משנה: שְׁבוּעַת הָעֵדוּת כֵּיצַד. אָמַר לָעֵדִים בּוֹאוּ וְהַעִידוּנִי. שְׁבוּעָה שֶׁאֵין אָנוּ יוֹדְעִין לְךָ עֵדוּת אוֹ שֶׁאָֽמְרוּ לוֹ אֵין אָנוּ יוֹדְעִין לְךָ עֵדוּת. מַשְׁבִּיעַ אֲנִי עֲלֵיכֶם וְאָֽמְרוּ אָמֵן חַייָבִין. הִשְׁבִּיעַ עֲלֵיהֶם חֲמִשָּׁה פְעָמִים חוּץ לְבֵית דִּין וּבָאוּ לְבֵית דִּין וְהוֹדוּ פְּטוּרִים. כָּֽפְרוּ חַייָבִין עַל כָּל אַחַת וְאַחַת. הִשְׁבִּיעַ עֲלֵיהֶן חֲמִשָּׁה פְעָמִים בִּפְנֵי בֵית דִּין וְכָֽפְרוּ אֵינָן חַייָבִין אֶלָּא אַחַת. אָמַר רִבִּי שִׁמְעוֹן מַה הַטַּעַם הוֹאִיל וְאֵינָם יְכוֹלִין לַחֲזוֹר וּלְהוֹדוֹת׃ MISHNAH: What is an oath about testimony? One said to witnesses, come and testify for me. “An oath that we do not know testimony for you;” or they said to him, we do not know any testimony for you, “I am asking you to take an oath upon this;” if they said “Amen”, they are liable1Lev. 5:1 requires a variable value sacrifice by a person who heard an imprecation when he had knowledge and refuses to testify. This is read to mean that a person is approached by a party in a civil suit and asked to testify in their behalf. If then either he swears an oath that he will testify in court (“by his own word”) or the party asks him to swear that he will appear (“by the word of others”) while he answers “Amen” but does not utter an oath by himself, he becomes liable for the sacrifice if he reneges on his commitment.. If he asked them five times outside of court to take an oath; when they came to court and admitted it they are not liable29Since refusal of testimony outside of court is irrelevant (Note 6).. If they deny, they are liable for each single one. If he asked them five times in court to take an oath and the refused, they are liable only once. Rebbi Simeon said, what is the reason? Because they cannot come back and admit30Since the courts operate on the principle that a witness can testify only once, i. e., he cannot change his testimony, after a first refusal in court the witness would not be permitted to change his statement. The additional oaths put on the witnesses are pointless; the court should prohibit them. In the language of the Babli, כֵּיוָן שֶׁהִגִּיד אֵינוֹ חוֹזֵר וּמַגִּיד “after he told, he does not return to tell”..
הלכה: שְׁבוּעַת הָעֵדוּת כֵּיצַד כול׳. נֶפֶשׁ נֶפֶשׁ. מַה לְהַלָּן מִפִּי עַצְמוֹ אַף כָּאן מִפִּי עַצְמוֹ. מַה כָּאן מִפִּי אֲחֵרִים אַף לְהַלָּן מִפִּי אֲחֵרִים. רִבִּי מֵאִיר דָּרַשׁ גְּזֵירָה שָׁוָה הָאֲמוּרָה בָהּ. מַה מִפִּי עַצְמוֹ שֶׁנֶּאֱמַר לְהַלָּן חוּץ לְבֵית דִּין אַף מִפִּי עַצְמֹו שֶׁנֶּאֱמַר כָּאן חוּץ לְבֵית דִּין. וְרַבְּנִן דָּֽרְשֵׁי גְּזֵירָה שָׁוָה הָאֲמוּרָה בָהּ. מַה מִפִּי אֲחֵרִים שֶׁנֶּאֱמַר לְהַלָּן בְּבֵית דִּין אַף מִפִּי אֲחֵרִים שֶׁנֶּאֱמַר כָּאן בְּבֵית דִּין. HALAKHAH: “What is an oath about testimony,” etc. A person, a person31A comparison of Lev. 5:1 about oaths concerning testimony and 5:21 about the person accused of larceny who swears falsely in purgation by oath; cf. Chapter 3:12, Note 165. The parallel use of identical terms is an equal cut which allows transfer of rules from one occurrence to the other.. Since there it is from his own words, also here from his own words. Since here it is from others’ words, also there it is from others’ words32In v. 5:1 the potential witness hears the sound of an imprecation; others formulate the oath to which he is asked to assent. In 5:21 he himself formulates the oath to deny a deposit, or a loan, or robbery. The equal cut allows one to transfer one situation to the other; oaths about testimony may be formulated by the potential witness himself; oaths of a person accused of larceny may be formulated by the aggrieved party.. Rebbi Meїr explains the equal cut which was said here: Since there it is said about his own words, so also here about his own words. Also the rabbis explain the equal cut which was said here. Since others’ words said there are in court, also others’ words said here are in court33This paragraph refers to the disagreement between R. Meїr and the rabbis in Mishnah 1.
The formulation here presupposes that one knows what was explained elsewhere about interpretation of equal cuts [Yebamot11:1 Notes 30,34 (Sanhedrin9:1); Chapter 5:2]. R. Meїr holds that the laws to be transferred are what can be read off the corresponding verses; the rabbis transfer laws only in the context of the verses on both sides.
Verse 5:21 reads, to deny a deposit … and he swears to a lie; it is understood that this creates guilt whether or not it was before a court. But testimony is before a court; therefore v. 5:1 only speaks of guilt incurred in a court trial. R. Meїr holds that an oath formulated by another person following the situation of v. 1 transferred to v. 21 cannot create liability for a sacrifice outside of court, but an oath pronounced by himself (v. 21) always creates such a liability. The rabbis hold that while we accept that the equal cut shows that oaths formulated by himself are covered by v. 1, the context of that verse forces the conclusion that one refers to court proceedings only..
רִבִּי יִרְמְיָה בָעֵי. קָרוֹב מִפִּי עַצְמוֹ בִשְׁבוּעַת הָעֵדוּת מָהוּ שֶׁיְּהֵא חַייָב. נִישְׁמְעִינָהּ מִן הָדָא. הוֹאִיל וְלֹא לָֽמְדוּ מִפִּיו מִשְּׁבוּעַת הָעֵדוּת אֶלָּא מִשְׁבוּעַת הַפִּקָדוֹן. מַה לְהַלָּן קְרוֹבִין חַייָבִין אַף כָּאן כֵּן. אָמַר רִבִּי יוֹסֵי. קְרוֹבִין שֶׁכָּאן לְמֵידִין מִקְּרוֹבִין שֶׁלְּהַלָּן. Rebbi Jeremiah asked: Is a relative liable for an oath about testimony formulated by himself? Can we hear it from the following: since they inferred formulation by himself for an oath about testimony only from oaths about deposits, and since there relatives are liable, so they also are here34This question makes sense only according to R. Meїr who disregards context. Relatives are barred as witnesses and judges; they are not barred as claimants. If somebody embezzled the property of a relative, that relative can go to court. Therefore, oaths about deposits can be sworn to relatives. Would R. Meїr agree that oaths about testimony, even though they cannot be enforced in court, create liabilities for sacrifices?? Rebbi Yose said, can relatives here be inferred from relatives there35Even R. Meїr will agree that an equal cut allows one to transfer only rules that make sense in the new context. Since oaths about testimony are void among relatives, they may create liabilities for “vain” oaths but no liability for variable sacrifices.?
רִבִּי יוּדָן קַפּוֹדַקָּייָא בָעֵי. הִשְׁבִּיעַ עָלָיו חֲמִשָּׁה פְעָמִים מִפִּי עַצְמוֹ בְבֵית דִּין שֶׁמָּא אֵינוֹ חָייָב עַל כָּל־אַחַת וְאַחַת. אָמַר רִבִּי יוֹסֵי. וְלֹא מַתְנִיתָה הִיא. אָמַר רִבִּי שִׁמְעוֹן. מַה טַעַם. מִפְּנֵי שֶׁאֵינָן יְכוֹלִין לַחֲזוֹר וּלְהוֹדוֹת׃ וְכָאן הוֹאִיל וִיכוֹלִין לַחֲזוֹר וּלְהוֹדוֹת חַייָבִין בְּכָל־אַחַת וְאַחַת. Rebbi Yudan the Cappadocian asked: He made him swear five times by his own formulation before the court: would he not be liable for each instance separately? Rebbi Yose said, is this not the Mishnah: “Rebbi Simeon said, what is the reason? Because they cannot come back and admit30Since the courts operate on the principle that a witness can testify only once, i. e., he cannot change his testimony, after a first refusal in court the witness would not be permitted to change his statement. The additional oaths put on the witnesses are pointless; the court should prohibit them. In the language of the Babli, כֵּיוָן שֶׁהִגִּיד אֵינוֹ חוֹזֵר וּמַגִּיד “after he told, he does not return to tell”.?” But here, since they can come back and admit, they are liable for each single instance36Since it is his own oath, it is not testimony and not under the rule that nobody can testify twice in the same case..
רִבִּי יִרְמְיָה בָעֵי. הִשְׁבִּיעַ עָלָיו חֲמִשָּׁה פְעָמִים מִפִּיו וְחָזַר וְהִשְׁבִּיעוֹ חֲמִשָּׁה פְעָמִים מִפִּי אֲחֵרִים מָהוּ. מֵאַחַר דְּרִבִּי מֵאִיר עֲבַד מִפִּיו כְּבֵית דִּין מָהוּ שֶׁיִּקְבְּעֵם לְקָרְבָּן וּלְחַייְבֵם בָּרִאשׁוֹנָה בְּלֹא תְבִיעָה. ייָבֹא כְהָדָא. מָה אַתְּ בָּא אַחֲרֵינוּ. שְׁבוּעָה שֶׁאֵין אָנוּ יוֹדְעִין לָךְ עֵדוּת. יְהוּ חַייָבִין. תַּלְמוּד לוֹמַר. וְשָֽׁמְעָה֙ ק֣וֹל אָלָ֔ה. אֵת שֶׁשּׁוֹמֵעַ קוֹל חַייָב. יָֽצְאוּ אֵילּוּ שֶׁאֵין שׁוֹמְעִין קוֹל. מִפִּיו בְּקַרְקָעוֹת מָהוּ שֶׁיְּהֵא חַייָב. מִפִּיו בִּקְנָסוֹת מָהוּ שֶׁיְּהֵא חַייָב. מִפִּיו מָהוּ שֶׁיְּהֵא חַייָב בְּקָרְבָּן עוֹלֶה וְיוֹרֵד. Rebbi Jeremiah asked: If he made him swear five times in his own words and let him swear five times by the mouth of others, what37Again this is a question following R. Meїr. It is clear that the demand that they answer to an oath formulated by the person who wants to force testimony must be made in court. Therefore, one has to assume that the first five oaths were made outside of court. Then they are not subject to the rule that there can be only one testimony. The next question is about the status of an oath of denial of knowledge before the other even had asked for their testimony.? Since Rebbi Meїr considered “in his own words” as if in court, would they determine the sacrifice on the first occasion, even without request? It should come like the following:38Cf. Tosephta 2:11 (Babli 31b). The baraita is formulated independently from the Babylonian Tosephta. “Why do you go after us? An oath that we do not know any testimony relevant for you. Should they be liable? The verse says, and he heard the voice of an imprecation39Lev. 5:1.. Only one who hears an imprecation40The Tosephta states clearly, “they are not liable unless he requested [the testimony]”.. This excludes those who did not hear a voice.” Would he be liable from his own mouth for real estate41All examples in Lev. 5:21–22 (a deposit, a loan, extortion and robbery, a find) refer to monetary claims about movables. Since there can be no sacrifice for an oath about deposits relating to real estate, one might argue that there can be no sacrifice for an oath about testimony involving real estate, asserted in Tosephta 4:1.? From his own mouth would he be liable for fines42These fines are biblically imposed for misdeeds. Whether there can be an oath about these is in dispute between the majority and R. Simeon, Mishnah 5:6.? From his own mouth would he be liable for a variable value sacrifice43From the equal cut (Note 32) we know that for a false oath regarding testimony formulated by the potential witness he is liable for a sacrifice. Is that the variable value sacrifice for a false oath regarding testimony or a fixed value sacrifice required for a false testimony about deposits??
רִבִּי בָּא רַב יְהוּדָה בְשֵׁם רַב. בְּשׁוֹגֵג בְּקָרְבָּן בְּמֵזִיד בְּקָרְבָּן. אֲבָל אָמַר. סָבוּר הָיִיתִי שֶׁאֵין שְׁבוּעָה זוֹ. מוּתָּר. תַּנֵּי חִזְקִיָּה. כָּל־מָקוֹם שֶׁנֶּאֱמַר בַּתּוֹרָה חֵט סְתָם אַתּ תּוֹפֵשׂ הַזָּדוֹן כִּשְׁגָגָה עַד שֶׁיּוֹדִיעֲךָ הַכָּתוּב שֶׁהִיא שְׁגָגָה. Rebbi Abba, Rav Jehudah in the name of Rav: in error, a sacrifice; intentional, a sacrifice. But if he said, I was of the opinion that this oath does not exist, he is free44This now refers to Mishnah 2. The only case in which one is not liable is if he was of the opinion that swearing to evade appearing as a witness was not forbidden. Then his action is without criminal intent.. Ḥizqiah stated: At any place where the Torah mentions sin without attribute you include intentional equally with unintentional unless Scripture inform you that it is unintentional45In all cases of purification sacrifices mentioned in Lev. 4 it is emphasized that these apply only to atone for חֵטְא בִשְׁגָגָה “sins in error.” In most cases of reparation sacrifices described in Chapter 5, there is no mention of error. It follows that the word חֵטְא alone covers both intentional and unintentional sins..