Yerushalmi Shevuot 6:8 ירושלמי שבועות ו׳:ח׳

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 liable¹⁰⁰The 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 liable¹⁰¹The 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 liable¹⁰²The 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 liable¹⁰³The 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 pledge¹⁰⁴The 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 pledge¹³⁶Here 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.¹³⁷If 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]¹³⁸They 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 cloth¹³⁹Greek 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 him¹⁴⁰If 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.).

¹⁴¹This 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.¹⁴²As 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’.¹⁴³What 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 knows¹⁴⁴If 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]¹⁴⁵Read 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 oath¹⁴⁶In 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..