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Nezikin (Law) Oaths (Tractate Shebuoth), The Babylonian Talmud In Selection

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The Babylonian Talmud in Selection, by Leo Auerbach, [1944] THERE are two kinds of oaths; these are subdivided into four. Knowledge of being unclean is of two kinds, which are subdivided into four. Carrying burdens on the Sabbath is of two kinds, which are really four. The symptoms of leprosy are two, which are subdivided into four. (Mishna)   NOW, the author has just finished the tractate "Macoth", why does he begin with the tractate of "Oaths"?—Because there he taught: For the cutting of the hair around the corners of the head one is punished with two lashes, one for each side. For the shaving of the beard one is punished: twice for each side of the face and once for under the chin. Because he is discussing here one transgression that merits two punishments, therefore he continues with two kinds of Oaths, that are subdivided into four.—Why does the author treat only here, of all the laws of "two that are subdivided into four"? Why didn't he treat of the carrying of burdens on the Sabbath and of the symptoms of leprosy in the tractates where they belong?—I will tell you: The laws of oaths and knowledge of being unclean are mentioned in the Bible in the same place, and are similar to each other in that they merit a "Rising and Falling Offering". The author then began here with the laws of oaths, and also with the laws of uncleanliness, and having treated of them here, and since there are but a few of these laws, he disposes of all of them here at one time. Then he proceeds to the laws of oaths, which are many. There are two kinds of oaths, these are subdivided into four. Two: I shall eat; I shall not eat. These are subdivided into four: I have eaten; I have not eaten. There are two kinds of knowledge of being unclean, which are subdivided into four. Two: The knowledge of being unclean while eating holy food, and the knowledge of being unclean while having entered the sanctuary. These are subdivided into four: Knowledge of being unclean, and knowledge of eating holy food, knowledge of being unclean, and knowledge of entering the sanctuary. The symptoms of leprosy are two, which are subdivided into four. A boil and a bright spot. The boil and its species and the bright spot and its species. Who is the author of this Mishna?—It is not Rabbi Ishmael, nor is it Rabbi Akiba. It is not Rabbi Ishmael for he says that only one who makes an oath in the future tense is liable. And it is not Rabbi Akiba who says: He is liable only if he forgets that he is unclean, but is not liable if he forgot that he entered the sanctuary. If you wish I may say that the author of this Mishna is Rabbi Ishmael, and if you wish I may say that it is [paragraph continues] Rabbi Akiba. It may be Rabbi Ishmael, for one is liable for some of the oaths, and is held not liable for other oaths. And it may be Rabbi Akiba, for again for some of the oaths one is liable, while for others one is not liable.—How not liable? Does not the author teach of all of them, together with the laws applying to the symptoms of leprosy: just as in these, one is liable in all the four subdivisions, so in the case of oaths, is not one liable in all instances?—Indeed, the author is probably Rabbi Ishmael; and though in the case of the oaths, he does not hold liable one who made the oath in the past tense, he frees him only from bringing a sacrifice, but he holds him liable to lashes. This is in accord with Raba, who said: The Torah plainly states that a false oath is the same as a vain oath; just as a vain oath is of necessity in the past, so also is a false oath in the past tense. The author of this Mishna is its compiler, Rabbi. In one instance he accepted the opinion of one of the Rabbis, while later on he adopted the decision of a different Rabbi. (Gemara) FROM CHAPTER I   IF ONE said: "I swear that I shall not eat", and he ate and drank, he is liable only once. If he swore: "I shall not eat and I shall not drink", and he ate and drank; he is liable twice. If he swore that he would not eat, and he ate a piece of wheaten bread, and a piece of barley bread, and a piece of bread made of spelt, he is liable only once. If he swore that he would not eat wheat bread, barley bread, and spelt bread, and he ate them, he is liable for each one of them separately. If he swore that he would not eat, and ate things which are not fit to be eaten, and he drank liquids which are not fit for drinking, he is not held liable. If he swore that he would not eat, and ate carrion, or unkosher food, or forbidden animals, or reptiles, he is liable. But Rabbi Simon says: He is not liable. If he says: "Konam (sacred); I shall not enjoy my wife if I have eaten today", and he ate carrion, unkosher food, forbidden animals, or reptiles, his wife is forbidden to him. (Mishna)   RABBI Hiya ben Abin said in the name of Samuel: If a man said: "I swear I shall not eat," but he drank, he is guilty. If you wish, I can prove it to you by logic and if you wish I can prove it to you from the Scriptures. If you wish, I can prove it to you by logic, for if one says to his friend: "Let's partake of something" they go in and eat and drink. And if you wish, I can prove to you from the Scriptures that drinking is included in eating. For it was said: (Deuteronomy xiv, 23) And thou shalt eat before the Lord thy God, in the place which he shall choose to place his name there, the tithe of thy corn, of thy wine. Tirosh is wine, and yet it is written: "Thou shalt eat." Possibly the Scripture means when one dips his bread in it. For Samuel said: Wine sauce is prepared with almonds and juices of other vegetables. Furthermore Rabbi Aha bar Jacob explained: Can this be deduced from the following verse: (Deuteronomy xiv, 26) And thou shalt bestow that money for whatsoever thy soul lusteth after, for oxen, or for sheep, or for wine, or for strong drink. Wine is a drink, yet here "eating" is used.—Perhaps it means in wine sauce? It is said "strong drink" which means something that intoxicates. [paragraph continues] And perhaps a pressed fig is meant, for it was taught: If he ate a pressed fig and ate honey and milk and had then entered the Temple and performed the service, he is liable.—Furthermore we deduce that drinking includes eating, from the words "strong drink" which is used in the case of the Nazirite, just as it means wine there, so it also means wine here. (Gemara)   WHAT is a vain oath?—If he swore of something that is contrary to what is well known to all men. For instance: he said of a pillar of stone that it was of gold; he said of a man that it was a woman or of a woman that it was a man. Or if he swore of a thing that was impossible: "If I have not seen a camel flying in the air," or "If I have not seen a serpent as thick as a beam of the olive-press." If a man said to witnesses: "Come and testify for me" and they replied: "We swear that we will not testify for you." If he swore that he would nullify a precept, if he said I shall not erect a hut on the Feast of Tabernacles, or I shall not take a Lulab on the Feast of Tabernacles, or I shall not put on phylacteries. These constitute a "vain oath", for which he is liable to lashes, if he uttered them deliberately, but if he uttered them unwittingly he is not guilty. If a man swore: "I shall eat this loaf of bread," then he swore: "I shall not eat this loaf of bread." The first is "a rash oath", the second is "a vain oath". If he ate it, he transgressed a "vain oath", if he did not eat it he transgressed a "rash oath". (Mishna)   ULLA said: This applies to something that is known to at least three persons. If one swore of a thing which is impossible: "If I have not seen a camel flying in the air." What is meant by: "If I have not seen"? Abaya says: Read: "I swear that I have seen." Raba said: It means a man said, "All the fruits in the world should be forbidden to me if I have not seen a camel flying in the air." Said Rabbina to Rab Ashi: It may be that the man saw a large bird, and he called it a camel, and when he swore, he swore according to what was in his mind. But if we say, we go according to what he utters with his mouth and not according to what is in his mind. It is not so. For we were taught: When a man was adjured, they said to him: "Know that we adjure you not according to what is in your mind, but what is in our mind and in the mind of the Court." Why is this? Because it may be said, that a man gave to his debtor chips and counted them as zuzim, and when he swore, he swore according to what was in his mind.—Not so, for this is the case of Raba and the cane. (A man was sued for a sum of money which was loaned to him. He was brought before Raba. Just as he was to go on the witness stand he handed his cane to the plaintiff and asked him to hold it for him. Whereupon he swore that he returned the money. The plaintiff got so angry that he broke the cane in his excitement; behold! money fell out of the cane. It was then established that one swears not to what is in his mind, but what is in the mind of the court.) (Gemara)   THE laws regarding a "rash oath" apply to men and to women, to relatives and to those who are not relatives, to those who are qualified to be witnesses, and to those who are not. It matters not whether the oath was made before a court or not, as long as it was uttered from the person's own mouth. And if it was uttered deliberately, he is liable to lashes, but if unwittingly he brings a "Rising and Falling Offering". The laws of "a vain oath" apply to men and to women, to relatives and to non-relatives. To those who are qualified to be witnesses and to those who are not. It matters not whether the oath was uttered before a court or not, as long as it was uttered by one's own mouth. If it was uttered deliberately he is liable to lashes, but if unwittingly, he is exempt. For either of these oaths, if he was adjured by others, he is liable. Thus if he said, I have not eaten today, and I have not put on phylacteries today, and one said to him: "I adjure you", and he said, "Amen", he is guilty. (Mishna) FROM CHAPTER III   AN OATH concerning testimony applies to men, but not to women. It applies to strangers but not to relatives, to those that are fit to bear witness, but not to those who are unfit, to those who are qualified and to those who are not qualified. It matters not whether the oath was uttered before a court or not, but it must be uttered from a man's own mouth; if he was adjured by the mouth of others, he is not guilty, unless he denies it before the court. This is according to Rabbi Meir. But the Sages say: Whether he uttered it from his own mouth, or he was adjured by the mouth of others, he is not liable unless he denies it before the court. One is guilty if he swore deliberately, or if he swore unwittingly, but deliberately denied the knowledge of testimony. But he is not guilty if he denied it in error. [paragraph continues] And what is one liable for a deliberate oath? He is liable to a Rising and Falling Offering. What is an oath of testimony? If a man called two persons and said to them: "Come and bear witness for me" and they swore that they knew of no testimony for him, or if they said that they knew of no testimony for him, and he said: "I adjure you", and they said "Amen", then they are guilty. If he adjured them outside the courtroom five times, but when they came before the court they admitted the knowledge of testimony, they are exempt. But if they denied it, they are guilty for each oath. If he adjured them before the court five times, and they denied, they are guilty only once. (Mishna) FROM CHAPTER IV   WHAT is an oath of deposit? If a man said: "Give me my deposit that I have with you" and the man swore: "You have nothing with me", or if he said: "I have nothing that belongs to you", and the other said: "I adjure you", and he answered: "Amen", he is guilty. If he adjured him five times, before a court or not before a court, and he denied it, he is guilty on each count. Rabbi Simon said: What is the reason? Because he can retract and admit each time. If one said: You have violated, or you have seduced my daughter, and the other said: "I have not violated", or "I have not seduced your daughter", and he said "I adjure you"—and he answered "Amen" he is guilty. Rabbi Simon exempts him. For a man does not pay a fine through his own admission. But though he pays no fine on his own admission, he still pays for the blemish, or for the indignity that he caused through his own admission. If a man said: "You have stolen my ox" and the other answered: "I have not" and he said: "I adjure you" and he replied "Amen", he is guilty. If he said: "I stole it, but I have not killed it, nor have I sold it", and the other said: "I adjure you", and he replied "Amen" he is exempt. There was a rule established. Whoever must pay a fine through his own admission is liable; but if he does not have to pay a fine, he is exempt.   "YOU have violated, etc." . . . What is Rabbi Simon's reason? Because the claimant is mainly seeking the fine. Raba said: According to Rabbi Simon this could be compared to the case of a man who says to his neighbor: "Give me the wheat, the barley, and the spelt that I have with you", and the other says: "I swear that you have no wheat with me", and it is proven that he had no wheat with the man, but barley and spelt he did have; he is exempt, for he swore that he had no wheat and that was true. Said Abaya: Can this be compared? Here he denies the possession of wheat, but does not deny the possession of barley and spelt, while there he denied the whole thing. But this then is to be compared to one who says to his neighbor: "Give me the wheat, the barley, and the spelt that I have with you." And the other answers: "I swear that you have nothing with me", and it is proven that he has barley and spelt, but he had no wheat; he is liable. When Rabbin came he said in the name of Rabbi Yohanan: According to Rabbi Simon, he is asking only for the fine, but not for the shame and blemish that he caused. But according to the Sages, he is claiming both the fine and also quittance for the shame and the blemish.—Where is the disagreement?—Rab Papa said: Rabbi Simon is of the opinion, that a man does not leave that which is fixed for something which is not fixed, while the Rabbis are of the opinion that a man does not leave that for which if one were to admit it, he would not be exempt, for that for which if he were to admit it, he would be exempt. (Gemara) FROM CHAPTER V   ALL those who are made to take an oath as prescribed in the Torah, swear and need not pay. The following take an oath and collect that which they claim: The hired man, one who has been robbed, one who has been wounded, and the one whose defendant cannot be trusted to take an oath, and the storekeeper on his account book. For instance if a hired man said: "Give me my wages that are due me", and the man answered him: "I have given you your wages", and the hired man says: "I have not received any." He takes an oath and obtains his wages. Rabbi Yehuda says: Not unless the claim was admitted in part. How?—If for instance he said to him: "Give me my wages of fifty denars that are due me", and he answered: "You have already received one golden denar." How about a man that was robbed? If it was testified that a man entered the house without permission, to take a pledge, and the owner says: "You have taken my vessel", and the other answers: "I have not taken", the owner takes an oath and receives his vessel. Rabbi Yehuda says: Not unless there was partial admittance. If he said: "You have taken two vessels," and the other replied: "I have taken one." . . . How about the storekeeper on his books? Not if he says: "There is an entry on my books that you owe me two hundred zuz." But if he said, for instance: "Give to my son two selahs’ worth of wheat", or "give to my labourers a selah's worth of change", and he says I have given it to them, while they say that they have not received it. The storekeeper takes an oath and obtains his due, and they take an oath and receive their due. Ben Nanas said: How is that? They both are made to take a "vain oath". No, he gets his without an oath, and they get theirs without an oath. If a man said to the storekeeper: "Give me a denar's worth of fruit", and he gave it to him and then said: "Give me the denar", and he replied: "I have given it to you and you put it into your till." The householder takes an oath that he gave the denar to the storekeeper. If the householder says "Give me the fruit," and the storekeeper says: "I have given them to you and you took them home", then the storekeeper takes the oath. Rabbi Yehuda says: He that is in possession of the fruit, has the upper hand. If a man said to a money changer: "Give me a denar's worth of change" and he gave it to him and then the money-changer says: "Give me the denar", and he replies: "I have given it to you and you put it into your till", then the householder takes an oath. If the householder gave him a denar, then asks him for the change and the money-changer says: "I have given it to you, and you put them into your purse." Then the money-changer takes an oath that he gave him the change. Rabbi Yehuda says: It is not the way of a moneychanger to give even an issar without first receiving the denar. (Mishna)   "ALL THOSE who are made to take an oath, etc." Where do we deduce this?—For the Scripture said: (Exodus xxii, 11) And the owner of it shall accept thereof, and he shall not make it good. He that has to make the payment, he is the one to take the oath. "The following take an oath and collect." Why is a hired-man different, that the Rabbis have decreed that he should take the oath and obtain his payment? Said Rab Yehuda in the name of Samuel: Here they taught a great law. Are these then laws? Say then, that these are great rulings—Great, because there are also minor rulings? But Rab Nahman said in the name of Samuel: They enacted here iron-clad laws. The Rabbis here took the oath away from the householder and imposed it upon the hired man for the sake of his livelihood.—Shall we then injure the householder for the sake of the livelihood of the hired man?—the householder himself would prefer that the hired man take the oath and get his wages, so that the men will hire themselves out to him.—Just the opposite. Would not the hired man prefer that the householder take the oath and be freed from paying him, so that the householder be compelled to hire him?—The householder has to employ hired men. The hired man needs employment.—Furthermore the householder is occupied with his many hired men.—Then why should he not pay him without an oath?—Just to appease the house-holder— [paragraph continues] Then why should he not pay him before witnesses?—That would be inconvenient for him—Then why should he not pay him at the beginning?—Well, both need credit. This should also apply in the case of arranging the amount of the wages stipulated. Therefore we have learned: If the labourer says: You stipulated two zuz; while the householder says: "I stipulated only one", the burden of proof falls upon the one who demands the payment. The labourer surely remembers the amount stipulated.—If so, this should also apply in case the time of payment has expired. Why was it taught: If the time had expired, and he did not pay him, he does not take an oath to receive his wages?—It is assumed that the householder will not transgress the precept: (Lev. xix, 13) . . . shall not abide with thee all night until the morning.—But didn't you say that the householder is preoccupied with his hired men?—This only before the time of payment has arrived. But when the time of payment has arrived? The obligation lies heavy upon him and he is aware of his duty.—Will the labourer then transgress the precept: (Lev. xix, 13) Thou shalt not rob?—As for the householder there are two assumptions: First the householder will not transgress the precept regarding the wages of a hired servant, and second, the hired man will not allow the payment of his wages to be delayed. (Gemara) FROM CHAPTER VII   THERE are four kinds of guardian: an unpaid guardian, a borrower, a paid guardian, and a hirer. The unpaid guardian takes an oath in every instance, and is exempt; a borrower must pay in every instance; a paid guardian or a hirer takes an oath in case the beast was injured, was captured, or died, and he is exempt; but he must pay if it were lost or stolen. (Mishna) FROM CHAPTER VIII

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1 Ahmed M = "The talmudic rabbis are divided on whether the taking of vows and oaths in desirable; some of them see no harm in the practice, others frown on it even when the promise is in a good cause."