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Shabbat, 8 Shevat 5773 / January 19, 2013

Rambam - 1 Chapter a Day

Rambam - 1 Chapter a Day

Shvuot - Chapter 11

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Shvuot - Chapter 11

Halacha 1

Just as there is a negative commandment forbidding an oath taken in vain and a false oath,1 so, too, there is a positive commandment for a person who is obligated to take an oath in court2 to take that oath in God's name,3 as [Deuteronomy 6:13] states: "And you shall take an oath in His name." This is a positive commandment.4 For taking an oath in His great and holy name is one of the paths of His service. It is a great measure of glorification and sanctification to take an oath in God's name.5

Halacha 2

It is forbidden to take an oath on any other matter together with God's name.6 Whoever combines another matter with the name of the Holy One, blessed be He, in an oath will be uprooted from this world.7 For there is no one who is fit to give honor by taking an oath in his name except the [Absolute] One, blessed be He.

Halacha 3

It is permitted for a person to take an oath to fulfill a mitzvah in order to encourage himself [toward its performance]. Although he is under oath [to observe] it from Mount Sinai [onward],8 [he may take an oath, as implied by Psalms 119:106]: "I took an oath and I will uphold it - to observe Your righteous judgments."9

Halacha 4

The oath which the judges administer to individuals who are obligated to take an oath is called: "The oath of the judges." [This applies whether the person] is liable for an oath according to Scriptural Law or according to Rabbinic Law.

Halacha 5

There are three types of oaths for which one is obligated according to Scriptural Law:

a) A claim involving movable property10 was lodged against a person by a colleague. He admitted liability for a portion and denied liability for a portion.11

b) [The defendant] denied liability for all the movable property, but one witness testifies against him, contradicting his statements.12

These two oaths come in response to a definite claim and a denial.13

c) When a watchman claims that the article entrusted to him was lost, stolen, died, or the like, he is required to take an oath, because of the doubt, for the owner of the entrusted article does not know if the watchman is making a true claim or not.14 This oath is of Scriptural origin, as [Exodus 22:10] states: "The oath of God will be between them." 15

Halacha 6

All oaths which the judges require aside from these three are of Rabbinic origin. They are also called "the oath of the judges." Within these oaths of Rabbinic origin, there are also two categories:

a) Oaths administered because of a definite claim and denial: e.g., the oath [taken by] a hired worker,16 [the oath taken by] one who impugns his promissory note,17 and the like.18

b) Oaths taken when [the plaintiff] has a claim of a doubtful nature, e.g., the oaths taken by partners, sharecroppers, and the like.19

In the laws of financial matters, the obligation of all these types of oaths and the associated laws will be explained.

Halacha 7

There is also another oath which was ordained by the Sages of the Talmud.20 It is called a sh'vuat heset.21 Although it is administered by the court in the present era. It is not referred to by the term "the oath of the judges."

Halacha 8

An oath of the judges, whether of Scriptural or Rabbinic origin, whether stemming from a definite or an indefinite claim is [administered in] the following [manner]: The person taking the oath holds a Torah scroll22 in his arm.23 He must stand24 and take the oath or recite a curse using God's name or one of the terms used to describe Him. [Either] he pronounces the oath himself or it is pronounced by the judges. My masters25 ruled that an oath of the judges is administered only in Lashon HaKodesh.26

Halacha 9

What is meant by an oath pronounced by [the defendant] himself? For example, he says: "I am taking an oath by God, the Lord of Israel...",27 "...by He whose name is graciousness...", "...by He whose name is mercy that I am not liable to this person at all." Similarly, if he says: "May one28 be cursed to God..." or "...cursed to He whose name is graciousness if I owes anything to that person."

Halacha 10

What is meant by an oath pronounced by the judges? For example, they tell him: We are administering an oath to you by God, the Lord of Israel...", "...by He whose name is graciousness that you are not liable to this person at all" and [the defendant] answers Amen.29 Or they say: "May so-and-so be cursed to God..." or "...cursed to He whose name is graciousness if he owes money to that person and does not acknowledge the debt" and [the defendant] answers Amen. This is the oath of the judges.

Halacha 11

When the judges administer an oath without the defendant holding a [sacred] article in his hand, they have made an error. He must take the oath again while holding a Torah scroll in his hand.30 If he was holding tefillin when they administered the oath to him, he is not required to take the oath again. For he held [an article equivalent to] the Torah in his hand,31 for they are like a scroll. If they administered the oath while [the defendant] was sitting, he does not have to take the oath again.

