There are several different types of oaths that may be imposed by a court. The first type of oath, the one described in our chapter, is sworn in a case where a person admits to owing part of a claim but denies the other part of the claim. We will learn the particulars of this oath as we proceed. For the sake of clarity, when explaining these mishnayoth we will use the name Reuven as the claimant, and Shimon as the defendant.

וההודאה – that [the judges] obligate him to take an oath on should not be less than the worthy of a equivalent of a penny, for iif what he denies to him is less than two siver [coins], or what he admitted was less than the value of the equivalent of a penny, he is not obligated for an oath according to the Torah. But, we impose an oathupon him an oath of inducement (an oath instituted by the Sages in a case where a defendant completely denies a claim, in order to clear himself of suspicion).according to the words of the Soferim/Scribes . And one who is liable for an oath according to the Torah takes an object in his hand, as for example, a Torah scroll or Tefillin (i.e., phylacteries) when he is taking anoath. But the person who is liable for an oath of inducement does not take an object in his hand, but rather, the Hannan of the synagogue or the one administering the oath takes an object in his hand at the time when his fellow swears to him. And there are three kinds of oaths according to the Torah, and not mor. He who admits to part of the claim, and [the case] of where one witness testifies against him, that he takes an oath to contradict the witness, and the oath of the bailees. But all of the rest of the oaths that are mentioned in the Mishnah are through the ordinance of the Sages, and they are like that of the Torah in the taking up of an object. And there is no difference between the oath of the Torah to the oaths that are mentioned in the Mishnah, bother than that the one who is liable to take an oath of the Torah and di dnot want to swear, the Jewish court goes into his possessions and collects from them in full payment. But the one who is one who I s liable to an oath from their words (i.e., from the Rabbis), with the ordinance of the Sages andhe doesn’t want to swear, we excommunicate him until he pays or until he swears. And if he stands in his excommunication for thirty days and does not want to take an oath nor pay, we flog him with the flogging of rebelliousness and we release him from his excommunication and he goes on his way, and we don’t descend into his possessions.

The oath of the judges [is imposed when] the claim is [at least] two silver coins, and the admission the equivalent of a perutah. And if the admission is not of the same kind as the claim, he is exempt. How is this so? This section introduces two general rules for the “oath of judges” described in our mishnah. The case is where Reuven tells Shimon that he owes him money and Shimon denies owing the full amount. Our mishnah teaches that if Shimon denies owing Reuven at least 2 ma’ah (a small, silver coin) and admits to owing at least a perutah (a small, not valuable, copper coin) he will be obligated to swear an oath that he does not owe the rest. Furthermore, he only has to swear an oath if that which he admits owing is the same kind as that which he denies. For instance if Reuven claims that Shimon owes him 50 barrels of oil and Shimon responds that he owes 50 barrels of wine, Shimon need not swear. The mishnah will explicate this ruling in mishnah three.

אין לך בידי אלא פרוטה פטור – for the admission is not from the species of the claim, for this claimed silver and the other admitted to him copper. And especially that he claimed against him a silver coin – for he admitted to him with a coin.

“Two silver ma’ahs of mine are in your possession,” [and the other replies], “I have nothing of yours in my possession except a perutah,” he is exempt. “Two silver ma’ahs of mine and a perutah are in your possession,” [and the other replies,] “I have nothing of yours in my possession except a perutah,” he is liable. The remainder of the mishnah explains the first rule, that the denial must be of two ma’ahs and the admission one perutah. If Reuven claims two ma’ahs and Shimon admits to one perutah, Shimon is not obligated for he denied only two ma’ahs less a perutah, which is less than the minimum two ma’ahs required. He will be obligated to swear if Reuven claims two ma’ahs and a perutah and Shimon admits to owing a perutah, for in this case Shimon did deny a full two ma’ahs.

שתי כסף ופרוטה – for holds that he claimed against him for wheat and bareley and he admitted to him on one of these, he is liable.

