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Tuesday, 7 Elul 5774 / September 2, 2014
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Rambam - 1 Chapter a Day

Rambam - 1 Chapter a Day

To`en veNit`an - Chapter 5

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To`en veNit`an - Chapter 5

Halacha 1

An oath is not taken on claims concerning the following according to Scriptural Law: landed property, servants, promissory notes and consecrated property. Even though a defendant admitted a portion of a claim or a witness testified against him, or he served as a watchman and sought to free himself on the basis of one of the claims according to which a watchman is freed of liability, he is not required to take an oath. These concepts are derived from Exodus 22:6, which, with regard to the obligation to take an oath, states: "When a person will give his colleague" -this excludes consecrated property - "money or utensils..." - this excludes landed property. And it excludes servants, which the Torah associated with landed property. It also excludes promissory notes, for their actual substance is not of financial value like money or utensils. They only serve as proof of an obligation.

With regard to all of these matters, the defendant must take a sh 'vuat hesset if the plaintiff issues a definite claim with the exception of consecrated property. In that instance, even though a person is not liable to take an oath concerning them according to Scriptural Law, our Sages ordained that the defendant take an oath resembling a Scriptural oath. This requirement was instituted so that people would not treat consecrated property lightly.

Halacha 2

Accordingly, when a plaintiff claims: "You sold me two fields," and the defendant responds: "I sold you only one," or he claims: "I entrusted two servants..." or "...two promissory notes to you," and the defendant responds: "You entrusted only one," the defendant is required to take only a sh'vuat hesset.

Similarly, if the plaintiff claims: "This courtyard, this servant or this promissory note that is in your possession is mine; you sold it to me," and the defendant denies the existence of the matter entirely, he is required to take merely a sh'vuat hesset. This applies whether the plaintiff brings a witness to support his claim or not.

A similar law applies when a person digs cisterns, trenches or caves in his colleague's property, reducing its value, and the owner of the field claims that the digger is liable to make financial restitution. Regardless of whether the owner claimed that a defendant dug such caves, and the defendant responded: "I did not dig anything," the owner claimed: "You dug two caves," and the defendant answered, "I dug only one," or one witness testified that he dug caves and the defendantresponded: "I did not dig anything," the defendant is required to take only a sh'vuat hesset regarding the claim.

Halacha 3

The following laws apply when the plaintiff claimed both utensils and landed property. Whether the defendant: acknowledged owing all of the landed property, but denied owing any of the utensils, acknowledged owing all the utensils, but denied owing any of the landed property, acknowledged owing some of the landed property, but denied owing the remainder as well as all of the utensils, he must take a sh'vuat hesset.

If, however, the defendant acknowledged owing some of the utensils and denied owing the remainder, as well as all of the landed property, since he is required to take an oath with regard to the utensils that he denied, he must also take an oath concerning the landed property that he denied together with them, for it is all one claim.

Similar laws apply when the plaintiff claims utensils and servants, or utensils and promissory notes, for all such claims are governed by the same legal process.

Halacha 4

When a plaintiff lodges a claim concerning grapes that are ready to be harvested, or grain that has dried and is ready to be reaped, and the defendant accepts a portion of the claim and denies a portion of the claim, he must take an oath concerning those he denied, as is required with regard to other movable property, provided they no longer require the nurture of the ground. The rationale is whatever is ready to be harvested is considered as though it has been harvested with regard to the denial and admission of claims.

If, however, the crops require the nurture of the ground, they are considered to be landed property in all contexts, and only a sh'vuat hesset is required concerning them.

Halacha 5

When a person lodges a claim against his colleague, saying: "You dwelled in my courtyard for two months, and you owe me two months rent," and the defendant responds, "I dwelled there for only one month," he is considered a person who denied a portion of a claim.

Thus, if the rent for the month that he denied owing is equivalent to two silver me'in, he must take an oath. The rationale is that the claim does not focus on the land itself, but on the rent for it, and that is movable property.

