Talmud - Temurah 3b תמורה ג׳ ב׳

does not hold him guiltless, as repentance alone will not atone for the sin, but the lower, i.e., earthly, court flogs him, thereby allowing him to atone, and absolves him of guilt.

Rav Pappa said to Abaye: But why not say that the verse means he cannot be absolved of guilt at all? Abaye said to him: If so, let the verse write only: “Will not hold him guiltless,” and be silent. Why do I need the verse to specify: “For the Lord will not hold him guiltless”? This serves to teach that it is the higher court that will not hold him guiltless, but the lower court flogs him and absolves him of guilt.

§ The Gemara continues: We found a source for the halakha that one who takes an oath in vain using the name of God is flogged. From where do we derive that the same holds for a false oath? The Gemara answers: Rabbi Yoḥanan himself says the derivation: The verse states with regard to an oath taken in vain: “You shall not take the name of the Lord your God in vain; for the Lord will not hold him guiltless that takes His name in vain” (Exodus 20:7). It says: “In vain…in vain,” twice in this verse. If the second instance of the term is not necessary for the matter of an oath taken in vain, which is derived from the first instance, apply it to the matter of a false oath, to teach that one who takes such an oath is flogged.

Rabbi Abbahu objects to this explanation of Rabbi Yoḥanan: What are the circumstances of the false oath under discussion? If we say that the one taking the oath said: I take an oath that I will not eat a certain item, and he then ate that item; there he performed an action to violate his oath by eating the item, and the prohibition would then involve an action. And if it was rather a case where he said: I take an oath that I will eat a certain item, and he did not eat that item; is that individual flogged? But wasn’t it stated: If one says: I take an oath that I will eat this loaf today, and the day passed and he had not eaten it, Rabbi Yoḥanan and Rabbi Shimon ben Lakish both say: He is not flogged.

Rabbi Yoḥanan says that he is not flogged, as it is a prohibition that does not involve an action, and one is not flogged for any prohibition that does not involve an action. And Reish Lakish says that he is not flogged, as there was only an uncertain forewarning for the transgressor. One must be warned immediately before the transgression to be held liable, but here there was no single moment of transgression, and one is not flogged for any transgression that follows an uncertain forewarning. If Rabbi Yoḥanan holds he is not flogged, to what case is he referring when he states that one is flogged for a false oath even though no action is involved?

Rather, Rabbi Abbahu says: Let the case be where one says: I take an oath that I ate a certain item, and in fact he did not eat it; or he said: I take an oath that I did not eat a certain item, and in fact he did eat it. In these cases, he transgresses the prohibition by speech alone, without an action.

The Gemara asks: And what is different about an oath concerning the past, that the verse includes one who takes an oath of: I ate, or: I did not eat, as liable to be flogged, more than one who takes an oath of: I will eat, and then did not eat? In both cases, there is no action performed. Rava says: The Torah explicitly includes a case of a false oath that is similar to a case of an oath taken in vain: Just as an oath taken in vain refers to the past, so too, the false oath for which one is flogged must pertain to the past.

Rabbi Yirmeya raised an objection to Rabbi Abbahu from a mishna (Shevuot 27b): If one says: I take an oath that I will not eat this loaf; I take an oath that I will not eat it; I take an oath that I will not eat it, and he then ate it, he is liable for only one violation. And this is the oath of an utterance for which one is liable to receive lashes for its intentional violation, and to bring a sliding-scale offering for its unwitting violation. Rabbi Yirmeya asks: When the mishna uses the limiting term: This is the oath, what does it serve to exclude? Is it not to exclude a case where one said: I take an oath that I ate a certain item, when in fact he did not eat it, or: I take an oath that I did not eat a certain item, when he did eat it, to teach that he is not flogged in those cases? This would contradict the explanation of Rabbi Abbahu.

The Gemara answers: No, in both cases one is flogged for violating the prohibition intentionally. Rather, the phrase means: This is the oath for which one brings an offering for its unwitting violation, but in a case where one unwittingly said: I ate a certain item, when he in fact did not eat it, or: I did not eat a certain item, when he did eat it, he does not bring an offering. And whose opinion does this mishna represent? It is the opinion of Rabbi Yishmael, who said: One is liable to bring an offering only for an oath that refers to the future, but one is flogged even for an oath that pertains to the past.

The Gemara counters: But say the latter clause of the mishna (Shevuot 29a): If one takes an oath that a stone is gold or some similar absurdity, this is the oath taken in vain, for which one is liable to receive lashes if he utters it intentionally and for which one is exempt from bringing an offering if he utters it unwittingly. What does the limiting term: This is the oath, used by the mishna serve to exclude? Does it not serve to exclude a case where one said: I ate a certain item, when he in fact did not eat it, or: I did not eat a certain item, when he did eat it, to teach that he is not flogged in those cases?

