Comentario sobre Shevuot 8:9

ארבעה שומרים הם – [and their laws are three].

Introduction The first mishnah in this chapter was taught in its entirety in Bava Metziah 7:8. It is repeated here as an opening to the rest of the chapter which discusses when a guardian is liable to bring a sacrifice for having sworn a false oath. There are certain types of guardians who under circumstances if not able to return the object under their guard may take an oath and thereby exempt themselves from having to pay back the owner. Our chapter will teach that they are liable to bring a sacrifice only if they take an oath that exempted them from paying back the owner. The type of oath described here is an “oath of deposit”, discussed above in chapter five. The punishment for intentionally swearing a false oath of deposit is a guilt offering.

נושא שכר – bailee with payment

There are four kinds of guardians: an unpaid guardian, a borrower, a paid guardian and a hirer. An unpaid guardian may take an oath [that he had not been neglectful] in every case [of loss or damage and be free of liability]. A borrower must make restitution in every case. A paid guardian or a hirer may take an oath if the beast was injured, or taken captive or dead, but he must make restitution if it was lost or stolen. This mishnah lists the four types of guardians in Jewish law. The general principle is that the more benefit a guardian receives and the less benefit he gives to the owner of the object, the more liable he will be if the object is not returnable. Therefore a borrower, who does not pay and gets full use of the object pays in any case that the object is not returnable. On the other hand, an unpaid guardian only gives benefit to the owner and receives no benefit in return. Therefore in all cases in which something occurs to the object that he is guarding he may take an oath that he was not neglectful and be exempt from liability. Paid guardians and hirers are in-between cases. The hirer gets use of the object but he pays for such use. The paid guardian is not allowed to use the object but he gets paid for watching it. Therefore both of these guardians are sometimes allowed to take an oath and thereby be exempt from liability and sometimes they are liable to pay the owner. If the animal was lost or stolen and is no longer in front of us, they must pay the owner the value of the animal. If, however, it died a natural death, was taken captive or injured then they may take an oath and exempt themselves from liability.

נשבע על הכל – that he was not negligent.

משלם על הכל – all those that we taught in our Mishnah, taken captive, and/or injured and/or who died and/or was something stolen and/or lost. But if it (i.e., the animal) had died on account of the labor [done], he does not pay, because this cannot be established as a measure of the borrowing. But this Mishnah is explained in [Bava Metzia, Chapter 7] “One who Hires Workers”/”HaSokher Et HaPoalim.”

ואמר אמן פטור – for if he had admitted it, he would not pay anything; it is found there is no denial of money [owed], and even though he had taken a false oath, the Torah did not obligate him a sacrifice for the oath other than where he denied money [owed]. Similarly, the judge cannot make him take an oath other than on a matter that if he admitted, he would be liable to pay money.

Introduction This mishnah deals with the oath taken by the unpaid guardian, who as we learned in the previous mishnah, can always take an oath to exculpate himself from liability.

If he [the owner] said to the unpaid guardian, “Where is my ox?” and he replied to him, “It died,” whereas in reality it was injured or captured or stolen or lost; [Or he replied], “It was injured,” whereas in reality it died or was captured or stolen or lost; [Or he replied,] “It was captured,” whereas in reality it died or was injured or stolen or lost; [Or he replied,] “It was stolen,” whereas in reality it died or was injured or captured or lost; [Or he replied,] “It was lost,” whereas in reality it died or was injured or captured or stolen; [And the owner said,] “I adjure you,” and he said, “amen”, he is exempt [from having to bring a sacrifice for a false oath]. As we learned in the previous mishnah, an unpaid guardian can always take an oath and exempt himself from repaying the owner if he cannot return the object under guard. It doesn’t matter whether the animal died, was injured, taken captive, stolen or lost; in all of these cases the unpaid guardian may swear that he was not negligent and be exempt from having to pay back the owner. In the five different scenarios in our mishnah the unpaid guardian lies with regards to what happened to the animal. However, even if he had told the truth, he would not have been liable to pay back the owner. For instance, if he says that the animal died, but in truth it had been lost, he has lied, but he could have told the truth without having to pay back the owner. In all of these cases, even if the unpaid guardian swears to his lie, he is not liable to bring a sacrifice. Since his false oath was unnecessary it does not obligate him for the same consequences as an oath that did actually exempt him from paying back the value of the animal under his watch.

