Bava Metzia 5

That shepherd ate my sheep.

A good shepherd is a real boon. The Hebrew Bible is replete with shepherds — Jacob, Moses, David — who were skilled at managing other people’s sheep and consequently grew their owners’ wealth. But dishonest shepherds can cost a person dearly. Jacob, for instance, having been promised all the speckled sheep in his uncle Laban’s flock as payment for his services, manipulated the mating habits of the animals to produce more wealth for himself than his uncle.

Today’s daf deals with another scenario featuring a dishonest shepherd:

There was a certain shepherd to whom people would give their animals for safekeeping every day in the presence of witnesses. One day, they gave him their animals without witnesses. At the end of the day, he said to the owners of the animals: “This matter never occurred.” Witnesses came and testified against him that he ate two of the animals. 

Animals were extremely valuable in antiquity. Entrusting sheep to someone likely meant placing a huge portion of your wealth in their hands. An incompetent shepherd, who lets sheep get lost or eaten by wild animals, would be bad enough. A dishonest one, who claims they never received the animals in the first place or actually eats the animals in their care, would be a disaster.

To keep this particular shepherd honest, there was a practice of having witnesses present for the hand-off so later they would be able to attest how many animals the shepherd had taken charge of for the day. But on this particular day, no witnesses were present, and the shepherd takes advantage, claiming that no animals ever came into his care. Unluckily for the crooked shepherd, two witnesses come forward to testify that he ate two of the animals. How should this be adjudicated?

Back on Bava Metzia 3, we learned this from a beraita in the name of Rabbi Hiyya:

Rabbi Hiyya taught: If one says “I have 100 dinars in your possession,” and the other party says, “Nothing of yours is in my possession,” and the witnesses testify that he has 50 dinars that he owes the claimant, he gives him 50 dinars and takes an oath about the remainder.

Our sheep scenario is similar: The owner says the shepherd took responsibility for the flock, the shepherd denies having received any sheep, and witnesses come forward and testify about a subset of the sheep. Therefore, Rabbi Zeira explains:

If Rabbi Hiyya’s first halakhah is so, he must take an oath with regard to the remainder.

But is this really analogous to the case in Rabbi Hiyya’s beraita? Abaye offers a challenge:

If Rabbi Hiyya’s first halakhah is so, the shepherd takes an oath? Isn’t he a robber? 

The shepherd didn’t just deny receiving the sheep — he actually ate some of them! This makes him a robber and therefore we assume he is dishonest. It seems unwise to ask a known robber to take an oath and then trust it.

Turns out, however, Rabbi Zeira was on exactly the same page. He responds:

I was saying that the party opposing him takes an oath.

If we were exactly following the template from the beraita of Rabbi Hiyya, we’d expect the shepherd to take an oath that he did not receive the sheep. But since the witnesses have confirmed he’s a thief, we can’t trust his word. We still need an oath, but now we must rely on the owner of the sheep to make it.

What’s clear from these early pages of Bava Metzia is that oaths are central in settling property disputes. However, it’s dangerous to administer an oath to someone who is known to be untrustworthy — they’re just far too likely to swear falsely, which is neither good for the honest party nor (because it’s a transgression) for the dishonest one.

Read all of Bava Metzia 5 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on March 4th, 2024. If you are interested in receiving the newsletter, sign up here.

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