Halacha 12

At the outset, an oath should be administered to a Torah scholar while seated and while holding tefillin.32 He need not hold a Torah scroll. Holding tefillin in his hand [fulfills the requirement of] a sacred article. He takes an oath in Lashon HaKodesh, as we explained.33

Halacha 13

There is no difference between a sh'vuat heset and an oath of the judges except that [the latter] must be taken [while] holding a sacred article and a person who takes a sh'vuat heset does not hold a Torah scroll. Instead, an oath is administered to him by God's name or using one of the terms used to describe Him,34 either an oath or a curse which he utters or which the court states, as is the practice with regard to the oath of the judges. It has already become the universal custom for the synagogue attendant or another person to hold a Torah scroll while a sh'vuat heset is being administered to cast fear [into the heart of the defendant].

Halacha 14

The judges administer the oath to the person taking it in any language that he understands.35 The Geonim ruled in this manner. My masters, however, ruled that an oath should be administered only in Lashon HaKodesh. This ruling should not be relied upon.36

Although it has become customary to administer oaths in Lashon HaKodesh, the person taking the oath should be familiarized with the matter until he understands the wording of the oath. [The rationale is that] the oath of the judges is a sh'vuat hapikadon itself.37 People have even adopted the custom of administering a sh'vuat heset in Lashon HaKodesh.38

Halacha 15

Everyone who is obligated to take an oath of the judges that comes about because of a definite claim and denial,39 whether it is of Scriptural or Rabbinic origin, is subjected to a admonition, as will be explained.40 Everyone who is obligated to take an oath, whether of Scriptural or Rabbinic origin, because of a doubtful claim need not be subjected to an admonition.41

Halacha 16

How is an admonition administered to the person taking the oath? We tell him: Know that the entire world trembled at the time the Holy One, blessed be He, told Moses [Exodus 20:7]: "Do not take the name of God, your Lord, in vain." For with regard to all the transgressions in the Torah, as [Exodus 34:7] states: "And He shall cleanse." And with regard to [a false oath,] as [Exodus 20:7] states: "[God] will not cleanse one who takes His name in vain."42

With regard to all the transgressions in the Torah, retribution is exacted from him [alone], but with regard to [a false oath], retribution is exacted from him and from his family who conceal the matter for him.43 Moreover, this causes retribution to be exacted from "the enemies of the Jews,"44 for the entire Jewish people are responsible for each other,45 for [Hoshea 4:2-3] states: "Swearing, denying, murdering.... Therefore the land will mourn and all who inhabit it will be forlorn."

With regard to all the transgressions in the Torah, [retribution] is suspended for two or three generations if he possesses merit, but with regard to [a false oath], retribution is exacted immediately, as [Zechariah 5:4] states: 'I have let loose [the curse],' declares God, the Lord of Hosts, 'It will come into the house of the thief and the house of he who took an oath in My name falsely.'

"I have let loose" implies immediately. "It will come into the house of the thief" - this refers to deceiving people, i.e. one who does not have money owed to him by a colleague and yet lodges a claim against him to require him to take an oath. "He who took an oath in My name falsely" - this should be interpreted literally. [The verse continues:] "It shall destroy it, its wood, and its stones." Entities that cannot be destroyed by fire and water will be destroyed by a false oath.

Halacha 17

The concept [conveyed] by this admonition is told [to the person taking the oath] entirely in a language that they understand, so that they will understand the matter and the sinner will repent and correct [is conduct].

If he says: "I am not taking the oath," he is released,46 but he must pay what his colleague demands. Similarly, if the plaintiff says: "I will not subject him to an oath and I release him," they may depart.47

Halacha 18

If [the defendant] says: "I will take the oath," and [the plaintiff] persists in the claim, the people there say to each other: "Turn away from the tents of these wicked men."48

[The court] tell [the defendant]: "We are not administering the oath to you according to your understanding, but according to our understanding and the understanding of the court."49

Halacha 19

Although this admonition is not administered for an oath taken because of a claim involving a doubt or a sh'vuat heset,50 the judges should implore the litigants exceedingly [before administering these oaths] perhaps they will retract and so there will be no oaths taken at all.51

Halacha 20

It is a clear and that anyone who takes an oath of the judges or a sh'vuat heset falsely, is liable for taking a [false] sh'vuat hapikadon, the details of which have already been explained.52 Even though he willfully [took the false oath], he does not receive lashes. [Instead,] he is obligated to pay what he owes plus an additional fifth. [The fifth] is one fourth of the principal, so that the principal and the fifth are equal to five.53 And he must bring a guilt offering if the oath was taken in court, as we explained.54

FOOTNOTES
1.

See Chapter 1, Halachot 7-8.

2.

See Halachah 5 which mentions the oaths required by the court.

3.

See Halachot 8-9.

4.

Sefer HaMitzvot (positive commandment 7) and Sefer HaChinuch (mitzvah 435) include this commandment among the 613 mitzvot of the Torah. Note the Hasagot of the Ramban to Sefer HaMitzvot and the Ra'avad' objections at the beginning of the Mishneh Torah which differ and argue that this should not be considered as a positive commandment. See also Hilchot Nedarim 1:4 which states that there is a positive Scriptural commandment for a person to carry out an oath or vow he took.

