One Who Admits to the Claim in Regard to Land But Denies the Claim in Regard to Vessels – The Relationship Between the Claim and the Admission

  • Rav Yair Kahn

 

Sources:

  1. 4b: "מתיב מר זוטרא... מחייב".
  2. Rashi 4b, s.v. "פטור"; Tosafot, 5a, s.v. "אי נמי" and "והודה".
  3. Bava Kama 35b: "גופא... לגמרי".
  4. Shevu'ot 40a: "ואמר רב נחמן... אדמון היא"; Ketubot 108b: "הטוען ... לא טענו".

Questions:

1. Why, according to Rashi, is a person who "admitted the claim in regard to land, but denied the claim in regard to vessels" exempt from an oath?

2. Why is the case where "[the plaintiff] claimed wheat, and [the defendant] admitted barley" not considered a case of partial admission? (Try to explain this even assuming that the opinion of Rabba bar Natan in Bava Kama is rejected).

3. What is the question in the case where "[the plaintiff] claimed wheat and [the defendant] admitted barley"? How is this different than the case where the plaintiff claimed full jugs of oil and the defendant admitted to empty jugs?

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Daf 4b:

I. Can Landed Property Obligate An Oath?

This shiur will deal with a claim consisting of two parts, one relating to land and the other relating to vessels (movables). According to the Baraita, if the defendant admits the claim of vessels, but denies the claim of land, he is exempt from taking the oath for partial admission. The same is true if he admits the claim of land, but denies the claim of vessels. The only case where the oath is imposed is where the defendant partially denies the claim of vessels (that is, not the land).

The simple understanding is that this is but an application of the rule that "oaths do not apply to land." That is to say, the exemption from taking an oath in cases involving land consists of two components: 1) Land cannot be the content of an oath; 2) Land cannot obligate an oath.

What this means is:

1. When the claim regarding the land is denied, the content of the oath is exclusively the land. By taking the oath, the defendant denies that he owes land. Therefore he is not obligated to take an oath. This is the regular application of the law that "oaths do not apply to land."

2. In the second case, where the defendant admits the claim regarding land, even though the content of the oath relates exclusively to vessels, land (which is the content of the claim to which he admitted) is what obligates the oath. Therefore, in this case as well, the oath for partial admission of a claim is not administered. This is explicit in Rashi (s.v. patur): "Because neither his denial nor his admission bring him to an oath."

However, this explanation is based on an assumption that is not universally accepted. In order to apply the exemption regarding land to a case in which he admitted the claim of land, we must assume that it is the defendant's admission that obligates him to take the oath for partial admission. If, on the other hand, we explain that what causes an oath for partial admission is the suspicion caused by that admission, then even though it is the admission that arouses the suspicion, it is not the actual land that obligates the oath. What is more, even if we accept that the admission is what obligates the oath, is it so clear that land cannot obligate an oath regarding movables? In the other cases where we invoke the rule that "oaths do not apply to land," the land is the content of the oath. And see what the Shitta Mekubbetzet says in the name of the Ritzbash: "These are the things for which an oath is not administered: Slaves, land, and promissory notes. And the plain sense of our Mishna is that oaths do not apply to land that one denied."

This point emerges also in the previous discussion that dealt with the expression "oaths do not apply to the denial of mortgaged land." This rule expands the exemption from actual land to loans accompanied by a lien on land. The Gemara there relates to a case where the plaintiff produces a promissory note for "selas or dinars" without any figures as to the sum of the loan. According to Rashi, since the plaintiff holding the note is at a disadvantage, and the wording of the note does not prove a debt of more than two selas, this note creates a lien on landed property only to the value of two selas. If so, when the Gemara explains that one who admits to two selas is exempt from an oath on the remainder of the claim, because oaths do not apply to the denial of mortgaged land, it is clear that the exemption applies also to admission of mortgaged land, as is explained by Rashi (s.v. i nami) and the Rif (4b in Alfasi).

However, if we are dealing with an extension of law "oaths do not apply to land", the Gemara should have formulated a parallel as such: "Oaths do not apply to mortgaged land." The addition of the word "denial" teaches us that the exemption does not apply to the admission of mortgaged land. And we find that Rabbeinu Chananel has a different explanation of the Gemara, according to which the exemption from an oath is only for the denial of mortgaged land and not for the admission of mortgaged land. See there that according to the lender's claim, all five selas are included in the note's lien. If so, when a debtor who admits to two is exempt from an oath for partial admission, it is because he denies a claim of mortgaged land. (The dispute between Rabbeinu Chananel and Rashi seems to depend on the dispute between the Ri Migash and the Rosh discussed in the previous shiur).

Furthermore, we must consider the comparison between mortgaged land and land. We learned in tractate Shevuot (37b):

Rabbi Yochanan said: He who denies [on oath] money… for which there is a promissory note, is exempt [from a guilt-offering for robbery]… Rav Huna the son of Rav Yehoshua said: This is Rabbi Yochanan's reason: A promissory note has a lien on land, and an offering is not brought for the denial of mortgaged land.

Rashi (ad loc., s.v. mishum) explains:

Because this note is money to which land is mortgaged, and one who denies it is like one who denies land. And we maintain below that oaths do not apply to land. Therefore, even if he takes an oath, it does not have the law of an obligated oath to bring a [guilt-]offering for it.

But it should be noted that there the Gemara is dealing with a guilt-offering for robbery. A person can become liable to such an offering even in the case of absolute denial, when the court does not obligate him to take an oath. Nevertheless, if he went ahead and took an oath on his own, and it turns out that he lied, he is liable to bring the guilt-offering for robbery. Why then does Rashi base the law that that there is no obligation for a guilt-offering for land, on the Mishna that establishes that oaths are not administered by the courts for land?

In order to explain Rashi, it may be suggested that one who totally denies a claim but goes ahead and takes an oath, is indeed not liable to a court-administered oath, and the court cannot impose an oath upon him by Torah law, but what is missing is only the obligation. The oath that he takes on his own, without being obligated to do so, is a legal oath when the defendant pushes off the plaintiff by way of the oath. In other words, the liability for a guilt-offering is not because of the false oath, which applies even to oaths that have no legal significance (e.g., one who falsely swears that he fasted on the previous day). A guilt-offering for robbery applies when the defendant uses an oath in order to support his holding on to money that is not his. This obligation applies even to one who goes ahead and takes a legal oath, despite the fact that the court could not have imposed an oath upon him. According to Rashi, the law that oaths do not apply to land establishes that land as an object [cheftza] is categorically exempt from legal oaths, and therefore even if one went ahead and took an oath regarding land, he would not be liable to a guilt-offering for robbery.

Alternatively, one could argue that it is not that land as an object is removed from court-administered oaths. The law that oaths do not apply to land establishes that regarding land there is nothing to obligate a court-administered oath, but if one went ahead and volitionally took an oath, that oath is considered a legal oath. These two understandings must be examined in light of what we learned in tractate Kiddushin (26a): "Property which does not offer security … obligates the property which provides security to take an oath concerning them." Does the law of adding one oath to another [gilgul shevu'a] with regard to land prove that land is subject to court-administered oaths, and it is only that there is nothing to obligate such an oath? Thus, when there is something that obligates an oath, e.g., adding one oath to another, an oath applies even to land? Or perhaps the law of adding one oath to another applies to land despite the fact that land is categorically exempt from court-administered oaths, but it is nevertheless possible to include an oath regarding land in a court-administered oath taken for movables? (These possibilities will be clarified when we discuss the law of adding one oath to another in next week's shiur).

In any event, it would appear that the Rambam does not ground the exemption from the guilt-offering for robbery on the rule that oaths do not apply to land. In Hilkhot To'en ve-Nit'an (5:1), he derives the law that oaths do not apply to land from the exposition: "'Money or vessels,' to the exclusion of land." But in Hilkhot Shevu'ot (7:4), he exempts a person who falsely swore about land from a guilt-offering for robbery based on a different exposition: "Because it is stated (Vayikra 5:21-22): 'Concerning an entrusted object, a [financial] deposit, a robbery; he oppressed his colleague, or discovered a lost object.' All of this concerns movable property which if he would admit his liability he would have to make financial restitution from his own domain. This excludes landed property for it is not movable property. For landed property is always revealed before its owner and is always in his possession." It should be noted that the rationale offered by the Rambam: "For landed property is always revealed before its owner and is always in his possession," lowers the level of denial.

According to this rationale, it might be possible to suggest that with respect to the object, a lien on land is not like land itself, and the rule that oaths do not apply to land does not apply to leins. However from the law regarding a guilt-offering for robbery we learn that denial does not apply when the mortgaged property stands revealed before its owner and in his possession. Thus, oaths do not apply specifically to the denial of mortgaged land. (The Rambam's position on the denial of mortgaged land was discussed in the previous shiur, and we will not deal with it here).

II. If the Plaintiff Claims Wheat and Barley, and the Defendant Admits Barley

Before we go back to the first discussion, whether the passage proves that an admission concerning land cannot obligate an oath for partial admission, let us preface our remarks with another passage:

The Gemara states:

As we have learned: If [the plaintiff] claims wheat, and [the defendant] admits barley, the defendant is exempt [from taking an oath], but Rabban Gamaliel obligates [him to take an oath]. (5a)

Rabban Gamaliel argues that this is a case of partial admission, since wheat is worth more than barley. The position of the anonymous first Tanna seems to be that despite the fact that with respect to the value of the claims, we have here a situation of partial admission, the bottom line is that we are dealing here with two separate claims. There is no connection between the claims of the plaintiff and the defendant – the latter does not partially admit to the claim of the former. The plaintiff demands wheat, and this claim is totally denied. The defendant's admission is not connected in any way to the plaintiff's claim, and relates only to barley. (This understanding finds extreme expression in the words of Rabba bar Natan, that despite his admission regarding barley the defendant is not liable to pay, since the plaintiff exempted him entirely from barley when he demanded of him only wheat; see Bava Kama 35b).

According to the Halakha, the position of Rabban Gamliel was rejected in favor of the dissenting opinion that the two claims are entirely independent of each other. The Amora'im disagree about how far this is to be taken. The Gemara in Shevu'ot (40a-40b) discusses a similar case:

And Rav Nachman said in the name of Shemuel: If [the plaintiff] claims wheat and barley, and [the defendant] admits one of them, the defendant is obligated [to take an oath].

According to one version noted in the sugya, Rabbi Yochanan disagrees with this ruling. In his opinion, it is not a case of partial admission, because the plaintiff's claim which consists of wheat and barley is in fact two separate claims. While there was full admission with respect to the barley, the claim with respect to the wheat was totally denied. Therefore, there is no basis for an oath for partial admission.

However, there is another version of Rabbi Yochanan's position. This version distinguishes between the case in Shevu'ot and the case in our passage. Only in the case where the plaintiff demanded only wheat and the defendant admitted to barley is there no relationship between the two. But when the plaintiff's claim consists of wheat and barley, the barley unites with the wheat, and thus a single claim with two components is created. When the defendant admits to the barley, it is considered a partial admission, and thus it obligates an oath.

The question whether we define a complex claim as a single consolidated claim or as two separate claims might depend on the question of the relationship between the two components of the claim. For example, it might be possible to treat a case of jugs of oil (assuming that the claim involves both the jugs and the oil) differently than the case of wheat and barley. This issue arises in tractate Ketubot 108b.

The Halakha has been decided that the claim of wheat and barley is a single consolidated claim, and admission to one of them obligates an oath based on the law of partial admission. The Gemara in Shevu'ot (40b) wishes to bring a proof to this position from our Baraita, since it deals with a complex claim of land and vessels:

Now, the reason [he is exempt] in the case of vessels and land is because for land no oath is imposed; but for vessels and vessels similar to vessels and land he is liable.

The Gemara assumes that the case where one admits to land but denies vessels is exceptional because of the fact that oaths do not apply to land. But, fundamentally, different claims can be consolidated in such a way that the various components can obligate an oath. According to Rashi, in a case of land and movables, the exemption from an oath stems from the fact that land cannot obligate an oath – neither the denial of land nor the admission of land. But in a parallel case of movables and movables, e.g., wheat and barley, the admission of one can obligate an oath for the denial of the other.

III. One Who Admitted Land But Denied Vessels

I would like to suggest that the exemption from an oath in the case where one admitted land but denied vessels is not based directly on the fact that oaths do not apply to land. Rather, it is based on the fact that a claim consisting of land and vessels cannot be a consolidated claim, since there is an objective halakhic difference between land and vessels. From a halakhic perspective, a claim regarding land is not similar to a claim regarding vessels, because oaths do not apply to land. Therefore, it is impossible to consolidate land and vessels in a single claim. Accordingly, the admission to land is a full admission regarding the claim of land, while the claim of vessels is denied completely. In contrast, a complex claim consisting of wheat and barley, which are not separate halakhic categories, can be consolidated, and thus an obligation to take an oath is created in the case where the claim is partially denied.[1]

While this proposal is reasonable, it is difficult to apply it in the passage on p. 5a. When the Gemara argues that according to the opinion that says that "helakh" ("here it is") is exempt, the verse from which we learn that oaths do not apply to land is needed only for the case where the plaintiff claimed vessels and land, and the defendant admitted the vessels, but denied the land. If a claim consisting of land and vessels is defined as two separate claims, then there is no basis for an oath for partial admission, even if we ignore the fact that oaths do not apply to land. Therefore, even if our proposal is accepted, it does not accord with this stage of the Gemara.

Accordingly, it may be suggested that the Gemara first adopted our proposal that claims regarding land and vessels cannot be consolidated into a single claim. However, one of the suggestions put forward according to the opinion that "helakh" is exempt, rejects this approach. Nevertheless, it should be noted that we are not forced to accept the original suggestion that the exemption stems from the fact that admission to land cannot obligate an oath, for at this stage the Gemara maintains that admission of land is considered "helakh" which is exempt from an oath for partial admission.

It is interesting that the Tosafot (s.v. i nami) note that the passage on p. 5a rejects the approach that a complex claim is spilt into two separate parts. The impression that is created is that the passage on p. 4a can adopt this approach. It is clear that were we to adopt an approach that separates the claims, there would be no need to explain the Baraita dealing with one who admits the vessels but denies the land as based on the exemption of land from an oath, as is proposed on p. 5a.

Our argument is that even if we say that, in general, a complex claim cannot be separated, it would possible to separate the claim of land from the claim of vessels, since they constitute two different halakhic categories. This can be argued only on p. 4b. The Gemara's proposal on p. 5a clearly rejects this approach, even with respect to vessels and land.

Conclusion

In an attempt to explain the exemption from an oath in the case where one admitted the land but denied the vessels, we examined the various cases in which the admission is not necessarily considered a partial admission of a complex claim. We found that claims regarding wheat and barley are consolidated into a single claim, but we suggested that claims regarding land and vessels can remain separated.

(Translated by David Strauss)

 

Sources and Questions for next week’s shiur:

Sources:

מקורות לשיעור הבא

1. ד: "מתיב מר זוטרא ... דלאו הילך הוא", שבועות לח: "טענו כלים ... לישבע עליהן", קדושין כז: "וזוקקים ... קמ"ל".

2. ריטב"א ה. "א"ל ג' פרות ... ואין צורך", גמ' ו. "דאמר רב ששת ... שאינה ברשותי", תוספות ד"ה 'שבועה', תוס' הרא"ש ד"ה 'שלא', תוס' ב"מ צז. ד"ה 'ביום' מהמילים "ועוי"ל ...".

3. שבועות מט. "לכל מגלגלין ... לפתוח לו", תוספות ד"ה 'לכל, ריטב"א ד"ה 'ואמרי' מאי בינייהו', חידושי הר"ן ב"מ ד. ד"ה 'תיתי מגלגול שבועה', ריטב"א קדושין כז: ד"ה 'אמר עולא'.

4. ירושלמי שבועות פרק ז' סוף הלכה א "מהו לגלגל ...".

5. חידושי הר"ן צח. ד"ה 'משכחת לה', 'ומ"מ קשה'.

6. חידושים המיוחסים לריטב"א לד. "אמר רב הונא ... כל זה לשון רבי' יצ"ו", צח. ד"ה 'והשאר'.

 

Questions:

1. On what point do Rav Huna and Rav Chisda disagree in Shevu'ot 49a?

2. Why is the oath taken by a laborer different than other oaths with respect to gilgul shevu'a?

3. Is gilgul shevu'a by Torah law? Is it subject to the law that "since he cannot take the oath, he must pay"?

4. Which additional claims can the defendant not be required to incorporate into his oath by way of gilgul?

 

 


[1] Support for this undertanding may be brought from the Yerushalmi, Ketubot 2:1: "[If the promissory note mentions] selas, and [the number] was erased, it is not less than two. From there on, if the lender said: Five, and the borrower said: Three, Ben Azai says: Since he [partially] admitted the claim, he takes an oath. But the Sages say: The admission is not of the same type as the claim." Since the lender's claim consists of dinars that are written in the note (with a lien on land) and dinars that are not written in the note, while the borrower's admission is only to dinars written in the note, "the admission is not of the same type as the claim."