daf bit: Bava Metzia 5

[cellio]

There was a shepherd to whom people entrusted their cattle every day in front of witnesses. One day they handed over the cattle without witnesses and the shepherd later denied having them. Should the shepherd have to swear an oath that he is innocent? Rabbi Abaye says no, not only do we not make him swear, but a robber is not allowed to swear. (Having already committed robbery, it is presumed that he will also commit perjury.) Rather, it is the claimant who must swear the oath in order to collect damages. (5a)

It's possible that Rabbi Abaye is using circular logic here (the shepherd is accused of robbery), but I suspect what's really going on is that if he is a robber he has already committed one transgression, so do we want to set him up to commit another, this one involving the divine name?

Comments

[magid.livejournal.com]

Maybe there's also the idea of innocent until proven guilty, so the shepherd has the presumption of innocence upon him already? Thus, the prosecution has to bring positive evidence (the oath) that he is not innocenty.

[cellio]

Hmm, I guess it depends on whether it is an accusation in the classical sense or two people each asserting ownership. I'd been assuming the latter because of the mishna that begins this discussion, but of course the g'mara takes tangents all the time so maybe I shouldn't.

Mishna begins: Two hold a garment; one of them says "I found it" and the other says "I found it"; one says "it is all mine" and the other says "it is all mine"... then they each swear. (What they swear, actually, is "my share is not less than half", and then they divide the value. So I guess there are no issues of falsely swearing here.)

[zevabe.livejournal.com]

Well unless one found it and the other joined on later (which is what the swearing is preventing).

And I don't think oathtaking in general can be said to be reflective of "innocent until proven guilty". For example, one witness forces an oath (A says he loaned money to B. B denies it. C says he saw A loan it. B must take an oath.) or a person who admits part of the debt (B from above admits to the loan, but claims he paid any amount of it. He must take an oath that he owes no less than what he says remains.)