Bava Kamma 106aבבא קמא ק״ו א
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
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106aק״ו א
1 א

בפקדון פסול לעדות

but one who denies a claim concerning having taken a deposit is disqualified from bearing witness, because if it is clear that the deposit is in his possession, yet he denies it, he must be lying.

2 ב

והאמר אילפא שבועה קונה שבועה היא דקניא אבל כפירה לא קניא הכא נמי דקיימא באגם

The Gemara raises a further difficulty with regard to Rav Sheshet’s opinion: But didn’t Ilfa say that an oath effects acquisition, meaning that once he testified falsely that he did not become a bailee, the item in question becomes his property, rendering him liable as a robber even for damage or loss resulting from accidents? The Gemara infers: It is the taking of an oath that effects acquisition, but mere denial of having become a bailee does not effect acquisition. The Gemara rejects this distinction: Here too, Ilfa must be referring to a case where the deposit stands in a place not in the bailee’s possession, e.g., a swamp, and as long as he does not take an oath, it can be assumed that his intention is simply to be evasive. But if the animal was standing in his house, then he acquires it as soon as he denies the claim.

3 ג

ואיבעית אימא מאי שבועה קונה כדרב הונא דאמר רב הונא אמר רב מנה לי בידך והלה אומר אין לך בידי ונשבע ואח"כ באו עדים פטור שנאמר (שמות כב, י) ולקח בעליו ולא ישלם כיון שקבלו הבעלים שבועה שוב אין משלם ממון

And if you wish, say instead: What is the meaning of Ilfa’s statement that an oath effects acquisition? It is in accordance with the statement of Rav Huna, as Rav Huna says that Rav said that if one party says: I have one hundred dinars in your possession, and the other party says: You do not have any money in my possession, and the latter took an oath to that effect, and later, witnesses came and testified that his oath was false, he is exempt, as it is stated: “The oath of the Lord shall be between them both, to see whether he has not put his hand unto his neighbor’s goods; and the owner thereof shall accept it, and he shall not make restitution” (Exodus 22:10); teaching that once the owner received an oath, the one who took the oath no longer pays monetary restitution. Ilfa’s statement that an oath effects acquisition means that the bailee will no longer have to pay monetary restitution, and it does not relate to Rav Sheshet’s statement that the bailee becomes responsible for damage resulting from accidents as soon as he denies the claim.

4 ד

גופא אמר רב הונא אמר רב מנה לי בידך והלה אומר אין לך בידי כלום ונשבע ובאו עדים פטור שנאמר ולקח בעליו ולא ישלם כיון שקבלו בעלים שבועה שוב אין משלמין ממון

§ Having mentioned Rav’s ruling, the Gemara addresses the matter itself: Rav Huna says that Rav says that if one party says: I have one hundred dinars in your possession, and the other party says: You do not have any money in my possession, and the latter takes an oath to that effect, and later, witnesses came and testified that his oath was false, he is exempt, as it is stated: “And the owner thereof shall accept it, and he shall not make restitution” (Exodus 22:10); teaching that once the owner received an oath, the one who took the oath no longer pays monetary restitution.

5 ה

אמר רבא מסתברא מילתיה דרב במלוה דלהוצאה ניתנה אבל פקדון ברשותיה דמריה קאי והאלהים אמר רב אפילו בפקדון דכי כתיב קרא בפקדון כתיב

Rava said: Rav’s statement is reasonable in the case of one who denies having taken a loan, which is intended for expenditure. Since the money is no longer in his possession, the Torah exempts him from monetary restitution once he takes an oath. But in the case of one who denies having accepted a deposit, it remains in the owner’s possession and must be returned intact, and it is not considered to be monetary restitution. Rava continues: But, by God, Rav said his statement even in the case of one who denies having accepted a deposit, as when this verse exempting him from payment is written, it is written in the case of one who denies having accepted a deposit.

6 ו

יתיב רב נחמן וקאמר להא שמעתא איתיביה רב אחא בר מניומי לרב נחמן היכן פקדוני א"ל אבד משביעך אני ואמר אמן והעדים מעידים אותו שאכלו משלם את הקרן הודה מעצמו משלם קרן וחומש ואשם

§ The Gemara relates that Rav Naḥman was sitting and saying this halakha. Rav Aḥa bar Minyumi raised an objection to Rav Naḥman from that which was taught in a mishna (108b): If the owner asked the bailee: Where is my deposit, and the bailee said to him: It is lost, and the owner said: I administer an oath to you, and the bailee said: Amen, thereby accepting the oath, and the witnesses testify about the bailee that he consumed the deposit, then he must pay the principal. If he admitted of his own accord that he had taken a false oath, then he must pay the principal and the additional one-fifth payment, and bring a guilt-offering. This indicates that one is required to pay monetary restitution for a deposit even after taking an oath.

