MISHNAH: A judicial oath [In the case of a claim not proven by witnesses or documents where the defendant disputes part of the claim, the judges will impose an oath on the defendant that he owes not more than he admitted. The basis is Ex. 22:8, where the expression where he says, this is it is read as partial admission on the part of the defendant. The oath cannot be required by biblical standards if the defendant rejects the claim in its entirety; it cannot be administered by rabbinical standards if the amount in dispute or the amount admitted are below a certain threshhold.] is about a claim of two silver coins [“Silver” denotes the smallest silver coin struck in Hasmonean times, the obolos, /6 of a denar. The silver half- oboloi minted in Yehud in Persian times had long disappeared when the Mishnaic system of currency was formulated.] and the acknowledgment of one peruṭah [A copper coin of Hasmonean times, of varying weight, but in the Mishnah assumed to be /32 of an obolos. Half- peruṭot have been found.] . If the acknowledgment is not of the kind of the claim he is not liable [This is explained in Mishnaiot 3 ff.] . How is this? “You are holding two silver coins for me;” “I am holding only one peruṭah.” He is not liable [Since the claim to be adjudicated is 2 oboloi minus 1 peruṭah, i. e., 63 peruṭot, the statutory minimum of 64 peruṭot is not reached; the oath cannot be imposed by rabbinic rules.] . “You are holding two silver coins and a peruṭah for me;” “I am holding only one peruṭah.” He is liable [Since the claim in dispute is a full two oboloi.] . “You are holding a mina for me,” “I am not holding anything for you,” he is not liable [Since the claim is rejected in its entirety, it must be proven by documents or witnesses; the oath cannot be imposed by biblical standards.] . “You are holding a mina for me,” “I am holding only 50 denar for you,” he is liable. “You are holding a mina for my father,” “I am holding only 50 denar for you,” he is not liable since he is like one returning a lost object [Since a son cannot swear in place of his father, the son would have to accept a declaration by the defendant that he had owed to the father but returned everything to the latter during his lifetime; the defendant has to be believed if he admits part of the claim.] .
HALAKHAH: “A judicial oath,” etc. [This text is copied in Qiddušin1:1, explained there in detail in Notes 77–98. Parallels are in the Babli Qiddušin11b. The question is, why do the House of Hillel require a larger minimal amount for litigation before a court than the House of Shammai but a much smaller sum than the House of Shammai for legal marriage by symbolic acquisition. The answer is that different biblical verses are the basis. Since a Hebrew slave girl is a minor sold by her father for a maximum of 6 years, or until she reaches the age of 12, or until she is married by the person who buys her or one of his sons. In order to get the maximum for his money, the man buying her might use her as a servant up to the last day of her servitude and then marry her on that day. Since if the original price is divided by the sum of all days of her servitude and only pennies pay for the service of one day, only pennies are left on the last day but nevertheless the marriage is legal. Therefore only pennies are needed for a legal marriage ceremony.] The claim, the House of Shammai say, an obolos, but the House of Hillel say, two oboloi. The argument of the House of Shammai seems inverted. There, they say, “silver” is a denar, but here, they say that “silver” is an obolos. The argument of the House of Hillel seems inverted. There, they say that “money” is a peruṭah but here, they say that “money” is two oboloi. Rebbi Jacob bar Aḥa in the name of Rebbi Ḥanina: The House of Shammai learn from the initial sale of a Hebrew girl. Since her initial sale was by [at least] a denar, so her preliminary marriage is by [at least] a denar. The House of Hillel learn from the end of her diminution. Since the end of her diminution is a peruṭah, so her preliminary marriage is by a peruṭah. What is the reason of the House of Shammai? As it is said, she leaves gratis, without silver [Ex. 21:10.] . Would we not know that it is without money? Why does the verse say, without silver? From there, that she is sold for more than silver. And what is more than silver? A denar. But maybe “silver” is a peruṭah, more than silver two peruṭot. The smallest silver coin is an obolos [“Silver” denotes the smallest silver coin struck in Hasmonean times, the obolos, 1/6 of a denar. The silver half- oboloi minted in Yehud in Persian times had long disappeared when the Mishnaic system of currency was formulated.] . So why is it not an obolos? Rebbi Abun in the name of Rebbi Judah bar Pazi: For if she wants to diminish, she diminishes every year by an obolos and leaves. Could she not diminish by a peruṭah? Rebbi Abun said, think of it. If she wanted to compute the diminution at the start of the sixth year, there would be a peruṭah left. But the start of the diminution must be an obolos, the end of the diminution a peruṭah. If there is only one peruṭah left, can she not pay the diminished amount and leave? Just as the last diminished amount is a peruṭah, so her preliminary marriage should be a peruṭah! What is the reason of the House of Hillel? Since her last diminished amount is a peruṭah, you know that her preliminary marriage is by a peruṭah. Think of it, if there is only one peruṭah’s worth left, can she not pay the diminished amount and leave? Just as the last diminished amount is a peruṭah, so her preliminary marriage is by a peruṭah.
The argument of the House of Hillel seems inverted. If a person give to his neighbor, [Ex.22:6.] etc. If to teach that the court will not act on less than a peruṭah’s worth, is it not already written, to incur liability for it? To exclude anything not worth a peruṭah. From here, that it should be more than silver. And what is more than silver? Two oboloi. But maybe “silver” is a peruṭah, more than silver two peruṭot. The smallest silver coin is an obolos. So why is it not an obolos? Or vessels; since vessels are two, also “money” is two. How do the House of Shammai interpret or vessels? Following what Rebbi Nathan stated, or vessels, including clay vessels [Cf. Qiddušin1:1 Note 96 for the arguments which show that this reading is impossible.] . Samuel said, if he claimed from him two needles and he admitted to one, he is liable. Rebbi Ḥinena said, only if they are worth two peruṭot, that the claim should be about a peruṭah’s worth and the confession about a peruṭah’s worth [Quoted in Tosaphot39b, s.v. מה.] . This follows the House of Shammai who do not learn money’s worth from “vessels”. But following the House of Hillel who learn money’s worth from “vessels”, since vessels are two, also “money” is two. Similarly, since “money” means two oboloi, also “vessels” means two oboloi’s worth.
Rebbi Abba, Rav Jehudah in the name of Samuel: In any case where two [witnesses] make him liable to pay money, a single witness sets him up for an oath [In the Babli, 40a, this is a tannaitic statement commented upon by Samuel.] . But do not two [witnesses] make him liable for real estate [Since anything can be decided upon the testimony of two witnesses, possession of real estate can be transferred without documentary proof by the testimony of witnesses. Similarly, real estate can be attached in foreclosure for unpaid fines upon the testimony of two witnesses.] ? It is a difference since one does not swear about real estate. But do not two [witnesses] make him liable for a fine? There is a difference since one does not swear about a fine. But do not two [witnesses] make him liable for a peruṭah? Is it so? Have we not stated: “A judicial oath is about a claim of two silver coins and the acknowledgment of one peruṭah.” Our Mishnah, when he swears by his own formulation. What (Rebbi) [A slip of the scribe’s pen; the first generation Samuel only had a medical, not a rabbinic degree.] Samuel said, when he swears by the formulation of others. Rav Ḥisda and his group disagree. “A judicial oath”, any judicial oath. There is no difference whether he swears by his own formulation or he swears by the formulation of others, he cannot be liable except for a claim [It is not clear whether the sentence is incomplete and one should add “of at least two oboloi”, or that only the situation of monetary claim and denial can be adjudicated by judicial oath, to support the opponents of R. Joḥanan in the next paragraph. The interpretation of the statement in the Babli has no relation to the discussion here.] .
“And the acknowledgment of one peruṭah.” Rebbi Joḥanan said, if somebody claims that another had stolen [The argument is about Ex. 22:8, the basis of the Mishnah. A deposited something with B. B claims that the item was lost and as unpaid trustee he is not liable for damages. A accuses B of having appropriated the item for himself, i. e., to have stolen it. R. Joḥanan holds that this claim is no different from all other claims adjudicated under the rules of Ex. 22:6–8 and, therefore, an oath can be imposed on B only if the latter acknowledges liability for part of the claim.] , the latter is not liable unless he partially admit. But all his colleagues [According to the Babli (Bava qamma106b, bottom) he is R. Ḥiyya bar Joseph, a student of Rav and member of R. Joḥanan’s court.] differ from him. How do the colleagues uphold for this is it [Ex. 22:6 reads: About anything criminal, about an ox, about a donkey, about a sheep, about a garment, about anything lost, if he says, for this is it, the suit of them shall come before the Elohim, he whom the Elohim find guilty shall pay double to his neighbor. Elohim means “the powerful;” it can be applied both to God and to judges. From this double meaning it is inferred that judges impose an oath before God on the accused if the latter has acknowledged for this is it, i. e., a partial admission. On the other hand, double restitution is the fine for the thief. Therefore R. Joḥanan is justified in his conclusion that since v.6 declares the entire paragraph to be about deposits, the entire sentence deals with the case of A accusing B of theft of the deposit.] ? If he claims money from him. If he claims money from him, is that double he shall pay to his neighbor [The colleagues agree that a fine can be imposed only for theft, but they hold that the clause for this is it does not apply to deposits but to repayment of loans and debts (Lev. 5:24). They have to take the position that this very long sentence deals with different subjects in different parts and that an oath is due on demand of the claimant for any accusation that a deposit was stolen.] ? But this is a mixture of paragraphs.
Rebbi Ze`ira said, he is not liable unless the denial be of two silver coins not counting the acknowledgment of one peruṭah [As explained in the Mishnah, after partial admission of any claim, the amount in dispute must be at least two oboloi. In the Babli, 39b, this is the position of Rav, R. Ḥiyya bar Joseph’s teacher, disputed by Samuel who only requires the total claim to be for at least two oboloi.] . This follows Rebbi Joḥanan’s colleague.
“ ‘You are holding a mina for me’, ‘I am not holding anything for you’, he is not liable [Since the claim is rejected in its entirety, it must be proven by documents or witnesses; the oath cannot be imposed by biblical standards.] .” Even “you are holding a lot for me,” “I am not holding anything for you”, he is not liable? But the following: “You are holding a mina for me.” “I am holding only a peruṭah for you.” He is liable [In Mishnah 1, the sentence about the person who claims he owes only 50 denar seems redundant. It only is inserted to indicate that for the liability to swear, a mina is no different from two oboloi. If the defendant admits to owing a peruṭah and the claim is at least 2 oboloi, there is liability. The lower bound is not a function of the size of the claim.] . Rav and Rebbi Joḥanan both are saying: Only if he made the loan in the presence of witnesses [They hold that undocumented loans never can trigger liability for an oath. Babli 41a (in the name of Rav only.)] . But if he made the loan not in the presence of witnesses, he could tell him, you gave me a loan but I returned half of it. Rebbi Yudan said, in money matters one does not argue “because.” Because he could have told him, you did not give me a loan, he could tell him, you gave me a loan but I returned half of it [In the Babli, such an argument is called מִגּוֹ “because”. In the absence of witnesses or documents, if the defendant presents an argument which is less favorable to him than another argument which he could have advanced, the court is forced to give him the benefit of doubt and free him from the oath. It will be seen in Halakhah 7:1 that such arguments are acceptable in general, supporting Rav and R. Joḥanan against R. Yudan.] ? The Mishnah [Mishnah 2.] disagrees with Rebbi Joḥanan: “ ‘You are holding a mina for me;’ he said ‘yes’ [In front of witnesses.] . The next day he said, ‘return it to me,’ ‘I returned it to you;’ he is not liable. ‘I am not holding anything for you,’ he is liable [Since he had agreed in the presence of witnesses that he owes the money, he cannot change his confession later; he does not swear but has to pay. This last sentence is not in the Mishnah of the Yerushalmi but appears in the Babli and the independent Mishnah mss., including Maimonides’s autograph. The Halakhah shows that it should also be read in the Mishnah.] .”
