Shevuot 96

שהבן גובה בין בשבועה ובין שלא בשבועה והאב אינו גובה אלא בשבועה היכי דמי דמת לוה בחיי מלוה

for the son exacts payment either with an oath or without an oath,<span class="x" onmousemove="('comment',' The lender's heir exacts payment from the borrower's heir with an oath (that his father had told him that the debt was not yet paid) , or without an oath, if there were witnesses that the father had said before he died that the debt was unpaid (supra 45a) .');">¹</span> whereas the father exacts payment only with an oath.<span class="x" onmousemove="('comment',' From the borrower's heirs.');">²</span>

וקתני שהבן גובה בין בשבועה ובין שלא בשבועה בשבועה שבועת יורשין שלא בשבועה כרשב"ג

Now, in what circumstances? [Obviously] if the borrower died during the lifetime of the lender;<span class="x" onmousemove="('comment',' The statement that the father exacts payment only with an oath can only refer to a case where the borrower is already dead, and the father');">³</span>

אמר רב יוסף הא מני בית שמאי היא דאמרי שטר העומד לגבות כגבוי דמי

and yet it states that the son exacts payment either with an oath or without an oath: 'with an oath' - the oath of heirs; without an oath' - as R'Simeon B'Gamaliel says!<span class="x" onmousemove="('comment',' Supra 45a; if there are witnesses that the father said at the time of his death that the document was not settled, the heir obtains payment of the debt without an oath. However, the Baraitha states that the son exacts payment with an oath from the heirs, where the borrower died during the lifetime of the lender. This is opposed to the view of Rab and Samuel.');">⁴</span> - R'Joseph said: This is in accordance with the view of Beth Shammai who hold that a bond which is ready to be collected is counted as if it is already collected.<span class="x" onmousemove="('comment',' Sot. 25a; if the husband of a woman suspected of infidelity (sotah, v. Glos.) died before she drank of the 'bitter waters' (Num. V, 11-31) , she does not need to undergo the ordeal, and obtains payment of her kethubah; and though it is possible that she did, in fact, commit adultery, yet, since she has the document (ketubah) setting forth her husband's indebtedness to her, it is as if her husband's property were assigned to her and in her possession; and it is the husband's heirs who would require to bring proof that she was unfaithful, if they desired to deprive her of the kethubah; and if no proof is forthcoming, she obtains payment of the kethubah. This is the view of Beth Shammai, who hold that the money in the document is reckoned as if it is already collected and in the possession of the holder of the document. Here also, if the borrower died during the lifetime of the lender, the money is counted as if it is already in the possession of the lender (since he produces a document) , though the Sages made a regulation that the lender must take an oath to the borrower's heirs. Hence, the lender is not bequeathing an oath to his sons, but a definite money asset (though the sons, when claiming from the borrower's heirs, must also take an oath, according to Rabbinic regulation) . Rab and Samuel, however, agree with Beth Hillel that the money in the document is not counted as if it is already collected; Sot. 25b.');">⁵</span>

איקלע רב נחמן לסורא עול לגביה רב חסדא ורבה בר רב הונא אמרו ליה ליתי מר נעקרא להא דרב ושמואל אמר להו איכפלי ואתאי כל הני פרסי למעקרא להא דרב ושמואל אלא הבו דלא לוסיף עלה כגון מאי דאמר רב פפא הפוגם את שטרו ומת יורשין נשבעין שבועת יורשין ונוטלין

R'Nahman happened to come to Sura. R'Hisda and Rabbah son of R'Huna went in to him, and said to him: Come, sir, abrogate this ruling of Rab and Samuel.<span class="x" onmousemove="('comment',' That a man cannot bequeath an oath to his son, with the implication of this ruling.');">⁶</span>

ההוא דשכיב ושבק ערבא סבר רב פפא למימר הא נמי דלא לוסיף עלה הוא אמר ליה רב הונא בריה דרב יהושע לרב פפא אטו ערבא לאו בתר יתמי אזיל

He replied to them: Have I taken the trouble to come all these parasangs<span class="x" onmousemove="('comment',' [From Mahuza, the home of R. Nahman, to Sura, was a distance of about 60 miles.]');">⁷</span> in order to abrogate the ruling of Rab and Samuel?