The Gemara answers: No, in both cases one is flogged for violating the prohibition intentionally. Rather, the phrase means: This is the oath for which one is exempt from bringing an offering if he utters it unwittingly, but in a case where one said: I ate a certain item, when he in fact did not eat it, or: I did not eat a certain item, when he did eat it, he brings an offering. And whose opinion does this represent? It is the opinion of Rabbi Akiva, who said: One brings an offering even for the violation of an oath that refers to the past.

The Gemara protests: But didn’t you say earlier that the first clause represents the opinion of Rabbi Yishmael, that one does not bring an offering for a false oath pertaining to the past? Rather, from the fact that the latter clause represents the opinion of Rabbi Akiva, it follows that the first clause must represent the opinion of Rabbi Akiva as well. And one must therefore suggest an alternative explanation of the first clause. The phrase: This is the oath, employed there does not, as previously claimed, serve to exclude a case where one said: I ate a certain item, or: I did not eat a certain item. Rather, it serves to exclude a case where one said: I will eat a certain item, and he did not subsequently eat it.

The Gemara asks: And what is different about an oath pertaining to the future, that the mishna should exclude it specifically? The Gemara responds: Since this clause of the mishna deals with an oath that pertains to the future, it stands to reason that it would exclude an oath pertaining to the future. If it deals with an oath that pertains to the future, why would it exclude an oath pertaining to the past? In summary, the entire mishna is in accordance with the opinion of Rabbi Akiva. The first clause excludes from the punishment of lashes the passive violation of an oath pertaining to the future, and the latter clause includes in the obligation to bring an offering a false oath pertaining to the past if he uttered it unwittingly. Neither clause contradicts the explanation of Rabbi Abbahu.

§ In listing those who incur the punishment of lashes even though they did not perform an action in their transgression, Rabbi Yosei HaGelili was cited above as including: And one who effects substitution. The Gemara adds: Rabbi Yoḥanan said to the tanna who would recite the baraitot in his academy: Do not teach: And one who effects substitution, in this regard, because one who effects substitution performs an action of consecration by his speech.

§ Rabbi Yosei HaGelili also lists one who curses another using the name of God as liable to be flogged. The Gemara asks: From where do we derive this? Rabbi Elazar says that Rabbi Oshaya says: The verse states: “If you will not observe to perform all the words of this law that are written in this book, that you may fear this glorious and awesome name, the Lord your God” (Deuteronomy 28:58). This refers to one who curses using the name of God. And it is written immediately thereafter: “Then the Lord will make your plagues wondrous [vehifla]” (Deuteronomy 28:59). With regard to this term hafla’a, I do not know what its meaning is. When it says: “And the judge shall cause him to lie down [vehippilo] and to be beaten before him” (Deuteronomy 25:2), you must say that the term hafla’a is referring to lashes.

The Gemara asks: Why not say that even one who utters a true oath is flogged, as this too could be considered exhibiting insufficient fear of God’s name? The Gemara answers: It is written explicitly that a bailee may take an oath in court, as the verse states: “The oath of the Lord shall be between them both, to see whether he has not damaged his neighbor’s goods” (Exodus 22:10).

The Gemara counters: Why not say that this statement in the verse means only that a bailee is able to appease the other, i.e., the owner, and exempt himself from payment for the damaged goods, but he should nevertheless be flogged? The Gemara answers: You cannot say this, as it is written: “You shall fear the Lord your God, and Him you shall serve, and by His name you shall swear” (Deuteronomy 6:13). This verse clearly indicates that it is permitted to take a truthful oath using the name of God.

The Gemara asks: Isn’t that verse required as a source for the halakha of Rav? As Rav Giddel said that Rav said: From where is it derived that it is permitted for one to take an oath obligating himself to fulfill the mitzvot? It is derived from a verse, as it is stated: “I have sworn, and have confirmed it, to observe Your righteous ordinances” (Psalms 119:106). The Gemara counters that there is another source: Isn’t another verse written: “You shall fear the Lord your God; Him you shall serve; and to Him you shall cleave, and by His name you shall swear” (Deuteronomy 10:20). This second verse teaches that it is permitted for one to take a truthful oath.

The Gemara resumes the discussion of one who curses another: Rather, the term vehifla in Deuteronomy 28:59 comes to teach what? It comes to teach that one who curses another using the name of God is flogged. The Gemara asks: But why not say that that verse refers to one who pronounces the name of Heaven in vain? The Gemara answers: Even if it does, is cursing another using the name of God any less of a sin than pronouncing the name of Heaven in vain? If one is flogged for the latter, certainly one is flogged for the former.

The Gemara clarifies its question: This is what is difficult for us: One can say that for one who pronounces the name of Heaven in vain, it is sufficient for him to receive lashes to atone for his act, but in the case of one who curses another using the name of God, since he has performed two improper acts, first that he pronounces the name of Heaven in vain, and second that he inflicts pain on another, it should not be sufficient for him to receive lashes to atone for his act.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Temura 3b explores divine versus earthly punishment for vain oaths and examines textual proof for flogging in cases of false oaths.