“`You are holding a mina for me,’ ‘I am not holding anything for you.’ ” Issy [Babli 41a. In the Babli, he always appears as Rav Assi even though his ordination preceded that of Rav for whom the title “Rav” was invented.] said, one who gives a loan to another in the presence of witnesses should claim repayment only in the presence of witnesses. Rebbi Avin said, the word of Issy: If one gives a loan to another in the presence of witnesses, [the debtor] should not repay except in the presence of witnesses [This is not an obligation of the lender’s as implied by Issy’s formulation, but advice to the borrower to protect himself from double claims by the lender.] . The Mishnah disagrees with him: “ ‘You are holding a mina for me;’ he said ‘yes’ [In front of witnesses.] . The next day he said, ‘return it to me,’ ‘I returned it to you;’ he is not liable. ‘I am not holding anything for you,’ he is liable [Since he had agreed in the presence of witnesses that he owes the money, he cannot change his confession later; he does not swear but has to pay. This last sentence is not in the Mishnah of the Yerushalmi but appears in the Babli and the independent Mishnah mss., including Maimonides’s autograph. The Halakhah shows that it should also be read in the Mishnah.] [Since the second part of the Mishnah explicitly mentions payment in front of witnesses, the first part must assume that payment was not made before witnesses, even though the admission of the debt before witnesses is equivalent to a loan given before witnesses. The Mishnah contradicts Issy’s formulation; it is compatible with R. Avin’s. The Babli, 41a and Ketubot18a, explicitly notes that repayment in the presence of witnesses is not a legal requirement.] .”
MISHNAH: “You are holding a mina for me;” he said “yes” [Mishnah 2.] . The next day he said, “return it to me,” “I returned it to you;” he is not liable [Since he already admitted his entire obligation in the presence of witnesses, there is no occasion for an oath. It is up to the claimant to prove the defendant’s guilt by witnesses or documents.] . “You are holding a mina for me;” he said “yes.” “Return it to me only in the presence of witnesses.” The next day he said, “return it to me,” “I returned it to you;” he is liable [To pay the entire sum, see the preceding Note.] since he is required to return it in the presence of witnesses.
HALAKHAH: “You are holding a mina for me;” etc. Rebbi Abun [He seems to be identical with R. Avin quoted in the preceding paragraph (which also refers to Mishnah 2) and the father of R. Yose ben R. Bun.] said, it is usual for people to give loans to others not in the presence of witnesses but to ask for repayment in the presence of witnesses [Even though it is not legally necessary, it is recommended that requests for repayment be made in front of witnesses to obtain admission by the debtor of the existence of the debt as presupposed in the Mishnah.] .
“You are holding a mina for me;” he said “yes.” “Return it to me only in the presence of X and Y.” The next day he said, “return it to me,” “I returned it to you;” he is liable [To pay the entire sum, see the preceding Note.] since he is required to return it in the presence of witnesses. Think of it, if he said, I returned it in the presence of witnesses. Bar Kappara stated: “when X and Y are standing there.” Think of it, if he said, “when X were Y are standing there.” Rebbi Abba, Rav Hamnuna, Rebbi Ada bar Ahava [Even though it is not legally necessary, it is recommended that requests for repayment be made in front of witnesses to obtain admission by the debtor of the existence of the debt as presupposed in the Mishnah.] in the name of Rav: A case came before Rebbi, and he said, let X and Y come [The questions are besides the point. If there were witnesses, it is not a question of whether a statement of the defendant can be believed, nor whether he should swear; it is up to the court to listen to the witnesses. In the Babli, 41b, the question is raised if the return was made in the presence of witnesses but not those specified by the lender. It seems that the formulation by Bar Kappara requires return only in the presence of the specified witnesses.] .
[The following does not concern oaths but judicial rules concerning real estate. Babli Bava batra169b.] If somebody produced both a document and ḥazaqah [“Grasping”, a legal term with different meanings in different domains of law (cf. Ketubot5:5 Note 100, Qiddušin1:1 Note 30.) It can mean taking possession by active use, but here it means a presumption of permanence of an established status quo ante. The particular application meant here is validation of squatter’s rights after three years of uncontested occupation (which must be combined with a claim, not necessarily proven, of rightful acquisition, Bava qamma7:4 Note 49.)] . Rebbi says, it should be judged by the document. Rabban Simeon ben Gamliel says, it should be judged by ḥazaqah [Obviously all means of proof should be admitted; the question is which should be given the greater weight in the judges’ deliberations.] . Rebbi Ze`ira in the name of Rav Jeremiah: A case came before Rebbi Jehudah following Rabban Simeon ben Gamliel [The text is questionable since “R. Jehudah” clearly is Rebbi, (R. Jehudah ben Simeon) as follows from the sequel, and the sentence is missing a verb. Probably one should read: Rebbi judged following Rabban Simeon ben Gamliel.] . Rebbi Jeremiah asked before Rebbi Ze`ira: How? Did Rebbi switch his opinion? There he said, it should be judged by the document. But here he said it should be judged by ḥazaqah. Would we say, before he changed his opinion [Since Rebbi was a student of his father Rabban Simeon, he certainly started out following the latter’s opinion and only later developed his own, differing, approach.] ? Even if you say, after he changed his opinion. Rebbi only wanted to determine the truth of the matter [Theoretical preferences should never impede the search for the truth. Babli Bava batra170a/b.] . “If somebody occupied real estate on the basis of a document of sale [Greek ὠνή “document of sale”.] and it was found invalid, this is not ḥazaqah [As mentioned in Note 38, proof of legal possession by proof of undisturbed occupation is admissible only if based on a claim of legal acquisition. This claim does not necessarily have to be proven; the person in possession might claim, e. g., either that he inherited under intestate rules or that the sale document was eaten by the rats. But if he tries to prove his claim by presenting a forged document, any claim of ḥazaqah based on the document must be thrown out by the court. The only problem is whether he should be allowed to plead a substitute claim.] .” [Tosephta Bava batra2:2.] Rebbi Jeremiah said, in dispute [R. Jeremiah (the fourth generation Amora, not the first generation Rav Jeremiah) thinks that Rebbi would prohibit any substitute claim while Rabban Simeon would allow an examination of proof of undisturbed occupation even after rejection of the document.] . Rebbi Samuel said, Rebbi Ze`ira, Rebbi Jacob bar Aḥa in the name of Rebbi Abinna: it is everybody’s opinion [If the document proving the claim is found invalid, the claim of squatter’s rights is also invalidated. In this Rebbi and Rabban Simeon agree.] . Rebbi Yose said, there if one produced both a document and ḥazaqah. Here if he came with a document [The difference between Rebbi and his father is about a case where both a document and a claim of ḥazaqah are presented to the court, where either one alone would be sufficient. The Tosephta deals with a case where a forged document was produced and only after it was rejected a claim of ḥazaqah was entered.] . Rebbi Yudan said, there if he presented two groups of witnesses; here one who contradicts his own proofs [Rebbi and Rabban Simeon disagree on how to handle a case where the claimant produces two sets of witnesses testifying to different aspects of the case. The Tosephta states that after a claim of documentary proof has been rejected, a subsequent claim which is logically inconsistent with the first one will not be considered by the court.] .
