Bava Kamma 213

עירוב פרשיות כתוב כאן וכי כתיב (שמות כב, ח) כי הוא זה אמלוה הוא דכתיב ומאי שנא מלוה

There is here an 'interweaving of sections',<span class="x" onmousemove="('comment',' I.e., an interpolation of another passage; Ex. XXII, 8, v. n. 7. ');">¹</span> as the words, this is it written here<span class="x" onmousemove="('comment',' Confining the imposition of the oath to cases of part-admission. ');">²</span> have reference to loans.<span class="x" onmousemove="('comment',' According to Rashi a.l. the phrase in Ex. XXII, 8 confining the oath to part. admission referred not to v. 6 but to 24; v. also Sanh. (Sonc. ed.) P. 5, n. 3; regarding deposits there would thus he an oath even in cases of total denial. For the interpretation of R. Tam, cf. Tosaf. a.l. and Shebu. 45b. The accepted view is expounded by Riba and Rashb., a.l. that the condition of part admission is attached to all cases of pecuniary litigation including deposits, providing the defences were such as would avail also in cases of loans, such as e.g.. the denial of the contract or a plea of payment and restoration; v. also Maim. Yad., Sekiroth, 11, 11-12; Tur. H.M. 296, 2. The meaning in the Talmudic text here would therefore be 'ascribed as dealing with the defences of loans.' For regarding the specific defences in the case of a deposit, i.e. theft or loss or accident, a biblical oath is imposed even without an admission of part liability. But as Ex. XXII, 6 deals with two kinds of deposits, i.e. 'money or stuff' there is indeed an interweaving of sections in this paragraph, for a deposit of money might in accordance with B.M. III, 11, amount to an implied mutuum involving all the liabilities of a loan. In other systems of law it is indeed called depositum irregulare for which see Dig. 19.2.31; Moyle, Imp. Just. Inst. 396 and Goodeve on 'Personal Property', 6th Ed., 25. The phrase in Ex. XXII, 8 confining the oath to part admission is thus said to be ascribed as dealing exclusively with this depositum irregulare, i.e. with the bailment of money when it became a loan to all intents and purposes; v. also J. Shebu. VI, I. ');">³</span>

כדרבה דאמר רבה מפני מה אמרה תורה מודה במקצת הטענה ישבע חזקה אין אדם מעיז פניו בפני בעל חובו והאי בכולי בעי דנכפריה והאי דלא כפריה משום דאין אדם מעיז פניו

But why a loan [in particular]? In accordance with Rabbah, for Rabbah stated:<span class="x" onmousemove="('comment',' B.M. 3a; Shebu. 42b. ');">⁴</span> 'On what ground did the Torah lay down<span class="x" onmousemove="('comment',' In Ex. XXII. 7-8. ');">⁵</span> that he who admits a part of a claim has to take an oath?<span class="x" onmousemove="('comment',' Whereas for total denial there is no biblical oath. ');">⁶</span>

ובכולי בעי דלודי ליה והאי דכפר ליה במקצת סבר אי מודינא ליה בכוליה תבע לי בכוליה אישתמיט לי מיהא השתא אדהוו לי זוזי ופרענא הלכך רמא רחמנא שבועה עילויה כי היכי דלודי ליה בכוליה

Because of the assumption that no man is so brazen-faced as to deny [outright] in the presence of his creditor<span class="x" onmousemove="('comment',' Who was his benefactor. ');">⁷</span> [the claim put forward against him].<span class="x" onmousemove="('comment',' A total denial in the case of a loan is thus somehow supported by this general assumption; cf. also Shebu. 40b. ');">⁸</span> It could therefore be assumed that he<span class="x" onmousemove="('comment',' Who admitted a part of the claim. ');">⁹</span>

וגבי מלוה הוא דאיכא למימר הכי אבל גבי פקדון מעיז ומעיז

was desirous of repudiating the claim altogether, and the reason that he did not deny it outright is<span class="x" onmousemove="('comment',' Not perhaps on account of honesty. ');">¹⁰</span> because no man is brazen-faced [enough to do so].<span class="x" onmousemove="('comment',' The fact that he admitted a part of the claim is to a certain extent a proof that he found it almost impossible to deny the claim outright. ');">¹¹</span> It may consequently be argued that he was on this account inclined<span class="x" onmousemove="('comment',' Lit., 'willing'. ');">¹²</span>

תני רמי בר חמא ארבעה שומרין

to admit the whole claim; the reason that he denied a part was because he considered: Were I to admit [now] the whole liability, he will soon demand the whole claim from me; I should therefore [better] at least for time being get rid of him,<span class="x" onmousemove="('comment',' At least so far as a part of the claim is concerned. ');">¹³</span> and as soon as I have the money will pay him.<span class="x" onmousemove="('comment',' For the whole of the claim. ');">¹⁴</span> It was on account of this that the Divine Law<span class="x" onmousemove="('comment',' Ex. XXII, 7-8. ');">¹⁵</span> imposed an oath upon him so that he should have to admit the whole of the claim.<span class="x" onmousemove="('comment',' As he would surely be loth to commit perjury. ');">¹⁶</span> Now, it is only in the case of a loan that such reasoning could apply.<span class="x" onmousemove="('comment',' As the creditor was a previous benefactor of his. ');">¹⁷</span> whereas regarding a deposit the bailee would surely brazen it out [against the depositor].<span class="x" onmousemove="('comment',' As in this case the bailee was generally the benefactor and not necessarily the depositor, so that the whole psychological argumentation of Rabbah fails; [and an oath is thus to be imposed even where there is a total denial, which is contrary to the view reported by R. Hiyya b. Abba in the name of R. Johanan.] ');">¹⁸</span> Rami b. Mama learnt: The four bailees