Bava Batra 140

סוף סוף כי אמר ליה נאנסו לאו שבועה בעי ה"נ מאי נאמן נאמן בשבועה

is said and done, even if he pleads that it was taken from him by violence, is he not required to take an oath?<span class="x" onmousemove="('comment',' According to the text quoted above. ');">¹</span> Here too, when I say that we accept his word, I mean that we accept it on his taking an oath.

לימא בפלוגתא דהני תנאי דתניא שטר כיס היוצא על היתומים דייני גולה אמרי נשבע וגובה כולו ודייני א"י אמרי נשבע וגובה מחצה

May we say that the point at issue [between R. Hisda and R. Amram] is the same as that between the following Tannaim,<span class="x" onmousemove="('comment',' The authorities actually quoted in the passage which follows are usually regarded as Amoraim, not Tannaim, v. nn. 8 and 20. [Funk, S., Die Juden in Bobylonien, I, n. 2, iv, regards the authorities cited here as Babylonian and Palestinian Tannaim respectively, belonging to the pre-Amoraic age, v. infra 100a. On the other hand, the words 'that between Tannaim as it has been taught' do not occur in MSS. v. D.S.] ');">²</span> as it has been taught: 'If a claim is made against orphans on the ground of a "purse bond",<span class="x" onmousemove="('comment',' A bond given by a borrower for money borrowed for business purposes, on condition that the profit shall be equally divided between him and the lender. ');">³</span>

ודכולי עלמא אית להו דנהרדעי דאמרי נהרדעי האי עיסקא פלגא מלוה ופלגא פקדון

the judges of the Exile<span class="x" onmousemove="('comment',' Samuel and Karna. V. pag. 209, n. 5. ');">⁴</span> say that the claimant is entitled on taking an oath<span class="x" onmousemove="('comment',' That oath is the one that had to be taken by all persons recovering from orphans debts incurred by their father. V. supra 56b, 33a. ');">⁵</span>

מאי לאו בהא קא מיפלגי דמר סבר מצי א"ל שטרך בידי מאי בעי ומר סבר לא אמרי

to recover the whole, but the judges of Eretz Yisrael<span class="x" onmousemove="('comment',' R. Ammi and R. Assi, v. Sanh. 17a. ');">⁶</span> say that he is entitled on taking an oath to recover only half.'<span class="x" onmousemove="('comment',' The reason is given immediately. ');">⁷</span>

לא דכולי עלמא אית להו דרב חסדא והכא בהא קמיפלגי דמר סבר אם איתא דפרעיה מימר הוה אמר ומר סבר אימור מלאך המות הוא דאנסיה

Now all authorities accept the view of the Nehardeans who say that this transaction is half a loan and half a deposit.<span class="x" onmousemove="('comment',' If money was borrowed in this way, the Rabbis regarded it as consisting of two parts, one half a loan, the profit of which went to the borrower (the lender being forbidden to take it, because it is counted as interest), and the other half a deposit, the profit of which went to the lender. Hence the law of loan applies to one half of it and the law of deposit to the other half. If therefore it was forcibly taken from the borrower, he has to pay back one half to the lender (since a borrower is responsible for a loan), but he can release himself from payment of the other half on taking an oath that it was forcibly taken from him, according to the law of deposit quoted above. In this case we suppose that the borrower died and the claim is made against his children under age. That half is to be paid back there is no question; the only doubt is whether the claimant can recover the half which is regarded as a deposit. ');">⁸</span> May we not say then that the point in which they differ is this, that the one authority [the judges of the Exile] holds that the claimant may plead effectively, 'How comes your bond to be in my hand',<span class="x" onmousemove="('comment',' And therefore we cannot plead on behalf of the orphans that the money had been returned, seeing that the father had he been alive could not have pleaded thus. ');">⁹</span>

שלח רב הונא בר אבין המפקיד אצל חבירו בשטר ואמר לו החזרתיו לך נאמן ושטר כיס היוצא על היתומין נשבע וגובה כולו

and the other holds that he cannot? — No; all concur in the view of R. Hisda [that he cannot], and here the point of difference is this, that the one [the judges of the Exile] holds that if the borrower had paid [before his death] he would have told [his children],<span class="x" onmousemove="('comment',' Therefore we cannot plead on their behalf that the money had been returned, although if the father had been alive he could have effectively pleaded thus, as explained above. ');">¹⁰</span> while the other holds that we may presume death<span class="x" onmousemove="('comment',' Lit., 'Angel of death'. ');">¹¹</span>

תרתי שאני התם דאם איתא דפרעיה מימר הוה אמר

to have prevented him. R. Huna b. Abin sent a message<span class="x" onmousemove="('comment',' V. supra p. 211, n. 10. ');">¹²</span>

רבא אמר הלכתא נשבע וגובה מחצה אמר מר זוטרא הלכתא כדייני גולה א"ל רבינא למר זוטרא הא אמר רבא נשבע וגובה מחצה אמר ליה אנן דדייני גולה

that if a man places a deposit with another and receives an acknowledgment and the latter subsequently asserts that he has returned it, his word is accepted;<span class="x" onmousemove="('comment',' According to the decision of R. Hisda recorded above. ');">¹³</span> and if a claim is made against orphans on the ground of a 'purse bond', the claimant is entitled on taking an oath to recover the whole.<span class="x" onmousemove="('comment',' This shows that if the orphans plead that the father had returned the money, their word is not accepted. ');">¹⁴</span> Have we not here two [contradictory rulings]? — In the second case there is a special reason, that if he had paid he would have told his children. Raba said: The law is that the claimant is entitled to take an oath and recover half.<span class="x" onmousemove="('comment',' Viz., the half that is regarded as a loan. ');">¹⁵</span> Mar Zutra said that the law follows the decision of the judges of the Exile.<span class="x" onmousemove="('comment',' That the claimant from the orphans can recover the whole. ');">¹⁶</span> Said Rabina to Mar Zutra: Has not Raba laid down that he is entitled to take an oath and recover [only] half?<span class="x" onmousemove="('comment',' And how can you contradict Raba who is an older authority than you? ');">¹⁷</span> — He replied: In our version the reverse opinion is ascribed to the judges of the Exile.<span class="x" onmousemove="('comment',' I.e., we make them say that he recovers half. ');">¹⁸</span>