Babylonian Talmud: Tractate Kethuboth

Folio 18a

Because [the condition of the relations between] Judaea and Galilee is usually as in time of lawlessness.¹  But let him teach: R. Joshua admits [that] when one says to his fellow, 'I borrowed from you a maneh and paid it [back] to you.' he is believed!²  — Because he would have [in that case] to teach [in] the last clause: 'If there are witnesses that he borrowed from him [a maneh] and he says. "I have paid it [back]" he is not believed', but it is established for us³  [that] if one lends [money] to his fellow before⁴  witnesses, he need not pay it [back] to him before witnesses.⁵  — But let him [then] teach: R. Joshua admits [that] if one says to his fellow, 'I owed to your father a maneh⁶  and I returned to him half'⁷  he is believed!⁸  — According to whose opinion?⁹  If according to the opinion of the Rabbis. surely they say [that he is regarded as] one who returns a lost thing;¹⁰  [and] if according to R. Eliezer b. Jacob. surely he says that he must take an oath!¹¹  For it has been taught:¹²  R. Eliezer b. Jacob says: Sometimes [it may happen] that a man has to take an oath because of his own statement. How [is it]? [If one says to his fellow]. 'I owed to your father a maneh and I returned to him half,' he must take an oath.¹³  And this is [a case] where one takes an oath because of one's statement.¹⁴  But the Sages say: He is [regarded] only as one who returns a lost thing and he is free. And does not R. Eliezer b. Jacob hold [that] one who returns a lost thing is free?¹⁵  — Rab said: [It speaks here of a case] when a minor claimed from him.¹⁶  But did not a Master say: One does not take an oath because of a claim by a deaf-mute, an imbecile, or a minor?¹⁷  — What is [meant by] 'minor'? A grown-up person, and why does he call him 'minor'? Because with regard to the affairs of his father he is [regarded as] a minor. If so, [how can you say] 'his own statement?' It is a claim [made] by others! — It is a claim [made] by others and [also] his own admission. But all claims [consist of] a claim [made] by others and one's own admission!¹⁸  — They differ here with regard to [an opinion of] Rabbah, for Rabbah said: Why did the Torah say [that] he who admits a part of the claim must take an oath? [Because] it is a presumption [that] no man is insolent in the face of his creditor. He would [indeed] like to deny the whole [debt]. but he does not do it¹⁹  because no one is [so] insolent.

1. Cf. B. B. 28a for variants.
2. [The Mishnah could have illustrated the ruling of R. Joshua in a case 'where there is no ox slaughtered before you'. in this way instead of by one dealing with real property and with 'your father.']
3. I.e., it is an established rule; cf. B.B. 170a, Shebu. 41b.
4. Lit., 'with'.
5. I.e., he is believed if he says he repaid it to him in the absence of witnesses. so the Mishnah could not teach that he is not believed.
6. Lit., 'a maneh to thy father in my hand', that is, thy father had a maneh in my hand.
7. Lit., 'and made him eat half (or a portion)'. it may be that be paid him the half in kind, perhaps in goods.
8. [Since it is made entirely on his own initiative. This would be a strong point. having regard to the law that elsewhere he who admits half a claim is not believed without an oath, v. infra.]
9. Would that statement be.
10. Even if the admission is not made on his own initiative but made on the claim of the son, he is free from paying the other half, and from taking an oath. V. Shebu 42a, also 38b.
11. As to the other half.
12. Shebu. 42b.
13. As to the other half.
14. If he would not have made the statement no one would have known of his debt.
15. From taking an oath. [Surely this is against the well-established principle that he is exempt. v. Git. 48b.]
16. His statement was therefore not entirely 'his own statement'.
17. V. Shebu. 38b. [How then could R. Eliezer in such a case impose an oath?]
18. [All cases for which an oath is imposed are such as where the one against whom a claim is made makes a partial admission.
19. Lit., 'and this one that be does not deny it'.

[Indeed] he would like to admit the whole of it,¹  only he does not do it in order to slip away from him [for the present].²  and he thinks, 'as soon as I will have money I will pay it'.³  And [therefore] the Divine Law⁴  said: Impose an oath on him, so that he should admit the whole of it.⁵  [Now] R. Eliezer b. Jacob holds [that] he is not insolent against him nor against his son, and therefore he is not [regarded as] one who returns a lost thing. And the Rabbis hold [that] against him he is not insolent, but against his son he might be insolent, and since he is not insolent,⁶  he is [regarded as] one who returns a lost thing.⁷

MISHNAH. IF WITNESSES SAID, 'THIS⁸  IS OUR HANDWRITING, BUT WE WERE FORCED,⁹  WE WERE MINORS, WE WERE DISQUALIFIED WITNESSES,¹⁰  THEY ARE BELIEVED.¹¹  BUT IF THERE ARE WITNESSES THAT IT IS THEIR HANDWRITING, OR THEIR HANDWRITING COMES OUT FROM ANOTHER PLACE,¹²  THEY ARE NOT BELIEVED.¹³

GEMARA. Rami b. Hama said: They taught¹⁴  this¹⁵  only when they¹⁶  said: We were forced [by threats] with regard to money.¹⁷  but [if they said]. we were forced [by threats] with regard to [our] life, they are believed. Raba said to him: Is it so? After he has once testified. he cannot again testify!¹⁸  And if you will say [that] this applies only to an oral testimony but not to testimony In a document — did not Resh Lakish say: If witnesses are signed on a document it is as if their testimony had been examined in court?¹⁹  No; if it has been said,²⁰  it has been said with regard to the first clause, [where it is stated:] THEY ARE BELIEVED. Whereupon Rami b. Hama said: They taught this²¹  only when they²²  said, 'We were forced [by threats] with regard to [our] life.' but if they said, 'we were forced [by threats] with regard to money. they are not believed. because no one makes himself [out to be] a wicked man.²³

Our Rabbis taught: They²⁴  are not believed to disqualify²⁵  it.²⁶  This is the view of R. Meir; but the Sages say [that] they are believed. This is right according to the Rabbis,²⁷  who follow²⁸  their principle²⁹  'the mouth that bound is the mouth that loosened,'³⁰  but what is the reason of R. Meir?³¹  I grant you [with regard to] 'DISQUALIFIED WITNESSES.'³²  [because] the creditor himself examines well [the witnesses] beforehand and [then] lets [them] sign.³³  [With regard to] 'MINORS' also [it can be explained] according to R. Simeon b. Lakish. for Resh Lakish³⁴  said:

1. The whole debt.
2. I.e., to postpone the matter.
3. The whole debt.
4. Lit., 'the All-Merciful'.
5. Now.
6. And admits a part of the debt.
7. And be is believed without an oath. For further notes on the whole passage v. Sheb. (Sonc. ed.) pp. 25ff'.
8. The handwriting of the signatures on a document.
9. To sign.
10. Lit., 'Unfit with regard to testimony'. They may have been unfit either through kinship or through their conduct (Rashi). Cf. Sanh. 27b and 24b.
11. [Since it is they who at the first instance confirm their signatures. they are also believed in the attendant reservation made by them in regard thereto.]
12. As when their handwriting has been confirmed on another document.
13. [Since the validity of their signatures does not depend on their present attestation the reservation Is not accepted.]
14. In our Mishnah.
15. That if their handwriting is confirmed through another document they are not believed to disqualify their signature on the present document.
16. The witnesses.
17. Money threats should not have made them sign a falsehood. And they are not believed to say that they signed a falsehood, v. note 12.
18. Retracting what he testified before — By their signatures they declared the document valid. and they cannot now declare it to be invalid.
19. Therefore, what applies to oral testimony applies also to testimony in a document.
20. I.e., if Rami b. Hama made any statement similar to the one mentioned above.
21. That they are believed to disqualify their signature.
22. The witnesses.
23. I.e.. a man's testimony against himself has no legal effect. And by saying now that money threats made them sign a false testimony. the witnesses would make themselves out to be wicked men. V. n. 6.
24. The witnesses who signed the document.
25. In the manner stated in the first clause of the Mishnah.
26. The document.
27. I.e.. 'the Sages'.
28. Lit., 'as'.
29. Lit., 'their reason'.
30. I.e., the same persons who made the document valid have the power to make the document invalid. cf. Mishnah 14b.
31. Lit., 'but according to R. Meir, what is the reason'?
32. I.e., if they say 'we were unfit to bear testimony;' v. supra p. 101, n. 13.
33. They must therefore have been fit witnesses, and they cannot now say that they were unfit.
34. Abbreviated from R. Simeon h. Lakish.