As we learned on yesterday’s daf (=page) according to the Torah (Sefer Vayikra 5:21-26), if someone has received something to watch and denies having it when the owner asks to get it back, swearing falsely, he will be obligated not only to return the object, but he will also have to pay an additional 20% as a penalty, and bring an asham sacrifice in addition.
This Torah law is particularly unusual because these punishments – including the 20% penalty and the asham sacrifice – will be applied even in cases where the perpetrator has taken the false oath on purpose, while sacrifices for atonement are usually brought only when the sin was done accidentally. The Gemara on today’s daf quotes Rav Kahane as asking whether in a situation where all of the requirements were in place for actual punishment – where the witnesses warned the perpetrator that his action is forbidden and that he will be punished for it – will the sacrifice to suffice, or, perhaps it will be replaced by malkot – lashes – that are the ordinary punishment for such an act, or, perhaps we should require both malkot and korban (sacrifice).
Rashi presents a question that is taken up by many of the rishonim – why does the Gemara raise this question here in the case of shevu’at ha-pikadon, when a similar question could have been asked in the last chapter with regard to shevu’at ha-eidim? When witnesses deny that they know testimony, and take an oath to that effect, they will be obligated to bring a korban shevu’ah – a sacrifice as atonement – even if the false oath that they took was not accidental!
Rashi argues that we cannot construct a case where witnesses will warn someone that they should not deny knowing testimony, since no one can ever be sure whether those people really can or cannot testify.
Tosafot reject this explanation and suggest that the question does not apply in the case of witnesses who swear that they do not know testimony, since those witnesses can always claim that at the moment that they took their oath they forgot that they could be witnesses.
The Ritva adds that while in the case of shevu’at ha-eidim the witnesses can never know what the people who are denying their knowledge of testimony are thinking, in the case of shevu’at ha-pikadon it is sufficient for the witnesses to say “do not take an oath, since we know that you are holding the other person’s property.”
In any case, the Gemara does not come to a clear conclusion in response to Rav Kahane’s question, and the ruling that remains is that no malkot are given in a case of shevu’at ha-pikadon; under all circumstances an asham sacrifice will be brought if someone holding property that belongs to another swears falsely that he does not have it in his possession.