היכי דמי כגון שטען טענת גנב ונשבע וחזר וטען טענת אבד ונשבע
an oath that he was not careless, an oath that he did not commit conversion and an oath that the deposit was no more in his possession, does this not mean that the oath 'that he did not commit conversion' should be compared to the oath 'that the deposit was no more in his possession so that just as where he swears 'that the deposit was no more In his possession,' as soon as it becomes known that the deposit was really at that time in his possession he would be liable for double payment, so also where he swore 'that he did not commit conversion, when the matter becomes known that he did commit conversion he would be liable?<span class="x" onmousemove="('comment',' To double payment in case of perjury.
');"><sup>26</sup></span> — He replied: No; the oath 'that he did not commit conversion' was meant to be compared to the oath 'that he was not careless'; just as where he swears 'that he was not careless' even if it should become known that he was careless,<span class="x" onmousemove="('comment',' I.e., that the deposit was stolen from him through his carelessness.
');"><sup>27</sup></span> he would be exempt from double payment.<span class="x" onmousemove="('comment',' Since he did not misappropriate the deposit for himself.
');"><sup>28</sup></span> so also where he swears 'that he did not commit conversion,' even if it becomes known that he did commit conversion,<span class="x" onmousemove="('comment',' And then misappropriated it for himself.
');"><sup>29</sup></span> he would still be exempt from double payment. Rami b. Hama asked: [Since where there is liability for double payment there is no liability for a Fifth,<span class="x" onmousemove="('comment',' For which v. supra 65b and 106a. ');"><sup>30</sup></span> is it to be understood that] a pecuniary value for which there is liability to make double payment exempts from the Fifth, or is it perhaps the oath which involves the liability of double payment that exempts from the Fifth? In what circumstances [could this problem have practical application]? — E.g., where the bailee had pleaded in his defence theft confirming it by an oath and then came again and pleaded loss and similarly confirmed it by an oath,
Jerusalem Talmud Shevuot
“He said to the recipient of a fee,” etc. Rebbi Joḥanan said, one who claims before his neighbor a claim of thief in a case of loss is liable. “Where is my lost object?” He told him, “it was stolen.” Rebbi Joḥanan said, one who claims before his neighbor a claim of thief is liable only after an oath. What is the reason? It is said here “grabbing” and it says there “grabbing.” Since “grabbing” mentioned there only applies after an oath, so also “grabbing” mentioned here only applies after an oath. Rebbi Joḥanan said, one who claims a claim of loss, swore to him, and afterwards claimed a claim of thief is not liable. Rebbi Joḥanan asked: May one be liable for a blurted oath in case of an oath regarding a claim of thief? The argument of Rebbi Joḥanan seems to be inverted. There he said, if he claimed a claim of loss, swore to him, and afterwards claimed a claim of thief is not liable. And here he says so? There it is obvious to him, here it is problematic for him. What is problematic for him? He saw and found it simple. Rebbi Ḥiyya bar Joseph said, one who claims before his neighbor a claim of thief is liable only after he denied in court. Where do we hold? If about him who already owes an oath to his neighbor, even if he was swearing out of court he is liable. But we must hold about him who saw them coming. They wanted to make him swear but he jumped in and swore. Rebbi Ḥiyya in the name of Rebbi Joḥanan: When it was standing at his feeding trough. Rebbi Ze`ira asked: how was it said? “If it was standing” or “even if it was standing”? If you say “even if it was standing,” it makes no difference. If you say “if it was standing,” then the argument of Rebbi Joḥanan is inverted. There, he said, if he claimed before him a claim of loss, had been swearing to him, selected a sacrifice, and then claimed a claim of duress, he is not liable. But here you are saying so? Rebbi La said, there is a difference since he absolved himself of confession by the oath. They objected to the opinion of Rebbi Ze`ira: “‘Where is my ox?’ He told him, ‘it was stolen.’ ‘I want you to swear;’ he answered ‘Amen’. Witnesses testify that he stole it: he has to pay double restitution. If he confessed himself he pays the value, and a fifth, and a reparation sacrifice.” But here when he moved it by claiming that it was lost. Afterwards he claimed a claim of thief and is not liable. Explain it that he swore to him but slaughtered it afterwards. The students of Rebbi Ḥiyya bar Julianus say, explain it that he slaughtered it when it was lying down. Is there slaughter without sale? Following Symmachos who said, there can be slaughter and sale without theft. Samuel said, if there came no witnesses of the theft, but there came witnesses of the slaughter; he is liable.
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