5.

For this reveals the reverence and awe in which God's name is held.

6.

For that implies drawing a certain equation between that other entity and God.

7.

See the Radbaz who explains why the expression: "As God lives and by the life of your soul" (II Kings 2:4, 4:30) is not a contradiction of this principle.

8.

When the Jewish people were compelled by God to accept the Torah by oath. One might think that we would apply the principle (see Chapter 5, Halachah 11, and notes) that one oath does not take effect when another is already in effect. Hence, taking the oath would be taking God's name in vain. This is not so as the Rambam continues to explain.

9.

Thus if David - a paradigm of pious conduct - could take an oath for this purpose, so can others.

10.

In contrast to landed property, servants, and promissory notes (Hilchot To'en V'Nitan 5:1).

11.

This situation is referred to by our Sages with the term modeh bimiktzat: "one who admits a portion." See Hilchot To'en V'Nitan 1:1.

12.

"Whenever [the testimony of] two [witnesses] would require him to make financial restitution, [the testimony of] one [witness] obligates him to take an oath" (Ibid.).

13.

If, however, the plaintiff suspects the defendant is liable, but is unsure of his claim, he cannot require the defendant to take an oath (ibid.:7). Similarly, if the defendant is unsure whether he is liable or not, he may not take a Scriptural oath to absolve himself of responsibility.

The Rambam's statements here are significant in another context. There is a difference of opinion among the Rabbis if a plaintiff who makes a claim that is supported by the testimony of one witness must be certain of the veracity of the claim himself or whether he can be doubtful, but rely on the testimony of the witness. The Maggid Mishneh (in his gloss to Hilchot Gezelah 4:17 and the Kessef Mishneh (in his gloss to Hilchot To'en V'Nitan 3:6) maintain that the Rambam follows the latter view. Here, however, it appears otherwise.

14.

See ibid.:2; Hilchot Sechirut 1:2; 2:8.

15.

The Ma'aseh Rokeach states that the word Shema שמע serves as an acronym for the names of these three oaths: Shomrim, Modeh bimitzat eid echad, שומרים, מודה במקצת, עד אחד

16.

See Hilchot Sechirut 11:6 which explains that when an employer denies owing a worker his wage, the worker may take an oath and collect his due.

17.

See Hilchot Malveh V'Loveh 14:1.

18.

For example, Sh'vuot 44b mentions several other instances when such an oath is required of a defendant: a person who claims that property was stolen from him and their is substantial circumstantial evidence corroborating his claim (see Hilchot Gezeilah 4:2), a storekeeper who disputes a client's claims with regard to payment (Hilchot Mechirah 20:8).

19.

See Hilchot Shluchim V'Shutafim 9:1.

20.

I.e., in contrast to the oaths mentioned in the previous halachah which were established by the Sages of the Mishnah. Sh'vuot 40b states that this oath was ordained by Rav Nachman, one of the leading Sages in the midst of the era of the Gemara. See Hilchot To'en V'Nitan 1:3.

A defendant is required to take this oath whenever he denies entirely a claim registered against him by a plaintiff.

21.

The Seifer Meirat Einayim 75:16 interprets the term heset as meaning "placed upon," i.e., it is an oath which our Sages placed upon a person. Others interpret it as relating to the root meisit, meaning "entice." The purpose of this oath is to entice a defendant to admit an obligation.

22.

This will impress him with the seriousness of the matter.

23.

The Rama (Choshen Mishpat 87:15) quotes opinions stating that the defendant should not hold the scroll. Instead, it should be placed before him and he should place his hand on it.

24.

I.e., he may not sit. Note, however, Halachot 11-12.

25.

This term is used to refer to Rav Yosef Migash, the Rambam's teacher, and Rav Yitzchak Alfasi, Rav Yosef's teacher.

26.

"The Holy Tongue," i.e., the Hebrew of the Tanach and the Mishnah. With regard to this ruling, see Halachah 14.

27.

The Hagahot Maimoniot quote Rashi (Sh'vuot 38b) who states that it has become customary not to administer oaths using God's name, for the awesomeness of the punishment for taking His name in vain would lay waste to the world. This principle is quoted by the Shulchan Aruch Choshen Mishpat 87:19).

28.

He is referring to himself.

29.

See Chapter 2, Halachah 1.

30.

For this is equivalent to a judge making an error in a law explicitly stated in the Mishnah, in which instance the law is that the judgment is revoked (Sh'vuot 38b).

The Rama (Choshen Mishpat 87:15) quoutes an opinion that states that a Torah scroll is not required. Any sacred text with God's name is sufficient. Similarly, in one of the Rambam's responsum, he writes that a Chumash is sufficient.