ההוא דשכיב ושבק אחא סבר רמי בר חמא למימר הא נמי דלא לוסיף עלה הוא אמר ליה רבא מה לי שלא פקדני אבא ומה לי שלא פקדני אחי

But grant, at least, that we do not add to it.<span class="x" onmousemove="('comment',' But agree with Rab and Samuel only in such a case as they stated; and do not extend their ruling to apply to other cases.');">⁸</span> As, for example?

אמר רב חמא השתא דלא איתמר הלכתא לא כרב ושמואל ולא כרבי אלעזר האי דיינא דעבד כרב ושמואל עבד דעבד כרבי אלעזר עבד

That which R'Papa said: He who impairs his bond, and died, his heirs swear the oath of heirs, and obtain payment.<span class="x" onmousemove="('comment',' If the holder of a bond admitted having received part payment, he cannot obtain the rest without an oath. If he dies, his heirs swear the oath of heirs, and obtain payment; and we do not, in this case, apply the ruling of Rab and Samuel that a man cannot bequeath an oath to his heirs.');">⁹</span> There was a man who died, and left a guarantor.<span class="x" onmousemove="('comment',' One man lent money to another on a document, and a third person became a surety for the loan. The borrower died (so that the lender became liable for an oath) , then the lender died; and his heirs claimed from the surety.');">¹⁰</span>

אמר רב פפא האי שטרא דיתמי לא מקרע קרעינן ליה ולא אגבויי מגבינן ביה אגבויי לא מגבינן ביה דלמא סבירא לן כרב ושמואל ומקרע לא קרעינן ליה דהאי דיינא דעבד כרבי אלעזר עבד

R'Papa thought of saying in this case also [the principle] that 'we should not add to it' applies.<span class="x" onmousemove="('comment',' That we should not apply the restrictive ruling of Rab and Samuel, but permit the heirs to take an oath to the surety, and obtain their money.');">¹¹</span> Said R'Huna the son of R'Joshua to R'Papa: Will not the guarantor go after the orphans?<span class="x" onmousemove="('comment',' He will claim from the heirs of the borrower; hence, the heirs of the lender, if permitted to take an oath and claim from the guarantor, will ultimately be depriving the borrower's heirs because of this oath; and to such a case the ruling of Rab and Samuel applies.');">¹²</span>

ההוא דיינא דעבד כרבי אלעזר הוה צורבא מרבנן במתיה אמר ליה אייתינה איגרתא ממערבא דלית הלכתא כרבי אלעזר אמר ליה לכי תייתי אתא לקמיה דרב חמא א"ל האי דיינא דעבד כרבי אלעזר עבד:

There was a certain man who died, and left a brother,<span class="x" onmousemove="('comment',' The lender died childless, and left a brother as his heir; the borrower had previously died, leaving children. The lender's brother now claims from the borrower's children.');">¹³</span> Rami B'Hama thought of saying this is also a case where [the principle] 'we should not add to it' applies.<span class="x" onmousemove="('comment',' But that the brother should be allowed to take an oath and exact payment from the borrower's heirs, for Rab and Samuel said only the children of the lender could not take the oath in such circumstances. Let us not add the reservation also in regard to the brother of the lender,');">¹⁴</span>

ואלו נשבעין: אטו בשופטני עסקינן הכי קאמר ואלו נשבעין שלא בטענת ברי אלא בטענת שמא השותפין והאריסין

Said Raba to him: What is the difference between 'my father did not instruct me etc.' and 'my brother did not instruct me etc.'?<span class="x" onmousemove="('comment',' The children of the lender take the oath: 'Our father did not instruct us that the bond is paid.' The brother would have to say, 'My brother did not instruct me, etc.' There is no difference; and since Rab and Samuel ruled that the lender could not bequeath the oath to his sons, they hold similarly that he cannot bequeath it to his brother.');">¹⁵</span>

תנא בן בית שאמרו לא שנכנס ויוצא ברגליו אלא מכניס לו פועלין ומוציא לו פועלין מכניס לו פירות ומוציא לו פירות

R'Hama said: Now, since the law has not been stated either in accordance with the view of Rab and Samuel or in accordance with the view of R'Eleazar,<span class="x" onmousemove="('comment',' Supra 48a, that the oath can be bequeathed to the heirs.');">¹⁶</span> if a judge decides as Rab and Samuel, it is legal; if h decides as R'Eleazar, it is also legal.

ומאי שנא הני משום דמורו בה התירא

R'Papa said: This document of orphans<span class="x" onmousemove="('comment',' Where the borrower died during the lifetime of the lender, then the lender died.');">¹⁷</span> we do not tear up, and we do not exact payment on it.'

אמר רב יוסף בר מניומי אמר רב נחמן והוא שיש טענה בינייהו שתי כסף

We do not exact payment on it,' - in case we agree with Rab and Samuel;<span class="x" onmousemove="('comment',' I.e., in case they are right.');">¹⁸</span> and 'we do not tear up,' - for if a judge decides as R'Eleazar, it is legal.<span class="x" onmousemove="('comment',' The lender's heirs may find such a judge, and exact payment.');">¹⁹</span>

כמאן כשמואל והתני רבי חייא לסיועיה לרב אימא כפירת טענה כרב:

There was a judge who decided as R'Eleazar. There was a Rabbinic scholar in his town who said to him: I can bring a letter from the West<span class="x" onmousemove="('comment',' The Palestinian scholars.');">²⁰</span>

חלקו השותפין והאריסין: איבעיא להו מהו לגלגל בדרבנן

that the law is not in accordance with R'Eleazar. He replied to him: When you bring it.<span class="x" onmousemove="('comment',' I will believe you.');">²¹</span>

ת"ש לוה הימנו ערב שביעית ולמוצאי שביעית נעשה לו שותף או אריס אין מגלגלין טעמא דלוה הימנו ערב שביעית דאתיא שביעית אפקעתיה הא שאר שני שבוע מגלגלין

He came before R'Hama. He<span class="x" onmousemove="('comment',' R. Mama.');">²²</span>

לא תימא הא שאר שני שבוע מגלגלין אלא אימא נעשה לו שותף או אריס ערב שביעית ולמוצאי שביעית לוה הימנו מגלגלין

said to him: If a judge decides as R'Eleazar, it is legal. AND THESE TAKE AN OATH [THOUGH NO CLAIM IS PREFERRED AGAINST THEM].

הא בהדיא קתני לה נעשה לו שותף או אריס ערב שביעית ולמוצאי שביעית לוה הימנו מגלגלין ש"מ מגלגלין בדרבנן ש"מ

Are we discussing the case of idiots?<span class="x" onmousemove="('comment',' If nobody is claiming from them, why should they take an oath?');">²³</span> - Thus he means: 'And these take an oath not in a definite claim, but in a doubtful claim: partners, tenants, [etc.].'<span class="x" onmousemove="('comment',' If one partner suspects the other (though he admits he is not certain) of fraudulently converting a part of their joint holdings to his own use, the accused must take an oath to refute the accusation.');">²⁴</span>

