The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
Shevuot 33a-b: Must a witness know everything about the case?
According to the Mishnah on today’s daf the halakhot of shevuat ha-eidut – the laws governing cases where a person refuses to offer testimony, swearing that he does not have information that would be useful in court – only apply to monetary cases. Thus, were someone to swear that he had no information about whether someone was a kohen or a levi, even if he was lying, the laws of shevuat ha-eidut would not apply.
Several possible sources for this law are mentioned in the Gemara, among them the teaching of Rabbi Yossi ha-Galili, who examines the passage upon which these laws are based. In Sefer Vayikra (5:1) we find that someone who is a witness, that is, he saw an event or knows about it, will be held liable if he does not testify. Rabbi Yossi ha-Galili derives from this that these laws apply only in cases where it is possible that a witness can see without knowing or know without seeing. These criteria can only be met in monetary cases. Only there can we find cases where:
- The witness can know without seeing, e.g. in a case where the defendant admits owing money to the plaintiff, the witness can testify that he heard the admission.
- The witness can see without knowing, e.g. when he sees money being counted out and handed to someone, but he does not know why the transfer is taking place. Is he lending money? Paying off a debt? Paying for a purchase?
This latter case demands explanation, for if the witness only knows that money changed hands but does not know why the exchange was made, how can he testify?
Rashi explains that we are talking about a case where the defendant says: “if so-and-so testifies that he saw you give me money, then I will pay you.” Others object to this explanation, since in such a case the obligation stems more from the defendant’s statement than the actual testimony.
The Ramban and the R”i mi-Gash suggest that we are talking about a case where the defendant denies ever having received any money from the plaintiff, and the testimony of these witnesses will prove that he is a liar and cannot be trusted.
Shevuot 34a-b: How much must the witness see and know?
As we learned on yesterday’s daf the halakhot of shevuat ha-eidut – the laws governing cases where a person refuses to offer testimony, swearing that he does not have information that would be useful in court – only apply to monetary cases. Rabbi Yossi HaGalili derives this from the passage in the Torah (Sefer Vayikra 5:1) where we see that these laws apply only in cases where it is possible that a witness can see without knowing or know without seeing. Such criteria can only be met in monetary cases.
In today’s Gemara, Rav Papa suggests to Abayye that according to Rav Aha there may be cases where we find that witnesses can fulfill the need to know even without seeing, even in cases other than monetary cases. For with regard to a case where we see a camel in heat which becomes violent, should we discover that a different camel was trampled to death we can say with certainty that it was the camel who had been acting strangely who did it. Similarly Rav Aha would rule in a case where we find a person stabbed to death and another standing above him holding the bloody knife, that we can act with certainty and rule that he is the murderer, even if the witness did not see him commit the crime.
The Gemara rejects this assertion, arguing that Rabbi Yossi HaGalili might accept Rav Acha’s ruling, but that we will still be unable to find a case where the witness sees the event but does not know the details in anything but monetary cases. This cannot be the case in capital cases, since the witness may see the murder take place, but he cannot know whether the victim was Jewish or not or whether the victim was healthy or, perhaps, he was a treifah who would not live out the year, and therefore the murderer would not be liable.
Tosafot point out that ordinarily we do not concern ourselves with the unlikely possibility that someone might be a treifah, since the vast majority of people are healthy. They answer that we must be talking about a case where there are two people in front of us and we know that one of them is a treifah. According to the Ramban we are discussing a case where the victim had a clear condition that may, or may not, have made him a treifah.
Shevuot 35a-b: Promises, promises…
According to the Mishnah on today’s daf if someone promises to give his friend a monetary gift, it does not have the same significance as someone who actually owes that amount of money to the person. Therefore, if the individual who claims that he was promised a gift demands that the witnesses to the promise step forward and testify, should the witnesses decline to testify, the halakhot of shevuat ha-eidut – the laws governing cases where a person refuses to offer testimony, swearing that he does not have information that would be useful in court – would not apply.
Essentially, what the Mishnah is teaching – as is noted in the Talmud Yerushalmi – is that a person who makes such a promise retains the right to renege on his promise as long as he has not given the present. The R”i mi-Gash goes so far as to rule that even if a formal kinyan – a formal agreement made with a symbolic act such as a handshake or a symbolic transfer of some item – had been made, the person who made the promise can still back out, since the kinyan was not made on the actual money, rather it referred to the promise itself.
The Tosafot Yom Tov adds that this ruling is true even in a case where the individual to whom the promise was made was a poor person, which may be considered a case where the promise was a promise of tzedakah – charity. Although the Jewish court could step in and obligate him to keep such a promise, nevertheless they can only do so by means of social coercion (e.g. a ban or excommunication), but they cannot actually make use of their judicial powers to confiscate the money from him and give it to the poor man. This shows that the promise does not create an actual monetary obligation.
Shevuot 36a-b: A new chapter, Perek Shevuat ha-Pikadon
The fifth perek of Masechet Shevuot, Perek Shevuat ha-Pikadon, begins on today’s daf. According to the Torah (Sefer Vayikra 5:21-26), if someone has received something to watch and denies having it when the owner asks to get it back, swearing falsely, he will be obligated not only to return the object, but he will also have to pay an additional 20% as a penalty, and bring an asham sacrifice in addition. This law does not apply only to situations of pikadon – when the person was watching the object for his friend, rather it applies to virtually all cases where a person is holding his friend’s property and swears falsely that he is not. In fact, the sacrifice that is brought is referred to as an asham gezeilot – an asham sacrifice brought as atonement for robbery (the laws of this sacrifice and the associated monetary penalty are discussed at length in the seventh perek of Masechet Bava Kamma).
According to the Mishnah, the laws of shevuat ha-pikadon apply to both men and women, whether they are related or not, whether the defendant is someone who is reliable and believed by bet din or not. Rashi, as well as other commentaries, suggest that this list is unnecessary. Given that the halacha discussed here involves someone who denies a monetary obligation it should be obvious that it applies equally to all. They argue that the Mishnah includes this list for stylistic reasons, specifically in order to parallel – or contrast with – the Mishnah at the beginning of the last perek (30a), where we learn that shevuat ha-eidut does not apply to all people equally.
The Tiferet Yisrael, however, suggests that there may be a reason to mention each of these cases specifically. Since in Talmudic times women did not ordinarily control their own finances, I might have thought that a claim against a woman was not a true monetary claim. Regarding relatives, I may have thought that since they were likely in a position to inherit that claimant, perhaps the law should not apply. Finally, I might have thought that those whose oath would not be accepted in court may not be held liable for any oath that they take.
Shevuot 37a-b: A unique Torah law
As we learned on yesterday’s daf according to the Torah (Sefer Vayikra 5:21-26), if someone has received something to watch and denies having it when the owner asks to get it back, swearing falsely, he will be obligated not only to return the object, but he will also have to pay an additional 20% as a penalty, and bring an asham sacrifice in addition.
This Torah law is particularly unusual because these punishments – including the 20% penalty and the asham sacrifice – will be applied even in cases where the perpetrator has taken the false oath on purpose, while sacrifices for atonement are usually brought only when the sin was done accidentally. The Gemara on today’s daf quotes Rav Kahane as asking whether in a situation where all of the requirements were in place for actual punishment – where the witnesses warned the perpetrator that his action is forbidden and that he will be punished for it – will the sacrifice to suffice, or, perhaps it will be replaced by malkot – lashes – that are the ordinary punishment for such an act, or, perhaps we should require both malkot and korban (sacrifice).
Rashi presents a question that is taken up by many of the rishonim – why does the Gemara raise this question here in the case of shevuat ha-pikadon, when a similar question could have been asked in the last chapter with regard to shevuat ha-eidim? When witnesses deny that they know testimony, and take an oath to that effect, they will be obligated to bring a korban shevua – a sacrifice as atonement – even if the false oath that they took was not accidental!
Rashi argues that we cannot construct a case where witnesses will warn someone that they should not deny knowing testimony, since no one can ever be sure whether those people really can or cannot testify.
Tosafot reject this explanation and suggest that the question does not apply in the case of witnesses who swear that they do not know testimony, since those witnesses can always claim that at the moment that they took their oath they forgot that they could be witnesses.
The Ritva adds that while in the case of shevuat ha-eidim the witnesses can never know what the people who are denying their knowledge of testimony are thinking, in the case of shevuat ha-pikadon it is sufficient for the witnesses to say “do not take an oath, since we know that you are holding the other person’s property.”
In any case, the Gemara does not come to a clear conclusion in response to Rav Kahane’s question, and the ruling that remains is that no malkot are given in a case of shevuat ha-pikadon; under all circumstances an asham sacrifice will be brought if someone holding property that belongs to another swears falsely that he does not have it in his possession.
Shevuot 38a-b: In a Jewish courtroom it is the defendant who swears
The sixth perek of Masechet Shevuot, Perek Shevuat ha-Dayanim, begins on today’s daf. The focus of this perek is those oaths that the bet din will impose on a defendant in situations where we do not have two reliable witnesses testifying against him. The most common case of such an oath is when the defendant offers only a partial denial to the claim made against him.
One enigmatic rule in Jewish law is the law that distinguishes between two different responses to an accusation that one person owes money to another. The halakhah is that if the defendant denies it entirely we believe him without requiring him to bring any further proof; if he denies that he owes all of the money, but admits that he owes part of it, then he must pay the amount that he admits to and then take an oath that he does not owe any more.
Why do we trust the individual who denies it all, while making the person who admits that he owes some of the money take an oath?
This question is raised in Masechet Bava Metzia (3a-b), where Rabbah teaches chazaka en adam me’iz panav lifnei ba’al chovo – we work with the assumption that a person will not have the temerity to deny his obligation to the face of the lender. Rabbah explains the thinking of someone who is modeh be-miktzat – who admits to being partially responsible – as follows. Perhaps he really does owe the money, but he does not have enough to pay at this time. Since he cannot face the lender and deny it all, he admits to partial responsibility, assuring himself that when he has the means to pay the full amount he will do so.
Rashi explains that Rabbah’s teaching of hazakah en adam me’iz panav lifnei ba’al chovo is based on the fact that after the lender has done the borrower such a good turn by loaning him money (we must remember that biblical loans do not accrue interest and offer no advantage whatsoever to the lender), the borrower could not possibly deny his obligation. Tosafot and the Ramban argue that Rashi’s explanation cannot be true, because the law applies not only to loans, but also to cases like when the lender is holding collateral and in the face of accusations from the borrower admits to only part of the claim. Their explanation of this halacha is that since chazaka en adam me’iz panav lifnei ba’al chovo a person is unwilling to totally deny a claim in the face of someone who knows the truth.
Shevuot 39a-b: A trick with a stick
The Mishnah (35b) teaches that when the defendant is required to take an oath he is warned that the oath is not his own, but is a biblical requirement made by God and carried out by the court. The Gemara asks why such a warning is necessary, and explains that it is because of kanya d’Rava – Rava‘s stick.
The story is told at length in Masechet Nedarim (25a).
Two people were arguing. One claimed that he had lent money to the other; the second one claimed that the loan had been repaid. Rava ruled that the borrower had to swear that he had repaid the money. The borrower went home, hollowed out a stick, and placed all of the money that he owed into the stick. He returned to the courtroom leaning on the stick and volunteered to hold a sefer Torah and swear that the money had been returned. He asked the lender to hold the stick, ostensibly so that he could hold the Torah. Taking the Torah in his hand he said, “I have returned all of the money that I borrowed from this man; he now has them in his possession.” The lender – knowing that this claim was untrue – became angry and in his anger broke the stick that was in his hand. It then became clear that the oath taken by the borrower was technically true, even though it was an attempt at trickery.
The Geonim explain that only in the case of an oath that is required by the Torah would a person hold the Torah in his hands while swearing; in cases where the oath is Rabbinic in nature, there is no need to hold a Torah. Thus, in our case, it would appear that there was no real need for the borrower to hold a Torah while swearing (someone who is a kofer ba-kol – one who denies that he owes anything – is only obligated to swear on a Rabbinic level).
The Me’iri explains simply that although he was not personally obligated to hold a sefer Torah in his hands, he wanted to do so, since he needed an excuse to hand the walking stick to the lender.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.