31.

For Exodus 12:9 says of tefillin: "So that the Torah of God will be in your mouth."

32.

This is a token of respect for him. See Sh'vuot 38b.

The Siftei Cohen 87:41 quotes Rav Hai Gaon who states that the term Torah scholar has been given many definitions, but that employed today is "anyone who puts on tefillin." On this basis, the Siftei Cohen writes that in the present day, there is no difference between Torah scholars and ordinary individuals.

33.

See Halachah 8.

34.

The Ra'avad states that it is not customary to administer a sh'vuat hesit with God's name in the present age, for we fear that people will take false oaths. Hence to reduce the punishment that might be incurred, God's name is not mentioned. To compensate for that omission, the court should employ various techniques to impress the person taking the oath with the seriousness of the matter. As the Radbaz states, his argument with the Rambam appears to be practical, but not theoretical. In the era of the Talmud, the Rambam's ruling would be followed.

Other authorities do not accept the Rambam's view even theoretically. They maintain that even in the era of the Talmud, a sh'vuat heset was not administered with God's name. The Shulchan Aruch (Choshen Mishpat 87:18) mentions the Rambam's view, but follows that of the other authorities.

35.

I.e., even languages other than Lashon HaKodesh.

36.

For the Sh'vuot 38b, 39a and the Tosefta, Sotah 7:1 states that an oath can be administered in any language.

37.

And a person is liable for a sh'vuat hapikadon only if he understands what he is saying, as stated in Chapter 7, Halachah 7.

38.

See Halachah 20.

39.

See Halachah 6.

40.

In the following two halachot.

41.

For the prooftext from Zechariah cited in the admonition is speaking about a definite claim. See also Halachah 19.

42.

See also Chapter 12, Halachah 1; Hilchot Teshuvah 1:2.

43.

Sh'vuot 39a derives this concept from Ecclesiates 5:5 which states: "Do not let your mouth cause your flesh to sin." "Your mouth" refers to taking a false oath and "your flesh" to one's family."

44.

Here the intent is the Jewish people themselves. Our Sages (see Sukkah 29a) use this expression as a euphemism.

45.

The Sefer Meirat Einayim 87:58 notes that this concept applies, not only with regard to a false oath, but to all the transgressions mentioned in the Torah. Nevertheless, there is a stringent aspect that applies with regard to a false oath, for with regard to other transgressions, the interrelation affects one when he has the opportunity to rebuke the transgressor and with regard to a false oath, it applies even when one does not have such an opportunity.

46.

The Sefer Meirat Einayim 87:60 interprets this as meaning that he is sent away from the court. For once he leaves the court, he cannot change his mind and decide to take the oath.

47.

Once the plaintiff has retracted his request for the defendant to take the oath, he is considered to have waived his claim and can no longer prosecute it again. See Hilchot Mechirah 5:1.

48.

This malediction refers to the plaintiff as well. For as Sh'vuot 39b states, the negative repercussions of taking the oath affect them both. The Radbaz explains that the plaintiff shares in the responsibility, for he should have been more careful and not entered into a business arrangement without having the matter observed by witnesses. And if the oath is true, he should have been more careful with his accounts, so as not to require God's name to have been employed for such matters.

The Sefer Meirat Einayim 87:61 explains that when the plaintiff sees that the defendant is prepared to take a false oath, he should have offered a compromise rather than continue to pressure him and thus cause God's name to be taken in vain.

49.

As stated in Chapter 2, Halachah 15-16, this measure is employed so that later, the defendant will not try to absolve himself saying: "I had this-and-this intent in my heart when taking the oath." Since the oath is being administered to him according to the understanding of others, it is their interpretation that is upheld. See Sh'vuot 29a and Nedarim 25a which speak of a defendant employing deception while taking an oath.

50.

Although he does not dispute the Rambam's ruling, the Radbaz questions why an admonition is not administered in these instances. The Meiri and the Sefer Meirat Einayim 87:61 explain that when the plaintiff is making a definite claim, it is one person's word against the other's. Thus there is reason to think that the defendant's oath is false and to prevent him from doing so, we issue this warning. When, however, an oath is taken because of a doubt, the defendant is not being challenged. Hence, there is less reason to suspect that he would take a false oath.

51.

For in all situations, it is preferable that an oath not be taken. For this reason, courts have adopted the policy of trying to negotiate compromises in all litigation (Radbaz).

52.

See Chapters 7 and 8.

53.

I.e., it is one fifth of the new total and not one fifth of the original principal.

54.

Chapter 1, Halachah 9.

The Ra'avad writes that at present since God's name is not mentioned in the oath administered by the judges, there is no liability for a guilt offering or to pay the additional fifth.

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