Rebbi Marinus was guarantor for his daughter-in-law [He warranted all claims she might have against her husband from the marriage contract; Babli Bava meṣia`17a.] . They went to court before Rebbi Ḥama the father of Bat Qappara and Rebbi Hoshaia [This must read: R. Ḥama the father of R. Hoshaia and Bar Qappara. The latter’s father was R. Eleazar haQappar.] . After he had admitted he said to him, I gave. They asked the Elder Rebbi Ḥiyya; Rebbi Ḥiyya asked Rebbi: One who became liable in court cannot be trusted. What is the meaning of “he cannot be trusted”? Rebbi Abbahu in the name of Rebbi Joḥanan: If he pays on his own initiative, he is trusted when he says, I gave. But from the orders of others, he cannot be trusted [The question here and in the next case is, on whom is the burden of proof. Even though the rule is that “the burden of proof is on the claimant,” since his daughter-in-law had to go to court against him, he has to prove (by witnesses or a receipt) that he paid. Had he not initially denied his responsibility, the burden of proof would have been on the daughter- in-law.] . Rebbi Abun bar Cahana said, also for oaths it is the same. What is the meaning of “also for oaths it is the same”? Rebbi Abbahu in the name of Rebbi Joḥanan: If he swears on his own initiative, he is trusted when he says, I swore. But from the orders of others, he cannot be trusted.
MISHNAH: [Here starts the discussion of the condition that “the acknowledgment must be of the kind of the claim.”] “You are holding for me a pound [Greek λίτρα, a Roman libra of twelve (Troy) ounces.] of gold,” “I am holding for you only a pound of silver;” he is not liable. “You are holding for me a gold denar,” “I am holding for you only a silver denar, or a tressis [With the good Mishnah mss. (Kaufmann ms. and Maimonides’s autograph) read: וטריסית. Tressis“three as; something of little value.”.] , or a dupondius [“Two as; two bits”.] , or a peruṭah,” he is liable since all kinds of coin [Even if for a claim of a gold denar the defendant admits only a debt of one peruṭah, 1/4800, it is a valid admission which makes the defendant liable for an oath.] are one.
HALAKHAH: “You are holding for me a pound of gold,” etc. [Tosephta Ma`aser šeni5:5. In the opinion of S. Lieberman, the Tosephta is quoted here to indicate that the rules for Second Tithe and judicial oaths are different. Second Tithe is the part of the harvest which the farmer should eat with his family at the place of the Sanctuary. If this is not practical, the crop can be redeemed and the sanctity transferred to the coins which then have to be spent in purity at the place of the Sanctuary. Problems arise when in the wallet chosen for the sanctified coins other coins are found which do not directly correspond to the farmer’s memory.] “Eight of gold [Gold coins, but seemingly different from the standard gold denar(or, after Diocletian’s currency reform, the solidus.)] I have in the wallet and one finds there eight gold denarii; or fifty tetradrachmas and one finds 200 denar; or 200 denar and one finds 50 tetradrachmas; these are profane. Eight gold denarii I have in the wallet and one finds fifty tetradrachmas [A gold denar usually is counted as 25 silver ii. 8 gold denarii are 200 silver denarii or 50 tetradrachmas.] ; or 200 denar and one finds 50 tetradrachmas, these are Second [Tithe].” “ ‘You are holding for me a pound of gold,’ ‘I am holding for you only a pound of silver;’ he is not liable. ‘You are holding for me a gold denar,’ ‘I am holding for you only a silver denar.’ [This seems to be not a copy of the Mishnah but a text similar to Tosephta Ševuot5:8,9. The background text is from Tosephta 5:9: “‘You are holding for me a gold denar as gold coin,’ ‘I am holding for you only a silver denar, or a tressis, or a dupondius, or a peruṭah,’ he is liable.” The incomplete sentence in the Halakhah seems to be a text, not found in the Tosephta, “ ‘You are holding for me a gold denar,’ ‘I am holding for you only a silver denar,’ he is not liable.” The formulation of the text points to the first two Amoraic generations during the military anarchy in the Roman Empire, when the gold denar was a unit of accounting but not an actual coin. Then the status of a claim for a gold denar is similar to the claim for a pound of gold; if it is answered by an admission of silver units it is not an admission of the kind of the claim. But a claim for an actual gold coin which is answered by an admission of silver or bronze coins is an admission of the kind of the claim. In the rabbinic literature of the Middle Ages, זָהוּב is the name of the standard gold coin of the author’s country.] ” Rebbi Jacob bar Abinna said, earlier, we were saying, “a gold denar” is a detail; “gold denarii” are not detail. If he had said, “a gold denar, a gold coin” it would have been correct [To hold the person liable who admits owing a silver denar when a gold coin was claimed.] . It was found stated, “a gold coin of a denar,” he is not liable [In the Tosephta: He is liable; the same in the Babli, 40a.] .
MISHNAH: “You are holding for me a kor [Biblical and Accadic measure of volume, 30 seah.] of grain;” “I am holding for you only a letek [A biblical measure of volume, half a kor.] of legumes;” he is not liable. “You are holding for me a kor of produce;” “I am holding for you only a letek of legumes;” he is liable since legumes are subsumed under produce. If one sued for wheat and the other acknowledged barley, he is not liable, but Rebbi Simeon [In all other sources, including the following Halakhah: Rabban Gamliel. He considers all grain to be of related kind.] declares him liable. Somebody who sued for amphoras of oil and the other admitted to pitchers, Admon says since he admitted of the kind of the claim he has to swear. But the Sages say, the admission is not of the kind of the claim [Admon (an authority of pre-rabbinic times) holds that the content of the vessels is determining; the Sages give preference to the determination of the vessels of storage.] . Rabban Gamliel said, I see [To see = to accept as obvious.] the words of Admon. If somebody sued for both vessels and real estate; if [the other] admitted the vessels but denied the real estate, or the real estate and denied the vessels, he is not liable [One does not swear on claims of real estate (Mishnah 1). Therefore if the defendant acknowledged his debt of vessels, there is nothing left to take the oath. If he disputes all claims to vessels, there is no acknowledgment since admission of the duty to hand over real estate does not count.] . If he admitted part of the real estate he is not liable [One does not swear on claims of real estate (Mishnah 1). Therefore if the defendant acknowledged his debt of vessels, there is nothing left to take the oath. If he disputes all claims to vessels, there is no acknowledgment since admission of the duty to hand over real estate does not count.] . Part of the vessels he is liable since non-guaranteed property obligates guaranteed property to be sworn about [Mishnah Qiddušin1:5, Note 474. If the defendant is liable to take an oath, the claimant can add to the oath all of his outstanding claims even if they in themselves would not force an oath. This is known as “rolling over of oaths.” A property is guaranteed if the seller as a matter of routine must guarantee the title to the property; this is the case with real estate.] .
HALAKHAH: “You are holding for me a kor of grain;” etc. [A copy of this Halakhah is Ketubot13:4, fully explained there in Notes 79–89. A parallel is in the Babli 40a, Ketubot108b.] Rebbi Immi in the name of Rebbi Joḥanan: Our Mishnah if he sued him for wheat and he admitted barley; but if he sued him for two kinds [Unrelated matters.] and he admitted one of them, everybody agrees that he is not liable. Rebbi Abbahu said about that of Rebbi Immi: Why did we state, “Rabban Gamliel declares him liable”? It comes to inform you of the power of Rabban Gamliel, how far he declares liable. Rebbi Ḥiyya in the name of Rebbi Joḥanan: Not only if he claimed wheat and he admitted barley to him, but if he claimed two kinds and he admitted one of them, the words of the Sages are that he is not liable. Rebbi Simeon ben Laqish said, it is only if he claimed two kinds and he admitted one of them, but if he sued for wheat and he admitted barley according to everybody he is liable. Following Rebbi Simeon ben Laqish: A person went to court before Rav: When he claimed from another wheat, barley, and spelt. Rav told him, wait until he charged you with anything he has to charge, and in the end you will swear one oath about everything. Rebbi Abbahu said, so argued Rebbi Simeon ben Laqish against Rebbi Joḥanan: In your opinion, since you say that if he claimed two kinds and he admitted one of them, according to the Sages he is not liable, did we not state “if he claimed vessels and real estate; if he admitted the vessels and denied the real estate, the real estate and denied the vessels”? For vessels about vessels he is liable, not so much more for vessels and real estate? He answered him, to transfer an oath to him by the following Mishnah, “since guaranteed property obligates non-guaranteed property to be sworn about.” This does not even disagree with Rebbi Simeon ben Laqish. But did we not state: “Somebody who sued for amphoras of oil and he admitted to vessels”? How do we hold? If he sued him for vessels and oil, and he admitted one of them, everybody agrees that this refers to the claim. But if he sued him for vessels and he did (not) [This has to be deleted.] admit oil, everybody agrees that what he admitted did not refer to the claim. Rebbi Ze`ira and Rebbi Abbahu in the name of Samuel: If he sued for vessels full of oil, one said vessels but not oil, the other said oil but not vessels. (Thrown) [For the inappropriate נידה read ניחא “it is understandable”.] vessels but not oil. Oil but not vessels [Oil not in vessels is lost.] ? Rebbi Eleazar in the name of Rebbi Abin formulates it as oil buckets. Can one not ask him? If he was paralyzed [The difference between Admon and the Sages is one of semantics; any judge could immediately resolve the question by asking the parties what they meant. The only occasion for the disagreement is if one of the parties cannot be interrogated since he became paralyzed.] .
So is the Mishnah: If he denied part of the real estate he is liable, part of the vessels he is not liable [It is obvious that the mentions of “real estate” and “vessels” have to be switched since one does not swear about claims to real estate. It is pointed out that the entire suit is not about what the defendant admitted but what he denied. There is an oath if the denial is partial, not if it is complete.] .
MISHNAH: One does not swear on the claim of a deaf-and-dumb person, an insane person, or a minor [These persons have no standing in court; they cannot bring any action.] . One does not put an oath on a minor but one swears for a minor [This oath is not the judicial oath based on a biblical decree but the rabbinic oath (Mishnah 7:8) instituted for creditors of orphans who want to collect debts incurred by their deceased father. They have to swear that the debt was not paid.] and the Temple [The Temple is not a person, cannot bring a suit, or be sued. But if a person dedicates all his property to the Temple, then the creditor can claim to be paid before the Temple may take possession. He has to swear an oath similar to that instituted for creditors of orphans.] .
HALAKHAH: “One does not swear on the claim of a deaf-and-dumb person, an insane person, or a minor,” etc. It is written: If a man give to his neighbor [Ex. 22:6.] , to exclude the minor [Since a minor is not able to act in law, anything the minor may give does not leave his guardian’s power. Since a minor cannot legally give a deposit, he cannot reclaim it nor ask for an oath in connection with such a deposit. The Yerushalmi Ma`aser šeni4:4 (Note 67, Eruvin7:6) finds this in the first words of v. 6, if a man give. Babli 42a; Mekhilta dR. Simeon ben Ioḥai22:6.] . So far if a minor gave to him and the minor requested from him. If he gave it as a minor and requested it as an adult? The verse says, his neighbor; only if giving and requesting are equal [If the giving is legal, the request for an oath is legal; this excludes the giving of a deposit by a minor, which is not legal. The Babli (Bava qamma106b) and the Mekhilta derive this from v. 8, before the judges shall come their mutual affair; the oath is possible only if both parties have the same standing.] . Rebbi Abba bar Mamal said, is that not obvious by what Rebbi Joḥanan said, one who claims a claim of theft in respect of his neighbor’s lost object is liable? “Where is my lost object?” He told him, it was stolen [Halakhah 8:7; Babli Bava qamma106b. A lost an object with enough unique features that the finder would have been required to publicly ask for its owner to come and reclaim it. B found the object. A has witnesses who saw B taking the object. When A comes to ask B, the latter claims that it was stolen. Since Ex. 22:8 lists lost objects as subjects of judicial oaths, it is clear that B has to swear upon A’s request even though A never handed the object to B. This excludes an interpretation like that given in Note 83. (Babli Yoma79b, Yebamot48b, Soṭah8a, Zevaḥim17a,90a,94b, Menaḥot69b, Keritut3b).] . Rebbi Abba said, explain it if he told him, you already asked me when you were underage and I was freed from swearing for you [An adult can ask for an oath regarding a deposit which he made underage only if the respondent does not claim that he already asked for the deposit back when he was still underage and unable to force an oath.] . An oath of the Eternal shall be between both of them [Ex. 22:10.] , to exclude the heir [Only the original parties have enough knowledge of the transaction to be able to swear. Heirs can only swear rabbinic oaths, to state that their father did not inform them that the claims were moot or similar formulations. Mekhilta dR. Ismael Mišpaṭim16.] . Rebbi Illa in the name of Rebbi Yasa: The baraita is about the heir [The baraita explaining the verse between them is directed also to the heirs. Since normally only the defendant has to swear, the expression between them is interpreted as biblical endorsement of the rule that if the defendant is disqualified as a witness he also is disqualified from swearing; in that case the claimant has to swear that he is entitled to the money. Heirs, who cannot swear in cases of claims against the father’s estate, can as claimants force oaths of debtors to the estate. Babli 47b.] .