“A hundred denarii of mine are in your possession”, [and the other replies], “I have nothing of yours,” he is exempt. “A hundred denarii of mine are in your possession”, [and the other replies], “I have of yours only fifty denarii,” he is liable. If Shimon completely denies owing Reuven money he is exempt from taking an oath. If, however, he admits to part of the claim, he must take an oath. This law requires some explanation for it may seem counterintuitive. The reasoning is thus: people are generally not so brazen as to completely deny something that is true. If Reuven claims money from Shimon and Shimon really does owe money he will not be so brash as to deny the debt completely. Therefore if he does deny the debt, he is believed without having to take an oath. People are however brazen enough to deny parts of debts. Shimon may reason to himself that he will deny owing Reuven part of the debt now and then when he gets the chance he will repay the whole debt. Since we assume that people might lie in such occasions, he must take an oath so that we can more safely assume that he is telling the truth.

מפני שהוא כמשיב אבידה – and is exempt from an oath, as is taught [Tractate Gittin, Chapter 5, Mishnah 3] – that aperson who finds an o object should not take an oath because of the repair of the world. And especially when the son does not claim with certainty that the Manah of his father is in your hands, but rather perhaps. But if he made a definitive claim against him, and he said, that he did not have anything other than fifty, he is liable for a Torah-based oath, for that is not restoring a lost objec

“You have of my father’s a hundred denarii”, [and the other replies], “I have of his only fifty denarii”, he is exempt, because it is as if he restores a lost object. If Reuven claims that Shimon’s father owes him money and Shimon admits to part of the claim, he need not take an oath on the rest. Since this was not a claim against Shimon but against Shimon’s father, Shimon could have been brazen enough to deny the entire claim. Since he admitted to part of it, we trust him without making him take an oath.

Questions for Further Thought:
• Why is this compared to returning a lost object?

מנה לי בידך ואמר לו הן – in the presence of witnesses, and as for example when he said to them, “you are my witnesses” for he can no longer is able to claim that he was demented/raged in this.

“You have of mine a hundred denarii”, he said to him, “Yes.” The next day he said to him, “Give them to me”, [and he replied,] “I have given them to you,” he is exempt. [If he says,] “Nothing of yours is in my possession,” he is liable. In the first scenario, Shimon admits one day to owing Reuven a hundred denarii (a coin). When the next day Reuven claims them, Shimon counterclaims that he has already paid him back. In such a case Shimon is exempt since Reuven cannot prove that Shimon did not pay him back. If, however, Shimon changes his claim from the previous day, and now denies owing Reuven money, he is liable to pay. After having admitted to owing money on one day, he may not change his mind the next.

פטור – [exempt] from a Torah-based oath, but we make him take the oath of inducement [to clear him of suspicion, if he completely denied the case].

“You have of mine a hundred denarii”, he said to him, “Yes”. [And then he said], “Do not give them to me except before witnesses.” The next day he said to him, “Give them to me;” [and he replied,] “I have given them to you,” he is liable, because he should have given them to him before witnesses. If, when Shimon admits to owing money, Reuven tells him that he wants the money returned only in front of witnesses, and then the next day Shimon claims that he paid back the money, Shimon is not believed. Since Reuven specified that he wanted the money returned in front of witnesses, the burden is now on Shimon to prove that he did pay him back. Without witnesses he will not be able to do so.

אין לך בידי – there was never anything [concerning having anything in my hand].

Questions for Further Thought:
• Mishnah one, section four: Why is this compared to returning a lost object?

חייב – [he is liable] to pay, and is not considered believable with an oath, for he is presumed to be a denier, and he denied it in the Jewish court, but not before a Jewish court, he is not presumed to be a denier.

אלא ליטרא כסף פטור – for there isn’t here a homogeneity of the admission with the claim [of the defendant].

Introduction This mishnah explains the second rule mentioned in mishnah one: the denial and the claim must be of the same “kind”. Our mishnah discusses what does “kind” mean, so that we will know when the person who admits to part of the claim must take an oath.

