Shevuot 34b

וְעֵדִים רוֹאִין אוֹתוֹ מִבַּחוּץ, מַאי?

and witnesses see him counting the money from outside, what is the halakha ? Is their testimony accepted?

אֲמַר לֵיהּ רַב הַמְנוּנָא: וְהַלָּה מָה טוֹעֵן? אִי אָמַר: ״לֹא הָיוּ דְבָרִים מֵעוֹלָם״ – הוּחְזַק כַּפְרָן! אִי אָמַר: ״אִין, שְׁקַלִי – וְדִידִי שְׁקַלִי״ – כִּי אָתוּ עֵדִים מַאי הָוֵי? אֲמַר לֵיהּ: הַמְנוּנָא אַתְּ? עוּל תָּא.

Rav Hamnuna said to Rav Yehuda: And what does the other person claim in response to the demand for repayment? If he says: These matters never happened, he assumes the presumptive status of a denier of the truth, as the witnesses testify that they saw the claimant counting the money and giving it to him. If he says: Yes, I took money from him, but it is my money that I took, then when the witnesses come and testify that they saw the claimant counting the money and giving it to him, what of it? The testimony of the witnesses does not contradict his claim, as the witnesses do not know the circumstances under which the money changed hands. Rav Yehuda said to him: Are you Hamnuna? Enter and come into the study hall, as you make your teacher wiser.

הָהוּא דַּאֲמַר לֵיהּ לְחַבְרֵיהּ: ״מָנֶה מָנִיתִי לְךָ בְּצַד עַמּוּד זֶה״, אֲמַר לֵיהּ: ״לֹא עָבַרְתִּי בְּצַד עַמּוּד זֶה״. אֲתוֹ תְּרֵי סָהֲדִי, אַסְהִידוּ בֵּיהּ דְּהִשְׁתִּין מַיִם בְּצַד עַמּוּד זֶה. אָמַר רֵישׁ לָקִישׁ: הוּחְזַק כַּפְרָן.

The Gemara relates a similar incident: There was a certain individual who said to another: I counted for you and gave you one hundred dinars as a loan alongside this column. The other person said to him in response: I did not pass alongside this column. Two witnesses came and testified about him that they saw that he urinated alongside this column. Reish Lakish said: He assumes the presumptive status of a denier of the truth, as the testimony of witnesses proves that he passed alongside the column.

מַתְקֵיף לַהּ רַב נַחְמָן: הַאי דִּינָא פָּרְסָאָה הוּא! מִי קָאָמַר ״מֵעוֹלָם״?! בְּעֵסֶק זֶה קָאָמַר לֵיהּ!

Rav Naḥman objects to this: That is a ruling characteristic of a Persian court, not a reasonable ruling characteristic of a Jewish court. Did the respondent say that he never passed alongside the column? It was that he did not pass alongside the column in the context of this matter that he said to him that he did not pass the column; therefore, the testimony of the witnesses does not contradict his statement.

אִיכָּא דְּאָמְרִי, הָהוּא דַּאֲמַר לֵיהּ לְחַבְרֵיהּ: ״מָנֶה מָנִיתִי לְךָ בְּצַד עַמּוּד זֶה״, אֲמַר לֵיהּ: ״לֹא עָבַרְתִּי בְּצַד עַמּוּד זֶה מֵעוֹלָם״. נְפַקוּ בֵּיהּ סָהֲדִי דְּהִשְׁתִּין מַיִם בְּצַד עַמּוּד זֶה. אָמַר רַב נַחְמָן: הוּחְזַק כַּפְרָן.

There are those who say that the incident transpired a bit differently. There was a certain individual who said to another: I counted for you and gave you one hundred dinars as a loan alongside this column. The other person said to him in response: I never passed alongside this column. Witnesses emerged and testified concerning him that he urinated alongside this column. Rav Naḥman said: He assumes the presumptive status of a denier of the truth, as the witnesses contradicted his claim.

אֲמַר לֵיהּ רָבָא לְרַב נַחְמָן: כֹּל מִילְּתָא דְּלָא רַמְיָא עֲלֵיהּ דְּאִינִישׁ, עָבֵיד לַהּ וְלָאו אַדַּעְתֵּיהּ.

Rava said to Rav Naḥman: There is no proof from here that he assumes the presumptive status of a denier, as any matter that is not incumbent upon a person to remember, he performs it and it is not on his mind. Therefore, when he denied ever passing alongside the column, it was because there was never any reason for him to remember that he had been there.

רַבִּי שִׁמְעוֹן אוֹמֵר: חִיֵּיב כָּאן וְחִיֵּיב בְּפִקָּדוֹן כּוּ׳.

§ The Gemara proceeds to cite the opinion cited last in the baraita explaining the source of the halakha that one is liable for taking a false oath of testimony only for a case involving monetary matters. Rabbi Shimon says: The Torah rendered one liable if he takes a false oath here, with regard to an oath of testimony, and the Torah rendered one liable if he takes a false oath with regard to an oath on a deposit; just as there, the verse is speaking of liability only in cases involving monetary claims, so too here, the verse is speaking of liability only in cases involving monetary claims.

מַחֲכוּ עֲלַהּ בְּמַעְרְבָא. מַאי חוּכָא?

They mocked this proof in the West, i.e., Eretz Yisrael. The Gemara asked: What is worthy of mockery in the statement of Rabbi Shimon?

דְּקָתָנֵי: מָה לְפִקָּדוֹן, שֶׁכֵּן לֹא עָשָׂה בּוֹ מוּשְׁבָּע כַּנִּשְׁבָּע, מֵזִיד כַּשּׁוֹגֵג.

The Gemara explains that they mocked that which the baraita teaches in the continuation, rejecting the a fortiori inference suggested by Rabbi Shimon: What is notable about the case of a deposit? It is notable in that with regard to a deposit the Torah did not render the halakhic status of one to whom an oath was administered by others like that of one who himself took an oath, as one to whom an oath was administered by others is exempt; and the Torah did not render the halakhic status of one who takes an intentional false oath like that of one who takes an unwitting false oath.

מִכְּדֵי מוּשְׁבָּע מִפִּי עַצְמוֹ בְּעֵדוּת, לְרַבִּי שִׁמְעוֹן מְנָא לֵיהּ – דִּגְמַר מִפִּקָּדוֹן; פִּקָּדוֹן נָמֵי – מוּשְׁבָּע מִפִּי אֲחֵרִים, נִגְמַר מֵעֵדוּת!

This rejection is difficult: Now, with regard to the fact that one who administered an oath to himself is liable in the case of an oath of testimony, from where is it derived according to Rabbi Shimon? Rabbi Shimon derives it by means of a verbal analogy from an oath on a deposit. If so, based on the same verbal analogy, in the case of an oath on a deposit too, let us derive from the case of an oath of testimony the fact that one is liable for a false oath that was administered by others.

וּמַאי חוּכָא? דִּלְמָא רַבִּי שִׁמְעוֹן בְּקַל וָחוֹמֶר מַיְיתֵי לַהּ: מִפִּי אֲחֵרִים חַיָּיב – מִפִּי עַצְמוֹ לֹא כׇּל שֶׁכֵּן?!

The Gemara rejects this: And what is worthy of mockery in that statement? Perhaps Rabbi Shimon does not derive that one who takes a false oath of testimony on his own is liable by means of a verbal analogy from an oath on a deposit; rather, he derives it by means of an a fortiori inference: If one is liable for a false oath of testimony administered by others, is it not all the more so that he is liable for an oath that he takes on his own?

אֶלָּא חוּכָא אַמֵּזִיד כַּשּׁוֹגֵג – דְּקָתָנֵי: מָה לְפִקָּדוֹן – שֶׁכֵּן לֹא עָשָׂה בּוֹ מוּשְׁבָּע כַּנִּשְׁבָּע, מֵזִיד כַּשּׁוֹגֵג.

The Gemara answers: Rather, the mockery is with regard to the distinction between an oath on a deposit and an oath of testimony in the matter of whether the halakhic status of one who takes an intentional false oath is like that of one who takes an unwitting false oath, as it teaches in the baraita : What is notable about the case of a deposit? It is notable in that with regard to a deposit the Torah did not render the halakhic status of one to whom an oath was administered by others like that of one who himself took an oath, as one to whom an oath was administered by others is exempt; and the Torah did not render the halakhic status of one who takes an intentional false oath like that of one who takes an unwitting false oath.

מִכְּדֵי מֵזִיד גַּבֵּי עֵדוּת מְנָא לֵיהּ – דְּלָא כְּתִיב בֵּיהּ ״וְנֶעֱלַם״; הָכָא נָמֵי לָא כְּתִיב בֵּיהּ ״וְנֶעֱלַם״!

Now, from where does he derive that one who takes an intentional false oath of testimony is liable? He derives it as it is not written in the context of an oath of testimony: And it is hidden. Here too, it is not written in the context of an oath on a deposit: And it is hidden. Therefore, there should be no distinction between intentional and unwitting with regard to an oath on a deposit either.

אֲמַר לְהוּ רַב הוּנָא: וּמַאי חוּכָא? דִּלְמָא מֵזִיד דְּלָאו כַּשּׁוֹגֵג בְּפִקָּדוֹן, מִמְּעִילָה רַבִּי שִׁמְעוֹן גָּמַר לַהּ!

Rav Huna said to the Sages: And what is worthy of mockery in that statement? Perhaps the fact that the halakhic status of one who takes an intentional false oath is not like that of one who takes an unwitting false oath in the case of a deposit, and it is from the halakhot of misuse of consecrated property that Rabbi Shimon derived it. Just as one is liable to bring a guilt-offering for the misuse of consecrated property only if he did so unwittingly, one is liable to bring a guilt-offering for a false oath on a deposit only if he unwittingly took the false oath.

וְהַיְינוּ חוּכָא – אַדְּגָמַר לַהּ מִמְּעִילָה, נִגְמַר לַהּ מֵעֵדוּת!

The Gemara answers: And that is what is worthy of mockery. Instead of deriving the lack of liability for an intentional false oath of deposit from the case of misuse of consecrated property, let him derive liability for an intentional false oath on a deposit from the case of an oath of testimony.

מִסְתַּבְּרָא מִמְּעִילָה הֲוָה לֵיהּ לְמֵילַף, שֶׁכֵּן מְעִילָה מִמְּעִילָה.

The Gemara rejects this: It stands to reason that he should have derived it from the case of misuse of consecrated property, as that is a derivation of misuse written with regard to an oath on a deposit: “If any one shall sin and commits an act of misuse and dealt falsely with his colleague in a matter of deposit” (Leviticus 5:21), which is derived from misuse written with regard to misuse of consecrated property: “If any one commits an act of misuse and sinned unwittingly from items consecrated to the Lord” (Leviticus 5:15).

אַדְּרַבָּה – מֵעֵדוּת הֲוָה לֵיהּ לְמֵילַף, שֶׁכֵּן ״תֶּחֱטָא״ מִ״תֶּחֱטָא״!

The Gemara asks: On the contrary, he should have derived it from the case of an oath of testimony, as that is a derivation of “shall sin” written with regard to an oath on a deposit which is derived from “shall sin” written with regard to an oath of testimony: “And if any one shall sin and he hears the voice of an oath, and he is a witness” (Leviticus 5:1).

מִסְתַּבְּרָא מִמְּעִילָה הֲוָה לֵיהּ לְמֵילַף, שֶׁכֵּן מְעִילָה; בַּכֹּל; נֶהֱנֶה; בְּקָבוּעַ; חוֹמֶשׁ; וְאָשָׁם.

The Gemara rejects this: It stands to reason that it is from the case of misuse of consecrated property that he should have derived it, as there are many elements common to an oath on a deposit and misuse of consecrated property represented by the mnemonic: Misuse, with regard to all, derive benefit, with fixed, one-fifth, and guilt-offering. The term misuse is employed in both cases. Both cases are relevant with regard to all individuals and not only those fit to testify. Both involve one deriving benefit from property that is not his. In both cases, one is liable to bring a fixed guilt-offering, as opposed to one who takes a false oath of testimony, who is liable to bring a sliding-scale offering. In both cases, one adds one-fifth to the payment of the principal. In both cases, that is the offering with which one gains atonement.

אַדְּרַבָּה – מֵעֵדוּת הֲוָה לֵיהּ לְמֵילַף, שֶׁכֵּן חֵטְא; הֶדְיוֹט; בִּשְׁבוּעָה; תַּבְעֵיהּ וְכַפְרֵיהּ; וְ״אוֹאִין״! הָנָךְ נְפִישִׁין.

The Gemara rejects this: On the contrary, he should have derived the halakha with regard to an oath on a deposit from the halakha of an oath of testimony, as there are many elements common to both oaths represented by the mnemonic: Sin, ordinary [ hedyot ], with an oath, claimed from him, denied his claim, and multiple instances of the term “or.” The term “shall sin” is written in both contexts. Both oaths relate to the property of ordinary individuals, not to consecrated property. In both cases there is a claim presented by one of the parties and denial of that claim by the one taking the oath. Multiple instances of the term “or” appear in both passages in the Torah. The Gemara responds: These elements common to an oath on a deposit and misuse of consecrated property are more numerous than the elements common to an oath on a deposit and an oath of testimony.

אֶלָּא מַאי חוּכָא?

Rather, after resolving all the difficulties that were raised against the opinion of Rabbi Shimon, the question remains: What did the Sages of Eretz Yisrael find that is worthy of mockery in that baraita ?

כִּי אֲתָא רַב פָּפָּא וְרַב הוּנָא בְּרֵיהּ דְּרַב יְהוֹשֻׁעַ מִבֵּי רַב, אָמְרִי: הַיְינוּ חוּכָא – מִכְּדֵי רַבִּי שִׁמְעוֹן גְּזֵירָה שָׁוָה גְּמִיר, לְמָה לֵיהּ דְּפָרֵיךְ: מָה לְפִקָּדוֹן שֶׁכֵּן לֹא עָשָׂה בּוֹ מוּשְׁבָּע כַּנִּשְׁבָּע, מֵזִיד כַּשּׁוֹגֵג?

