Bava Batra 67

היכי נידיינוה דייני להאי דינא לישלם ליכא תרי סהדי ליפטריה איכא חד סהדא לישתבע הא אמר מיחטף חטפה וכיון דאמר דחטפה הוה ליה כגזלן

How are the judges to decide this case? Shall we make him pay? — There are not two witnesses against him. Shall we let him off scot free? — There is one witness.<span class="x" onmousemove="('comment',' And therefore, since the claim is a pecuniary one, he could be called upon to deny the allegation on oath (V. Shebu. 40a). ');">¹</span>

אמר (להו) רבי אבא הוי מחויב שבועה שאינו יכול לישבע וכל המחויב שבועה שאינו יכול לישבע משלם

Shall we administer an oath to him? — But he admits that he snatched the article, and since he admits that, he is, as far as this case goes, a robber.<span class="x" onmousemove="('comment',' And therefore he is disqualified in this case from taking an oath in court. ');">²</span>

א"ל אביי מי דמי התם סהדא לאורועי קאתי כי אתי אחרינא בהדיה מפקינן לה מיניה הכא לסיועי קא אתי כי אתא אחרינא מוקמינן לה בידיה

Said R. Abba to him: He is [in the position of a man who is] legally under obligation to take an oath and is yet unable to take it; and the rule is that whoever is under obligation to take an oath which he cannot take must pay.<span class="x" onmousemove="('comment',' In the case of the land the occupier ought to take an oath to deny the allegation of the one witness, but he cannot take an oath since he admits that he made use of the produce. Hence he should not only give up the land but make restitution for the produce he has consumed. ');">³</span>

אלא אי דמיא הא דרבי אבא לחד סהדא ולתרתי שני ולפירי:

Abaye, however, said to the Rabbis: Are the two cases on all fours? [There in the case of the bar of metal] the witness comes to oppose [the defendant], and if there were another witness with him we should make him give up the article. Here [in the case of the land] the witness comes to support [the defendant], and if there were another witness we should confirm his title to the land.<span class="x" onmousemove="('comment',' Since therefore the witness is in support of the occupier he cannot be made without more ado to pay for the produce, but might take an oath to confirm his claim in regard to the produce, though in the absence of two witnesses to prove his right he would have to return the land; v. Yad Ramah, a.l. ');">⁴</span> If you do wish to draw a parallel with the case of R. Abbah, it would be in the case of one witness [who testifies that the occupier has had the use of the land] two years, and [where the claim is for] the produce.<span class="x" onmousemove="('comment',' Here the witness is against the occupier, since he testifies that he occupied it only two years and not three, and if another witness made the same statement he would have to pay. Hence he is under obligation to deny the statement of the one witness on oath. This, however, he cannot do, as he admits that he has consumed the produce for two years. Hence he must pay. ');">⁵</span>