Between both of them [Ex. 22:10.] it will never move from between them. If the one forcing the oath forces the oath lying, at the end it [The oath will destroy him.] will come over him. If the one swearing swears lying, at the end it will come over him. What is the reason? I shall take it out, oracle of the Eternal Sabaot, and it will come into the house of the thief and the house of him who swears falsely in My Name [Sach. 5:5. “It” is the curse mentioned in v. 4.] , etc. Rebbi Samuel bar Naḥman said, destructive angels have no joints. What is the reason? From roving about the Earth and walking there [Job2:2, Satan’s answer. Having no joints at knees or ankles, he could never sit down. The order of topics is better in Lev. rabba6(1) where it is explained that the Satan has to move perpetually because he has no joints but the curse of a false oath comes and dwells at length in the house of the swearer.] . But here, it will destroy its wood and its stones [Sach. 5:5. “It” is the curse mentioned in v. 4.] . Come and see, things which the fire will not burn, a vain oath will destroy. Rebbi Jonah said, about falsehood. Rebbi Yose said, even on truth. [The Aramaic of the following paragraph shows that this is a sermon, rather than a halakhic discussion. In slightly different form Lev. rabba6(1).] Ḥaggai was preaching following Rebbi Yose. There was a case about a woman who went to knead dough with another and had two denarii bound into the seam of her head cover. These fell out and were rolled into a loaf. She went back to he house, wanted them and did not find them. She returned to her and said to her, give me the two denarii which fell from me in your house. She told her, I do not know. If she [As always in rabbinic literature, in relating bad things about oneself one always used the third person (“this man, this woman”) instead of the first. The woman must have used an oath formula to be punished for vain oaths.] would know of it, she should bury her son. She buried him. When they returned from his grave, she heard a voice saying, if she had not known about them she would not have buried him. She said, if this woman [As always in rabbinic literature, in relating bad things about oneself one always used the third person (“this man, this woman”) instead of the first. The woman must have used an oath formula to be punished for vain oaths.] knows about them, she should bury her other son. She buried him. They came to console her and cut one loaf and found two denarii rolled into the loaf. This says, whether innocent or guilty, never swear an oath [It is better to pay, or not to sue and not collect money, than force or swear any oath.] .
MISHNAH: About the following one does not swear: slaves, and documents [It is better to pay, or not to sue and not collect money, than force or swear any oath.] , and real estate, and gifts to the Temple [Most of these will be shown in the Halakhah to be outside the biblical criteria. The Temple cannot ask for an oath since Ex. 22:6 restricts the judicial oath to transactions between human persons.] . Not about double restitution, nor quadruple or quintuple; the unpaid trustee does not swear, the paid trustee does not pay [The statements (also in Mishnah Bava meṣi`a4:8) refer to the subjects about which one does not swear. Cf. Mishnah 8:1.] . Rebbi Simeon says, one swears about things [In all other sources, including Šeqalim2:1, the reading is: sacrifices. If a person makes a vow “to sacrifice an animal”, and if then the designated animal is lost or develops a defect, he has to provide a replacement; this is a vow implying a guarantee. But if he vowed “to sacrifice this animal,” and anything happens to the designated animal, he does not have to provide a substitute; there is no guarantee.] for which he is responsible if they be alienated, but does not swear if he is not responsible if they be alienated. Rebbi Meїr says, there are things which are like real estate and they are not like real estate but the Sages do not agree with him. How is this? “Ten bearing vines [To be harvested. R. Meїr considers ripe fruit as already harvested and therefore movable, the Sages as part of the tree as long as they are hanging on the tree.] did I hand over to you,” but the other says, “they are only five.” Rebbi Meїr declares liable for an oath but the Sages say, anything connected to the ground is like ground.
HALAKHAH: “About the following one does not swear,” etc. If he transgressed [He swore about a claim to one of the items excluded by Mishnah 7 from being settled by oaths.] and swore, Rebbi Joḥanan said he brings a sacrifice for the oath [Since the oath was illegitimate, it is treated as “blurted oath”.] ; Rebbi Eleazar says, he does not bring. Rebbi Abun bar Ḥiyya said, so does Rebbi Johanan answer Rebbi Eleazar. No. If you pronounced about an oath about testimony which may apply to slaves, documents, and real estate, what can you say about oaths concerning deposits which do not apply to slaves, documents, and real estate [This argument is very elliptic. Tosephta 4:1 notes that oaths about testimony have no restrictions on the topics covered, whereas oaths about deposits have almost no restrictions on the people subject to the oath. Where they are equal is that people suspected of perjury are not allowed to swear (Mishnah 7:4).] ? But an oath for testimony is not in court [Mishnah 4:3. On the other hand, an oath about deposits is possible only in court.] . Would the court admit an oath of a suspect person [Since oaths for testimony are not administered by the court, it may easily happen that the oath is wrongly applied to a person either disqualified as a relative or as a suspect (Mishnah Sanhedrin3:6). But how could an oath about deposits be administered by the court to a disqualified person or about a disqualified subject? It can only happen if the person swears without waiting for instructions from the court, which characterizes his action as a blurted oath subject to all its rules.] ? Only when he transgressed and swore, you say that he brings a sacrifice for his oath [Since the oath was illegitimate, it is treated as “blurted oath”.] ; here also if he transgressed and swore, you say that he brings a sacrifice for his oath [Since the oath was illegitimate, it is treated as “blurted oath”.] .
Some want to understand it from here [The exclusions from oaths about deposits enumerated in the Mishnah.] : An ox, or a donkey, or a sheep [Ex. 22:9, about the oath of the paid trustee. Breaking, kidnapping, and dying are all mentioned in the verse.] . Since these are particular in that they are subject to breaking, kidnapping, and dying, this excludes real estate which is not subject to breaking, kidnapping, and dying. I shall exclude real estate but shall not exclude slaves. Since these are particular in that they are subject to a fine, this excludes slaves which are not subject to a fine [The person who kidnaps a slave does not have to pay the double restitution exacted from a thief.] . I shall exclude slaves but shall not exclude documents since they are subject to fines. Since these are particular in that they are subject to overcharging, this excludes documents which are not subject to overcharging [The thief of documents has to pay double restitution for the value of the paper on which the documents are written. On the other hand, documents are not traded as commodities but for the financial values of the contracts written on them. Commodities are subject to the rules of overcharging or underpaying; a transaction which differs more than +/- 16 ⅔% from the going market rate can be voided on the request of the injured party. Financial speculation, such as over the counter stock or bond trades, are not protected by this law (which is based on Lev. 25:14.)] . From here they say, if somebody sells documents to the spice trader [If an IOU has been paid, it can be sold as packaging material; then it is a commodity. Babli Bava meṣi`a56b, where the baraita is quoted as proof that the laws of overcharging apply to penny matters.] , it is subject to claims of overcharging. Rebbi Ismael explained: Or a person, if he would swear, a general statement. To cause evil or cause good, a detail. Anything which a person will blurt out, a repeat general statement. A general statement followed by a detail followed by a general statement, you only argue in the pattern of the detail [Halakhah 8:3, Note 83. However, this reference to Lev. 5:4 is out of place since the argument is about Ex. 22:9. The text should be similar to that of Mekhilta dR. Ismael Mišpaṭim15 (pp. 300–301): About anything criminal, a general statement. About an ox, or a donkey, or a sheep, detail. About anything lost, a repeat general statement.] . Since the detail [In Ex. 22:9.] is about monetary claims, [originating] from himself, which can be collected by court order, having monetary value, which is a fixed value, and are movables, and one is not liable for punishment and fines. Monetary claims, excluding one who said to another, give me the 200 denar which you promised me but never gave [A promise does not generate an enforceable claim.] . [Originating] from himself, excluding one who said to another, you cursed me and shamed me, who is not liable [Since the paradigm is a deposit made by the claimant, the defendant’s oath is only about actions initiated by the claimant. Suits about matters initiated by the defendant’s actions cannot be settled by oaths.] . Which can be collected by court order, excluding one who said to another, you raped or seduced X’s daughter [The only persons who can go to court are the woman or her father.] . It has monetary value, excluding documents [Since the value of the document is not determined by the cost of the paper on which it is written.] . Which is a fixed value, excluding slaves [The value of the slave largely depends on his education, which has no standard value attached to it.] . Movables, excluding real estate. One is not liable for punishment, excluding one who said to another, you set fire to my grain stack on the Sabbath; who is not liable [No money can be recovered for actions which carry the death penalty, even if there are no eye witnesses and therefore no court procedures are possible.] . One is not liable for fines, excluding double, quadruple, or quintuple restitution which are fines [Only simple restitution of stolen property is within the purview of a civil court. Fines can be imposed only by a duly authorized criminal court where trials by oath are impossible.] .
Somebody tears up another’s documents without the latter’s agreement. Rebbi Ḥanania and Rebbi Mana [These are either R. Ḥanina of Sepphoris and R. Mana I or R. Ḥinena and R. Mana II. In the next paragraph appears R. Mana II, two generations after R. Immi. The rule is attributed in the Babli, Bava qamma98a/b, to Rava who is a known adaptor of Galilean rules and an older contemporary of R. Mana II.] , one said, he is liable; the other said, he is not liable [Everybody agrees that he has to pay for the value of the paper or parchment which he destroyed. The problem is whether he has to pay for the mortgages for which the documents were written (assuming that there are no witnesses available who could write a replacement document.)] . The one who said he is liable, as a fine [Since destruction of the document involves both the destruction of the writing material (for which payment can be forced in court if the value was more than a peruṭah) but also the lien on the debtor’s property which is not something recoverable in biblical law. It has to be dealt with in local police law.] . The one who said he is not liable: he is like one who obstructs the depositions of witnesses. A widow who grabs documents is like a person who ties up the mouths of witnesses [Since even an existing mortgage document can be used for foreclosure only if in court it can be proven to be genuine by the witnesses to the document or witnesses to the identities of the signatures affixed to it. While suborning perjury is criminal, we find no statute against physically preventing witnesses from appearing in court.] .
Rebbi Immi said, those who write, “on condition that I have the right to seize movables,” cannot collect [While there is freedom in stipulating money terms in contracts (Ketubot5:10, Note 227), this is valid only in matters that do not involve court actions. In both Talmudim, court-ordered foreclosures are restricted to real estate. Therefore, a contract which provides foreclosure of movables, while valid, cannot be enforced. Only in the Middle Ages, when Jews in many cases could not hold real estate, was the restriction to real estate lifted by Gaonic decree.] . Rebbi Mana said, if he writes and declares, “even though the Court will not enforce,” he collects [If the involvement of the court is denied, there remains a private contract in money matters with unlimited powers of stipulation. While no foreclosure can be obtained from any court, the delinquent party can be judicially censured for not keeping his word (Bava meṣi`a4:2).] .
[This has a parallel in Bava qamma1:2, Notes 118–122 (ק). The Mishnah has to be understood that R. Simeon only frees from liability for an oath which is applicable only to disagreements between humans, but not for payment which was fixed at 125% for concealed debts against humans in Lev.5:20–25, and for amounts due to God in Lev. 5:14–15. (Babli Bava meṣi`a25a/b).] “Rebbi Simeon says, both most holy and simple sancta; about any sancta for which he is responsible if alienated, I am reading against his neighbor and he lied; but about any sancta for which he is not responsible if alienated, I am reading against the Eternal and he lied.” Rav Huna said, both qualified and disqualified sancta, if he is responsible if alienated, even if they are for the Eternal, I am reading against his neighbor and he lied; but if he is not responsible if alienated, I am reading against the Eternal and he lied but not against his neighbor and he lied.
MISHNAH: One swears only on matters of measure, or weight, or count. How is that? “I handed over to you a full house; or I handed over to you a full wallet,” But the other says, “I do not know; take what you left with me;” he is not liable. One says, up to the gutter; the other says, up to the window; he is liable [Since this is a measurable difference.] .
HALAKHAH: [Discussion of Mishnah 9.] Rebbi Ḥanina said, One says, a large candelabra, but the other says, a small candelabra; he is liable [Since “large” and “small” are properties defined by measurement, the claim was a claim by measure. On the other hand, since a candelabra cannot be partially small or large, the admission was not of the kind of the claim.] since we have stated: “One swears only on matters of measure, or weight, or count.” Rebbi Abba bar Mamal said, explain it if it was a candelabra composed of sections [The candelabra can be disassembled and reassembled in different sizes; the admission was of the kind of the claim; R. Ḥanina’s statement is unquestionably correct. Babli 43a.] . One says, a large belt; the other says, a small belt. Rebbi Ḥiyya stated something but we do not know what he stated. If you say “liable”, a Mishnah disagrees, as we have stated: “One swears only on matters of measure, or weight, or count. [In this case, “small” and “large” do refer to two substantially different entities; the admission is partial admission of a claim referring to things measurable.] ” If you say “not liable”, a Mishnah disagrees, as we have stated: “If one says the adult one and the other says the underage one, let the seller swear that he sold the underage one. If both say that they do not know, they shall split. [Mishnah Bava meṣi`a8:5. The buyer bought one of two slaves, one adult and one underage, with their garments or other property. There is a dispute about which slave was sold. Even though there is no oath about sales of slaves, there is an oath about their garments or other possessions, and an oath about the sale of the slave can be attached to that oath by rollover (Note 70.) We found a case where Mishnaiot Ševuot6:9 and Bava meṣi`a8:5 present an irreconcilable contradiction.] ”
MISHNAH: One gave a loan to another on a pledge and the pledge was lost. He told him, “I loaned you a tetradrachma and it was worth a šeqel,” but the other one says “no, a tetradrachma you loaned me and it was worth a tetradrachma”; he is not liable [The creditor asks for a šeqel(half a tetradrachma), the debtor refuses. He denies the entire claim; the burden of proof is on the claimant.] . “I loaned you a tetradrachma and it was worth a šeqel,” but the other one says “no, a tetradrachma you loaned me and it was worth three šeqel;” he is liable [The debtor agrees that he owes a denar; he admits part of the claim and has to take the oath.] . “You loaned me a tetradrachma on it but it was worth two,” and the other says “no, but I loaned you a tetradrachma and it was worth a tetradrachma;” he is not liable [The debtor asks for a tetradrachma, the creditor denies it completely; the creditor does not have to swear.] . “You loaned me a tetradrachma on it but it was worth two,” and the other says “no, but I loaned you a tetradrachma and it was worth five denar;” he is liable [The creditor admits that he owes 3 denarii for the pledge, the debtor asks for four. The creditor has to swear.] . Who has to swear? The one who holds the pledge, lest one swear and the other produce the pledge [The court has to be careful to avoid pushing people into perjury. The oaths always have to be formulated to minimize the possibility of public perjury. Cf. Bava meṣi`a1:1, Note 3.] .
HALAKHAH: Rebbi Joḥanan said, the lender can be believed if he said, I lent to you up to the value of the pledge [Here starts the discussion of Mishnaiot 10–13 (which in most Mishnah texts form a single Mishnah.) The statement of R. Joḥanan explains Mishnah 12, where the creditor claims that the amount of the loan does not exceed the value of the pledge.] . The Mishnah says, also the borrower can be believed, as we have stated: “He told him, ‘I loaned you a tetradrachma and it was worth a šeqel,’ but the other one says ‘no, a tetradrachma you loaned me and it was worth a tetradrachma‘; he is not liable. [If the borrower disputes the claim, the burden of proof is on him.] ” A person encountered another in the market and said, you owe me two denarii and your pledge is worth two denarii. He answered, I owe you one denar but my pledge is worth two denarii. The case came before the judges of Nahardea. They said, since everybody agrees that it is worth two denarii, he has to bring witnesses on the other [denar] [They put the burden of proof on the creditor for the amount disputed by the debtor.] . They had not heard that Rebbi Joḥanan said, the lender can be believed if he said, I lent to you up to the value of the pledge.
A person encountered another in the market and took away his linen cloth [Greek σάβανον, Latin sabanum.] saying, “this sheet will not leave my hand until you give me what you are holding for me.” It came before Samuel. He told him, return his linen cloth to him and sue him. Does Samuel follow the judges of Nahardea? There, the pledge was held by him, here the pledge was not held by him [If the pledge was handed over by the debtor to the creditor, practice has to follow R. Joḥanan against the judges of Nahardea. But if a pledge was taken by force, it has to be returned before the case can be heard in court. (Sefer HaˋIttur II כבb reads R. Zeˋira instead of Samuel. This reading is not likely to be correct.)] .
[This refers to Mishnah 12, where the creditor swears to free himself from paying.’] Samuel says, the oath does not move away from between them. If the lender swears, he swears and takes. But if the borrower swears, the other will present the pledge. “Who has to swear? The one who holds the pledge. [As the Babli explains, 43b, if both have to swear, the holder of the pledge always has to swear first.] ” Rav and Rebbi Simeon ben Laqish say, about the first part: “ ‘You loaned me a tetradrachma on it but it was worth two,’ and the other says ‘no, but I loaned you a tetradrachma and it was worth a tetradrachma;’ he is not liable. ‘You loaned me a tetradrachma on it,’ ” etc. “And the other says, ‘I do not know’. [What is the rule if in any of the situations of Mishnaiot 10–13 the defendant claims ignorance?] ” Rebbi Abba, Rav Huna in the name of Rav: You do not know, the other knows [If the answer is taken as partial admission, the person would have to swear. Since by his own testimony he is unable to swear, he has to pay. If the answer is not taken as partial admission, then by the rule that in a case of a defense of “perhaps” against a claim of “certain” judgment has to be given for the certain claim (cf. Chapter 5, Note 72), he has to pay.] . Rebbi Joshua [the Southerner] [Read דְּרוֹמִיָא as quoted in Rosh (Chapter 6, No. 28) in a reference from Nahmanides’s commentary on this paragraph from the Yerushalmi.] asked before Rebbi Jonah: There you say, you do not know, the other knows; but here you say so? There is desecration of an oath, here there is no desecration of an oath [In the case of Mishnaiot 11 and 13 there is an oath to be imposed and it is up to the court to devise procedures which make sure that the court does not become a party to perjury. But in the case of “perhaps” against “certain”, no oath can be imposed and there is no need for rules of precedence.] .