אמר רב הונא

A Tanna taught: THE SON OF THE HOUSE who was mentioned [in the Mishnah as liable to take an oath] does not mean that he walks in and walks out,<span class="x" onmousemove="('comment',' That he is merely a member of the household.');">²⁵</span> but he brings in labourers and takes out labourers, brings in produce and takes out produce.<span class="x" onmousemove="('comment',' He attends to the business.');">²⁶</span> And wherein are these different?<span class="x" onmousemove="('comment',' Why should these have to take an oath for a doubtful accusation?');">²⁷</span> - Because they allow themselves permission in it.<span class="x" onmousemove="('comment',' Because they are engaged in the management of the property, they permit themselves certain liberties, and appropriate some of the funds for themselves.');">²⁸</span> R'Joseph B'Minyomi said that R'Nahman said: But only when the claim between them is [at least] two silver [ma'ahs].<span class="x" onmousemove="('comment',' One partner says: 'I believe you may have appropriated two ma'ahs for yourself,' and the other admits a portion; he must take an oath to refute the rest of the claim. If the accusation is for an amount less than two ma'ahs there is no oath.');">²⁹</span> In accordance with whose view? - Samuel's?<span class="x" onmousemove="('comment',' Supra 39b.');">³⁰</span> But R'Hiyya taught in support of Rab!<span class="x" onmousemove="('comment',' That the denial in the claim must be at least two ma'ahs; supra 40a.');">³¹</span> - Say, the denial of the claim,<span class="x" onmousemove="('comment',' R. Nahman meant the denial must be two ma'ahs.');">³²</span> as Rab holds. IF THE PARTNERS OR TENANTS HAD DIVIDED,<span class="x" onmousemove="('comment',' Their property, i.e., dissolved partnership; one of the partners cannot afterwards make the other swear to refute a doubtful accusation. If, however, he has to take an oath in connection with another dispute, this oath too is at the same time included; supra 45a.');">³³</span> [AN OATH CANNOT BE IMPOSED]. They enquired: Can this oath be superimposed on a Rabbinic oath?<span class="x" onmousemove="('comment',' If the partner was liable only for a Rabbinic oath (e.g., consuetudinary oath) in the other dispute, can an oath be imposed upon him in this case too where, after their separation, the other partner accuses him of misappropriation of their joint funds? Or is this oath included only if the ,menc vsun other oath (which is definitely imposed upon him) is a Biblical oath (e.g.,) ?');">³⁴</span> - Come and hear: If he borrowed from him on the eve of the Sabbatical year, and on the termination of the Sabbatical year he became a partner with him, or a tenant, we do not impose on him [any previous oath together with the present oath].<span class="x" onmousemove="('comment',' If, for example, he denied completely the loan which he borrowed on the eve of the Sabbatical year, and now, having become a partner on the termination of the Sabbatical year, an oath is imposed upon him because of his partner's accusation against him of misappropriation, the court does not include in the present oath any reference to his denial of the loan, for the Sabbatical year has cancelled the loan.');">³⁵</span> The reason is because he borrowed from him on the eve of the Sabbatical year, so that when the Sabbatical year came, it cancelled it; but in any other of the seven years, we do impose on him [a previous oath]!<span class="x" onmousemove="('comment',' The inference is that if he had borrowed in any other year (the Sabbatical year not intervening) , and later became a partner, the oath which he is liable for denying the whole loan would have been included in the present oath imposed on him by his partner. Hence, though the present oath is only a Rabbinic regulation, it has the power to include in it another oath. The oath for denying the whole loan, it is here assumed, can only be included in some other oath, for as yet, in the mishnaic period, the consuetudinary oath had not been instituted; it was instituted much later by R. Nahman (supra 40b) .');">³⁶</span> - Do not infer that in any of the other seven years we do impose on him [a previous oath].<span class="x" onmousemove="('comment',' For it may be that since the oath imposed by the partner is only Rabbinic, it has not the power to include another oath with it.');">³⁷</span> but infer thus: If he became a partner with him, or a tenant, on the eve of the Sabbatical year, and on the termination of the Sabbatical year, he borrowed from him, we impose on him [a previous oath].<span class="x" onmousemove="('comment',' If they dissolved partnership, and then on the termination of the Sabbatical year one partner borrowed from the other, and later admitted a portion of the loan, but denied the rest (for which he is liable a Biblical oath) , we impose on him also the previous oath which his partner makes him take by accusing him, after the dissolution, of a previous fraudulence. Hence, it is because he is liable to take a Biblical oath (being a ,menc vsun) that we include also the previous Rabbinic oath. This Baraitha wishes to teach us also that the Sabbatical year does not cancel the partner's oath; it cancels only oaths attached to loans as well as the loans themselves.');">³⁸</span> But this is already stated clearly: If he became a partner with him, or a tenant, on the eve of the Sabbatical year, and on the termination of the Sabbatical year, he borrowed from him, we impose on him [a previous oath]!<span class="x" onmousemove="('comment',' Since this is already expressly stated, why should we assume that this is what the first clause desires us to deduce by inference?');">³⁹</span> - Therefore, we deduce that we superimpose the oath on a Rabbinic oath.<span class="x" onmousemove="('comment',' As we inferred from the first clause at the beginning.');">⁴⁰</span> It is proven. R'Huna said: