משנה: שְׁבוּעַת הַפִּקָּדוֹן נוֹהֶגֶת בָּאֲנָשִׁים וּבַנָּשִׁים וּבָֽרְחוֹקִים וּבַקְּרוֹבִים בַּכְּשֵׁירִים וּבַפְּסוּלִים בִּפְנֵי בֵית דִּין וְשֶׁלֹּא בִפְנֵי בֵית דִּין מִפִּי עַצְמוֹ. וּמִפִּי אֲחֵר אֵינוֹ חַייָב עַד שֶׁיִּכְפּוֹר בּוֹ בְּבֵית דִּין דִּבְרֵי רַבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים בֵּין מִפִּי עַצְמוֹ בֵּין מִפִּי אֲחֵרִים כֵּיוָן שֶׁכָּפַר בּוֹ חַייָב. וְחַייָב עַל זְדוֹן שְׁבוּעָה וְעַל שִׁגְגָתָהּ עִם זְדוֹן הַפִּיקָּדוֹן וְאֵינוֹ חַייָב עַל שִׁגְגָתוֹ. וּמֶה חַייָב עַל זְדוֹנָהּ אָשָׁם בְּכֶסֶף שְׁקָלִים׃ MISHNAH: An oath about a deposit applies to men and women, unrelated persons and relatives, qualified and disqualified persons, before a court or out of court, from his own mouth1In this respect the oath about money matters is equal to the rules of a blurted oath (Mishnah 3:11–12), not to the oath of testimony. All restrictions about women, relatives, and disqualified persons, refer only to witnesses and judges, not to parties in adversary proceedings.. From the mouth of another he is liable only if he denies in court, the words of Rebbi Meїr. But the Sages say, whether by his own mouth or the mouth of others, from the moment that he denies, he is liable. He is liable for intent about the oath, or error about it with intent about the deposit, but he is not liable for error about the latter2The sacrifice prescribed in Leviticus.5.25">Lev. 5:25 (in addition to restitution of 125% of the amount embezzled) is due if the false oath was intentional, or if the oath was in error but the embezzling was intentional; it is not due if the oath was factually false because the maker of the oath did not realize that he had the deposit, or forgot about it. The Babli (but not Maimonides) reads the last word as שִׁגְגָתָהּ referring to the oath; he is not liable if he was ignorant of the fact that false oaths are forbidden and that they trigger liability for a sacrifice.. What is he liable for in case of intentional violation? A reparation offering in the value of two Šeqalim3Leviticus.5.25">Lev. 5:25 prescribes a reparation offering “in its value”; the value defined in 5:15 as “Šeqalim”. An indeterminate plural always means 2 (Shevuot 4:1:2" href="/Jerusalem_Talmud_Shevuot.4.1.2">Chapter 4, Note 8). The biblical Šeqel is the traditional “King’s weight” of about 12g silver, about equal to the tetradrachma of the early Principate, and double the rabbinic Šeqel of two zuz (cf. Kiddushin 1:3:4" href="/Jerusalem_Talmud_Kiddushin.1.3.4">Qiddušin 1:1, Note 122.) Sifra Ḥova (Wayyiqra 2) Parashah 13(14)..
הלכה: שְׁבוּעַת הַפִּיקָּדוֹן כול׳. תַּנֵּי. מִפִּי עַצְמוֹ בִשְׁבוּעַת הָעֵדוּת מָהוּ לִהִיוֹת כְּאָלָה. מִפִּי עַצְמוֹ בִשְׁבוּעַת הַפִּיקָּדוֹן מָהוּ לִהִיוֹת כְּאָלָה. אָמַר רִבִּי יּוֹסֵי. מִכֵּיוָן דִּכְתִיב נֶפֶשׁ נֶפֶשׁ כְּמַה שֶׁכּוּלְּהוֹן כָּאן וְכוּלְּהוֹן כָּאן. אָמַר רִבִּי מָנָא. אָלָה בְבֵית דִּין מַחֲלוֹקֶת רִבִּי מֵאִיר וַחֲכָמִים. וְכִחֵ֨שׁ בַּֽעֲמִית֜וֹ. לִכְשֶׁיָּצָא ווִידּוּיוֹ בִשְׁבוּעָה. פְּרָט לִמְכַחֵשׁ בְּאֶחָד הַשּׁוּתָפִין. פְּרָט לִמְכַחֵשׁ בְּעֵדִים וּבִשְׁטָר. אָמַר רִבִּי יּוֹסֵי. הָדָא אָֽמְרָה. שְׁנַיִם שֶׁלָּווּ מֵאֶחָד אַף עַל גַּב דְּלָא כָֽתְבִין. אַחֲרָאִין וְעָֽרְבָאִין זֶה לָזֶה. אַחֲרָאִין וְעָֽרְבָאִין זֶה לָזֶה. וְלָא עָֽבְדִין כֵּן. שְׁנַיִם שֶׁהִפְקִידוּ כְּאֶחָד וּבִיקֵּשׁ הָאֶחָד לִיטּוֹל שֶׁלּוֹ אֵין שׁוֹמְעִין לֹו. וְיֵעָשֶׂה כְכוֹפֵר בְּחֶלְקוֹ וִיהֵא חַייָב. אֶחָד שֶׁהִפְקִיד לִשְׁנַיִם. כָּפַר בּוֹ זֶה חַייָב. כָּפַר בּוֹ זֶה חַייָב. הִפְקִיד לָהֶם שָׁוֶה פְרוּטָה. לֹא נִמְצָא מֵבִיא קָרְבָּן עַל חֲצִי פְרוּטָה. וּמָה כָא. אִילּוּ נִשְׁבָּע וְנִשְׁבָּע וְנִשְׁבָּע שֶׁמָּא אֵין מֵבִיא קָרְבָּן עַל חֲצִי פְרוּטָה. תַּמָּן כָּל־שְׁבוּעָה חָלָה עַל שָׁוֶה פְרוּטָה. הָכָא אֵין שְׁבוּעָה חָלָה עַל שָׁוֶה פְרוּטָה. HALAKHAH: “An oath about a deposit,” etc. 4For this and part of the next Halakhah there exists a rudimentary Genizah fragment edited by L. Ginzberg, Yerushalmi Fragments, New York 1909, pp. 285–286 (G). It was stated: Is an oath in his own formulation of an oath of testimony like an imprecation; in his own words is an oath about a deposit like an imprecation5It was established in Shevuot 4:10:5" href="/Jerusalem_Talmud_Shevuot.4.10.5">4:14 (Note 119) that for requests of testimony imprecations without oaths and oaths without imprecations trigger liabilities for a sacrifice. As noted before, the natural setting of an oath or imprecation for testimony is one formulated by the claimant; for oaths about deposits it is one formulated by the defendant. No imprecations are mentioned in connection with oaths about deposits. The unresolved questions are whether an imprecation formulated by the potential witness triggers liability and what the status is of an imprecation substituting for an oath is a case of disputed monetary claim?? Rebbi Yose said, since it is written “a person, a person6Leviticus.5.1">Lev. 5:1; cf. Shevuot 4:6:2" href="/Jerusalem_Talmud_Shevuot.4.6.2">Chapter 4:3 Note 31.”, everything is here and everything is there. Rebbi Mana said, an imprecation made in court is the topic of disagreement between Rebbi Meїr and the Sages7Not only oaths; Mishnah 4:1.. 8The following is also quoted by Alfassi (Shevuot Chapter 5) and is the subject of extensive commentaries by Nachmanides, R. Nissim Gerondi, and Rosh. Cf. Shevuot.36a">Babli 36a.He lied to his fellow man9Leviticus.5.21">Lev. 5:21., if his confession was eliminated by the oath10Liability for a sacrifice is created only if the false oath saves the defendant from a sentence which would obligate him to pay the claimant. Cf. S. Liebermann, Review of S. Asaph מספרות הגאונים, Tarbiz 5(1934) pp. 395–400.. It excludes one who lied to one of partners; it excludes one who lied where there are witnesses and a document11Swearing falsely to only one of the partners has no monetary consequences as long as the defendant did not also lie to the other partners. Swearing falsely about an obligation which can be proven by witnesses or documents is pointless.. Rebbi Yose said, this implies that if two people took a loan from one person, even if they did not write “we are responsible and warrantors for one another”, they are responsible and warrantors for one another; but one does not act on this12The implication that rules governing one debtor and two creditors can be applied to one creditor and two debtors is not found in the Babli but accepted by Rif (§1043) and all subsequent codifiers; the note that one does not act on this, but writes joint liabilities in all contracts, was not accepted by Rif and his successor Josef ibn Migash (cf. I. Tashma and H. Ben Shammai, Kobez al Yad 8(18) Jerusalem 1975 p. 179 Shevuot 5:1:2" href="/Jerusalem_Talmud_Shevuot.5.1.2">Note 10).. If two made a joint deposit and one came to retrieve his property, one does not listen to him13Without explicit authorization by one of the depositors to the trustee, a joint deposit may be returned only to the joint depositors.. Should he not be treated as denying his part and be liable? If one made a deposit with two people. If one denied it, he is liable. If the other denied it, he is liable14If both trustees denied the existence of the deposit at different times, both are liable.. If the deposit was worth one peruṭa, does this not result in each of them bringing a sacrifice for half a peruṭa15A peruṭa (a Hasmonean coin of about 2g bronze) is the smallest amount for which one may go to court. (Half- peruṭa coins have been found.) Since a half-peruṭa cannot be the subject of a law suit, it cannot be the cause of liability for any kind of oath. Should not the sacrifice for an oath about a half-peruṭa be forbidden as false dedication?? What here? If one would swear, and swear, and swear, would he not bring a sacrifice for half a peruṭa16Since he has to bring three sacrifices for oaths about one peruṭa, each one is for a third of a peruṭa.? There, each oath refers to a peruṭa’s worth. Here no oath refers to a peruṭa’s worth17The previous argument is wrong. Multiple infractions all concerning the same peruṭa need separate atoning. A deposit given to two people jointly must be at least two peruṭas worth to trigger liabilities for sacrifices..
רִבִּי לָא וְרִבִּי יוֹחָנָן וְרֵישׁ לָקִישׁ תְּרֵיהוֹן אָֽמְרִין. לֵית כָּאן עֵדִים. כְּמִי שֶׁיָּצָא וִידּוּיוֹ בִשְׁבוּעָה. לָמָּה. מִשׁוּם שֶׁמְצוּיִין לָמוּת. וּשְׁטָר אֵינוֹ מָצוּי לְאַבֵּד. הֲוֵי לֵית טַעֲמָא אֶלָּא מִשׁוּם שֶׁמְצוּיִין לְשַׁכֵּחַ עֵדוּתָן. תַּמָּן תַּנִּינָן. אֵיכָן שׁוֹרִי. אָמַר לוֹ. אָבַד. מַשְׁבִּיעֲךָ אֲנִי. וְאָמַר אָמֵן. וְעֵדִים מְעִידִין אוֹתוֹ שֶׁאֲכָלוֹ. מְשַׁלֵּם אֶת הַקֶּרֶן. הוֹדָה מֵעַצְמוֹ מְשַׁלֵּם קֶרֶן וָחוֹמֶשׁ וְאָשָׁם. מַתְנִיתִין בְּשֶׁאֵין יוֹדֵעַ בָעֵדִים. אֲתַא מֵימַר לָךְ וַאֲפִילוּ יוֹדֵעַ בְּעֵידָיו. אָמַר רִבִּי יוֹסֵי. וּמַתְנִיתָה אָֽמְרָה כֵן. הָיוּ שְׁתֵּי כִיתֵּי עֵדִים. כָּֽפְרָה רִאשׁוֹנָה וְאַחַר כָּךְ כָּֽפְרָה שְׁנִייָה. שְׁתֵּיהֶן חַייָבוֹת. נִיחָא רִאשׁוֹנָה מִתְחַייֶבֶת. שְׁנִייָה לָמָּה. לָאו מִשּׁוּם שֶׁמְצוּיִין לְשַׁכֵּחַ עֵדוּתָן. Rebbi La: Both18Probably one should read ר׳ יוחנן instead of ור׳ יוחנן and delete the first “both”. G is of no help. The Shevuot.37b">Babli (37b) only quotes R. Joḥanan. Rebbi Joḥanan and Rebbi Simeon ben Laqish both are saying, there is no ”witnesses “here19While they agree that an oath denying any documentary obligation is futile, they hold that a debt proven only by the oral testimony of witnesses is difficult to enforce and, therefore, the debtor may see a chance to evade monetary obligations by a false oath. In the baraita quoted at the start of the preceding paragraph the mention of “witnesses” should be deleted.. Why? Because they might die. But might not a document be lost? Therefore, the reason can only be that they might forget their testimony20There are several reasons why testimony by witnesses alone may be impossible; this might encourage false oaths.. There, we have stated21Mishnah 8:4.: “Where is my ox? He told him, it is lost. I want you to swear, he said, Amen. But witnesses testify that he ate it. He has to pay the value. If he confessed himself, he has to pay the value, and the fifth, and the reparation sacrifice22The second person has accepted to watch over the ox without being paid and without having the right to use the ox for work. If anything happens to the ox except cases of gross negligence, the trustee does not have to pay. The moment he uses the ox for his own purposes, he becomes liable for damages. Since he swears falsely that it was lost, he swears falsely for monetary gain and becomes liable. (Had he claimed that the ox was stolen, he would have had to pay the thief’s fine in addition to paying for the ox.) If he confesses in order to clear his conscience, he becomes eligible for atonement of his sin which is effected by paying an additional fifth (from above, i. e., a quarter from below) and a sacrifice in the value of 2 šeqalim..” The Mishnah [applies] if he does not know that there are witnesses. He comes to tell you, even if he knows that there are witnesses23The formulation of the Mishnah shows clearly that there were witnesses available when he swore falsely. Nevertheless, he has to bring a sacrifice if he confesses. Why do R. Joḥanan and R. Simeon ben Laqish have to formulate a statement which clearly is implied by a Mishnah? The answer is that the Mishnah may be interpreted that the trustee swore falsely in the belief that there were no witnesses; he swore for monetary gain. The Amoraic statement adds that even had the trustee known of the existence of witnesses, only they were not present at the moment of his oath, it still is an oath for monetary gain since the witnesses might forget their testimony in the meantime. The formulation “he”, not “they”, in the last sentence may support the reading of the Babli which only mentions R. Joḥanan.. Rebbi Yose said, the Mishnah says so: “If there were two groups of witnesses, if the first group reneged and after this the second, both are liable.24Mishnah 4:4.” One understands that the first group becomes liable25This text is very difficult and all commentators and editors follow the Shevuot.32b-33a">Babli (32b/33a) and switch the places of “first” and “second”, for the reasons explained in Shevuot 4:3:4" href="/Jerusalem_Talmud_Shevuot.4.3.4">Halakhah 4:4, Note 54. But this seems to be excluded by the text of G, which becomes the more credible as its scribe clearly did not understand the text since he misread מצוּיִין “being apt to” as מצֻוִּים “being commanded”.
Therefore one is forced to explain that the first group clearly violates their oath of testimony by reneging on it. The question is why the second group is not freed from their obligation by the first since strictly speaking only two witnesses are needed by biblical standards; any additional witnesses appear superfluous. The answer is that additional witnesses never are superfluous since any witness may forget, if not the whole incident so some detail which might invalidate his testimony in cross examination. One knows that the testimony of a group of witnesses is valid only after it was accepted in court.. Why the second? Not because they might forget their testimony? 26Added from G; cf. the preceding Note.[Here also, because they (are commanded) to forget their testimony.]
וְכִ֥חֶשׁ בָּהּ֭. וְלֹא בוֹ. בֶּן עַזַּאי אוֹמֵר. שָׁלֹשׁ אֲבֵידוֹת הֵן. בְּיוֹדֵעַ בָּהּ וּבְמוֹצְאֶיהָ. בָּהּ וְלֹא בְּמוֹצְאֶיהָ. לֹא בָהּ וְלֹא בְּמוֹצְאֶיהָ. רִבִּי חוֹנְיָה בְשֵׁם רִבִּי יִרְמְיָה. כּוּלְּהוֹן לִפְטוֹר. רִבִּי יַעֲקֹב בַּר אָחָא בְשֵׁם רִבִּי יוֹסֵי. לֵית כֵּן. רִבִּי יוֹסֵי בָעֵי. וִיהֵא כֵן הַפְּטוֹר. אָמַר רִבִּי מָנָא. לֵית כֵּן מִשָּׁלֹשׁ אֲבֵידוֹת. בְּיוּדֵעַ בָּהּ וּבְמוֹצְאֶיהָ. בָּהּ וְלֹא בְּמוֹצְאֶיהָ. לֹא בָהּ וְלֹא בְּמוֹצְאֶיהָ. בָּהּ וּבְמוֹצְאֶיהָ נָן קַייָמִין. אֶלָּא שֶׁמְכַחֵשׁ בָּהּ וּבְמוֹצְאֶיהָ. בְּמוֹצְאֶיהָ וְלֹא בָהּ. בָּהּ וְלֹא בְּמוֹצְאֶיהָ. כֵּינִי מַתְנִיתַה. בָּהּ וּבְמוֹצְאֶיהָ. He denied it27Leviticus.5.22">Lev. 5:22., not him28In Sifra Ḥova (Wayyiqra 2) Pereq 22(6) more in detail: “About it but not about its finder.” This Tanna and both Talmudim reject the understanding of the verse as given in the Targumim, that the person swearing had found the lost property and now denies it. This would be covered by “robbery” listed in v. 21. Rather it is that the person searching for his lost property, such as his donkey mares, asks a person whether he knows either of the property or of the person who might have taken it. If he under oath falsely denies any knowledge, according to this Tanna be becomes liable for a sacrifice only if he wrongly denies knowledge about the property, not about the person who might have appropriated it.
The big question then becomes, why should the person asked for testimony be liable for anything since by necessity he is a single person and the testimony of a single person cannot force a judgment. As Ravad explains in his Commentary to Sifra, this argument would be unconditionally valid only for oaths about testimony, not for oaths about causing monetary loss. His scenario is, e. g., that the lost animal was standing on another person’s property. The original owner took it but now the person from whom it was taken claims ownership and wants it back. The second person agrees that he found the animal but he disputes the fact that it is the animal which had belonged to the first. In this situation, testimony of one witness about ownership of the animal is sufficient for a judgment in favor of the first person since it is not a judgment to transfer property but to confirm an existing status. On the other hand, testimony that the second person took possession of some lost property but which failed to identify the property is worthless and its denial cannot trigger any liability by the potential witness.. 29Sifra Ḥova (Wayyiqra 2) Pereq 22(6), Babli Bava qamma 105b. In the Babli: “Three kinds of oaths [about lost property.]”“Ben Azzai says, there are three kinds of lost properties. One who knows about it and its finder; about it but not about its finder; neither about it nor about its finder.” Rebbi Onias in the name of Rebbi Jeremiah: All of them to relieve from liability30In the Babli, this is attributed to the early Galilean Amora R. Ḥanina.. Rebbi Jacob bar Aḥa in the name of Rebbi Yose: This is not so31In the Babli, this is the authoritative opinion of Samuel.. Rebbi Yose asked, why should it be to relieve from liability? Rebbi Mana said, the three kinds of lost property cannot be “one who knows about it and its finder; about it but not about its finder; neither about it nor about its finder.32As the Babli points out, if somebody swears although he does not not know about the whole affair he swears truthfully and no liability of any kind can arise. In place of “neither about it nor about its finder” one must read “about it and its finder.”” About it and its finder, that is where we hold. But it must be about one who denies [knowledge] about it and its finder; about its finder but not about it; about it but not about its finder33Only the middle clause is in dispute between Ben Azzai and the first Tanna.. So is the baraita: “About it and its finder.”