Commento su Shevu'ot 5:7

שבועת הפקדון. באנשים ובנשים – since the Tanna/teacher [of the Mishnah] taught regarding the oath of testimony (see Tractate Shevuot, Chapter 4, Mishnah 1) that it applies to men, but not to women, he taught here that it applies to everyone.

Introduction Chapter five discusses the oath of deposit. The scenario in which this type of oath would be taken is one where Reuven requests of Shimon to return to him something he (Reuven) left in his (Shimon’s) guard. If Shimon denies having accepted the item as a deposit and takes an oath that he did not do so, and then admits that the oath was false, he is liable. This oath is referred to in Leviticus 5:21-26. An oath of deposit need not only be on a deposit but may be on any item that one person claims from the other. The first mishnah is similar to those that we have learned previously. It categorizes when and to whom this type of oath is applicable.

בקרובים – that the owner of the deposit is a relative of the one with whom the deposit is [placed].

The oath of deposit applies to men and women, to non-relatives and relatives, to those qualified [to bear testimony] and those unqualified; before the court and not before the court, [if uttered] from his own mouth. And [if adjured] by the mouth of others, he is not liable unless he denies it before the court, according to the words of Rabbi Meir. But the Sages say, whether [uttered] from his own mouth or [adjured] by the mouth of others since he denied it, he is liable. This section is similar to the mishnayoth learned at the end of chapter three and the first mishnah of chapter four, which discussed the same regulations with regards to other types of oaths. The oath of deposit applies to anyone (as did the oath of utterance and the vain oath, but not the oath of testimony). Again, there is a dispute between the Sages and Rabbi Meir with regards to whether or not the person must state the oath in front of the court in order to make it valid. According to Rabbi Meir if the person utters the oath himself, he need not do it in front of a court. If, however, he is adjured, meaning the claimant asks him “Do you swear?” and he answers “Amen”, then it must be done in front of the court. According to the Sages, whether the person utters the oath on his own, or is adjured by others, he need not do so in front of a court.

בפני בית דין ושלא בפני ב"ד – if from his own mouth he took an oath, that he uttered an oath from his mouth or answered “amen” after an an oath and afterwards admitted to hit, he is liable for a sacrifice, as it is written (Leviticus 5:21): “by dealing deceitfully with his fellow in the matter of a deposit” of any sort.

And he is liable for intentional transgression of the oath, and for its unintentional transgression coupled with intentional [denial of having received the] deposit, but he is not liable for unintentional transgression. And what is he liable for the intentional transgression of the oath? A guilt offering of [the value of] two shekels of silver. A person is liable whether he intentionally swears a false oath or even unintentionally swears a false oath, meaning he didn’t know that one who swears falsely is liable to bring a sacrifice, but did know that he had the object being claimed. If he didn’t know that he had the object and then swore falsely, he is not liable. If he has intentionally violated either of these (the oath or the knowledge of the deposit) he must bring a guilt offering which is worth at least two shekels. This is the amount mentioned in Leviticus 5:15.

ומי אחרים – but he did not answer, “Amen,” as for example, “I impose an oath on you that you restore to me my pledge,” and he said: “I have nothing of yours in my hand,” he is not liable until he denies in the Jewish court.

Questions for Further Thought:
• Compare this mishnah with the first two mishnayoth of chapter four. What are the differences and why are they different?

וחכמים אומרים – And the Halakha is according to the Sages.

וחייב על זדון השבועה (one is liable if he deliberately took a false oath) – as it is not written concerning it, “it is concealed,” deliberate taking of a false oath , that he recalls about he bailment and knws that he is liable a sacrifice for his denial of it.

ועל שגגתה עם זדון הפקדון (or took an oath in error, while deliberately denying bailment) – that he did not know that he is liable a sacrifice for this oath, he remembered that the bailment is with him.

בכסף שקלים – that is purchased with two Selaim, for this is written concerning the ram of the guilt offering (Leviticus 5:15): “convertible into payment by silver by the sanctuary weight, [as a guilt offering].”

מפני שיכוך לחזור ולהודות – after denial, and it is found that in each oath, he denies the money.

Introduction This mishnah explains how an oath of deposit works.

This mishnah is almost exactly the same as the chapter four, mishnah three. It may help to look back there as well.

The oath of deposit how? If he said to him: “Give me my deposit which I have in your possession” [and the other replied:] “I swear that you have nothing in my possession”; or he replied to him; “You have nothing in my possession,” [and the depositor said:] “I adjure you”, and he responded, “Amen!”, he is liable. An oath of deposit may either be done by the claimant asking the other person to return the object and the other person swearing that it is not in his possession, or by the claimant adjuring the other person and the other person answering “Amen”. In either case, if the other person falsely denied having the object he will be liable.

If he adjured him five times, whether before the court or not before the court, and he denied, he is liable for each one. Rabbi Shimon said: “What is the reason? Because he can retract and admit.” If the claimant adjured the other person five times and he falsely denied it five times, he will be obligated for five sacrifices. Rabbi Shimon explains that since he could legally change his mind and admit at any point that the object was in his possession, each subsequent oath is in fact effective and is treated as a new oath. This differs from an oath of testimony mentioned in 4:3, where if the witnesses denied knowledge in front of the court five times, they will be obligated only once, since they cannot change their mind after having already testified.

Questions for Further Thought:
• Does the last section of this mishnah go according to Rabbi Meir or the Sages (see mishnah one)? How so?

שבועה באחרונה – You have nothing in my hand, nor you, nor you,” in an oath, and now there exists an oath for all of them, But the Halakha is not according to Rabbi Eliezer nor according to Rabbi Eliezer nor according to Rabbi Shimon.

Introduction This mishnah distinguishes between cases where a person has taken one oath of deposit and cases where a person has taken more than one oath of deposit. Similar mishnayoth were taught in 4:5, and 3:2-3 with regards to the other types of oaths.

אפילו אמר חטה ושעורה וכוסמת – for Rabbi Meir held that a person who makes a claim [in court] of wheat from his fellow, a species of wheat is mentioned, and similarly barley, and similarly spelt, as it is written (Exodus 9:32): “but the wheat and the emmer (a kind of wheat) [were not hurt, for they ripen late].” For it is as if they made the claim of wheat and barley and spelt. But the Rabbis held that one grain/berry of wheat and of barley and of barley is mentioned. But the Halakha is not according to Rabbi Meir.

If five claimed from him, and said to him: “Give us the deposit that we have in your possession,” [and he replied:] “I swear that you have nothing in my possession,” he is liable only once. [If he said:] “I swear that you have nothing in my possession, nor you, nor you,” he is liable for each one. Rabbi Eliezer says: “Only if he says, ‘I swear’ at the end.” Rabbi Shimon says: “Only if he says, ‘I swear’ to each one.” In this scenario five people at the same time claim from one person an object that they say is in his possession. If he takes one oath denying that he has the object, he will be liable for one sacrifice, if the oath was false. There are three different opinions as to how he can make his statement into five different oaths and thereby be liable for each one. According to the first opinion each time he repeats “you” he is swearing a new oath, and will therefore be liable for another sacrifice. According to Rabbi Eliezer, in order to make all of the subsequent “you”s into new oaths, he must repeat the word “oath” at the end of the statement. If he does not it still counts as one oath. According to Rabbi Shimon he must repeat the word, “I swear” to each individual who makes a claim against him. If he does not it will count as one oath.

“Give me the deposit, loan, theft, and lost object that I have in your possession,” [and he replied], “I swear that you do not have these in my possession,” he is liable only once. “I swear that you do not have in my possession a deposit, a loan, a theft, and a lost object,” he is liable for each one. In this scenario a person claims four different categories of things from another person. These four are patterned after the language of the Leviticus 5:21. If the person responds with one oath of denial without specifying what he is denying, he will be liable for only one sacrifice. If he mentions all four things which he is denying, he will be obligated for four sacrifices.

“Give me the wheat, barley, and spelt that I have in your possession”, [and he replied], “I swear that you do not have these in my possession,” he is liable only once. “I swear that you do not have in my possession wheat, barley, and spelt,” he is liable for each one. Rabbi Meir said: “Even if he said, ‘... A grain of wheat, barley and spelt,’ he is liable for each one. This same rule applies if the claimant claims different types of the same item. Again, if he mentions each type individually, he is liable for multiple sacrifices. If he groups them together in one general statement, then he is liable for only one sacrifice. Rabbi Meir adds that even if he slightly changes the language of the claim, from plural to singular, he is still liable.

Questions for Further Thought:
• Why does the mishnah need to teach section three after having taught section two? In other words, why would you have thought that the case of wheat, barley and spelt was different from the case of deposit, loan, theft and lost object?

שאינו משלם קנס על פי עצמו (he does not pay a fine on the basis of his own testimony) – and since he admitted, he is not liable but if he denied it also, he did not deny monetary payment.

Introduction The final two mishnayoth of chapter five teach that in order for one who makes a false oath of deposit to be liable to bring a sacrifice he must deny something to which if he had admitted he would have been liable. Since he is not liable to pay a fine for a self-admission, he is not liable if he denies owing a fine. He is liable only if he denies owing something which is considered financial compensation. Mishnah four deals with a case of rape or seduction.

אבל משלם בושת ופגם – therefore, he denied the monetary [payment], but it is dispute between the Rabbis and Rabbi Shimon, for Rabbi Shimon holds that when if he said to him: ‘You raped or seduced my daughter,” he can claim a fine from him whose monetary amount is fixed at fifty silver, but he cannot claim from him humiliation and deterioration, whose monetary [figure] is not fixed, for a person will not forego the claim of a definite quantity, and demand something undefined (requiring appraisement) (see Tractate Ketubot 43a), therefore, he has denied a fine and is exempt. But the Rabbis hold that humiliation and deterioration he also claims from him, for a person will not forego something when he admits to it and will not be exempt and when he makes a claim on something when he admits to it, he is exempt; therefore, when he denies it, he has denied him monetary [payment] and he is liable. But the Halakha is not according to Rabbi Shimon.

“You raped or seduced my daughter” and the other says, “I did not rape, nor seduce,” “I adjure you,” and he responds, “Amen!” he is liable. Rabbi Shimon exempts him, for he does not pay a fine on his own admission. They said to him: “Even though he does not pay a fine on his own admission, he still pays for the shame and blemish [to the girl], based on his own admission. According to the Exodus 22:15-16 and Deuteronomy 22:28-29, if a man rapes or seduces a virgin, he must pay her father a fine of 50 shekels. The Rabbis added that besides the fine, he also has to pay other which penalties incumbent upon anyone who injures another person (see Bava Kamma, chapter eight). He must pay for having embarrassed her, and he must pay for having injured her, thereby decreasing her value. (We will learn the details of these laws in the third chapter of tractate Kethuboth.) In the scenario in our mishnah a man approaches another man and accuses him of having raped or seduced his daughter and therefore owing him the 50 shekels, plus the other penalties. The person responds that he didn’t do so, and then when the claimant adjures him, he affirms the adjuration. According to the first opinion in the mishnah, when he admits that he did in fact rape or seduce the other man’s daughter, he will be liable for a sacrifice for his false oath. Of course he will also be obligated to pay the fine and the other financial penalties. Rabbi Shimon disagrees. Since there is a rule in Jewish law, that one who admits to a crime does not have to pay the fine for having done so, even if this person had admitted to having raped or seduced the daughter, he would not have been obligated to pay the fine. Therefore, there was no denial of money, and the laws of the oath of deposit do not apply. The Sages respond to Rabbi Shimon that although one who admits to a crime does not have to pay a fine, he does have to pay compensatory damages, which in this case include the payment for embarrassment and the payment for having decreased her value. Since if he had admitted he would have had to pay, he did deny money, and is therefore liable for having sworn a false oath of deposit.

המית שורך את עבדי – it is a fine, that he pays thirty Selaim, even if it is not worth other a Denar.

Introduction Mishnah five deals with a principle similar to that which we learned yesterday, namely that a person is only liable for an oath of testimony if had he admitted to doing what he swore he did not do he would have been liable to pay money.

אמר לו עבדו הפלת את שיני – it is fine that he should set his servant free because of one of his limbs.

The examples in the first six sections of this mishnah illustrate the rule that is stated at the end. If a person denies a claim, to which if they had admitted they would have had to pay money to the claimant, they have caused the claimant to lose money and are liable to bring a sacrifice. If the person denies a claim, to which even if they had admitted they would not have been liable to pay money to the claimant, they have not caused the claimant to lose money, and they are therefore not liable for a sacrifice. The other relevant rule for our mishnah is the one mentioned in the previous mishnah, that one is not obligated to pay a fine based on his own admission, but he is obligated to make financial compensation based on his own admission. The general difference between a fine and financial compensation is that a fine is a fixed amount whereas financial compensation is based on the actual damages.

“You stole my ox,” and he says, “I have not stolen it” “I adjure You,” and he responds, “Amen!” he is liable. In this case a person denies having stolen the object. If he had admitted to stealing he would have had to pay the value of the object to the owner, plus an additional one times the value of the object. Paying back the value of the stolen object itself is considered financial compensation. Since he would have been obligated to pay if he had admitted, he is liable for a sacrifice for having lied.

“I have stolen it, but I have not killed it or sold it”, “I adjure you,” and he responds, “Amen!” he is exempt. If the thief slaughters or sells the stolen animal he is liable to pay four (for a sheep) or five (for an ox) times the value of the stolen animal. In this case the person admitted to stealing the animal but denied having sold or slaughtered it. This extra payment, beyond the value of the animal, is considered a fine. Since he would not have been obligated to pay even if he had admitted, he is not liable for a sacrifice for having lied.

“Your ox killed my ox,” and he says, “It did not kill [your ox]”, “I adjure you,” and he responds, “Amen!” he is liable. When one’s ox kills another’s ox, the owner of the ox that killed must financially compensate the owner of the dead ox. Since he would have been obligated to pay if he had admitted, he is liable for a sacrifice for having lied.

“Your ox killed my slave,” and he says, “It did not kill [your slave]”, “I adjure you,” and he responds, “Amen!” he is exempt. When one person’s ox kills another person’s slave, the owner of the ox must pay the owner of the slave 30 shekels. This is a fixed amount and is therefore considered a fine. Since he would not have been obligated to pay even if he had admitted, he is not liable for a sacrifice for having lied.

He said to him, “You injured me, or bruised me,” and the other says, “I have not injured you or bruised you,” “I adjure you,” and he responds, “Amen!” he is liable. When one injures another person he is liable to make different types of financial compensation. Since he would have been obligated to pay if he had admitted, he is liable for a sacrifice for having lied.

His slave said to him, “You knocked out my tooth, or blinded my eye,” and he said, “I did not knock out [your tooth], or blind [your eye],’ “I adjure you,” and he responds, “Amen!” he is exempt. If a slave owner knocks out the tooth or puts out the eye of his slave he must set the slave free. This is not a monetary claim but rather is considered to be a fine. Since he would not have been obligated to set the slave free had he admitted to putting out his tooth or eye, he is not liable for a sacrifice for having lied.