Shevuot 64

ומחלוקת בעדי סוטה בעדי סתירה מר סבר דבר הגורם לממון כממון דמי וחייב ומר סבר לאו כממון דמי ופטור

And they disagree in [the case of] the witnesses of the sotah' - the witnesses of the secret meeting; one holds that which causes [extraction of] money is counted as [if it had actually extracted] money, and they are liable; and the other holds it is not counted as [if it had actually extracted] money, and they are exempt.<span class="x" onmousemove="('comment',' If the husband adjures the two witnesses of the secret meeting () to bear testimony for him, and they swear, denying knowledge of testimony, R. Eleazar b. R. Simeon (who regards the causing of pecuniary loss as the direct infliction of a money loss, as is proved by his view imposing liability on one witness who was adjured) will hold they are liable, for by withholding their testimony they cause a pecuniary loss to the husband (for, had they given testimony, the wife might have confessed rather than undergo the ordeal of the 'bitter waters', and the husband would have been exempt from paying the kethubah) ; but the Sages hold they are not liable, for their testimony would not have directly freed the husband from paying the kethubah.');">¹</span> 'All agree [in the case of the witness] where his adversary is suspected of swearing falsely'.<span class="x" onmousemove="('comment',' If there is one witness for a debt, the debtor takes an oath denying liability; but if he is suspected of swearing falsely, the creditor takes an oath that the debt is due, and is paid (infra 44b) . If the witness is adjured by the creditor, and denies knowledge of testimony, he is thereby depriving the creditor of his debt, and therefore all agree that in such a case he is liable. [The order of the text in cur. edd. is somewhat disarranged. MS.M. preserves a better order and reading which avoid the needless repetitions in our text, v. D.S.].');">²</span>

הכל מודים בשכנגדו חשוד על השבועה הכל מודים בעד אחד דר' אבא

'All agree in [the case of] one witness' [in such circumstances as came] before R'Abba.<span class="x" onmousemove="('comment',' Explained below.');">³</span> 'All agree [in the case of the witness] where his adversary is suspected of swearing falsely.'

הכל מודים בשכנגדו חשוד על השבועה דחשיד מאן אילימא דחשיד לוה דאמר ליה מלוה אי אתית אסהדת לי הוה משתבענא ושקילנא ולימא ליה מי יימר דמשתבעת

Who is suspected? Shall we say the debtor is suspected; and the creditor could say [to the witness].'

אלא כגון ששניהן חשודין דאמר מר חזרה שבועה למחויב לה ומתוך שאינו יכול לישבע משלם

If you would have come to bear testimony for me, I would have sworn, and taken [the debt]'? Let the witness say to him, 'Who says that you would have sworn? '<span class="x" onmousemove="('comment',' Perhaps you would not have wished to swear, and would not have obtained your money. The witness is therefore merely a possible cause of monetary loss (and does not actually deprive the creditor of his money) ; the Sages (who disagree with R. Eleazar b. R. Simeon) would therefore not hold him liable. Why, then, say that all agree in this case?');">⁴</span>

הכל מודים בעד אחד דר' אבא דההוא גברא דחטף נסכא מחבריה אתא לקמיה דר' אמי הוה יתיב ר' אבא קמיה אזל אייתי חד סהדא דמיחטף חטפה מיניה אמר ליה אין חטפי ודידי חטפי

- Well then, for example, if they are both suspect, in which case it has been said, the oath returns to the one who is bound to take it,<span class="x" onmousemove="('comment',' The debtor, infra 47a.');">⁵</span> and because he cannot swear,<span class="x" onmousemove="('comment',' Being suspected of swearing falsely.');">⁶</span>

א"ר אמי היכי לדייני דייני להאי דינא לישלם ליכא תרי סהדי ליפטריה הא איכא חד סהדא דמחטף חטף לישתבע כיון דאמר אין חטפי ודידי חטפי הוה ליה כגזלן א"ל ר' אבא הוה ליה מחויב שבועה ואינו יכול לישבע וכל המחויב שבועה ואינו יכול לישבע משלם

he pays.<span class="x" onmousemove="('comment',' The witness, therefore, by withholding his testimony in such a case, definitely deprives the creditor of his money, and all agree that he is liable.');">⁷</span> 'All agree in [the case of] one witness' [in such circumstances as came] before R'Abba; for there was a man who snatched a bar of silver from his neighbour; they came before R'Ammi, and R'Abba was sitting before him.

אמר רב פפא הכל מודים בעד מיתה שהוא חייב והכל מודים בעד מיתה שהוא פטור

He<span class="x" onmousemove="('comment',' The owner of the bar.');">⁸</span> went and brought one witness that he had snatched it from him.

הכל מודים בעד מיתה שהוא פטור דאמר לה לדידה ולא אמר להו לבית דין דתנן האשה שאמרה מת בעלי תנשא מת בעלי תתיבם

The other said, 'Yes, I snatched it, but it is mine that I snatched'. Said R'Ammi: How shall judges settle this dispute?

הכל מודים בעד מיתה שהוא חייב דלא אמר לדידה ולא אמר להו לבית דין

Shall he pay? There are not two witnesses.

שמע מינה משביע עדי קרקע חייב דלמא דתפישא מטלטלי:

Shall he be exempt? There is one witness that he snatched it.

כפר אחד והודה אחד כו': השתא בזה אחר זה דתרוייהו קא כפרי אמרת הראשון חייב והשני פטור כפר אחד והודה אחד מיבעיא

Shall he swear? Since he said, 'Yes, I snatched it, but it is mine that [snatched', he is like a robber.<span class="x" onmousemove="('comment',' A man cannot free himself by saying, 'it is mine that I snatched', for if this excuse were accepted, no robber would ever be liable, even when there were two witnesses that he robbed, for he could always say, 'I admit I took it, but it is my own property'; v. Tosaf. a.l. And since he is like a robber, he cannot take an oath.');">⁹</span>

לא צריכא כגון שכפרו שניהן וחזר אחד מהן והודה בתוך כדי דיבור והא קא משמע לן דתוך כדי דיבור כדיבור דמי

R'Abba said to him: He is bound to take an oath,<span class="x" onmousemove="('comment',' He cannot keep it by saying, 'it is mine', for there is a witness that he snatched it from some one else; and property is always presumed to belong to the one in whose possession it has been (unless there is definite proof to the contrary) . He must therefore take an oath to deny the statement of the witness. This he cannot do, for he admits that he snatched it (agreeing with the witness) , and since he cannot swear, he must return it; v. B.B. (Sonc. ed.) p. 156 and notes.');">¹⁰</span> and he cannot swear; and anyone who is bound to take an oath, and cannot swear, pays.<span class="x" onmousemove="('comment',' The witness, therefore, if he had withheld his evidence, would have deprived the man of his bar of silver; therefore all agree that he must bring an offering for his false oath in such circumstances.');">¹¹</span>

בשלמא לרב חסדא דמוקי לה לההוא כרבי יוסי הגלילי רישא אפשר לצמצם וסיפא איצטריך לאשמועינן דתוך כדי דיבור כדיבור דמי אלא לרבי יוחנן רישא תוך כדי דיבור סיפא תוך כדי דיבור תרתי למה לי

R'Papa said: All agree in [the case of] a witness of death<span class="x" onmousemove="('comment',' That a woman's husband had died.');">¹²</span> that he is liable; and all agree in [the case of witness of death that he is exempt.'

מהו דתימא ה"מ כפירה וכפירה אבל כפירה והודאה אימא לא קמ"ל:

All agree in [the case of] a witness of death that he is exempt', - if he told it to her,<span class="x" onmousemove="('comment',' That he knows her husband has died abroad; but when she adjured him to give evidence before the Beth Din, he denied the knowledge. He is not liable, because she can go to the Beth Din herself, and say her husband is dead, and requires no witness. He has therefore not occasioned any monetary loss to her by withholding his evidence, for she is believed, and can obtain her kethubah from the heirs.');">¹³</span> and did not tell it to the Beth Din; for we learnt: A woman who said, 'My husband died', may remarry; 'my husband died', marries her brother-in-law.<span class="x" onmousemove="('comment',' If her husband died without issue; Deut. XXV, 5.');">¹⁴</span>