7 ז

א"ל רב נחמן הכא במאי עסקינן כגון דנשבע חוץ לב"ד א"ל אי הכי אימא סיפא היכן פקדוני אמר לו נגנב משביעך אני ואמר אמן והעדים מעידים אותו שגנבו משלם תשלומי כפל הודה מעצמו משלם קרן וחומש ואשם ואי סלקא דעתך חוץ לב"ד מי איכא כפל

Rav Naḥman said to him: With what are we dealing here? We are dealing with a case where one takes an oath outside of court, which does not exempt him from paying restitution. Rav Aḥa bar Minyumi said to him: If so, say the latter clause of the mishna: If the owner asked the bailee: Where is my deposit, and the bailee said to him: It was stolen, and the owner said: I administer an oath to you, and the bailee said: Amen, thereby accepting the oath; and the witnesses testify about the bailee that he stole it, he must pay the payment of double the principal. If he admitted of his own accord that he had taken a false oath, then he must pay the principal and the additional one-fifth payment, and bring a guilt-offering. And if it enters your mind that this oath was taken outside of court, is there an obligation of double payment in such a circumstance?

8 ח

א"ל יכילנא לשנויי לך רישא חוץ לבית דין וסיפא בבית דין מיהו שינויא דחיקא לא משנינן לך אידי ואידי בבית דין ולא קשיא כאן בקפץ כאן בשלא קפץ

Rav Naḥman said to him: I am able to answer you by saying that the first clause of the mishna is referring to one who took an oath outside of court, and the latter clause of the mishna is referring to one who took an oath in court, but we will not answer you with a forced answer. Instead, I will explain it in this manner: Both this clause and that clause are referring to an oath taken in court, and it is not difficult. Here, the ruling of the first clause is with regard to one who leaped to take an oath as soon as the other litigant stated his claim, even though the court had not yet required him to do so, which is not considered a full-fledged oath. There, the ruling of the latter clause is with regard to one who did not leap but took an oath only when required by the court.

9 ט

א"ל רמי בר חמא לרב נחמן מכדי דרב לא סבירא לך משכוני נפשך אדרב למה לך אמר ליה לפרושה לדרב דרב הכי מתרץ לה למתניתין

Rami bar Ḥama said to Rav Naḥman: After all, you do not hold in accordance with the statement of Rav; why are you pledging yourself to explain the statement of Rav so that it not be contradicted by the mishna? Rav Naḥman said to him: I said this not to justify Rav’s ruling but to clarify the statement of Rav, as Rav would explain the mishna in this manner, as I did.

10 י

והא רב קרא קאמר אמרי קרא לכל הנשבעין שבתורה נשבעין ולא משלמין הוא דאתא ולקח בעליו ולא ישלם מי שעליו לשלם הוא נשבע

The Gemara asks: But Rav quoted a verse, so how could Rav Naḥman not agree with his statement? The Sages said in response: This verse was not written to teach the ruling of Rav; rather, it comes to teach the halakha that all those discussed in the Torah who are required to take oaths, take oaths and do not pay; as the verse should be interpreted as follows: “And the owner thereof shall accept it, and he shall not make restitution” (Exodus 22:10), teaching that one who has the obligation to pay is the one who takes an oath, and not the one demanding payment.

11 יא

מתיב רב המנונא השביע עליו חמשה פעמים בין בפני ב"ד ובין שלא בפני בית דין וכפר עליו חייב על כל אחת ואחת ואמר ר' שמעון מה טעם הואיל ויכול לחזור ולהודות

Rav Hamnuna raises an objection to Rav’s statement from a different mishna (Shevuot 36b), which states: If an owner requested the return of his deposit and the purported bailee denied having received it, and the owner administered an oath to the bailee about the deposit five times, whether before the court or not before the court, and the bailee denied the claim each time, he is liable for each and every one of the oaths and must pay the additional one-fifth payment and bring a guilt-offering for each one. And Rabbi Shimon says: What is the reason? Since he is able to retract and admit after each oath, at which point he would be liable to pay, therefore each subsequent false oath is a denial of that liability. It can be seen from this mishna that one who admits liability after having taken a false oath is liable to pay, counter to the statement of Rav.

12 יב

והכא קפץ לא מצית אמרת השביע עליו קתני חוץ לב"ד לא מצית אמרת בפני ב"ד קתני

And here, you cannot say that the mishna in Shevuot is referring to a case where the bailee leaped to volunteer his oath, because it teaches explicitly that the owner administered an oath to the bailee about the deposit. And you cannot say that the mishna in Shevuot is referring to a case where the bailee took his oath outside of court, because it teaches explicitly that the halakha applies whether the oath was taken before the court or not before the court.

