3. If there were five claimants and they said to him, ‘Give us our deposit which thou hast’, [and he said,] ‘I swear that I have naught of yours’, he is liable only on one count; [but if he said,] ‘I swear that I have naught of thine, or of thine, or of thine, [&c.]’, he is liable on each count. R. Eliezer says: Only if he repeats the oath at the end. R. Simeon says: Only if he repeats the oath for each one of them. [If a man said,] ‘Give me my deposit and my loan and the stolen goods and the lost property of mine which thou hast’, [and he said,] ‘I swear that I have naught of thine’, he is liable only on one count; [but if he said,] ‘I swear that I have neither deposit nor loan nor stolen goods nor lost property of thine’, he is liable on each count. [If a man said,] ‘Give me the wheat and the barley and the spelt of mine which thou hast’, [and he said,] ‘I swear that I have naught of thine’, he is liable only on one count; [but if he said,] ‘I swear that I have neither wheat nor barley nor spelt of thine’, he is liable on each count. R. Meir says: Even if he said, ‘...a grain of wheat or barley or spelt’, he is liable on each count.
4. [If a man said,] ‘Thou didst violate, or seduce, my daughter’, and the other said, ‘I did not violate her, or seduce her’, and he said, ‘I adjure thee’, and the other said, ‘Amen!’ he is liable. R. Simeon declares him exempt, since a man pays no fine through his own admission.3 They said to him: Although he pays no fine through his own admission, he must still pay [compensation for] indignity and blemish4 through his own ad¬ mission.
5. [If a man said,] ‘Thou hast stolen my ox’, [and the other said,] ‘I have not stolen it’, [and he said,] ‘I adjure thee’, and the other said, ‘Amen!’ he is liable. [If the other said,] ‘I stole it but I have not killed or sold it’, [and he said,] ‘I adjure thee’, and the other said, ‘Amen!’ he is not liable. [If a man said,] ‘Thy ox killed my ox’, and the other said, ‘It did not kill it’, [and he said,] ‘I adjure thee’, and the other said, ‘Amen!’ he is liable. [If a man said,] ‘Thy ox killed my slave’, and the other said, ‘It did not kill him’, [and he said,] ‘I adjure thee,’ and the other said, ‘Amen!’ he is not liable. If one man said to another, ‘Thou hast wounded me and left a bruise on me’, and the other said, ‘I have not wounded thee or left a bruise on thee’, [and he said,] ‘I adjure thee’, and the other said, ‘ Amen!’ he is liable. If a man’s slave said to him, ‘Thou hast knocked out my tooth, or blinded my eye’, and he said, ‘I have not knocked out thy tooth or blinded thine eye’, [and the slave said,] 1 Well knowing that the deposit had been left. 2 Cf. Lev. 515.
‘I adjure thee’, and he said, ‘Amen!’ he is not liable. This is the general rule he that must pay a tine through his own admission is liable; but if he need not pay a tine through his own admission he is not liable.
6. 1. The oath taken before judges [is imposed if] the claim lodged is [at least the worth of] two silver pieces2 and the claim admitted is [at least] the worth of a perutah; but if the claim admitted is not of like kind with the claim lodged, he is exempt [from taking an oath]. Thus [if the claimant said,] ‘Thou hast two silver pieces of mine’, and the other said, ‘I have but a perutah of thine’, he is exempt;3 but if he said, ‘Thou hast two silver pieces and a perutah of mine’, and the other said, ‘I have but a perutah of thine’, he is liable. [If he said,] ‘Thou hast 100 denars of mine’. land the other said.] ‘I have but fifty denars of thine’, he is liable. [If he said,] 'Thou hast 100 denars of my father’s’, [and the other said,] ‘I have but 50 denars of thine’, he is exempt [from taking an oath], since he is as one that restores lost property.4 2. [If the claimant said,] ‘Thou hast 100 denars of mine’, and the other said,5 ‘Yea’; and on the morrow the first one said to him, ‘Give it to me’, [and the other said,] ‘I have given it to thee already’, he is exempt; but if he said, ‘I have naught of thine’, he is liable. [If he said,] Thou hast 100 denars of mine’, and the other said, ‘Yea’, [and the first said,] ‘Do not give it to me save before witnesses’, and on the morrow he said to him, ‘Give it to me’, and the other said, ‘I have given it to thee already’, he is liable, since it was needful that he should give it before witnesses.
3. [If the claimant said,] ‘Thou hast a litra 6 of gold of mine’, and the other said, ‘I have but a litra of silver of thine’, he is not liable. [If he said,] ‘Thou hast a golden denar of mine’, and the other said, ‘I have but a silver denar, or a teresith, or a pondion,7 or a perutah', he is liable, since all are of the like kind of coin.8 [If he said,] ‘Thou hast a kor9 of grain of mine’, and the other said, ‘I have but a lethek9 of pulse of thine’, he is exempt; [but if he said,] ‘Thou hast a kor of produce of mine’, and the other said, ‘I have but a lethek of pulse of thine’, he is liable, since pulse is reckoned within the category of produce. If he had claimed from him wheat, and he admitted a claim for barley, he is exempt; but Rabban Gamaliel declares him liable. If a man claimed from his fellow jars of oil, and the other ad¬ mitted his claim to the empty jars, Admon says:'° Since he admits the claim in part, in like kind, he must take an oath [in denial of the rest]. But the Sages say: This is not an admission in like kind to the claim. Rabban Gamaliel said: I approve the words of Admon. If a man claimed from his fellow utensils and land, and the other admitted the claim to utensils but denied the claim to land, or admitted the claim to land but denied the - Two maahs, the smallest of silver coins. The maah was worth thirty-two perutahs or one-sixth of a denar. See App. II, A.
3 But not because they are of different metals, the one copper and the other silver. But see below, par. 3, n. 8. Here it is explained that by admitting one perutah’s indebtedness the amount of the claim is reduced to less than two maahs; and therefore no oath can be imposed.
* According to Gem. 42b the claim was, in this case, lodged more as a suspicion than as a certainty; the missing money fell, therefore, within the category of 'lost property’ for which no oath could be imposed. Cf. Gitt. 5*. s Some texts add, 'before witnesses'.
* See above, n. 3, where the accepted explanation involves here the less natural rendering ‘All kinds of coinage are alike*. * App. II, D. 10 See Ket. 13*.
418 FOURTH DIVISION: NEZIKIN claim to utensils, he is not liable. If he admitted in part the claim to land, he is not liable; but if he admitted in part the claim to utensils he is liable, since the property for which there is no security imposes the need for an oath also on property for which there is security.1 4. No oath is imposed in a claim by a deaf-mute, an imbecile, or a minor, and no oath is imposed on a minor; but an oath is imposed when a claim is lodged against the [property of a] minor, or against dedicated property.2 5. In a claim that concerns these3 no oath is imposed: bondmen, written documents, immovable property, and the property of the Temple; nor do the laws of twofold restitution or fourfold or fivefold restitution apply to them. An unpaid guardian need not take an oath and a paid guardian need not make restitution. R. Simeon says: An oath is imposed in a claim that concerns Hallowed Things which must be replaced [if damaged or lost], but if they are not such that must be replaced no oath is imposed.
6. R. Meir says: Some things there are that are fixed to the ground and are not accounted immovable property; but the Sages do not agree with him. Thus [if a man said], T delivered unto thee ten fruit-laden vines’, and the other said, ‘They were but five’, R. Meir would make him take an oath. But the Sages say: What is fixed to the ground is accounted im¬ movable property.4 Oaths may only be taken about what can be defined according to size, weight, or number; thus [if a man said], ‘I delivered unto thee a houseful [of produce]’ or ‘a bagful of money’, and the other said, ‘I do not know, but what thou didst leave thou mayest take’, he is exempt; but if he said, ‘[I delivered unto thee a heap of produce] as high as the projection [above the window]’, and the other said, ‘Only as high as the window’, he is liable.
7. If a man lent his fellow money on a pledge, and the pledge was lost, and the lender said, ‘ I lent thee a sela5 and the pledge was worth a shekel, and the other said, ‘Not so, but thou didst lend me a sela on it and it was worth a sela’, he is exempt. [If he said,] ‘I lent thee a sela on it and it was worth a shekel’, and the other said, ‘Not so, but thou didst lend me a sela on it and it was worth three denars’, he is liable. [If he said,] ‘Thou didst lend me a sela on it and it was worth two’, but the lender said, ‘Not so, but I lent thee a sela on it and it was worth a sela’, he is exempt. [If he said,] ‘Thou didst lend me a sela on it and it was worth two’, but the other said, ‘Not so, but I lent thee a sela on it and it was worth five denars’, he is liable. Who takes the oath? He with whom is the deposit, lest after the one takes the oath the other brings out the deposit.6 7. 1. All they that take the oaths which are enjoined in the Law take oaths that they need not make restitution; but these take an oath that they inay recover their due: the hireling,7 he that has been robbed, he that has been wounded, he whose fellow-suitor is not trusted even if he takes an oath, and a shopkeeper over [what is written in] his account-book. Thus, if a hireling said to a householder, ‘Give me my hire which is in thine hand’, and he said, ‘I have given it’, and he said, ‘I have not had it’, the hireling shall take an oath and satisfy his claim. R. Judah says: Not unless the claim 1 See Kidd. Is.
2 That was security for a debt, then dedicated by the debtor and claimed by the creditor.
3 See B.M. 4s. 4 Therefore no oath can be imposed.
5 Two shekels or four denars. 6 To prove that the debtor has worn falsely.
was admitted in part: if, to wit, the hireling said, ‘Give me my hire of fifty denars which is in thine hand’, and the other said, ‘Thou hast already received a golden denar'.1 2. ‘He that has been robbed’; thus, if they testified of a man that he entered into another’s house without right to seize a pledge, and he that was robbed said, ‘Thou didst take a vessel of mine’, and the other said, ‘I took naught’, the first may take an oath and recover his property. R. Judah says: Not unless the claim was admitted in part: if, to wit, he had said, ‘Thou didst take two vessels’, and the other said, ‘I took but one’.
3. ‘He that has been wounded’; thus, if they testified of a man that another went in unto him whole and came forth wounded, and he said to the other, ‘Thou didst wound me’, and the other said, ‘I did not wound thee’, he may take an oath and satisfy his claim for damages. R. Judah says: Not unless the claim was admitted in part. How? If, namely, he had said, ‘Thou didst inflict on me two wounds’, and the other said, ‘Only one’.
4. ‘He whose fellow-suitor is not trusted even if he takes an oath’; thus, no matter whether it be an oath of testimony or a deposit -oath or even a vain oath, if one of the suitors is a dice-player, usurer, pigeon-flyer, or a trafficker in Seventh Year produce,2 his fellow-suitor may take an oath and satisfy his claim. If neither of them was trustworthy the oath returns to its own place.3 So R. Jose. R. Meir says: They share equally.4 5. ‘A shopkeeper over [what is written in] his account-book’; this does not mean that he may, for example, say to another, ‘It is written in my account-book that thou owest me 200 zuz’, but that if one had said to him, ‘Give my son two seahs of wheat’, or ‘Give my labourer change for a sela',s and he said, ‘I gave it’, but they6 said, ‘We have not had it’,7 he must take an oath and recover his due and they6 must take an oath and recover their due.8 Ben Nanos said: How is this? shall both be made to swear a vain oath! — but, rather, he should recover his due without an oath, and they should recover their due without an oath.
6. If a man said to a shopkeeper, ‘Give me a denar's worth of produce’, and he gave it to him and then said to him, ‘Give me the denar’, and the other said, ‘I gave it to thee, and thou didst put it in the till’, the house¬ holder must take an oath. If he [first] gave him the denar and said to him, ‘Give me the produce’, and he said, ‘I gave it to thee and thou didst take it to thy house’, the shopkeeper must take an oath. R. Judah says: He that has possession of the produce, his hand is uppermost.9 If a man said to a money-changer, ‘Give me change for a denar’, and he gave it to him and then said, ‘Give me the denar’, and the other said, ‘I gave it to thee and thou didst put it in the till’, the householder must take an oath. If he had [first] given him the denar, and then said to him, ‘Give me the change’, and the other answered, ‘I gave it to thee and thou didst put it in thy purse’, the money-changer must take an oath.10 R. Judah says: It is not the way of a money-changer to give even an issar11 unless he receives his denari 7. Like as they have enjoined12 that ‘if a woman impaired her Ketubah the 1 *5 silver denars. 1 Cf. Sanh. 3’.
* To him against whom the claim is lodged, since normally the oath is imposed on him.
* Half the claim only is paid.
5 As his wage (cf. B.M. 9”) 'and I will pay the sela after a month’.
6 The son or labourer. 1 Some texts here insert, ‘they both take an oath’.
* Both of them from the householder. * Cf. p. 353, n. 1.
10 Since he who is alleged to have the silver denar is the debtor; the copper coin counts 420 FOURTH DIVISION: NEZIKIN rest may not be paid to her unless she swears [to her claim] on oath; [and that] if one witness testified against her that it had been paid [in full], she may not receive payment unless she swears [to her claim] on oath; [and that] she may not receive payment from assigned property or from orphans’ property unless she swears [to her claim] on oath; and [that] if a woman is paid not in the presence of him [that divorced her] she may not receive payment unless she swears [to her claim] on oath’, so, too, orphans may not receive payment1 unless they swear [to their claim on oath, namely], ‘We swear that our father did not enjoin [in his testament], nor did our father say to us, nor have we found written in the documents of our father, that this bond of indebtedness has been paid’. R. Johanan b. Baroka says: Even if the son had been born after his father's death he may take this oath and satisfy his claim. Rabban Simeon b. Gamaliel said: If there are witnesses [to prove] that at the time of his death the father said, ‘This bond has not been paid’, he may satisfy his claim without taking an oath.
8. An oath may be imposed on these, although no claim is lodged- against them: jointholders, tenants, trustees, a wife that manages the affairs of the house, and the son of the house.3 If one of these said to the claimant, ‘What dost thou claim of me?’ and the other said, ‘I desire that thou swear to me [that thou hast not made wrongful use of what is mine]’, he must swear. If jointholders or tenants4 had already taken their portions, an oath cannot be imposed on them, but if by chance an oath was imposed on such a one in some other claim by the same parties, the first claim too can be implied. The Seventh Year5 removes the obligation of the oath.
8. i. There are6 four kinds of guardian: an unpaid guardian, a borrower, a paid guardian, and a hirer. An unpaid guardian may take an oath in every case [of loss or damage and be quit of liability]; a borrower must make restitution in every case; a paid guardian or a hirer may take an oath if the beast was lamed or driven away or dead, but he must make restitution if it was lost or stolen.7 2. If the owner said to an unpaid guardian, ‘Where is my ox?’ and he answered, ‘It is dead’, whereas it was lamed or driven away or stolen or lost; or if he answered, ‘It is lamed’, whereas it was dead or driven away or stolen or lost; or if he answered, ‘It was driven away’, whereas it was dead or lamed or stolen or lost; or if he answered, ‘It is stolen’, whereas it was dead or lamed or driven away or lost; or if he answered, ‘It is lost’, whereas it was dead or lamed or driven away or stolen; and the owner said, ‘I adjure thee’, and he said, ‘Amen!’ he is exempt.
3. [If the owner said,] ‘Where is my ox?’ and he answered, ‘I do not know of what thou speakest’, and the ox was dead or lamed or driven away or stolen or lost, and the other said, ‘I adjure thee’, and he said, ‘Amen!’ he is exempt. [If the owner said,] ‘W’here is my ox?’ and he answered, ‘It is lost’, and the owner said, ‘I adjure thee’, and the other said, ‘Amen!’ and witnesses testify of him that he had eaten it, he must pay the value. If he admitted it of himself, he must pay the value and the [Added] Fifth8 and [offer] a 1 Of a debt owed to their father’s estate.
2 i.e. they are required to swear to any other that has an interest in their business that they have not dealt fraudulently with what has been entrusted to them.
J Who manages the joint property of several brothers.
* Who owe the landlord a prescribed proportion of their crop in lieu of rent.
5 When (Deut. 15*) debts to fellow- Israelites are remitted. Cf. Shebi. io‘.
Guilt-offering.1 [If the owner said,] ‘Where is my ox?’ and he answered, ‘It is stolen’, and the other said, ‘I adjure thee’, and he said, ‘Amen!’ and wit¬ nesses testify of him that he had stolen it, he must make twofold restitution.2 If he admitted it of himself, he must pay the value and the [Added] Fifth and [offer] a Guilt-offering.
4. If a man said to another in the street, ‘Where is my ox which thou hast stolen?’ and he answered, ‘I did not steal it’, and witnesses testify of him that he stole it, he must make twofold restitution. If he had killed it or sold it, he must make fourfold or fivefold restitution.3 If he saw witnesses coming nearer and nearer and said, ‘I stole it, but I did not kill it or sell it’, he need pay only the value.4 5. If the owner said to a borrower, ‘Where is my ox?’ and he answered, ‘It is dead’, whereas it was lamed or driven away or stolen or lost; or if he said, ‘It is lamed’, whereas it was dead or driven away or stolen or lost; or if he said, ‘It was driven away’, whereas it was dead or lamed or stolen or lost; or if he said, ‘It was stolen’, whereas it was dead or lamed or driven away or lost; or if he said, ‘It is lost’, whereas it was dead or lamed or driven away or stolen: and the owner said, ‘I adjure thee’, and he said, ‘Amen!’ he is not liable.
6. [If the owner said,] ‘Where is mv ox?’ and the other answered, ‘I do not know of what thou speakest’, whereas it was dead or lamed or driven away or stolen orlost; and the owner said, ‘I adjure thee’, and he said, ‘Amen!’ he is liable. If he said to a paid guardian or a hirer, ‘Where is my ox?’ and he answered, ‘It is dead’, whereas it was lamed or driven away; or if he answered, ‘It is lamed’, whereas it was dead or driven away; or if he answered ‘It was driven away’, whereas it was dead or lamed; or if he an¬ swered, ‘It is stolen’, whereas it was lost; or ‘It is lost’, whereas it was stolen, and the owner said, ‘ I adjure thee,’ and he said, ‘ Amen! ’ he is not liable. If he answered, ‘It is dead or lamed or driven away’ whereas it was stolen or lost, and the owner said, ‘I adjure thee’, and he said, ‘Amen!’ he is liable. If he answered, ‘It is lost or stolen’, whereas it was dead or lamed or driven away, and the owner said ‘I adjure thee’, and he said, ‘Amen! ’he is not liable. This is the general rule: he that by lying makes himself liable [to make restitution] and he was already liable [even if he spoke the truth], or makes himself exempt and he was already exempt [even if he spoke the truth], or makes himself liable, though he was in truth exempt, he is exempt [from the Guilt-offering].5 But if he made himself exempt, though he was in truth liable [to make restitution], he is liable [to the Guilt-offering]. This6 is the general rule: He that swears and so renders his penalty less rigorous is liable; but if he renders his penalty more rigorous he is not liable.
6 Certain texts omit this last sentence.
FOURTH DIVISION: NEZIKIN EDUYOTH' (‘TESTIMONIES’) 1. i. Shammai says:2 For all women it is enough for them [that they be deemed unclean only from] their time [of suffering a flow]. Hillel says: [A woman is deemed to have been unclean] from [the previous] examina¬ tion to [the present] examination, even if [the interval is of] many days. And the Sages say: It is not according to the opinion of either: but [she is deemed to have been unclean] during the preceding twenty-four hours, if this is less than [the time] from [the previous] examination to [the present] examination, or else from [the previous] examination to [the present] examination if this is less than twenty-four hours. If a woman has fixed periods it is enough for her [that she be deemed unclean only from] her time [of suffering a flow]. If she had connexion and used the test-rags, this counts as an examination, and may lessen either the interval of twenty-four hours, or the interval from [the previous] examination to [the present] examination.
2. Shammai says: [Dough made] from one kab 3 [of meal] is liable to Dough-offering.4 And Hillel says: Two kabs. And the Sages say: It is not according to the opinion of either: but one kab and a half is liable to Dough-offering; and when the weights were made greater they said: Five quarters of a kab are liable. R. Jose says: Five [quarters only] are exempt, but five and aught over are liable.
3. Hillel says: One Am5 of drawn water renders the Immersion-pool6 unfit. ([We speak of AAt]7 only because a man must use the manner of speaking of his teacher.) And Shammai says: Nine kabs. And the Sages say: It is not according to the opinion of either: but when two weavers came from the Dung Gate in Jerusalem and testified in the name of She- maiah and Abtalion8 that three logs of drawn water render the Immersion- pool unfit, the Sages confirmed their opinion.9 4. And why do they record the opinions of Shammai and Hillel when these do not prevail? To teach the generations that come after that none should persist in his opinion, for lo, ‘the fathers of the world’ did not per¬ sist in their opinion.
5. And why do they record the opinion of the individual against that of the majority, whereas the Halakah may be only according to the opinion of the majority? That if a court approves the opinion of the individual it may rely upon him, since a court cannot annul the opinion of another court unless it exceeds it both in wisdom and in number; if it exceeded it in wisdom but not in number, or in number but not in wisdom, it cannot annul its opinion; but only if it exceeds it both in wisdom and in number.
1 Lit. ‘testimonies’, from the frequency in the tractate of the phrase ‘Such-a-one testified’ to some traditional rule, or the like. The spelling 'Ediyoth’has been suggested; this would give the meaning ‘the choicest’ (teachings). The tractate is several times referred to in the Talmud by the name ‘Behirta’ (or, in the plural, ‘Behiratha’), meaning the ‘selected trac¬ tate’ or (more probably) ‘selected Halakoth, or traditional rules’. This latter title best befits the contents, which are, primarily, one hundred selected Halakoth on unrelated topics, some- imea linked loosely together under the names of the teachers who transmitted them. Added to these are the thirty cases where the School of Hillel exceptionally adopted a more stringent and the School of Shammai a more lenient attitude in a controverted ruling, and a few other sayings and discussions. Most of the contents of Eduyoth are repeated elsewhere in the Mishnah in their proper context. 2 Nidd. t1. 5 App. II, D.
* Num. ts“; cf. Hall. 2*. 5 Three logs. App. II, D.
* See the tractate Mikwaoth.
7 A gloss by the editor, R. Judah the Patriarch, to explain the unusual 'hiri here used instead of ‘three logs'. Cf. Par. j\ * Circ.6oB.c. Cf. Ab. i‘*. * Cf.Mikw. 3l“, 6. R. Judah said: If so, why do they record the opinion of the individual against that of the majority when it does not prevail? That if one shall say, ‘I have received such a tradition’, another may answer, ‘Thou didst hear it [only] as the opinion of such-a-one’.
7. The School of Shammai say:* A quarter-^ of bones, be they any of the bones or from two [corpses] or from three, [suffices to convey un¬ cleanness by overshadowing].2 And the School of Hillel say: [It must be] a quarter-fotA of bones from a [single] corpse, and from bones which are the greater part either in bulk3 or in number. Shammai says: Even [a quarter¬ ed^] from one bone.
8. The School of Shammai say4 of Heave-offering vetches: They must be soaked and rubbed in cleanness, but they may be given as food in un¬ cleanness. And the School of Hillel say: They must be soaked in cleanness but they may be rubbed or given as food in uncleanness. Shammai says: They may only be eaten dry. R. Akiba says: Whatsoever concerns them may be done in uncleanness.
9. If5 a man would change a sela's worth of Second Tithe money [out¬ side of Jerusalem] the School of Shammai say: He may change it for a whole sela. And the School of Hillel say: A shekel’s worth of silver and a shekel’s worth in copper coin. R. Meir says: They may not change silver and produce [together] into [other] silver. But the, Sages permit it.
10. If6 a man would change a sela of Second Tithe money in Jerusalem, the School of Shammai say: He must change the whole sela into copper coin. And the School of Hillel say: He may take one shekel’s worth of silver and one shekel’s worth in copper coin. They that made argument before the Sages say: Three denars’ worth of silver and one of copper. R. Akiba says: Three denars’ worth of silver and from the fourth [denar] a quarter in copper coin. R. Tarfon says: Four aspers in silver. Shammai says: Let him deposit it in a shop and [gradually] consume its value.
11. If7 a bride’s stool lost its seat-boards, the School of Shammai declare it [still] susceptible to uncleanness; and the School of Hillel declare it not susceptible. Shammai says: Even the frame of a stool remains susceptible to uncleanness. If a stool is fixed to a baking-trough, the School of Shammai declare it [still] susceptible to uncleanness, but the School of Hillel declare it not susceptible. Shammai says: Even one that was made [to be used] inside it [is susceptible].