Yerushalmi Shevuot 6:2 ירושלמי שבועות ו׳:ב׳

MISHNAH: “You are holding a mina for me;” he said “yes”²⁶Mishnah 2.. The next day he said, “return it to me,” “I returned it to you;” he is not liable³²Since 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 liable³³To 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 Abun³⁴He 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 witnesses³⁵Even 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 liable³³To 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 Ahava³⁵Even 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 come³⁶The 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..

³⁷The following does not concern oaths but judicial rules concerning real estate. Babli Bava batra169b. If somebody produced both a document and ḥazaqah³⁸“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 ḥazaqah³⁹Obviously 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<sup>40</sup>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 opinion⁴¹Since 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 matter⁴²Theoretical 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 sale⁴³Greek ὠνή “document of sale”. and it was found invalid, this is not ḥazaqah⁴⁴As 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..”⁴⁵Tosephta Bava batra2:2. Rebbi Jeremiah said, in dispute⁴⁶R. 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 opinion⁴⁷If 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 document⁴⁸The 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 proofs⁴⁹Rebbi 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-law⁵⁰He 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 Hoshaia⁵¹This 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 trusted⁵²The 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.