Shevuot 7

כָּל הַנִּשְׁבָּעִין שֶׁבַּתּוֹרָה, נִשְׁבָּעִין וְלֹא מְשַׁלְּמִין. וְאֵלּוּ נִשְׁבָּעִין וְנוֹטְלִין, הַשָּׂכִיר, וְהַנִּגְזָל, וְהַנֶּחְבָּל, וְשֶׁכְּנֶגְדּוֹ חָשׁוּד עַל הַשְּׁבוּעָה, וְהַחֶנְוָנִי עַל פִּנְקָסוֹ. הַשָּׂכִיר כֵּיצַד, אָמַר לוֹ תֶּן לִי שְׂכָרִי שֶׁיֵּשׁ לִי בְיָדֶךָ, הוּא אוֹמֵר נָתַתִּי, וְהַלָּה אוֹמֵר לֹא נָטַלְתִּי, הוּא נִשְׁבָּע וְנוֹטֵל. רַבִּי יְהוּדָה אוֹמֵר, עַד שֶׁתְּהֵא שָׁם מִקְצָת הוֹדָאָה. כֵּיצַד, אָמַר לוֹ תֶּן לִי שְׂכָרִי חֲמִשִּׁים דִּינָר שֶׁיֵּשׁ לִי בְיָדֶךָ, וְהוּא אוֹמֵר הִתְקַבַּלְתָּ דִינַר זָהָב:

All of those who are besworn by Torah mandate swear and do not pay. [The Torah did not mandate that the claimant swear and take, but that the claimee swear and not pay, it being written (Exodus 22:10): "And its master shall take it, and he shall not pay" — He who is being asked to pay takes the oath.] And these swear and take [The sages ordained that they swear and take. They are all explained later in the Mishnah:] a hired laborer, one who has been robbed, one who has been struck, one whose opposite is not trusted to take an oath, and a shopkeeper over his ledger. A hired laborer — how so? [The sages ordained that a hired laborer swear and take; for the employer is busy with his workers and may not remember. This, when he claims within the prescribed time: a day-laborer, all of the night following, and a night-laborer, all of the day following. But if he claimed after his time, the employer takes a shvuath heseth that he paid him and he is exempt. Also, if he did not hire him in the presence of witnesses, the hired laborer does not swear and take. For since he can tell him: "I never hired you," he can also tell him: "I hired you and I paid you."] If he said to him: "Give me the pay that you owe me" — If the other said: "I gave it to you," and he: "I did not receive it," he (the hired laborer) swears and takes it. [But if the laborer said to him: "You stipulated that you would give me two," and the employer: "I stipulated only one," the employer swears a Torah mandated oath that it is as he says, and he gives him only one.] R. Yehudah says: (He does not swear) unless there is partial admission. How so? As when he said: "Give me my pay, fifty dinars, that you owe me," and the other said: "You received a golden dinar (twenty-five silver dinars)." [The halachah is not in accordance with R. Yehudah, neither in the instance of a hired laborer, nor in that of one who has been robbed or beaten.]

הַנִּגְזָל כֵּיצַד, הָיוּ מְעִידִין אוֹתוֹ שֶׁנִּכְנַס לְבֵיתוֹ לְמַשְׁכְּנוֹ שֶׁלֹּא בִרְשׁוּת, הוּא אוֹמֵר כֵּלַי נָטַלְתָּ, וְהוּא אוֹמֵר לֹא נָטַלְתִּי, הֲרֵי זֶה נִשְׁבָּע וְנוֹטֵל. רַבִּי יְהוּדָה אוֹמֵר, עַד שֶׁתְּהֵא שָׁם מִקְצָת הוֹדָאָה. כֵּיצַד, אָמַר לוֹ שְׁנֵי כֵלִים נָטַלְתָּ, וְהוּא אוֹמֵר לֹא נָטַלְתִּי אֶלָּא אֶחָד:

One who has been robbed — how so? If they testified against him that he entered the other's house to take a pledge from him without being authorized to do so, [as when witnesses saw him enter the other's house with nothing in his hand and he left with vessels projecting from the folds of his garment] — He says: "You took my vessels"; the other says: "I did not," he (the claimant) swears and takes. [For the indications are (that he did steal). For the witnesses testify that he took a pledge without authorization. This, when he claims something which he is likely to own, but if he claims "a silver chalice," or the like, which he is not likely to own, it is not for him to swear and take (in all instances), but the claimee swears and exempts himself.] R. Yehudah says: (He does not swear) unless there is partial admission. How so? As when he said: "You took two vessels," and the other said: "I took only one."

הַנֶּחְבָּל כֵּיצַד, הָיוּ מְעִידִים אוֹתוֹ שֶׁנִּכְנַס תַּחַת יָדוֹ שָׁלֵם וְיָצָא חָבוּל, וְאָמַר לוֹ חָבַלְתָּ בִּי, וְהוּא אוֹמֵר לֹא חָבַלְתִּי, הֲרֵי זֶה נִשְׁבָּע וְנוֹטֵל. רַבִּי יְהוּדָה אוֹמֵר, עַד שֶׁתְּהֵא שָׁם מִקְצָת הוֹדָאָה. כֵּיצַד, אָמַר לוֹ חָבַלְתָּ בִּי שְׁתַּיִם, וְהַלָּה אוֹמֵר לֹא חָבַלְתִּי בְךָ אֶלָּא אֶחָת:

One who has been struck — how so? If they testified that he went into him whole and came out with a wound, and he said: "You struck me," and the other said: "I did not," he (the claimant) swears and takes (compensation). [This, only where the wound is in a place where it could have been self-inflicted, for which reason an oath is required. But where this is not possible, and it is evident that another must have caused it, as when tooth marks appear on his back and no one else (but the accused) was there, he collects without an oath.] R. Yehudah says: (He does not swear) unless there is partial admission. How so? As when he said: "You struck me twice," and the other said: "I struck you only once."

וְשֶׁכְּנֶגְדּוֹ חָשׁוּד עַל הַשְּׁבוּעָה כֵּיצַד, אַחַת שְׁבוּעַת הָעֵדוּת וְאַחַת שְׁבוּעַת הַפִּקָּדוֹן, וַאֲפִלּוּ שְׁבוּעַת שָׁוְא. הָיָה אֶחָד מֵהֶן מְשַׂחֵק בְּקֻבְיָא, וּמַלְוֶה בְרִבִּית, וּמַפְרִיחֵי יוֹנִים, וְסוֹחֲרֵי שְׁבִיעִית, שֶׁכְּנֶגְדּוֹ נִשְׁבָּע וְנוֹטֵל. הָיוּ שְׁנֵיהֶן חֲשׁוּדִין, חָזְרָה הַשְּׁבוּעָה לִמְקוֹמָהּ, דִּבְרֵי רַבִּי יוֹסֵי. רַבִּי מֵאִיר אוֹמֵר, יַחֲלֹקוּ:

One whose opposite is not trusted to take an oath — how so? (The other swears) whether (his opposite had transgressed in) an oath of testimony, or in an oath over a pledge, or even with a vain oath. [i.e., Not only where he has transgressed in an oath of testimony or in an oath over a pledge, where there is denial of money — "evil to Heaven and evil to man" — but even with a vain oath, where there is only evil to Heaven, his opposite swears and takes. An oath of pronouncement is not included, for it may be future-directed, such as "I shall eat" or "I shall not eat," where the oath is a truthful one, his intent being to fulfill it, so that even though he is overcome by his evil inclination and transgresses, this does not render him not trusted to take an oath. But an oath of pronouncement concerning the past, such as "I ate" or "I did not eat," is like a vain oath, for he swears falsely.] If one of them were a gambler, or a lender on interest, or a pigeon-flyer, or a dealer in [the fruits of] the sabbatical year (shevi'ith), his opposite swears and takes. [(If one of them were, etc.":) First those unfit by Torah law are taught, and then those who are unfit by rabbinical ordinance. ("a pigeon-flyer":) some understand this as: "If your pigeon comes in before mine, I will give you so much and so much," i.e., gambling. Others understand it as training a pigeon to fly other pigeons to one's coop, this being "theft in violation of the ways of peace." ("a dealer in shevi'ith":) It is written (Leviticus 25:6): "to eat" — and not for trade.] If both of them were suspect (i.e., not trusted to swear), the oath returns to its place. These are the words of R. Yossi. [In the Gemara, some explain this as "it returns to Sinai," i.e., to the oath of Mount Sinai, where the Holy One Blessed be He beswore Israel: "Thou shalt not steal," and He will exact payment from the one who denies it to his neighbor; but beth-din need not resort either to oath or to (enforcement of) payment. And others explain it as: "it returns to the one who is liable to it," i.e., the one who admits part; and since he is not trusted to swear, he pays.] R. Meir says: They divide.

וְהַחֶנְוָנִי עַל פִּנְקָסוֹ כֵּיצַד, לֹא שֶׁיֹּאמַר לוֹ כָּתוּב עַל פִּנְקָסִי שֶׁאַתָּה חַיָּב לִי מָאתַיִם זוּז, אֶלָּא אָמַר לוֹ תֵּן לִבְנִי סָאתַיִם חִטִּין, תֵּן לְפוֹעֲלִי בְּסֶלַע מָעוֹת, הוּא אוֹמֵר נָתַתִּי וְהֵן אוֹמְרִים לֹא נָטַלְנוּ, (שְׁנֵיהֶן נִשְׁבָּעִים), הוּא נִשְׁבָּע וְנוֹטֵל וְהֵן נִשְׁבָּעִין וְנוֹטְלִין. אָמַר בֶּן נַנָּס, כֵּיצַד אֵלּוּ בָאִין לִידֵי שְׁבוּעַת שָׁוְא וְאֵלּוּ בָאִין לִידֵי שְׁבוּעַת שָׁוְא, אֶלָּא הוּא נוֹטֵל שֶׁלֹּא בִשְׁבוּעָה וְהֵן נוֹטְלִין שֶׁלֹּא בִשְׁבוּעָה:

And a shopkeeper over his ledger — how so? Not that he says to him: "Write in my ledger that you owe me a hundred zuz," but (we are speaking of an instance in which) he said to him (the shopkeeper): "Give my son two sa'ah of wheat," or "Give my workers change of a sela." He says: "I gave," and they say: "We did not receive," he swears and takes, and they swear and take (from the employer). [For the shopkeeper says to him: "I do not trust the workers to take an oath. You trusted them for you did not tell me to give it to them in the presence of witnesses." And the workers, likewise, say to the shopkeeper: "We do not trust you to swear." And when they both swear and take from the employer, they swear before each other, so that either the shopkeeper (will be deterred) by shame before the workers, or the workers before the shopkeeper.] Ben Naness said: How can this be done? These will utter a vain oath or those will utter a vain oath! [For, perforce, one will swear falsely, and the Name of Heaven will be desecrated.] Rather, he takes without an oath and they take without an oath. [The halachah is not in accordance with Ben Naness.]

אָמַר לַחֶנְוָנִי תֶּן לִי בְדִינָר פֵּרוֹת וְנָתַן לוֹ, אָמַר לוֹ תֶּן לִי הַדִּינָר, אָמַר לוֹ נְתַתִּיו לְךָ וּנְתַתּוֹ בָאֹנְפָּלִי, יִשָּׁבַע בַּעַל הַבָּיִת. נָתַן לוֹ אֶת הַדִּינָר, אָמַר לוֹ תֶּן לִי אֶת הַפֵּרוֹת, אָמַר לוֹ נְתַתִּים לְךָ וְהוֹלַכְתָּן לְתוֹךְ בֵּיתֶךָ, יִשָּׁבַע חֶנְוָנִי. רַבִּי יְהוּדָה אוֹמֵר, כָּל שֶׁהַפֵּרוֹת בְּיָדוֹ, יָדוֹ עַל הָעֶלְיוֹנָה. אָמַר לַשֻּׁלְחָנִי תֶּן לִי בְדִינָר מָעוֹת וְנָתַן לוֹ, אָמַר לוֹ תֶּן לִי אֶת הַדִּינָר, אָמַר לוֹ נְתַתִּיו לְךָ וּנְתַתּוֹ בָאֹנְפָּלִי, יִשָּׁבַע בַּעַל הַבָּיִת. נָתַן לוֹ אֶת הַדִּינָר, אָמַר לוֹ תֶּן לִי אֶת הַמָּעוֹת, אָמַר לוֹ נְתַתִּים לְךָ וְהִשְׁלַכְתָּם לְתוֹךְ כִּיסֶךָ, יִשָּׁבַע שֻׁלְחָנִי. רַבִּי יְהוּדָה אוֹמֵר, אֵין דֶּרֶךְ שֻׁלְחָנִי לִתֵּן אִסָּר עַד שֶׁיִּטֹּל דִּינָרוֹ:

If he said to the shopkeeper: "Give me fruits for a dinar," and he gave them to him, [and the fruits are piled in the public domain, with neither of them in possession] — If he said: "Give me the dinar," and the other said: "I gave it to you, and you put it in your money-bag," the customer swears, [an oath similar to that of the Torah, and he takes (the fruits). For since the shopkeeper admits that he made the sale and the fruits are outside his shop, the customer swears and takes.] If he gave him the dinar and said: "Give me the fruits," and he said: "I gave them to you and you took them home, [and these piled up fruits are mine; I put them here to sell." And the other: "These are the fruits that you sold me for a dinar," since the buyer admits the sale, and the shopkeeper denies having sold these], the shopkeeper swears an oath similar to that of the Torah and he takes (the fruits). R. Yehudah says: Whoever has possession of the fruits has the upper hand. [R. Yehudah differs with the last ruling, saying that in both cases the customer swears and takes. For since the fruits are outside the shop, it is as if they are in the customer's hand. And whoever has possession of the fruits has the upper hand, and he swears and takes.] If he said to a moneychanger: "Give me change of a dinar," and he gave it to him — If he said to him: "Give me your dinar," and he said to him: "I gave it to you and you put it in your money-bag," the customer swears. If he gave him the dinar and he said: "Give me the change," and he said: "I gave it to you and you threw it into your pouch," the moneychanger swears. R. Yehudah says: It is not the way of a moneychanger to give an issar (small coin) before he takes the dinar. [The tanna apprises us of the difference between R. Yehudah and the rabbis both in respect to the change of the moneychanger and the fruits of the shopkeeper. For if he apprised us only of the latter, I might think that it is only with fruits that the rabbis said that if he said: "I gave them to you and you took them home," the shopkeeper swears and takes, for a shopkeeper is wont to give the fruits before he takes the dinar; but with a moneychanger, who is not wont to give issarin before he takes the dinar, perhaps they would concur with R. Yehudah that the customer always swears and takes. And if he apprised us only of the former, I might think that the customer always swears and takes because the moneychanger is not wont to give issarin before he takes the dinar; but with a shopkeeper, who is wont to give the fruit before he takes the money, I might say that he concurs with the rabbis. We must, therefore, be apprised of both. The halachah is not in accordance with R. Yehudah.]

כְּשֵׁם שֶׁאָמְרוּ, הַפּוֹגֶמֶת כְּתֻבָּתָהּ לֹא תִפָּרַע אֶלָּא בִשְׁבוּעָה, וְעֵד אֶחָד מְעִידָהּ שֶׁהִיא פְרוּעָה, לֹא תִפָּרַע אֶלָּא בִשְׁבוּעָה. מִנְּכָסִים מְשֻׁעְבָּדִים וּמִנִּכְסֵי יְתוֹמִים, לֹא תִפָּרַע אֶלָּא בִשְׁבוּעָה. וְהַנִּפְרַעַת שֶׁלֹּא בְּפָנָיו, לֹא תִפָּרַע אֶלָּא בִשְׁבוּעָה. וְכֵן הַיְתוֹמִים לֹא יִפָּרְעוּ אֶלָּא בִשְׁבוּעָה, שְׁבוּעָה שֶׁלֹּא פְקָדָנוּ אַבָּא, וְלֹא אָמַר לָנוּ אַבָּא, וְשֶׁלֹּא מָצִינוּ בֵין שְׁטָרוֹתָיו שֶׁל אַבָּא שֶׁשְּׁטָר זֶה פָרוּעַ. רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה אוֹמֵר, אֲפִלּוּ נוֹלַד הַבֵּן לְאַחַר מִיתַת הָאָב, הֲרֵי זֶה נִשְׁבָּע וְנוֹטֵל. אָמַר רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל, אִם יֵשׁ עֵדִים שֶׁאָמַר הָאָב בִּשְׁעַת מִיתָתוֹ שְׁטָר זֶה אֵינוֹ פָרוּעַ, הוּא נוֹטֵל שֶׁלֹּא בִשְׁבוּעָה:

Just as they said (Kethuvoth 9:7) that a woman who "impairs" her kethubah [i.e., who produces her kethubah and admits that she has received partial payment] exacts payment only with an oath [if her husband claims that she has received the whole], and that if one witness testifies that it has been paid, she exacts payment only with an oath, and (that if she came to claim her kethubah) from bound property or from the property of the orphans, she exacts payment only with an oath, or that if she is paid not in his (her husband's) presence, she exacts payment only with an oath [(All revert to "Just as" (above), i.e., Just as none of these exacts payment without an oath)], so the orphans exact payment only with an oath. That is, orphans who exact payment from other orphans do so only with an oath. Our Mishnah speaks of an instance where the orphans who are being asked to pay say: We do not know whether or not our father paid this debt. But if they claim: Our father told us that he never borrowed this money and had never incurred this debt, then the orphans who produce the bill against the others exact payment without an oath. For saying "I did not borrow" is tantamount to saying "I did not pay," and they cannot refute the witnesses who testify that their father did borrow this money. And we are taught that with an oath these orphans do exact payment from the others only in an instance where the creditor died in the debtor's lifetime; but if the debtor died in the creditor's lifetime, the creditor is already obliged to swear to the sons of the debtor that he received nothing. For one who exacts payment from orphans, even with a bill (of indebtedness) must swear. And one does not bequeath to his sons money for which he is obliged to swear, the sons not being able to take an oath for which their father is liable. But though this is the halachah, if a judge ruled that the orphans swear "Our father did not charge us, etc." in order to exact payment from the other orphans thereby, what is done is done.[ (What is the oath?) "We swear that father did not charge us [at the time of his death], and did not inform us [before that time, that the bill was paid], and we did not find among our father's bills (any indication) that this bill was paid." R. Yochanan b. B'roka says: Even if the son was born after the father's death, he swears and takes. [He swears that he did not find among his father's bills (any indication) that this bill was paid. This is the halachah.] R. Shimon b. Gamliel said: If there are witnesses that the father said at the time of his death: "This bill has not been paid," he (the son) takes without swearing. [The halachah is in accordance with R. Shimon b. Gamliel.]

וְאֵלּוּ נִשְׁבָּעִים שֶׁלֹּא בְטַעֲנָה, הַשֻּׁתָּפִין, וְהָאֲרִיסִין, וְהָאַפּוֹטְרוֹפִּין, וְהָאִשָּׁה הַנּוֹשֵׂאת וְהַנּוֹתֶנֶת בְּתוֹךְ הַבַּיִת, וּבֶן הַבָּיִת. אָמַר לוֹ מָה אַתָּה טוֹעֲנֵנִי, רְצוֹנִי שֶׁתִּשָּׁבַע לִי, חַיָּב. חָלְקוּ הַשֻּׁתָּפִין וְהָאֲרִיסִין, אֵין יָכוֹל לְהַשְׁבִּיעוֹ. נִתְגַּלְגְּלָה לוֹ שְׁבוּעָה מִמָּקוֹם אַחֵר, מְגַלְגְּלִין עָלָיו אֶת הַכֹּל. וְהַשְּׁבִיעִית מְשַׁמֶּטֶת אֶת הַשְּׁבוּעָה:

And these swear without a [definite] claim(against them) [but only with a tentative one, i.e., "Is it possible that you withheld something of mine?" And because all of these (that follow) are inclined to rationalize (appropriating things for themselves) in that they exert themselves with the property, the rabbis imposed an oath upon them]: partners, tenant-farmers, caretakers, [who manage one's money for him. But with a caretaker of orphans — if beth-din appoints him he swears; if the father of the orphans appoints him, he does not swear.], a woman who carries on trade in the house, [her husband having made her a shopkeeper or a caretaker for his property], and a "son of the house" [one of the brothers, who deals with the property after the father's death.] If he asks: "What are you claiming from me"? (and the other replies:) "I want you to swear to me," he is liable (to do so). If the partners or the tenant-farmers divided [and did not make him swear at the time of the division], they cannot make him swear [thereafter]. If an oath were "rolled on" to him [by them, afterwards], for something else, they can "roll" everything [including this] upon him. [And just as "rolling on" obtains with a Torah mandated oath, and with an oath similar to a Torah oath, so does it obtain with a shvuath heseth.] And shevi'ith (the sabbatical year) "releases" the oath. [Not the oaths of partners, for shevi'ith dissolves neither partnership nor its oath. It is, rather, a loan and its oath that it releases.]