לתך – one-half Kor fifteen Se’ah.

“You have of mine a litra of gold”, [and he replies], “I have of yours only a litra of silver,” he is exempt. “You have of mine a golden denar”, [and he replies], “I have of yours only a silver denar, or a tresis, or a pundion, or a perutah”, he is liable, for all are one kind of coinage. A litra is a measure of volume (liter in English). If Reuven claims from Shimon a litra of gold and Shimon admits to owing a litra of silver he need not swear since gold and silver are two different kinds. However, if Reuven claims gold money, and Shimon admits to owing silver money of any coinage, he is liable to swear since all money is of the same kind.

“You have of mine a kor of grain”, [and he replies], “I have of yours only a letek of beans”, he is exempt. “You have of mine a kor of produce”, [and he replies], “I have of yours only a letek of beans,” he is liable, for beans are included in produce. If Reuven claims from Shimon a kor (a unit of weight) of grain and Shimon admits to owing a kor of beans, he need not swear that he does not owe the difference (grain is worth more than beans) since grain and beans are two different “kinds”. If Reuven claims a kor of produce and Shimon admits to beans, then he is liable to swear that he does not owe the difference, because beans are a form of produce.

If he claimed from him wheat, and the other admitted barley, he is exempt. But Rabban Gamaliel makes him liable. If Reuven claims wheat and Shimon admits to barley the first opinion in our mishnah considers these different kinds and therefore Shimon need not swear that he doesn’t owe the difference. Rabban Gamaliel does think that Shimon needs to swear.

הואיל והודה במקצת הטענה – for it is to him like his claim was for wheat and barley and he admitted to him in one of them. And the Halakha is according to Admon, but the Halakha is not according to Rabban Gamaliel that obligates in his claim wheat and he (i.e., the defendant) admitted to him regarding barley.

If he claims from his neighbor jars of oil, and he admits [his claim to the empty] jars, Admon says, since he admits to him a portion of the same kind as the claim, he must swear. But the sages say, the admission is not of the same kind as the claim. Rabban Gamaliel said, “I approve the words of admon. In this scenario Reuven claimed that Shimon owed him jars of oil. Shimon admitted that he owed Reuven jars but denied that he owed the oil. According to Admon, an early Sage, this is considered a partial admission to the claim: Reuven claimed jars and oil and Shimon admitted only to the jars but denied the oil. Therefore Shimon must swear that he doesn’t owe the oil. The other Sages who disagree with Admon say that Reuven really only claimed oil. The fact that Reuven said “jars of oil” was in order to express the amount of oil that he was claiming from Shimon. Since the claim and the admission were of different kinds, Shimon does not swear. Rabban Gamaliel says that he agrees with Admon.

פטור – from the oath from the Torah, not on the land and not on the utensils,f or the admission of land does not bring him to [requiring taking] an oath, for there is no law regarding an oath regarding land.

If he claims from him vessels and lands, and he admits the vessels, but denies the lands; or admits the lands, but denies the vessels, he is exempt. If he admits a portion of the lands, he is exempt; a portion of the vessels, he is liable because properties for which there is no security bind properties for which there is security to take an oath for them. If Reuven claimed that Shimon owed him land and vessels and Shimon admitted to owing the land and not the vessels or the vessels and not the land, Shimon is exempt from swearing. This mishnah teaches that oaths are not taken on land (we will learn this again in mishnah five). Therefore, even if he admits that he owes land, he need not swear with regards to the vessels which he denies. If Shimon admitted owing part of the land, he is still not liable to swear, for the same reason mentioned above. If, however, he admitted to owing some of the vessels, then he must swear with regards to both the other vessels that he denies owing as well as the land that he denies. He must swear with regards to the vessels because he admitted to owing part and he denied owing part. He must also swear with regards to the land because property for which there is no security (meaning property that cannot be used as a lien, namely movable property) can force one to swear on property for which there is security (land and slaves). This means that once someone is liable to swear to another person with regards to movable property the other person can force him to swear about land as well, even though in general one doesn’t swear about land.