היו שתי כיתי עדים כפרה הראשונה ואח"כ כפרה השניה: בשלמא שניה תתחייב דכפרה לה ראשונה אלא ראשונה אמאי

'All agree in [the case of] a witness of death that he is liable,' - if he told it neither to her nor to the Beth Din.<span class="x" onmousemove="('comment',' If the wife adjures him to give evidence, and he denies having any knowledge, he is liable, for he has deprived her of the kethubah, since he did not tell even her that her husband had died, and she has therefore no information at all on the matter.');">¹⁵</span> Can we deduce from this that if one adjures witnesses in connection with land [and they deny knowledge of testimony], they are liable?<span class="x" onmousemove="('comment',' The kethubah was collected (in Talmudic times) from immovable property only; the witness of the husband's death is liable, according to R. Papa, if he is adjured and withholds information. But there is already a dispute between Tannaim on this point (v. infra 37b) . Let R. Papa then merely say he agrees with one of the Tannaim!');">¹⁶</span> - No! Perhaps she had seized movables.<span class="x" onmousemove="('comment',' The wife had in her possession during the husband's lifetime some of his movable property; and if the witness had given evidence, she would have retained it in settlement of her kethubah. R. Papa's ruling may refer to such a case, and not to a case where the kethubah has to be collected from immovable property.');">¹⁷</span> IF ONE DENIED, AND THE OTHER ADMITTED, etc. Now, if in the case of one after another where both deny, you say the first is liable,<span class="x" onmousemove="('comment',' Though be could say, 'Why should I be liable? My testimony alone is of no avail, since the other also denies', yet because when he denies, the other had not yet denied, he is liable.');">¹⁸</span> and the second exempt, in the case where one denies and the other admits, is there any question?<span class="x" onmousemove="('comment',' Surely, it is obvious that the first is liable, for the second admits knowing testimony; hence, the first, by withholding testimony, deprives the claimant of his money. Why, then, does the Mishnah mention this clause? It is superfluous!');">¹⁹</span> - It is not necessary [for the Mishnah to tell us this except in the case] where both denied, and then one of them turned and admitted within the interval of the time of an utterance; and this he teaches us, that [two statements following each other] within the interval of the time of an utterance are considered one utterance.<span class="x" onmousemove="('comment',' And the Mishnah does not wish to teach us that the one who denies is liable (for this we know from the previous clause) , but that the one who admits is exempt, although he first denied, his admission within the brief interval being accepted, and exempting him.');">²⁰</span> Granted, according to R'Hisda who explains that [clause]<span class="x" onmousemove="('comment',' Where both denied together.');">²¹</span> as being in accordance with the view of R'Jose the Galilean;<span class="x" onmousemove="('comment',' V. supra 32a.');">²²</span> the first clause [establishes that] it is possible to ascer simultaneity, and the second clause<span class="x" onmousemove="('comment',' One denied, and the other admitted.');">²³</span> is necessary in order to teach us that [two statements following each other] within the interval of the time of an utterance are considered one utterance; but, according to R'Johanan, the first clause [teaches us the law with regard to statements uttered] within the interval of the time of an utterance, and the second clause [teaches us the law with regard to statements uttered] within the interval of the time of an utterance! Why do we need both? - You might have thought that only in the case of denial and denial<span class="x" onmousemove="('comment',' As in the first clause.');">²⁴</span> [do we say that two statements within a brief interval are considered one],<span class="x" onmousemove="('comment',' And the second is liable like the first.');">²⁵</span> but in the case of denial and admission<span class="x" onmousemove="('comment',' The second clause, where the same person first denies, and then admits.');">²⁶</span> we do not say this, therefore he teaches us [that we do]. IF THERE WERE TWO SETS OF WITNESSES, AND THE FIRST DENIED, AND THEN THE SECOND DENIED, [THEY ARE BOTH LIABLE]. Granted, the second should be liable, because the first denied;<span class="x" onmousemove="('comment',' Hence, only the second set were left to bear testimony, and by withholding testimony, they make the claimant incur a loss.');">²⁷</span> but the first - why [should they be liable]?