In the first two pages of this tractate, the Talmud has dealt rapidly with various kinds of conspiring witnesses for whom it is not possible to apply the punishment prescribed in the Torah — for whom we do not make them suffer what the people they lie about would have suffered had they not been caught. We opened the tractate with witnesses who falsely testify that a priest is the son of a divorcee or a halutzah, rendering him unfit for service in the Temple. (We don’t declare the lying witnesses invalid to serve as priests, and they don’t pass on any invalid status to their children.) The next mishnah, on today’s daf, was about witnesses who falsely testified that a man divorced his wife but did not pay her ketubah (marriage contract). (We don’t make them pay the full ketubah.) This mishnah is followed closely by yet another on today’s daf which concerns witnesses who lie about when a loan is due:
In the case of witnesses who said: “We testify with regard to a man called so-and-so that he owes another person 1,000 dinars that he borrowed on the condition that he is to give the money back to him from now until 30 days have passed,” and the borrower says that he borrowed that sum on the condition that he is to give the money back to him from now until 10 years have passed.
Here too, says the mishnah, we do not force the witnesses to pay the entire sum for lying about when the loan was due. The Gemara, for its part, becomes interested in the specific notion of a debt that is not due for ten years because, according to the legal structures of ancient Israel, such a thing shouldn’t be possible. Here’s why:
The sabbatical year — Shmita, in Hebrew — which comes every seven years, is famously a year in which fields lie fallow and produce is ownerless. But it’s also a year in which all debts are forgiven. Shmita is designed to be a reset of existing economic structures. The cyclical canceling of debt, in order to prevent borrowers from being crushed under ever-increasing burdens, is a powerful tool. So powerful that Shmuel, in the Gemara on today’s daf, says even if a lender conditions a loan on its continuation past the sabbatical year (which would necessarily be true for any 10-year loan), such a condition cannot take hold:
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And Rav Yehuda says that Shmuel says: In the case of one who says to another: I am lending you money on the condition that the sabbatical year will not abrogate my debt, the sabbatical year still abrogates the debt.
The Gemara suggests his rationale:
In the case of anyone who stipulates counter to that which is written in the Torah, his stipulation is voided.
While people can make conditions in economic dealings with one another, they cannot do so in a way that conflicts with Torah law. However, the Gemara points out that this notion — that one can’t stipulate against Torah law — may in fact be a point of dispute:
But wasn’t it stated: In the case of one who says to another the stipulation: I am selling you this item on the condition that you have no claim of exploitation against me if I charge you more than the item is worth, Rav says the buyer has a claim of exploitation against him. And Shmuel says he has no claim of exploitation against him.
By Torah law, if someone sells an item for more than a fifth over its actual value, the purchaser is entitled to compensation for the surcharge. Nonetheless, Shmuel here seems to be suggesting that a stipulation which would waive such a right is actually effective! The Gemara attempts to clarify this seeming contradiction:
Wasn’t it stated with regard to that halakhah that Rav Anan said: It was explained to me personally by Shmuel: If the seller stipulates: “On the condition that you have no claim of exploitation against me,” then the buyer has no claim of exploitation against him. But if the seller stipulates: “On the condition that there is no prohibition of exploitation in this transaction,” there is a prohibition of exploitation in that transaction.
Here too, if the lender stipulated to the borrower: “I am lending you money on the condition that you will not abrogate the debt during the sabbatical year,” the sabbatical year does not abrogate his debt. But if he stipulated: “On the condition that the sabbatical year will not abrogate my debt,” the sabbatical year abrogates the debt.
Shmuel makes a rather fine-grained linguistic and conceptual distinction. If I stipulate that you, as buyer, will not have the right to claim a surcharge from me; or that you, as borrower, will still owe me a debt after the Shmita year, this is effective, because it is a stipulation about the terms we as individuals are agreeing upon. But if I word the stipulation to imply that there is no exploitation occurring in this transaction where I charge you seven zuzim for an item that should cost five, or that the Shmita year would not come and cancel a debt, this stipulation takes no effect because it’s a factor beyond the person’s control. There is exploitation in this transaction, the buyer is just waiving their rights to compensation for it; the Shmita year does cancel debts, the borrower here is just agreeing to an exception.
In sum, Shmuel does believe one can stipulate (in monetary matters) against Torah law and have the stipulation take effect, but only if the stipulation is worded with regard to the individuals and their agreement, not the general functioning of monetary law. In this way, individuals can waive their monetary rights as stated in the Torah, but the Torah itself cannot be waived.
Read all of Makkot 3 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 10, 2025. If you are interested in receiving the newsletter, sign up here.
