וכל דדמי ליה:
and any oath that is similar to it, i.e., that is clearly a falsehood, disqualifies one from further oath taking.
היה אחד מהן משחק בקוביא: הא תו למה לי תנא פסולא דאוריית' וקתני פסולא דרבנן:
§ The mishna teaches: If one of the litigants was a dice player, or one who lends with interest, or among those who fly pigeons, or among the vendors of produce that grew during the Sabbatical Year, then the litigant opposing him takes an oath and receives payment of his claim. The Gemara asks: Why do I need these additional examples of a person who is suspect with regard to oath taking? The Gemara explains: The mishna first teaches examples of people who are disqualified by Torah law, and then teaches examples of those who are disqualified by rabbinic law.
היו שניהן חשודין: א"ל רבא לרב נחמן היכי תנן א"ל לא ידענא הלכתא מאי א"ל לא ידענא
§ The mishna teaches: If both litigants were suspect, the oath returned to its place; this is the statement of Rabbi Yosei. Rabbi Meir says: Since neither can take an oath, they divide the disputed amount. Rava said to Rav Naḥman: How is it actually taught? What is Rabbi Yosei’s opinion and what is Rabbi Meir’s opinion? Rav Naḥman said to him: I do not know. Rava asked him: What is the halakha? Rav Naḥman said to him: I do not know.
איתמר אמר רב יוסף בר מניומי אמר רב נחמן ר' יוסי אומר יחלוקו וכן תני רב זביד בר אושעיא ר' יוסי אומר יחלוקו איכא דאמרי תני רב זביד א"ר אושעיא ר' יוסי אומר יחלוקו אמר רב יוסף בר מניומי עבד רב נחמן עובדא יחלוקו:
It was stated that Rav Yosef bar Minyumi says that Rav Naḥman says that Rabbi Yosei says: They divide the disputed amount. And similarly, Rav Zevid bar Oshaya teaches that Rabbi Yosei says: They divide the disputed amount. The Gemara records a slightly different version of this tradition: There are those who say that Rav Zevid teaches that Rabbi Oshaya says that Rabbi Yosei says: They divide the disputed amount. Rav Yosef bar Minyumi said that Rav Naḥman ruled in an actual case that the litigants divide the disputed amount.
חזרה שבועה למקומה: להיכן חזרה א"ר אמי רבותינו שבבבל אמרו חזרה שבועה לסיני רבותינו שבארץ ישראל אמרו חזרה שבועה למחויב לה
§ Rabbi Yosei rules in the mishna that in a case where both sides are suspect and cannot take an oath, the oath returned to its place. The Gemara asks: To where did it return? What is meant by the oath returning to its place? Rabbi Ami said that our Sages in Babylonia say: The oath returned to Sinai, where God administered an oath to the Jewish people that they would keep the mitzvot of the Torah, including the prohibition against robbery. The litigant who is robbing the other will be punished by God, not the court. Our Sages in Eretz Yisrael said: The oath returned to the one who was initially liable to take it, i.e., the defendant, and since he is disqualified from taking an oath, he must pay.
אמר רב פפא רבותינו שבבבל רב ושמואל רבותינו שבארץ ישראל ר' אבא רבותינו שבבבל רב ושמואל דתנן וכן היתומין לא יפרעו אלא בשבועה והוינן בה ממאן אילימא מלוה אבוהון שקיל בלא שבועה ואינהו בשבועה אלא הכי קאמר וכן היתומין מן היתומין לא יפרעו אלא בשבועה
Rav Pappa said that the term: Our Sages in Babylonia, refers to Rav and Shmuel; and the term: Our Sages in Eretz Yisrael, refers to Rabbi Abba. The fact that the term: Our Sages in Babylonia, refers to Rav and Shmuel is as we learned in the mishna (45a): And likewise, orphans may collect a loan with a promissory note inherited from their father only by taking an oath; and we discussed it (see 48a), asking: From whom do they collect a debt by taking an oath? If we say that they collect this way from the borrower, i.e., those who borrowed from their fathers, that would not make sense. Their father would take payment with the promissory note without taking an oath, and they collect only by means of taking an oath? Don’t orphans have privileged status? Rather, this is what the mishna is saying: And even orphans do not collect with their father’s promissory note from the borrower’s orphans, except by means of taking an oath.
ורב ושמואל דאמרי תרוייהו לא שנו אלא שמת מלוה בחיי לוה אבל מת לוה בחיי מלוה כבר נתחייב מלוה לבני לוה שבועה ואין אדם מוריש שבועה לבניו
Rav Pappa continues: And Rav and Shmuel both say that the Sages taught that the lender’s orphans need to take an oath in order to be paid by the borrower’s orphans only when the lender died during the lifetime of the borrower, and the lender’s children had an opportunity to collect directly from the borrower without taking an oath. But if the borrower died during the lifetime of the lender, the lender has already become liable to take an oath to the children of the borrower, since one can collect from orphans only by means of an oath, and a person cannot bequeath an oath, i.e., a debt that requires the taking of an oath in order to be collected, to his children, and no payment is made. The lender’s children cannot take the oath that their father would have taken, that the promissory note has not been paid. The only oath they can take is that their father never told them that it had been paid, and that is insufficient once the father became liable to take an oath. From here it is clear that Rav and Shmuel hold that when no oath can be taken, the oath returns to Sinai, and the court takes no action.
רבותינו שבארץ ישראל רבי אבא דההוא גברא דחטף נסכא מחבריה אתא לקמיה דרב אמי יתיב ר' אבא קמיה אייתי חד סהדא דמחטף חטפא מיניה א"ל אין חטפי ודידי חטפי
The fact that the term: Our Sages in Eretz Yisrael, refers to Rabbi Abba is as the following story illustrates. As there was a certain man who snatched a piece of cast metal from another. The one from whom it was taken came before Rav Ami while Rabbi Abba was sitting before him, and he brought one witness who testified that the other man did, in fact, snatch it from him. The one who snatched it said to him: Yes, it is true that I snatched it, but I merely snatched that which was mine.
א"ר אמי היכי לידיינו דייני להאי דינא נימא ליה זיל שלים ליכא תרי סהדי נפטריה איכא חד סהדא נימא ליה זיל אישתבע כיון דאמר מיחטף חטפי הוה ליה כגזלן
Rabbi Ami said: How should judges rule in this case? If they were to say to the one who snatched the metal: Go pay for it, that would not be the correct ruling, because there are not two witnesses who saw him snatch it, and the court does not force payment based on the testimony of one witness. If they were to accept his claim and exempt him entirely, that would not be the correct ruling, because there is one witness who testified against him. If they were to say to him: Go take an oath, which is the usual response to counter the testimony of one witness, once he said that he did in fact snatch it, and there is no proof that it is his, he is like a robber, and the court does not allow a robber to take an oath.
א"ל ר' אבא הוה מחויב שבועה ואין יכול לישבע וכל המחויב שבועה ואינו יכול לישבע משלם
Rabbi Abba said to him: He is one who is liable to take an oath who is unable to take an oath, and anyone who is liable to take an oath who is unable to take an oath is liable to pay. This illustrates that Rabbi Abba holds that the oath returns to its place, i.e., to the defendant, who is disqualified from taking oaths, and that consequently he must pay.
אמר רבא כוותיה דרבי אבא מסתברא דתני רבי אמי (שמות כב, י) שבועת ה' תהיה בין שניהם ולא בין היורשין היכי דמי
Rava said: It stands to reason that the halakha is in accordance with the opinion of Rabbi Abba; as Rabbi Ami teaches this baraita: The verse states that “the oath of the Lord shall be between them both” (Exodus 22:10), but not between their heirs. What are the circumstances in which one would be liable to take an oath, but his heirs would be exempt?
אילימא דאמר ליה מנה לאבא ביד אביך ואמר ליה חמשין אית ליה וחמשין לית ליה מה לי הוא ומה לי אבוהא
If we say that it is where the lender’s son said to the borrower’s son: One hundred dinars that belonged to my father were in the possession of your father, as a loan, and you must repay me, and the borrower’s son said to him: He had a debt of fifty, and the other fifty he did not have to pay him, i.e., he did not owe it, that is difficult. Under these circumstances, what does it matter to me if it is he, the borrower’s heir, or his father, the original borrower? Since the son is admitting that he owes part of the money and denying the rest with certainty, he is liable to take an oath, just like his father would have been.
אלא לאו דאמר ליה מנה לאבא ביד אביך אמר ליה חמשין ידענא וחמשין לא ידענא
Rather, is it not that the lender’s son said to the borrower’s son: One hundred dinars that were my father’s were left in the possession of your father, and you must repay me, and the borrower’s son said to him: Concerning fifty dinars, I know that my father owed them, but I do not know anything about the other fifty dinars.