Babylonian Talmud: Tractate Baba Kamma

Folio 107a

There is here an 'interweaving of sections',¹  as the words, this is it written here²  have reference to loans.³  But why a loan [in particular]? In accordance with Rabbah, for Rabbah stated:⁴  'On what ground did the Torah lay down⁵  that he who admits a part of a claim has to take an oath?⁶  Because of the assumption that no man is so brazen-faced as to deny [outright] in the presence of his creditor⁷  [the claim put forward against him].⁸  It could therefore be assumed that he⁹  was desirous of repudiating the claim altogether, and the reason that he did not deny it outright is¹⁰  because no man is brazen-faced [enough to do so].¹¹  It may consequently be argued that he was on this account inclined¹²  to admit the whole claim; the reason that he denied a part was because he considered: Were I to admit [now] the whole liability, he will soon demand the whole claim from me; I should therefore [better] at least for time being get rid of him,¹³  and as soon as I have the money will pay him.¹⁴  It was on account of this that the Divine Law¹⁵  imposed an oath upon him so that he should have to admit the whole of the claim.¹⁶  Now, it is only in the case of a loan that such reasoning could apply.¹⁷  whereas regarding a deposit the bailee would surely brazen it out [against the depositor].¹⁸

Rami b. Mama learnt: The four bailees

1. I.e., an interpolation of another passage; Ex. XXII, 8, v. n. 7.
2. Confining the imposition of the oath to cases of part-admission.
3. According to Rashi a.l. the phrase in Ex. XXII, 8 confining the oath to part. admission referred not to v. 6 but to 24; v. also Sanh. (Sonc. ed.) P. 5, n. 3; regarding deposits there would thus he an oath even in cases of total denial. For the interpretation of R. Tam, cf. Tosaf. a.l. and Shebu. 45b. The accepted view is expounded by Riba and Rashb., a.l. that the condition of part admission is attached to all cases of pecuniary litigation including deposits, providing the defences were such as would avail also in cases of loans, such as e.g.. the denial of the contract or a plea of payment and restoration; v. also Maim. Yad., Sekiroth, 11, 11-12; Tur. H.M. 296, 2. The meaning in the Talmudic text here would therefore be 'ascribed as dealing with the defences of loans.' For regarding the specific defences in the case of a deposit, i.e. theft or loss or accident, a biblical oath is imposed even without an admission of part liability. But as Ex. XXII, 6 deals with two kinds of deposits, i.e. 'money or stuff' there is indeed an interweaving of sections in this paragraph, for a deposit of money might in accordance with B.M. III, 11, amount to an implied mutuum involving all the liabilities of a loan. In other systems of law it is indeed called depositum irregulare for which see Dig. 19.2.31; Moyle, Imp. Just. Inst. 396 and Goodeve on 'Personal Property', 6th Ed., 25. The phrase in Ex. XXII, 8 confining the oath to part admission is thus said to be ascribed as dealing exclusively with this depositum irregulare, i.e. with the bailment of money when it became a loan to all intents and purposes; v. also J. Shebu. VI, I.
4. B.M. 3a; Shebu. 42b.
5. In Ex. XXII. 7-8.
6. Whereas for total denial there is no biblical oath.
7. Who was his benefactor.
8. A total denial in the case of a loan is thus somehow supported by this general assumption; cf. also Shebu. 40b.
9. Who admitted a part of the claim.
10. Not perhaps on account of honesty.
11. The fact that he admitted a part of the claim is to a certain extent a proof that he found it almost impossible to deny the claim outright.
12. Lit., 'willing'.
13. At least so far as a part of the claim is concerned.
14. For the whole of the claim.
15. Ex. XXII, 7-8.
16. As he would surely be loth to commit perjury.
17. As the creditor was a previous benefactor of his.
18. As in this case the bailee was generally the benefactor and not necessarily the depositor, so that the whole psychological argumentation of Rabbah fails; [and an oath is thus to be imposed even where there is a total denial, which is contrary to the view reported by R. Hiyya b. Abba in the name of R. Johanan.]

have to deny a part and admit a part [of the claim before the oath can be imposed upon them]. They are as follows: The unpaid bailee and the borrower, the paid bailee and the hirer.¹  Raba said: The reason of Rami b. Hama is [as follows]: In the case of an unpaid bailee it is explicitly written: This is it;²  the law for the paid bailee could be derived [by comparing the phrase expressing] 'giving'³  [to the similar term expressing] 'giving' in the section of unpaid bailee;⁴  the law for borrower begins with 'and if a man borrow'⁵  so that the waw copula ['and'] thus conjoins it with the former subject;⁶  the hirer is similarly subject to the same condition, for according to the view that he is equivalent [in law] to a paid bailee⁷  he should be treated as a paid bailee, or again, according to the view that he is equivalent [in law] to an unpaid bailee,⁷  he should be subject to the same conditions as the unpaid bailee.

R. Hiyya b. Joseph further said: He who [falsely] advances the defence of theft in the case of a deposit would not be liable⁸  unless he had [first] committed conversion,⁹  the reason being that Scripture says: The master of the house shall come near unto the judges to see whether he have not put his hand unto his neighbour's goods,¹⁰  implying that if he put his hand he would be liable,⁸  and thus indicating that we are dealing here with a case where he had already committed conversion.⁹  But R. Hiyya b. Abba said to them:¹¹  R. Johanan [on the contrary] said thus: The ruling¹²  was meant to apply where the animal was still standing at the crib.¹³  R. Ze'ira then said to R. Hiyya b. Abba: Did he mean to say that this is so¹²  only where it was still standing at the crib,¹³  whereas if the bailee had already committed conversion,⁹  the deposit would thereby [already] have been transferred to his possession,¹⁴  so that the subsequent oath would have been of no legal avail,¹⁵  or did he perhaps mean to say that this is so even where it was still standing at the crib?¹⁶  — He replied: This I have not heard, but something similar to this I have heard. For R. Assi said that R. Johanan stated: One¹⁷  who had in his defence pleaded loss and had sworn thus, but came afterwards and pleaded theft,¹⁸  also confirming it by an oath, though witnesses appeared [proving otherwise], would be exempt.¹⁹  Now, is the reason of this ruling not because the deposit had already been transferred to his possession through the first²⁰  oath? — He replied to him:²¹  No; the reason is because he had already discharged his duty to the owner by having taken the first oath.²²

It was indeed similarly stated: R. Abin said that R. Elai stated in the name of R. Johanan: If one advanced in his defence a plea of loss regarding a deposit and had sworn thus, but came afterwards and advanced a plea of theft also confirming it by an oath, and witnesses appeared [proving otherwise], he would be exempt.¹⁹  because he had already discharged his duty to the owner by having taken the first oath.²²

R. Shesheth said: One²⁰  who [falsely] pleads theft in the case of a deposit, if he had already committed conversion,²³  would be exempt,¹⁹  the reason being that Scripture says, 'The master of the house shall come near unto the judges to see whether he have not put his hand' etc.²⁴  implying that were he to have already committed conversion he would be exempt. But R. Nahman said to him: Since three oaths are imposed upon him,²⁵  an oath that he was not careless, an oath that he did not commit conversion and an oath that the deposit was no more in his possession, does this not mean that the oath 'that he did not commit conversion' should be compared to the oath 'that the deposit was no more in his possession so that just as where he swears 'that the deposit was no more In his possession,' as soon as it becomes known that the deposit was really at that time in his possession he would be liable for double payment, so also where he swore 'that he did not commit conversion, when the matter becomes known that he did commit conversion he would be liable?²⁶  — He replied: No; the oath 'that he did not commit conversion' was meant to be compared to the oath 'that he was not careless'; just as where he swears 'that he was not careless' even if it should become known that he was careless,²⁷  he would be exempt from double payment.²⁸  so also where he swears 'that he did not commit conversion,' even if it becomes known that he did commit conversion,²⁹  he would still be exempt from double payment.

Rami b. Hama asked: [Since where there is liability for double payment there is no liability for a Fifth,³⁰  is it to be understood that] a pecuniary value for which there is liability to make double payment exempts from the Fifth, or is it perhaps the oath which involves the liability of double payment that exempts from the Fifth? In what circumstances [could this problem have practical application]? — E.g., where the bailee had pleaded in his defence theft confirming it by an oath and then came again and pleaded loss and similarly confirmed it by an oath,

1. B.M. 5a and 98a.
2. Ex. XXII, 8.
3. Opening the section of the paid bailee in Ex. XXII, 9.
4. V. Ex. XXII, 6, the opening section of the unpaid bailee.
5. Ibid. XXII, 13.
6. And makes him analogous in this respect to the bailees dealt with previously; v. B.M. 95a.
7. Cf. supra 57b.
8. To double payment in the case of perjury.
9. Lit., 'put his hand unto it'; v. Ex. XXII, 7.
10. Ibid.
11. I.e., to the sages, but correctly omitted in MS.M.
12. Regarding the liability for double payment.
13. And no conversion was committed; v. also J. Shebu. VIII, 3.
14. V. p. 616, n. 2.
15. Since the bailee had become already subject to the law of robbery.
16. And no conversion was committed.
17. An unpaid bailee.
18. Regarding the same deposit.
19. From double payment.
20. V. p. 616, n. 2.
21. I.e., R. Ze'ira to R. Hiyya b. Abba.
22. So that the second oath is no more judicial and could therefore not involve double payment.
23. V. p. 626, n. 9.
24. Ex. XXII, 7.
25. An unpaid bailee. Cf. B.M. 6a.
26. To double payment in case of perjury.
27. I.e., that the deposit was stolen from him through his carelessness.
28. Since he did not misappropriate the deposit for himself.
29. And then misappropriated it for himself.
30. For which v. supra 65b and 106a.