On today’s daf, the rabbis are in the midst of a complicated series of logical maneuvers as they attempt to get at the underlying principles of the mishnah that kicked off our tractate. To recap: If two people both lay claim to the same item, both must swear they own at least half of it and the item is split between them. But if one claims it all, and the other claims only half, then the dispute is only over half the item, but the same principle holds: Both parties swear and then split the disputed portion.
The latter scenario is known as modeh b’miktzat — literally a “partial admission.” In general, if someone makes a claim against someone else, barring any corroborating witnesses, the accused is under no obligation to take an oath on the matter. Which seems like a good rule: Without it, people might be incentivized to just go around grabbing other people’s things and dragging them to court. Requiring an oath in the absence of evidence is a good deterrent. But if the accused admits to part of the claim, that establishes sufficient reason to believe that the claim has merit and the accused is obliged to swear about the part of the claim they deny.
On today’s daf we encounter a case that seems to be a textbook example of a partial admission:
Rabbi Hiyya says: (If one says to another): “I have 100 dinars in your possession,” and the other says: “You have only 50 dinars in my possession,” and here you are, he is obligated (to take an oath).
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In this case, one person claims to have entrusted 100 dinars to his friend, but the friend says he owes only 50 dinars and here it is. (There’s some dispute about what this statement, “here you are,” actually means, but the crux of it is that the borrower effectively hands over the money.) According to Rabbi Hiyya, this is a clear case of modeh b’miktzat: The money holder is admitting to half the original claim of 100 dinars. Consequently, he must swear that he doesn’t have the other 50 dinars. But Rav Sheshet disagrees:
If he says “Here you are,” (and denies the other half of the claim) he is exempt from taking an oath. What is the reason? Since he said to him: “Here you are,” those dinars that he admitted are considered as if the creditor has them. With regard to the other 50, (the defendant) did not admit. Therefore, there is no admission to part of the claim.
Essentially, Rav Sheshest says that unlike a case where someone merely verbally admits part of the claim, if the money is handed over to the claimant, the matter is resolved and there’s no longer a partial admission. The 50 dinars in dispute is its own separate claim and the accused has no obligation to swear an oath.
The Gemara will continue to debate the specifics of this particular formulation of “here you are” and whether it obligates an oath or not. But it’s worth pausing for a moment here to note the stakes. It’s not only the fate of disputed money and garments that hangs in the balance here.
Much of the underlying concern animating the discussion in these early pages of Bava Metzia is the circumstances in which we require people to swear, which is not a trifling matter in Jewish thought. The prohibition on swearing falsely is one of the Ten Commandments, which surely explains why swearing carries such weight in Jewish law. Swearing is not only a means of ascertaining who gets what in cases of disputed property or deterring thievery. It’s crucial to the settling of common property disputes and to establishing legal facts, which is really another way of saying it’s crucial to several basic societal functions. And since swearing an oath is both mandated in certain circumstances, and a serious transgression if that oath is false, the rabbis are supremely careful about determining the precise conditions when a person must make one.
Read all of Bava Metzia 4 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on March 3rd, 2024. If you are interested in receiving the newsletter, sign up here.