When Rav Pappa and Rav Huna, son of Rav Yehoshua, came from the study hall of their teacher, they said: This is what is worthy of mockery: Now, since ultimately Rabbi Shimon derives the halakha by means of a verbal analogy between the term “shall sin” written with regard to an oath on a deposit and the term “shall sin” written with regard to an oath of testimony, why is it that he refutes the parallel between them by saying: What is notable about the case of a deposit? It is notable in that with regard to a deposit the Torah did not render the halakhic status of one to whom an oath was administered by others like that of one who himself took an oath, as one to whom an oath was administered by others is exempt; and the Torah did not render the halakhic status of one who takes an intentional false oath like that of one who takes an unwitting false oath. Rabbi Shimon should have derived by means of the verbal analogy that all the halakhot of an oath of testimony and all the halakhot of an oath on a deposit are identical.

וּמַאי חוּכָא? דִּלְמָא כִּי פָּרֵיךְ – מִקַּמֵּי דְּתֵיקוּם לֵיהּ גְּזֵירָה שָׁוָה; בָּתַר דְּקָמָא לֵיהּ גְּזֵירָה שָׁוָה לָא פָּרֵיךְ!

The Gemara rejects this: And what is worthy of mockery in that statement? Perhaps when Rabbi Shimon refuted the parallel between the two oaths, it was prior to the verbal analogy being established for him, and the derivation was by means of a paradigm. After the verbal analogy was established for him, he does not refute the parallel and holds that in the case of an oath on a deposit one is liable to bring a guilt-offering for false oaths administered by others as well as for intentional false oaths.

וְלָא?! וְהָאָמַר לְהוּ רָבָא בַּר אִיתַּי לְרַבָּנַן: מַאן תָּנָא שְׁבוּעַת הַפִּקָּדוֹן לֹא נִיתַּן זְדוֹנָהּ לְכַפָּרָה – רַבִּי שִׁמְעוֹן הִיא!

The Gemara asks: And does Rabbi Shimon not refute the parallel between the two oaths? But didn’t Rava bar Ittai say to the Sages: Who is the tanna who taught with regard to an oath on a deposit that atonement by means of an offering is not possible for one who takes an intentional false oath? It is Rabbi Shimon. Apparently, Rabbi Shimon concludes that there remains a distinction between intentional and unwitting in the case of an oath on a deposit.

דִּלְמָא מֵזִיד כַּשּׁוֹגֵג פָּרֵיךְ, דְּגָמַר לַהּ מִמְּעִילָה, דְּהָנָךְ נְפִישִׁין; אֲבָל מוּשְׁבָּע כַּנִּשְׁבָּע לָא פָּרֵיךְ.

The Gemara suggests: Perhaps with regard to the halakhic status of one who takes an intentional false oath being like that of one who takes an unwitting false oath, Rabbi Shimon refutes the parallel between the two oaths even after the verbal analogy is established for him, as he derives the halakha of an oath on a deposit from the halakha of misuse of consecrated property, where there is a distinction between intentional and unwitting, as those elements common to an oath on a deposit and the misuse of consecrated property are more numerous than the elements common to an oath on a deposit and an oath of testimony. But he does not refute the parallel between the two oaths with the claim that there is a distinction between them with regard to whether the halakhic status of one to whom an oath was administered by others is like that of one who himself took an oath. Once the verbal analogy was established for him, there is no longer a distinction between the two oaths in that regard.

וְתֶהְדַּר עֵדוּת וְתִגְמֵר לַהּ מִפִּקָּדוֹן, מֵזִיד דְּלָאו כַּשּׁוֹגֵג – מָה פִּקָּדוֹן, שׁוֹגֵג אִין מֵזִיד לָא; אַף עֵדוּת, שׁוֹגֵג אִין מֵזִיד לָא – כִּי הֵיכִי דְּיָלֵיף פִּקָּדוֹן מִמְּעִילָה!

The Gemara asks: If, according to Rabbi Shimon, based on the derivation from the misuse of consecrated property, one who intentionally takes a false oath on a deposit does not bring a guilt-offering like one who took the false oath unwittingly, let the discussion of the case of an oath of testimony return to the verbal analogy and derive it from the case of an oath on a deposit that the halakhic status of one who takes an intentional false oath is not like that of one who takes an unwitting false oath. Just as in the case of an oath on a deposit, one who takes an unwitting false oath, yes, he is liable to bring a guilt-offering, and one who takes an intentional false oath, no, he is not liable, so too, in the case of an oath of testimony, one who takes an unwitting false oath, yes, he is liable to bring a sin-offering, and one who takes an intentional false oath, no, he is not liable, just as he derives the case of an oath on a deposit from the case of misuse of consecrated property.