Questions for Further Thought:
• Why does the mishnah have to list all of these possibilities? What might a reader have thought had some of the possibilities not been listed?

היכן שורי – He (i.e., the owner) said to the unpaid bailee, “where is my ox?” He said to him: “It was lost.”

Introduction Mishnah three continues to discuss unpaid guardians who swear falsely with regards to the object under their watch.

משביעך אני ואמר אמן והעדים מעידים אותו שאכלו משלם את הקרן – [he pays the principle] but not the double-payment, but if he admitted it on his own prior to the witnesses coming, he would pay the principle plus one-fifth and a make a guilt-offering, like the law of the oath of a deposit, which does not come until he admits and repents from his wickedness and come to be forgiven/expiated.

[If the owner said,] “Where is my ox?” and he replied to him, “I do not know what you are talking about,” whereas in reality it died or was injured or captured or stolen or lost, [and the owner said,] “I adjure you,” and he said, “Amen”, he is exempt. When the unpaid guardian is asked by the owner of the ox where is his ox, the he denies ever having received it. When adjured, the he swears that he never received the ox. If the ox in reality had died, been injured captured or lost, the unpaid guardian is exempt from bringing a sacrifice or from paying back the owner. As we learned in the previous mishnah, since he could have told the truth and been exempt, when he lies he is still exempt.

אמר ליה נגנב משביעך אני וכו' – since an unpaid bailee who exempts himself with the claim of the thief and takes an oath and witnesses came, he pays double, as it is written (Exodus 22:7): “If the thief is not caught, [the owner of the house shall depose before God that he has not laid hands on the other’s property].” “if the thief was not caught” – like as he said, but that he himself had stolen it, he should pay double. But if he came to exempt himself with the claim that it was lost, he does not pay double.

[If the owner said,] “Where is my ox?” and he replied to him, “It was lost”; [and the owner said,] “I adjure you”, and he said, “Amen”, and witnesses testify against him that he had consumed it, he pays the principal; if he confessed himself, he pays the principal, a fifth, and brings a guilt-offering. In this case the unpaid guardian swears falsely that the animal had been lost. In reality he had consumed the animal himself. If he had told the truth he would have had to pay back to the owner the value of the animal. If witnesses testify against him that he had consumed the animal himself, he must repay the value of the animal to the owner. If he himself admits that he consumed the animal, without witnesses testifying against him, he must not only restore the value of the animal, but pay an additional fifth and bring a guilt offering. This is the punishment prescribed in Leviticus 5:21-25. Our mishnah teaches that a person makes this type of expiation for a false oath, only if he admits to having sworn falsely. If witnesses prove him to have sworn falsely he does not bring a sacrifice or an additional fifth.

[If the owner said,] “Where is my ox?” and he replied to him, “It was stolen;” [and the owner said,] “I adjure you, and he said, “Amen”, and witnesses testify against him that he himself stole it, he pays double; if he confessed himself, he pays the principal, fifth, and brings a guilt-offering. If the unpaid guardian claims that the ox was stolen but in reality he stole it, he is considered a thief. If witnesses testify that he stole it he is obligated to pay back double the value of the ox, as are all thieves required to pay back double. If he himself admits to having stolen the ox, he must pay back the value of the ox, and an additional fifth and bring a sacrifice, for having sworn a false oath. He does not bring the double payment, due to the general rule that one who admits to having done a crime does not pay a fine. Double payment is considered a fine.

הודה מעצמו משלם קרן וחומש ואשם – but not the double payment, for a person who admits to a fine is exempt.

Questions for Further Thought:
• Section two: What is the paradox in this section, a law that seems to be counterintuitive?
• Why is one who admits to a crime exempt from paying the fine? What does this say about the penal system at the time of the Mishnah?

אמר לאחד מן השוק – here we do not have the reading “I impose an oath upon you.” Because without an oath, he would be liable for double payment. For this one is an actual thief, and regarding a thief, it is written (Exodus 22:6): “[if the thief is caught,] he shall pay double,” and he does not need an oath.

Introduction Mishnah four is a digression in the Mishnah, which deals with some laws of stealing.

עדים שממשמשין ובאין – it is teaching us something remarkable – for even though on account of fright of the witnesses, he admits, even so, the admission is a benefit and he is exempted from the double payment. And since there is no double payment, he is exempt even from the slaughtering that he denied that and the witnesses came that he had stolen, and slaughtered or sold. For wherever there is no double payment, there is no liability for slaughtering, for the All-Merciful mentioned “four-fold payment or five-fold payment” (see Exodus 21:37: “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-fold payment for four-fold payment,” and because there is not double-payment, less than this is one.

If a man said to one in the market, “Where is my ox which you have stolen?” and he replied, “I did not steal it,” and witnesses testified against him that he did steal it, he pays double. If he killed it or sold it, he pays four or five times its value. If he saw witnesses coming nearer and nearer, and he said, “I did steal it, but I did not kill or sell it,” he pays only the principal. This mishnah does not discuss false swearing but rather some laws of stealing. As we learned in Bava Kamma, one who steals and is caught must pay back a double payment. If he killed or sold a stolen animal he must pay back four (for a sheep or goat) or five (for an ox or cow) times the value. We have also learned on several occasions, that one who admits to having stolen the object, without witnesses first testifying against him, only pays back the principal. The scenario in our mishnah, in which a person accuses someone (not a guardian, rather any person in the marketplace) of having stolen his ox teaches two new rulings. First of all, if the accused admits to having stolen the object only because witnesses are about to testify against him, he is nevertheless obligated to pay back the principal but exempt from the double payment. In other words, even though witnesses were about to testify against him, this still counts as an admission. Second, if he admits to stealing the object, but does not admit to killing or selling it, he is exempt from paying back four or five times the value. Although witnesses testify that he did indeed sell or slaughter the ox, since he admitted to stealing it, it is considered an admission and he must pay back only the principal. There is no case in Jewish law where a person makes the four or five times payment, but is exempt for the double payment. This is because the Torah states that he will pay back four or five times. If he didn’t pay the double payment he would end up paying three or four times, an amount not specified anywhere in the Torah.

Questions for Further Thought:
• How would the ruling in this mishnah differ, if the accused was the unpaid guardian of the ox?

אמר לשואל וכו' פטור – for behold even when he was sworn to a lie, he obligated himself in payments and this oath is not a denial of money [owed].

Introduction This mishnah is similar to mishnah two, except it discusses a borrower as opposed to an unpaid guardian. The principle taught as that learned above: if the false claim does not effect his liability to pay back the owner he is not liable for having taken a false oath.

If he [the owner] said to the borrower, “Where is my ox?” and he replied to him, “It died,” whereas in reality it was injured or captured or stolen or lost; [Or he replied,] “It was injured,” whereas in reality it died or was captured or stolen or lost; [Or he replied,] “It was captured”, whereas in reality it died or was injured or stolen or lost; [Or he replied,] “It was stolen”, whereas in reality it died or was injured or captured or lost; [Or he replied,] “It was lost”, whereas in reality it died or was injured or captured or stolen; [And the owner said,] “I adjure you,” and he said, “Amen,” he is exempt. This mishnah contains the exact same structure as mishnah two, and can be seen as the flip side to that mishnah. Mishnah two discussed an unpaid guardian, who is always exempt from having to pay back the owner, should something happen to the animal under his guard (of course, if he stole or ate the animal he is liable). Therefore, if he lies about what did happen, his lie has no effect on his liability to pay back the owner, for he would have been exempt in any case. Mishnah five discusses a borrower who is always liable to pay back the value of the animal should something happen to it. It does not matter whether the animal died, was injured, taken captive, stolen or lost; in any case in which he cannot restore the animal as it was, he must compensate the owner. Therefore, if he lies with regards to what happened to the animal, his lie has no effect. If for instance he says that the animal died, he still must pay back the value of the animal. The fact that the animal in reality was stolen does not change his degree of liability. Since the false oath did not change his liability he does not need to bring a sacrifice for swearing falsely.

חייב – for behold, he denied the money [owed] , for had he admitted, he would be make himself liable.

Introduction The first section of our mishnah contains one more law concerning the borrower. Sections 2-4 discuss the paid guardian and the hirer. Sections five and six contain general rules which summarize most of the laws learned in this chapter.

מת והוא נשבר וכו' פטור – for it had admitted [to it], he would not pay. And similar, if [he said] that it had been stolen but [in reality] he lost it, or if [he said that] he lost it [but in reality] it had been stolen, he is exempt, for behold he changed from one liability to another and didn’t deny [that he owed] money in this oath.

[If the owner said,] “Where is my ox?” and he replied to him, “I do not know what you are talking about,” whereas in reality it died or was injured or captured or stolen or lost; [and the owner said,] “I adjure you,” and he said, “Amen,” he is liable. This section continues to discuss a borrower. If the borrower denies having received the ox in the first place, he is attempting to exempt himself from paying back the owner. This is in reality the only way that the borrower can exempt himself from having to pay back the owner. If his oath was false he is liable to pay back the owner the value of the animal, as well as bring an additional fifth and a sacrifice for having sworn a false oath.

אמר לו אבד או נגנב והוא שמת או נשבה וכו' פטור – for behold, he changed from something exempt to a liability and he lost out in his oath.

If he said to a paid guardian, or hirer, “Where is my ox?” and he replied to him, “It died,” whereas in reality it was injured or captured; [Or he replied,] “It was injured,” whereas in reality it died or was captured; [Or he replied,] “It was captured,” whereas in reality it died or was injured; [Or he replied,] “It was stolen”, whereas in reality it was lost; [Or he replied,] “It was lost,” whereas in reality it was stolen; [And the owner said,] “I adjure you,” and he said, “Amen,” he is exempt. Sections two-four discuss the paid guardian and the hirer, who have the same liabilities to pay back the owner of the animal. If the animal was injured, taken captive or died they may take an oath that they were not negligent and thereby exempt themselves from having to pay back the owner. If the animal was stolen or lost they cannot take an oath; rather they must pay back the owner. Our mishnah again illustrates the principle that if the false oath would have exempted the guardian in a case where if he had told the truth he would have been obligated, he must bring a sacrifice for having sworn falsely. If the oath does not reduce his liability he is not liable, even though he swore falsely. For instance, if he swears that it was injured, but in reality it was taken captive, he has sworn falsely, but his false oath did not reduce his liability. He is exempt in either case. Similarly, if he says that the animal was lost and it was really stolen, the false oath did not effect his liability. He would have been liable in any case. Since his false oath does not reduce his liability, it also does not make him liable to bring a sacrifice.

[If he replied,] “It died,” or, “It was injured,” or, “It was captured,” whereas in reality it was stolen or lost; [And the owner said,] “I adjure you,” and he said, “Amen,” he is liable. By swearing that the animal died, was injured or taken captive, the hirer or paid guardian is attempting to exempt himself from having to pay back the guardian. If, in reality, the animal was stolen or lost, the guardian has taken a false oath which would have exempted him from having to pay back the owner. Since the oath reduced the liability, the false oath makes him liable to bring an additional fifth, and a sacrifice.

[If he replied,] “It was lost,” or, “It was stolen,” whereas in reality it died or was injured or captured; [And the owner said,] “I adjure you,” and he said, “Amen,” he is exempt. By swearing that the animal was lost or stolen the hirer or paid guardian is making a claim that will make him liable to pay back the value of the animal to the owner. If, in reality, the animal was lost in a manner that would not have made him liable, it turns out that the false oath did not reduce his liability. On the contrary, in this case the false oath actually made him more liable. Even though the oath effected his liability, since it did not reduce his liability, he is still not obligated to bring an additional fifth or a sacrifice. He is, however, liable to pay back the value of the animal.

This is the principle: he who [by lying] changes from liability to liability or from exemption to exemption, or from exemption to liability, is exempt; From liability to exemption, is liable. This section contains a general rule that summarizes must of the laws learned in this entire chapter. It is interesting to note, that although one could have learned all of the laws from this rule, the mishnah nevertheless states all of the laws using concrete examples, rather than abbreviating to just the general rule.

This is the principle: he who takes an oath to make it more lenient for himself, is liable; to make it more stringent for himself, is exempt. This section contains another general rule meant to explain the laws of the chapter. Some versions of the Mishnah do not contain this line. It seems that this is an alternative version of the rule in section five. Congratulations! We have finished Shevuoth. It is a tradition at this point to thank God for helping us to finish learning the tractate and to commit ourselves to going back and relearning it, so that we may not forget it and so that its lessons will stay with us for all of our lives. For those of you who have learned with us the entire tractate, a hearty Yasher Koach (congratulations). You have accomplished a great deal and you should be proud of yourselves. Indeed we have now finished together six tractates of Mishnah, and are three quarters of the way through the entire order of Nezikin. Of course, we have much more to learn. We will begin Shevuoth tomorrow!