דף 4

Would you say the same with regard to two witnesses, in which case the defendant takes an oath with regard to the claim that he denies, and not with regard to the debt about which they testify?

Rather, Rav Pappa said: Rabbi Ḥiyya’s a fortiori inference is derived from the extension of an oath that the testimony of one witness obligates him to take. Once a defendant is obligated to take an oath, the plaintiff can demand that he take an oath with regard to other claims that he has against him as well.

The Gemara rejects this: What is notable about the extension of an oath that is obligated by the testimony of one witness? It is notable in that one oath leads to another oath. The obligation to take the second oath is not caused directly by the witness. Would you say the same in the case of witnesses, whose testimony renders the defendant liable to pay money? Incurring liability to pay one part of the claim does not extend further and incur liability to pay the rest.

The Gemara responds: The admission of one’s mouth can prove that an element other than an oath can cause the defendant to be obligated to take an oath with regard to the rest of the claim. Although the a fortiori inference from admission alone was already rejected, due to the claim of: What is notable about the admission of one’s mouth, it is notable in that it is not subject to contradiction; the testimony of one witness can prove that even testimony that is subject to contradiction renders one liable to take an oath.

The a fortiori inference from the testimony of one witness was also rejected, as what is notable about the extension of an oath resulting from the testimony of one witness? It is notable in that the defendant takes an oath with regard to the matter concerning that which he testifies. Would you say the same with regard to two witnesses, in which case the defendant takes an oath with regard to the claim that he denies? Admission to part of a claim by one’s mouth can prove this difference irrelevant, as a defendant can be required to take an oath even with regard to a claim that he denies.

And the derivation has reverted to its starting point. At this point, the halakha is derived from a combination of the two sources: The aspect of this case, admission, is not like the aspect of that case, the extension of an oath resulting from the testimony of one witness, and the aspect of that case is not like the aspect of this case. Their common denominator is that these cases come before the court with a claim and its denial, and the defendant is obligated to take an oath. I will also include in the obligation to take an oath the case of Rabbi Ḥiyya, where there is testimony of two witnesses about part of the debt, which comes before the court with a claim and its denial. And therefore the defendant is obligated to take an oath. This is the inference to which Rabbi Ḥiyya was referring.

The Gemara rejects this: What is notable about their common denominator, i.e., the common denominator shared by admission to part of a claim by the defendant and the extension of an oath resulting from the testimony of one witness? It is notable in that the defendant does not assume the presumptive status of one who falsely denies his debts. He has not been proven to be lying, so he is trusted to take an oath. Would you say the same with regard to the case of two witnesses who contradict the defendant’s denial of the plaintiff’s claim, where the defendant assumes the presumptive status of one who falsely denies his debts? In this case, he is no longer deemed trustworthy and his oath may not be credible.

The Gemara asks: But in a case where his denial is contradicted by two witnesses, does he assume the presumptive status of one who falsely denies his debts? But doesn’t Rav Idi bar Avin say that Rav Ḥisda says: One who denies a claim that he received a loan and is contradicted by witnesses is fit to bear witness in a different case. He does not assume the status of a confirmed liar, as perhaps he intended to return the money afterward and denied the claim only in order to buy time until he acquired the necessary funds to repay the loan. By contrast, if one denies receiving a deposit and witnesses testify that he is lying, he is disqualified from bearing witness in other cases, as in that case he has no reason to buy time and is clearly a robber. Therefore, Rabbi Ḥiyya’s a fortiori inference stands.

Rather, refute the inference like this: What is notable about their common denominator, i.e., the common denominator shared by admission to part of a claim by the defendant and the extension of an oath resulting from the testimony of one witness? It is notable in that these cases are not subject to the halakhot of conspiring witnesses. Even if witnesses testify that the single witness lied, he is not required to pay the defendant the sum that he sought to require him to pay, which is the punishment exacted upon conspiring witnesses. Would you say the same halakhot with regard to two witnesses, who are subject to the halakhot of conspiring witnesses?

The Gemara rejects this: This is not difficult, as Rabbi Ḥiyya does not refute this inference based on the punishment accompanying the halakhot of conspiring witnesses. In other words, Rabbi Ḥiyya does not accept this refutation, as while this halakha does not apply at all to the admission of a defendant, it does apply to the testimony of a single witness in that if two witnesses testify that the single witness is a conspiring witness, his testimony is rendered void.

The Gemara asks: But with regard to that which was stated (3a): And the tanna of the mishna also taught a similar halakha to that of Rabbi Ḥiyya, there is a difficulty. Is the case of the mishna comparable to the halakha of Rabbi Ḥiyya? There, in the case of witnesses to a loan, the creditor has witnesses to support his claim that there was a loan while the debtor does not have witnesses to support his claim that he does not owe the creditor anything. As, if the debtor had witnesses to support his claim that he does not owe the creditor anything, Rabbi Ḥiyya would not require him to take an oath. By contrast, here, in the case of the mishna, just as it is clear to us that this claimant has a right to the garment, as he is holding it, so too, is it clear to us that that other claimant has a right to the garment, as he is also holding it. Yet nevertheless, in the mishna each party is required to take an oath.

Rather, when the phrase was stated: And the tanna of the mishna also taught a similar halakha, it was stated with regard to another statement of Rabbi Ḥiyya. As Rabbi Ḥiyya says: If one says to another: I have one hundred dinars in your possession, and the other says in response: You have only fifty dinars in my possession, and here you are, handing him the money, he is obligated to take an oath that he does not owe the remainder.

What is the reason? One who says: Here you are, while immediately giving the money, is also considered like one who admits to part of the claim. It cannot be reasoned that by immediately handing over the amount to which he admits, the defendant thereby reduces the claim by the fifty dinars that he denies owing, and he is consequently exempt from taking an oath like any defendant who denies the claim entirely.

Concerning this ruling of Rabbi Ḥiyya, the Gemara comments: And the tanna of the mishna taught a similar halakha, citing the mishna beginning: If two people came to court holding a garment.

The Gemara explains the comparison: And here, in the mishna, since each one grasps half the garment, it is clear to us that what one grasps is in his possession, just as if the other one had said to him: Here you are, I am giving it to you. And the mishna teaches that he takes an oath. Evidently, in a case where one denies part of a claim that is brought against him, and with regard to the rest of the claim he says to the claimant: Here you are, he is obligated to take an oath.

And Rav Sheshet says: One who says about part of the claim: Here you are, and denies the rest of the claim, is exempt from taking an oath about the rest. What is the reason? Since he said to him: Here you are, those dinars that he admitted to owing are considered as if the creditor has them in his possession already, and with regard to the other fifty dinars, the defendant did not admit to owing them. Therefore, there is no admission to part of the claim.

The Gemara asks: But according to the opinion of Rav Sheshet, the mishna is difficult, as it seems to be a comparable case and yet an oath is required. The Gemara answers: Rav Sheshet could have said to you: The oath mentioned in the mishna is a rabbinic ordinance, which pertains specifically to that case. In general, a debtor who immediately hands over the money that he admits to owing is exempt from taking an oath.

And how would the other amora, Rabbi Ḥiyya, respond to this assertion? Indeed, he would agree that it is a rabbinic ordinance. However, granted, if you say that by Torah law one who says: Here you are, is obligated to take an oath, that explains why the Sages instituted the oath mentioned in the mishna, as it is similar to an oath administered by Torah law. But if you say that by Torah law one who says: Here you are, is exempt from taking an oath, would the Sages institute an oath that has no corresponding oath in Torah law? Clearly, there is a basis for the oath instituted by the Sages in Torah law, and that basis is the case where the defendant says: Here you are.

The Gemara raises an objection to the opinion of Rabbi Ḥiyya from a baraita: