Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 6a

But then, in the case in which R. Nahman said, We make him take 'an oath of inducement',¹  — why do we not say that since he is suspected of fraud in money matters he must also be suspected of swearing falsely? Moreover, there is the case where R. Hiyya taught: Both of them swear, and receive payment from the employer,²  — why do we not say that since he is suspected of fraud in money matters he must also be suspected of swearing falsely? And furthermore, there is the case where R. Shesheth said: We make him³  take three oaths: 'I swear that I did not cause the loss wilfully; I swear that I did not use [the animal] for myself; I swear that it is not in my possession', — why do we not say that since he is suspected of fraud in money matters⁴  he must also be suspected of swearing falsely? Therefore [we must conclude] that we do not say, 'Since he is suspected of fraud in money matters he must also be suspected of swearing falsely.'

Abaye says: We apprehend that he may be claiming the repayment of an old loan.⁵  But if so, let him take it without an oath?⁶  — Therefore say that we apprehend that he may be claiming the payment of a doubtful claim of an old loan. But do we not say that if he appropriates money on the strength of a doubtful claim he will also swear falsely in regard to a doubtful claim? — R. Shesheth, the son of R. Idi, said [in reply]: People will desist from taking an oath in regard to a doubtful claim, while they will not desist from appropriating money their right to which is doubtful. For what reason? — Money can be given back [later]; an oath cannot be taken back.

R. Zera asked: If one of the litigants seized [the garment] in our presence,⁷  what is the law? But [it is immediately objected]: How could such a situation arise? If [the other litigant] remained silent, he really admitted [his opponent's claim]; and if he protested, what more could he do? — [R. Zera has in mind] a case where [the aggrieved litigant] was silent at first but protested later, and the question is: Do we say that since he was silent at first he really admitted [his opponent's claim], or [do we] perhaps [say] that, as he protests now, it has become apparent that the reason why he was silent at first is that he thought [it unnecessary to protest, because] the Rabbis [of the Court] saw [what happened]? — R. Nahman answered: Come and hear [a Baraitha]: The ruling [of our Mishnah] refers only to a case where both [litigants] hold [the garment], but if the garment is produced [in Court] by one of them only, then [we apply the principle that], 'the claimant must bring evidence to substantiate his claim.'⁸  Now, [let us consider:] how could the case [of one litigant producing the garment] arise? If we say that it was just as stated,⁹  then it is self-evident.¹⁰  It must therefore be that one of them seized [the garment] in our presence?¹¹  — No. Here we deal with a case where both of them came before us holding [the garment], and we said to them, 'Go and divide it.' They went out, and when they came back one of them was holding it. One said, 'He really admitted [my claim],'¹²  and the other said, 'I let him have it on condition that he pays me for it.'¹³  Now we say to him: 'Hitherto you implied that he was a robber,¹⁴  and now you dispose of the garment to him without witnesses!' If you prefer, I could also say that [the Baraitha deals with a case where], as stated, one of them was holding it, and the other was just hanging on to it. In such a case [it is necessary to inform us that] even Symmachus, who maintains¹⁵  that disputed money of doubtful ownership should be divided among the disputants without an oath,¹⁶  would agree,¹⁷  for mere hanging on [to a disputed article] counts for nothing.¹⁸

If you deem it right to say that in the case of one [litigant] seizing it¹⁹  in our presence, we take it away from him,²⁰  [it is clear that] if he dedicates it [to the Temple]²¹  the dedication does not take effect.²²  But if you will say that in the case of one [litigant] seizing it in our presence we do not take it away from him, what would be the law if he dedicated it without seizing it? Seeing that a Master says [elsewhere],²³  'Dedication to the Most High by word of mouth is like delivery in a secular transaction', [do we say that the dedication of the garment] is like seizing it, or [do we say], 'After all, he has not seized it,' and it is written: And if a man shall sanctify his house to be holy, etc.,²⁴  [from which we might conclude that] just as his house is in his possession so must everything [that he may wish to dedicate] be in his possession — which would exclude this case [of the garment which he has not seized and] is not in his possession? — Come and hear [the following]: There was

1. When he denies the whole claim; v. supra 5a.
2. In the case of the shopkeeper and his creditbook. V. supra 2a, Shebu. 47b.
3. The gratuitous bailee, who pleads that the animal has been lost.
4. Since it is assumed that he may appropriate the plaintiff's article by putting forward a wrong plea, which amounts to fraud.
5. According to Abaye the reason for the oath imposed by the Rabbis is not that given by R. Johanan (v. supra 3a), but that a litigant may deem himself entitled to an article found by his opponent, on the ground that the latter had borrowed money from him a long time ago and had forgotten about it. Such a litigant would not hesitate to plead that he had found the garment, or that it was all his, in the hope that at least half the value of the garment would be awarded to him. Hence the need for an oath.
6. If it is assumed that he is claiming the garment in payment of an old debt due to him, why should he have to swear?
7. I.e., in the presence of the Court.
8. Tosef. B.M. 1; v. supra 2b.
9. That one of the litigants was in possession of the garment when both appeared in Court.
10. That the other litigant must bring evidence to substantiate his claim.
11. In Court, in the circumstances as described, which furnishes a solution to the problem propounded.
12. 'And this is why he let me have the garment.'
13. 'And now he refuses to pay.'
14. 'As you pleaded that the garment was yours, and that he was trying to rob you of it.'
15. V. supra 2b; B.K. 46a.
16. And would thus let each litigant who holds the garment have a half without an oath.
17. That the claimant is entitled to nothing, even if he is ready to swear.
18. It constitutes no claim, and therefore the garment is not 'disputed money'.
19. I.e., the garment.
20. If R. Zera's question is to be answered in the sense that the litigant who has seized the garment must give up half the garment to the other claimant.
21. Without seizing it.
22. For the act of dedication cannot be more effective than the act of seizing it.
23. V. A.Z. 63a; cf. B.B. 133b.
24. Lev. XXVII, 14.

a bath-house, about which two people had a dispute. One said, 'It is mine', and the other said 'It is mine'; then one of them rose up and dedicated it [to the Temple],¹  [in consequence of which] R. Hananiah and R. Oshaia and the rest of the Rabbis kept away from it. R. Oshaia then said to Rabbah: When you go to Kafri²  to see R. Hisda ask him [for his opinion on this matter]. When [Rabbah] came to Sura [on his way to Kafri]³  R. Hamnuna said to him: This is [made clear in] a Mishnah:⁴  [As regards] doubtful first-born,⁵  whether a human first-born or an animal first-born, [and, as regards the latter,] whether of clean or unclean⁶  animals, [the principle holds good that] the claimant must bring evidence [to substantiate his claim].⁷  And in regard to this a Baraitha teaches: [Such animals] must not be shorn nor worked.⁸  Now, it is obviously assumed here that if a priest seizes the firstling we do not take it away from him, for it is laid down that [we must apply the principle that] the claimant must bring evidence [to substantiate his claim];⁹  and [thus] if the priest has not seized it, [the Baraitha teaches] that it must not be shorn or worked.¹⁰  But Rabbah answered him: You speak of the sanctity of a firstling — [this proves nothing]. I could well maintain that even if the priest has seized it we take it away from him, and still it would be forbidden to shear or to work [this animal], because the sanctity that comes of itself is different.¹¹

R. Hananiah said to Rabbah: There is [a Baraitha]¹²  taught supporting your view:¹³  The [sheep with which the] doubtful [firstlings of asses have been redeemed] enter the stall to be tithed.¹⁴  Now, if the view were held that when the priest has seized [a doubtful firstling] we do not take it away from him, why [does the Baraitha teach that sheep with which doubtful firstlings of asses have been redeemed] enter the stall [to be tithed]? Would not the result be that this [Israelite, who owns the stall] would relieve himself of his liability [involved in the tithe] with the property of the priest, [who has a claim on it]?¹⁵  — Abaye answered him: There is really nothing in that [Baraitha] to support the Master [Rabbah], For it deals with a case where [the Israelite] has only nine sheep, and this [makes the tenth], so that in any case [the Israelite is justified]: if he is obliged [to tithe the sheep] he has tithed them rightly,¹⁶  but if he is not obliged [to tithe them because the tenth sheep is not really his], then [he has had no advantage, as he only owned nine sheep, and] nine are not subject to tithe.¹⁷

Later Abaye said: My objection is really groundless.¹⁸  For in [a case where the liability of an animal to be tithed is in] doubt, tithing does not take place,¹⁹  as we have learnt: If one of the sheep which were being counted [for the purpose of tithing] jumped back into the stall, the whole flock is free [from tithing].²⁰  Now, if the view were held that doubtful cases are subject to tithe,²¹  [the owner] ought to tithe [the remaining sheep] in any case: if he is obliged [to tithe them]²²  he will have tithed them rightly,²³  but if he is not obliged to tithe them, those already counted will be free because they were properly numbered,²⁴  for Raba said: Proper numbering frees [the sheep from being tithed].

1. On dedication to Temple after the Destruction, v. A.Z. 13a.
2. [S. of Sura, v. n. 3.]
3. [Rabbah, whose seat was at Pumbeditha in the North, had to pass Sura on his journey to the South.]
4. Toh. IV, 12.
5. I.e., first-born whose primogeniture is in doubt because, in the case of an animal, it is not known whether its mother has borne before, or, in the case of a human mother who had previously miscarried, it is doubtful whether it was a real miscarriage or not. According to Biblical law the first-born belong to the priest. (Num. XVIII, 15-16.)
6. E.g., an ass, the first-born of which has to be redeemed with a lamb. (Ex. XIII, 13.)
7. If the Israelite is still in possession of the first-born, the priest is regarded as the claimant, who has to bring evidence to clear up the doubt. But if the priest has acquired possession, and the Israelite, though silent at first, protests later, denying the primogeniture, then it is for the Israelite, as the claimant, to prove his claim.
8. Because of the prevailing doubt as to whether the young animal is 'holy' or not (cf. Deut. XV, 19).
9. Which is obviously meant to apply to either claimant, either the Israelite or the priest.
10. The animal is thus regarded as 'holy' even when the Israelite is in possession, which would show that the sanctification by the litigant without seizing it takes effect, if we say that the seizing of the disputed articles entitles him to keep it.
11. The sanctity of the firstling is independent of any action on the part of the priest, as it is sacred from birth, in accordance with the Biblical Law. It cannot therefore be compared with the sanctity of an object that has been consecrated by a human being.
12. The principal place where this law is taught is a Mishnah, Bek. 9a; cf. also ibid. 11a.
13. Viz., that if a priest has seized a doubtful firstling he has to return it.
14. The sheep that is used to redeem the doubtful firstling of an ass may be kept by the Israelite. He is under no obligation to give it to the priest, for the latter is in the position of a claimant who has to prove his claim, i.e. if the priest claims the sheep from the Israelite, he has to prove that the doubtful firstling is a real firstling. Such sheep, however, are liable to be tithed, if there are ten of them. (V. infra p. 28.) It follows that, in the same way, if in the Israelite's possession, they go into the stall with other sheep to be tithed, and if one of them comes out tenth it is offered as the tithe.
15. If the priest has any kind of claim on the sheep, the Israelite should not be entitled to utilise this animal as the tithe.
16. If the redeemed ass is not a real firstling, then the lamb belongs entirely to the Israelite, and if there are nine other sheep belonging to him he is obliged to tithe them, and there is nothing wrong in his action.
17. Therefore he has not relieved himself in any way, and in either case, not with anything belonging to the priest.
18. I.e., the Baraitha quoted by R. Hananiah does support the view of Rabbah that the priest has no right to a doubtful firstling or its substitute.
19. I.e., the argument used by Abaye, that in any case the tithing could be proceeded with, is invalid, for doubtful cases are exempt from tithing, even when it could be said that in any case the owner could do no wrong, as the following Mishnah proves.
20. Bek. 58b. If during the process of tithing, while the sheep were being led one by one out of the stall, so that the tenth one might be marked and offered to the priest, one of the counted sheep jumped back into the stall and disappeared among the uncounted sheep, and it cannot be recognised, the whole flock is exempt from tithing. The sheep that left the stall on being counted are exempt because they have already been numbered, and there are sufficient sheep left in the stall to make up the required number of ten. The sheep that remained behind in the stall are also exempt because each one of them may be the one that jumped back after being counted. V. Bek. 59b.
21. I.e. that the sheep are liable to be tithed on the assumption that the owner will either have acted according to the law or have done nothing wrong.
22. I.e. if the tenth sheep that is taken when those left behind in the stall are numbered is not the one that jumped back after being counted.
23. As that sheep will be subject to tithe.
24. As long as there are sufficient sheep left in the stall to make up the ten, when added to those already counted, the counted sheep are free from tithing. V. Bek., loc. cit.