13 יג

הוא מותיב לה והוא מפרק לה לצדדין קתני השביע עליו חוץ לבית דין ובב"ד קפץ

The Gemara explains: He, Rav Hamnuna, raised the objection and he resolved it: The tanna teaches it disjunctively, i.e., the rulings of the mishna are stated with regard to different circumstances. Where it teaches that the owner administered an oath to the bailee about the deposit, that is referring to outside of court, and when it discusses an oath taken before the court, it is referring to a case where the bailee leaped and volunteered his oath. Therefore, the mishna does not discuss the case with regard to which Rav issued his ruling, where the bailee was forced to take an oath before the court.

14 יד

מתיב רבא בעל הבית שטען טענת גנב בפקדון ונשבע והודה ובאו עדים אם עד שלא באו עדים הודה משלם קרן וחומש ואשם ואם משבאו עדים הודה משלם תשלומי כפל ואשם

Rava raises an objection to Rav’s statement from a baraita: In the case of a homeowner acting as a bailee who falsely claimed, with regard to a deposit, that a thief stole it, and he took an oath to that effect and subsequently admitted that he was lying and that in fact he took the item himself, and witnesses came and testified that the bailee himself indeed took the item, then if he admitted his guilt before the witnesses came and testified, he pays the principal value of the item and the additional one-fifth payment, and he must also bring a guilt-offering. But if he admitted his guilt after the witnesses came and testified, he pays the double payment and brings a guilt-offering. This baraita rules that one who takes an oath is not exempt from payment, counter to the statement of Rav.

15 טו

והכא חוץ לב"ד וקפץ לא מצית אמרת כפל קתני

And here, in this baraita, you cannot say that it is referring to an oath taken outside of court or that he leaped and volunteered his oath, because double payment is taught in the baraita, and one is obligated to pay double payment only when the accused has an oath administered to him before the court.

16 טז

אלא אמר רבא כל הודה לא שנא טוען טענת אבד ולא שנא טוען טענת גנב (נמי) לא אמר רב דהא כתיב והתודה דבעי שלומי קרן וחומש

Rather, Rava said: In any case where one admits to having taken a false oath, there is no difference whether one falsely states the claim that the deposit was lost, and there is no difference whether one falsely states the claim that a thief stole the deposit as well; in these cases, Rav did not say that taking an oath exempts the bailee from restitution, because it is written in the Torah portion discussing a false oath taken with regard to a deposit: “And they shall confess the sin that they performed, and he shall return the principal for his guilt, and he shall add to it one-fifth, and he gives it to the one with regard to whom is guilty” (Numbers 5:7), teaching that anyone who admits to a false oath concerning a deposit is required to pay the principal and the additional one-fifth payment.

17 יז

טוען טענת גנב ובאו עדים נמי לא אמר רב דהא כתיב תשלומי כפל כי קאמר כגון שטוען טענת אבד ונשבע ולא הודה ובאו עדים

The Gemara continues Rava's statement: Additionally, in a case where one falsely states the claim that a thief stole the deposit and takes an oath to that effect and witnesses come and say that he had stolen it, as well, Rav did not say that taking an oath exempts the bailee from restitution, because double payment is written in the Torah (see Exodus 22:8). When he says that taking an oath exempts the bailee from restitution, it is in a case where one falsely states the claim that the deposit was lost and takes an oath to that effect, and did not admit it, and witnesses come and testify that he had stolen it.

18 יח

אזל רב גמדא ואמרה לשמעתא קמיה דרב אשי אמר ליה השתא ומה רב המנונא תלמידיה דרב וידע דאמר רב הודה וקמותיב הודה ואת אמרת הודה לא אמר רב

The Gemara relates that Rav Gamda went and said that halakha before Rav Ashi. Rav Ashi said to him: Now consider: And even Rav Hamnuna, who was Rav’s student and knew that Rav says that one who takes a false oath is exempt from paying restitution even in a case where he admitted it; and Rav Hamnuna therefore challenged him from a mishna that teaches that one is not exempt in a case where he admitted it. And you say that Rav did not say his halakha in a case where one admitted that he took a false oath? Presumably, Rav Hamnuna, as Rav’s student, was aware of the scope of his teacher’s ruling. How, then, can you limit it as being narrower than Rav Hamnuna’s interpretation?

19 יט

אמר ליה רב אחא סבא לרב אשי רב המנונא הכי קא קשיא ליה

Rav Aḥa the Elder said to Rav Ashi: Rav Hamnuna did not raise a difficulty against Rav with regard to the case of one admitting to having taken a false oath, rather, with regard to the case where witnesses came after he took the oath, and this is what is difficult for him: