Commentary for Bava Metzia 9:17
דתנן מנה לי בידך אין לך בידי פטור ואמר רב נחמן משביעין אותו שבועת היסת
Abaye, however, answered him: If [the law were] valid, would [the shepherd be allowed to] swear? Is he not a robber?<span class="x" onmousemove="('comment',' Who is likely to commit perjury, hence cannot be given an oath. R. Hiyya's law refers to a debt, or pledge, which the defendant denies, not because he has misappropriated it, or used it for himself, but because he does not find it convenient to repay or replace it just then, and intends to do so later. He therefore cannot be regarded as a robber. ');"><sup>16</sup></span>
Tosafot on Bava Metzia
[If the defendant says]: Nothing of yours is in my possession he is exempt; Rav Nachman says [he must swear an oath of incitement]. In order to understand this Tosfos properly, we need to review a Gemara in Shavuos 41a, where the Gemara first quotes a Mishna of 38b: The plaintiff claimed: A maneh of mine is in your possession, i.e. you owe me a maneh. The defendant responds: You have nothing in my possession. The ruling is: [the defendant] is exempt. He need not pay or swear by Torah law. Rav Nachman says: We require him to swear an oath of incitement, by Rabbinic law.
The Gemara explains that this first version of Rav Nachman holds that even when there is nothing other than the claim of the plaintiff indicating that the defendant may be liable, an oath of incitement is required. Rav Chaviva taught this ruling of [Rav Nachman] in regard to the latter portion of the Mishna: If the plaintiff claimed: A maneh of mine is in in your possession. [The defendant] responded: Yes! The next day [the plaintiff] said: Give me [the maneh] that you admitted. The defendant responds: I gave it to you. The ruling is: he is exempt, i.e. the defendant need not pay or swear. It is in regard to this latter ruling that Rav Nachman says: We require him to swear an oath of incitement.
The Gemara explains the difference between the earlier and latter versions of Rav Nachman. The one who taught [Rav Nachman’s ruling] in regard to the earlier part of the Mishna when there is no indication of guilt other than the plaintiff’s claim, will certainly hold that Rav Nachman’s ruling applies to the latter part of the Mishna, where there is some indication that the defendant may owe money, since he admitted receiving a maneh from the plaintiff. However, the one who taught [Rav Nachman’s] ruling in regard to the end of the Mishna, holds that here in the latter part of the Mishna there is a suggestion of monetary liability, but [in the earlier part of the Mishna] where there is no suggestion of monetary liability, no oath of incitement is needed.
We now know that there are two opinions about Rav Nachman’s requirement of a Rabbinic oath of incitement:
a) Even when there is no suggestion of liability, it is required.
b) Only when there is a suggestion of liability, such as when the defendant admitted that there once was a liability, is an oath of incitement required.
Our Gemara quotes the earlier part of the Mishna in Shavuos 38b and then immediately introduces Rav Nachman’s ruling. It seems that our Gemara holds that Rav Nachman’s oath of incitement is relevant even for the earlier part of the Mishna. From [this Gemara] it seems that the halacha follows the first version in Perek Shavuos HaDayanim (Shavuos 41a), which does not require a suggestion of monetary liability for Rav Nachman’s oath of incitement, rather, even one who totally denies a claim against him is obligated to take an oath of incitement. This is evident from the fact that [the Gemara] does not cite the end of the Mishna in Shavuos where the Mishna says: after the defendant admitted owing a maneh, the next day he claims: I gave it to you, he is exempt. According to the second version in Shavuos, Rav Nachman’s ruling was said only in reference to this second statement of the Mishna where there is a suggestion of liability. Since our Gemara does not quote this second ruling of the Mishna 38b, but only the earl;ier part of the Mishna, where there is no suggestion of liability, it seems that our Gemara holds like the first version in Shavuos that Rav Nachman’s ruling is relevant even when there is no suggestion of liability.
We also find this explanation in the Shearim of Rav Hai. And if the defendant] claims: I do not know whether I am liable or not, he must swear that he does not know.
The Gemara explains that this first version of Rav Nachman holds that even when there is nothing other than the claim of the plaintiff indicating that the defendant may be liable, an oath of incitement is required. Rav Chaviva taught this ruling of [Rav Nachman] in regard to the latter portion of the Mishna: If the plaintiff claimed: A maneh of mine is in in your possession. [The defendant] responded: Yes! The next day [the plaintiff] said: Give me [the maneh] that you admitted. The defendant responds: I gave it to you. The ruling is: he is exempt, i.e. the defendant need not pay or swear. It is in regard to this latter ruling that Rav Nachman says: We require him to swear an oath of incitement.
The Gemara explains the difference between the earlier and latter versions of Rav Nachman. The one who taught [Rav Nachman’s ruling] in regard to the earlier part of the Mishna when there is no indication of guilt other than the plaintiff’s claim, will certainly hold that Rav Nachman’s ruling applies to the latter part of the Mishna, where there is some indication that the defendant may owe money, since he admitted receiving a maneh from the plaintiff. However, the one who taught [Rav Nachman’s] ruling in regard to the end of the Mishna, holds that here in the latter part of the Mishna there is a suggestion of monetary liability, but [in the earlier part of the Mishna] where there is no suggestion of monetary liability, no oath of incitement is needed.
We now know that there are two opinions about Rav Nachman’s requirement of a Rabbinic oath of incitement:
a) Even when there is no suggestion of liability, it is required.
b) Only when there is a suggestion of liability, such as when the defendant admitted that there once was a liability, is an oath of incitement required.
Our Gemara quotes the earlier part of the Mishna in Shavuos 38b and then immediately introduces Rav Nachman’s ruling. It seems that our Gemara holds that Rav Nachman’s oath of incitement is relevant even for the earlier part of the Mishna. From [this Gemara] it seems that the halacha follows the first version in Perek Shavuos HaDayanim (Shavuos 41a), which does not require a suggestion of monetary liability for Rav Nachman’s oath of incitement, rather, even one who totally denies a claim against him is obligated to take an oath of incitement. This is evident from the fact that [the Gemara] does not cite the end of the Mishna in Shavuos where the Mishna says: after the defendant admitted owing a maneh, the next day he claims: I gave it to you, he is exempt. According to the second version in Shavuos, Rav Nachman’s ruling was said only in reference to this second statement of the Mishna where there is a suggestion of liability. Since our Gemara does not quote this second ruling of the Mishna 38b, but only the earl;ier part of the Mishna, where there is no suggestion of liability, it seems that our Gemara holds like the first version in Shavuos that Rav Nachman’s ruling is relevant even when there is no suggestion of liability.
We also find this explanation in the Shearim of Rav Hai. And if the defendant] claims: I do not know whether I am liable or not, he must swear that he does not know.
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