הודה במקצת כלים – for there is admission and denial [with things] that are not property.

Questions for Further Thought:
• Section two: How do you know that this mishnah assumes that grain is more valuable than beans?
• Section four: Upon what basis might Rabban Gamaliel disagree with the first opinion?

חייב – to take an oath even on property through an oath by implication (i.e., the rule permitting the court to insert in an oath an affirmation to which the person concerned cold not have been compelled directly).

זוקקין – causes, affects.(i.e., binds – movable chattel binds the immovable with the reference to the obligation of making oath, the two claims peferrred in one suit are considered as one lawsuit, and theoath must refer to both).

אין נשבעין על טענת חרש – as, for example, when the deaf-mute makes a claim against him with a gesture, for the deaf-mute/חרש that the Sages spoke of in every place is one who does not hear and does not speak (see Tractate Terumot, Chapter 1, Mishnah 2).

Introduction In mishnah four we will learn cases where an oath is not taken because of the status of the claimant or defendant.

וטענת קטן – as, for example, when the minor makes a claim against him. For Scripture states (Exodus 22:6): “When a man gives [money or goods] to a another [for safekeeping],” but the giving of a minor is not anything. [And the deaf-mute] and the imbecile is like a minor. And specifically the oath of the Torah is that which they do not impose on the claim of a minor, but the oath of inducement (i.e., where a defendant totally denies a claim to clear himself of suspicion) he is liable to take on his claim.’

No oath is imposed in a claim by a deaf-mute, imbecile, or minor. If a deaf-mute, an insane person or a minor make a claim against another person, that person does not have to swear an oath. Since the mishnah considers these people to be lacking intelligence, their claims are not trustworthy enough to impose an oath upon others. [When we learned Bava Kamma 4:4 I discussed the mishnah’s attitude towards deaf-mutes, and how Jewish law has changed now that sign language has been developed.]

אבל נשבעין לקטן ולהקדש – he who comes to collect from the property of a minor, he should not collect other than through an oath. And similar one who consecrates his property [to the Temple] and a document of liability is issued against him and the owner of the liability comes to collect from the property of that which has been consecrated [to the Temple], requires an oath.

And no oath is imposed on a minor. A minor is never asked to take an oath, since he cannot understand the consequences of falsely swearing.

But an oath is imposed when a claim is lodged against a minor, or against the Temple’s property. One who comes to collect a debt that a minor’s deceased father owed him, may take an oath that he is owed the money. This is not considered a case of the minor being a defendant, but in reality the deceased’s estate is the defendant. If Reuven owes Shimon money and then Reuven dedicates all his property to the Temple, Reuven may take an oath and collect from the property that had been dedicated to the Temple.

העבדים והשטרות והקרקעות וכו' – as it is written (Exodus 22:8): “In all charges of misappropriation” – generalization; “pertaining to an ox, an ass, a sheep a garment,” – specification; “or any other loss” - he has returned and made a generalization. If a generalization is followed by a specification and this in turn, by a generalization, one must be guided by what the specification implies. Just as the specification is explanation by something that is movable and its essence is monetary, so also everything that movable and its essence is monetary, excluding real estate which are not movable ,excluding slaves which were compared to real estate, excluding documents for even though they are movables, their essence is not financial. For all of these we don’t impose oaths upon a thing dedicated [to the Temple] we don’t take an oath, as it is written, (Exodus 22:6): “When a person gives [money or goods] to another [for safekeeping,” and not of something dedicated [to the Temple].

Introduction Mishnah five discusses cases where no oath is imposed because of the nature of the object in dispute.

אין בהן תשלמי כפל – for in these, especially that we use an additional word for the purpose of intimating something not otherwise included (i.e., the widen the scope of a law), something like the specification as it is written in that portion (Exodus 22:8): “[he whom God declares guilty] shall pay double to his neighbor,” and not of something dedicated [to the Temple].

And these are the things for which no oath is imposed: slaves, bonds, lands, and dedicated objects. [The law of] paying double, or four or five times the value, does not apply to them. An unpaid guardian does not take an oath, and a paid guardian does not pay. Rabbi Shimon says: “For dedicated objects for which he is responsible an oath is imposed and for [dedicated objects] for which he is not responsible an oath is not imposed. A person does not have to take an oath over any of the objects that are listed in this section. This means that if Reuven claims that Shimon owes him slaves, bonds or land, and Shimon admits to part of the claim, he need not swear over the rest. The laws of paying double, or four of five times the value also do not apply to these things. These are the penalties for one who steals, or one who steals and then sells or slaughters that which he stole. If Reuven steals a bond from Shimon and then sells it, Reuven is only obligated to restore the value of the slave, but not the double payment. If Reuven steals a sheep that had been dedicated to the Temple, and then sells the sheep, he is not liable to pay back to the Temple four times the value of the sheep. The laws of guardianship also do not apply to these things. If an unpaid guardian is watching a slave, and the slave runs away, the unpaid guardian need not swear that he was not negligent. A paid guardian does not have to pay if, while watching one of these objects, it is stolen or lost. Rabbi Shimon distinguishes between dedicated objects for which a person is responsible and those for which he is not responsible. If a person says, “I dedicate this sheep to the Temple” and the sheep dies, he is not responsible to replace the sheep. Since this sheep is already considered Temple property, it is not subject to the laws of oaths and guardianship. If a person says, “I dedicate a sheep to the Temple” and he sets aside a sheep to bring to the Temple, and the sheep dies, he must replace the sheep with another sheep. Since the first sheep is still under his responsibility, and is therefore still his sheep, it is subject to the laws of oaths and guardianship.

ולא תשלומי ארבעה וחמישה – for wherever that there is not’s double paymenr, he doesn’t pay four-times or five-times [the base amount], for since there isn’t double payment, the would have would have three-time or four-time [the base] payment, but the All-Merciful stated (Exodus 22:37): “[When a man steals an ox or a sheep, and slaughters it or sells it,] he shall pay five oxen for the ox, and four sheep for the sheep,” and not three or four-fold payment.

שומר חנם אינו נשבע – the unpaid bailee only has upon him an oath, as it is written (Exodus 22:7): “the owner of the house shall depose before God that he has not laid hands [on the other’s property],” and the entire portion is stated concerning the unpaid bailee,. But he does not take an oath regarding slaves and real-estate and on documents, for we derive it from what is written (Exodus 22:6): “When a man gives…to another” – a generalization; “money or goods” – a specification; “”for safekeeping,”- he returns and makes a generalization; if a generalization is followed by a specification and this in turn, by a generalization, one must be guided by what the specification implies. Just as the specification is explained as something movable and its essence is money, even all things, etc., excluding real estate which are not movables, etc. But all of these that we stated regarding them, one does not take an oath, especially the oath of the Torah, but we require the oath of inducement.

נושא שכר אינו משלם – theft and loss which is written in it, to be liable, as it is written (Exodus 22:11): “But if [the animal] was stolen from him, he shall make restitution to its owner.” But slaves, and real estate and documents, he does not pay, as it is written regarding the paid bailee (Exodus 22:9): “When a man gives to another” – a generalization; “an ass, an ox, a sheep or any other animal” – a specification; “to guard” – he returns and makes a generalization, etc., as we have stated above. The [term] רעהו/to another – is written with regard to an unpaid bailee and a paid bailee, that implies, “another person” and not dedicated [to the Temple], but the borrower and the renter (i.e., the other two bailees) are not mentioned here, to exlude from them slaves and real estate and documents and dedication [to the Temple], for a borrower does not belong with real estate and not with documents for the most part, and all the more so, renters do not belong with documents, and similarly, the borrower and renters do not belong with things dedicated [to the Temple] for it is forbidden to lend and to rent that which is dedicated [to the Temple].

רבי מאיר אומר יש דברים שהם כקרקע – grapes that are about to be cut down is what distinguishes between the Sages and Rabbi Meir, for Rabbi Meir holds that gapes that are about to be cut are considered as [already] cut/harvested, but the Sages hold that they are not like they are cut/harvested. But the Halakha is according to the Sages. And especially in the law [relating to] the bailees, but regarding buying and selling, and overcharging and admitting to part of the claim, , in all of these, we hold that something about to be cut/harvested is like it was cut already, and such is the Halakha.

Introduction Mishnah six continues to discuss land, which as we learned in the previous section, is not subject to the laws of oaths. Finally, in the last section of the mishnah, after several mishnayoth in which we learned when oaths are not taken, the mishnah states when oaths are taken.

עד הזיז (an attachment, a projection from the door frame serving as a shed over the entrance) – beam of a upper story that projects from the house, and the general principle of the matter, is that he is always not liable for an oath according to the Torah until he makes a claim against him with something specifying a concrete measure, or a weight or a measure, and he admits to him part of his measure or part of the weight or part of the number.

Rabbi Meir says: “There are things which are [attached] to land, but are not like land.” But the sages do not agree with him. How so? [If one says,] “Ten vines laden with fruit I delivered to you” and the other says, “There were only five”; Rabbi Meir makes him take an oath; But the Sages say: “All that is attached to land is like land.” After we stated in the previous mishnah that oaths are not imposed on claims of land, our mishnah discusses the status of things attached to the land, such as grapevines. According to Rabbi Meir grapevines are like land, and if a person admits to owing part of a claim of grapevines, he is exempt from swearing. The Sages say that grapevines are independent of land, and therefore one swears on them.

An oath is imposed only for a thing [defined] by size, weight, or number. How so? [If one says,] “A store room full [of produce] I delivered to you,” or “A purse full [of money] I delivered to you” – and the other says, “I do not know; but what you left you may take,” he is exempt. If one says, “[I gave you produce reaching] up to the moulding [above the window],” and the other says, “Only up to the window,” he is liable. In order for an oath to be imposed in defense of a claim, what was claimed and what was admitted must be measurable, by size, weight or number. In the first scenario in our mishnah, Shimon responds to Reuven that he doesn’t know how much Reuven gave him, but that Reuven can take whatever is left. Shimon’s admission was not phrased as a measurable amount. Therefore he does not have to take an oath regarding that which he denied. The second scenario is a case where the claim and admission were measurable amounts. Reuven claims that the house full of produce that he left for Shimon was full up to the top moulding over the window. Shimon admits that the store room was full only up to the window. Although it may seem that this is not a claim nor an admission of a measurable amount, the mishnah rules that it is, and Shimon must swear to Reuven.

המלוה את חבירו על משכון – he becomes upon it a paid bailee, and there is no difference if he took a pledge at the time of his loan, nr whether he took a pledge not at the time of his loan. But if he lost [it] or it was stolen, and the pledge was corresponding to the lien, his pledge is expended for his debt, and they don’t have anything against each other. But if the lien is greater [in value] than the pledge, the debtor/borrower pays the creditor what the debt was of greater worth. But if the pledge was greater [in value] than the lien, the creditor pays the debtor/borrower. But if it was lost by accident where a paid bailee is exempt, the lender is also exempt, and he takes an oath that through this accident [the object lent] was lost, and he collects the entire lien.

Introduction The final mishnah of chapter six discusses a dispute between two people over the value of a pledge taken to secure a loan. We will learn that if the defendant admits to owing part of the claim then he must swear that he does not owe the rest.

שקל – one half a Sela.

In the scenario in both sections of our mishnah Reuven lent Shimon money and took from Shimon a pledge, which would generally be returned upon payment of the loan. Reuven subsequently loses the pledge. Shimon now owes Reuven the amount of the loan and Reuven owes Shimon the value of the pledge. Our mishnah will teach that if one side denies part of the claim must an oath be taken. If the entire claim is denied there will be no oath. There are three coins mentioned in our mishnah. There relative values are: 1 sela = two shekels = 4 denar.

לא כי – it was not like this.

If a man lends [money] to his neighbor on a pledge, and the pledge was lost, and he said to him: “I lent you a sela on it, and it [the pledge] was worth a shekel,” and the other says, “No! You lent me a sela on it, and it was worth a sela”, he is exempt. “I lent you a sela” on it, and it was worth a shekel,” and the other says, “No! You lent me a sela on it, and it was worth three denarii,” he is liable. Reuven tells Shimon that the loan was a sela and the pledge was worth a shekel. He is in essence claiming from Shimon a shekel. Shimon responds that the pledge was worth a full sela, and he therefore does not owe Reuven anything. Since he denies the entire claim, there is no oath. If Shimon were to say that the pledge was worth three denarii (¾ of a sela), then he has admitted to owing Reuven one denar and denied owing him another denar. In such a case an oath must be taken. [At the end of the mishnah we will learn who swears.]

אלא סלע הלויתני עליו ושלשה דינרים היה כו' – for he admitted part of the claim, for the Sela is worth four Denarim. And lince the borrower/debtor is liable to take an oath on how much his pledge was worth, and the creditor/lender is liable to take an oath concerning the pledge that is not in his possession, and even though he pays its value because we suspect that his eye was upon it, the Jewish Court has the creditor take an oath first that the pledge is not in his possession/domain, and afterwards it has the borrower/debtor take an oath how much it was worth, lest the borrower take an other first and he is not exact as to its appraisement/estimated value and the creditor produces the pledge which will make him ineligible for testimony and for an oath. But what we teach in the concluding clause [of the Mishnah]: “And upon whom is the oath imposed,” it is stated, upon whom is the oath first imposed?

“You lent me a sela on it, and it was worth two,” and the other says, “No! I lent you a sela on it, and it was worth a sela”,” he is exempt. “You lent me a sela on it, and it was worth two,” and the other says: “No! I lent you a sela on it, and it was worth five denarii,” he is liable. Shimon tells Reuven that the pledge was worth two selas and the loan was only one sela. Reuven responds that the pledge was worth only one sela. Since he has denied the entire claim, he need not take an oath. If Reuven were to respond that the pledge was worth five denarii, he has admitted that he owes Shimon one denar. Since he has admitted part of the claim, he must swear that he doesn’t owe the rest.

מי שהפקדון אצלו – the creditor/lender with whom the pledge was with takes an oath that the pledge was not in his possession/in his domain.

And who takes the oath? He who had the deposit, lest, if the other take the oath, this one may bring out the deposit. This section asks who takes the oath. We would have expected that in the first section Shimon would swear, since he is the one who admitted part of the claim that Reuven made against him, and that in section two Reuven would swear, since he was the one who admitted part of the claim that Shimon made against him. However, the mishnah teaches that the one who had the deposit, in our case Reuven, is always the one who has to swear. The simple reading of this mishnah is that Reuven will swear and then take from Shimon the money that he claims. This is an exception to the general rule that people swear to exempt themselves from paying, but not to allow themselves to take money from others. The reason that this case is exceptional and that the one who holds the pledge must swear is that we are concerned lest Shimon, who does not have the pledge, would swear and then Reuven would take out the pledge. If Shimon’s claim to the value of the pledge would turn out to be wrong, his oath will have been a false oath. The Rabbis tried to prevent situations where people might swear falsely, and therefore, in this case, they allowed the claimant, as opposed to the defendant, swear. We should note that the Talmud explains the mishnah differently, and there are some difficulties in understanding this last clause.

Questions for Further Thought:
• Why aren’t the Rabbis as concerned in a normal case of a monetary dispute, lest the defendant swear falsely? What makes this case different from the others?