Halacha 6

When a plaintiff claims: "I gave you a promissory note that served as proof of a debt of ten dinarim," and the defendant denies the matter entirely, the defendant is required to take a sh'vuat hesset.

If he reverses the obligation for the oath, requiring it of the plaintiff, the plaintiff must take a sh'vuat hesset that the note served as proof of a debt of ten dinarim, which he lost when the promissory note was destroyed. Afterwards, he may collect his claim.

If the defendant admitted: "It is true that you gave me the promissory note, and it was lost," he is not liable, even to take a sh 'vuat hesset. For even if he was negligent in its care and it was lost, he would not be liable, as we have explained in Hilchot Chovel.

Halacha 7

When a person tells a colleague: "The promissory note in your possession mentions a factor that is advantageous to me," and the colleague states: "I will not produce my promissory note," or "I do not know if it states anything that serves as support for your position," we compel him to produce the promissory note and bring it to court.

Halacha 8

If the holder of the promissory note claims that it was lost, we issue a conditional ban of ostracism against him.

If, however, the person who desires to see the promissory note claims that he is certain that his colleague is holding a promissory note that mentions a factor that is advantageous to him, his colleague must take a sh'vuat hesset that the promissory note is no longer in his possession and it is lost. My teachers ruled in this manner.

Halacha 9

An oath is never administered because of claims issued by deaf-mutes, mentally or emotionally incapable individuals and minors. In the latter instance, this principle applies regardless of whether the minor's claim involves his own issues or those of his father. For admitting a portion of a claim owed to a minor is like returning a lost article. '

Similarly, if the defendant denied the entire debt, and one witness came and testified on behalf of the minor, the defendant is not required to take an oath. For it is as though there were one witness, but no plaintiff, because a claim lodge by a minor is not a substantial claim.

Thus, if a minor said to an adult: "You owe me..." or "You owe my father a maneh," and the defendant said: "I owe you only 50," or "I do not owe you anything" and there was one witness who corroborates the minor's claim, the defendant is not liable to take a Scriptural oath.

If, however, a person acted as a watchman for a minor and claimed that the entrusted article was lost, he is required to take the oath required of a watchman. The rationale is that this oath is not taken because of a claim.

Similarly, if a person admitted that he was a partner or a sharecropper of a minor, the court should appoint a guardian for the minor, and the partner or the like should take an oath despite the fact that there is only an indefinite claim against him.

Halacha 10

My teachers ruled that although a Scriptural oath is not taken because of the claim of a minor, a sh 'vuat hesset must be taken. This applies even when the minor is not resourceful with regard to financial matters. The rationale is that an opportunity should not be granted for a person to take money belonging to a minor, and depart without paying him at all. I also favor this approach, and think that it will lead to the improvement of society.

Thus, if a minor lodges a claim against an adult, whether the adult admits a portion of the claim or denies it entirely, whether there is a witness who supports the plaintiff or not, the defendant is required to take a sh 'vuat hesset. He cannot reverse the responsibility for the oath, placing it on the minor, because an oath is never administered to a minor. Even a conditional ban of ostracism is not imposed upon the minor, for he does not know the severity of the retribution received for taking a false oath.

Halacha 11

The following rules apply when an adult lodges a claim against a minor. If the claim involves a matter that will benefit the minor - e.g., a claim involving business transactions - and the minor admits his liability, we expropriate payment from the minor's property. If the minor does not possess any resources, we wait until he gains such. Then he must pay. If the minor denies the obligation, the plaintiff must wait until the minor attains majority. At that point, he is required to take a sh 'vuat hesset.

The following rules apply when a person lodges a claim against a minor in a matter that will not benefit the minor - e.g., damages or personal injury. Even though the minor admits his responsibility and he has resources with which he could pay, he is not liable even after he attains majority. If the plaintiff was one of those who takes an oath and collects the money that he claims - e.g., an employee and the like - since the minor benefits from the fact that an employee will work for him, he may take an oath and collect from the minor. A storekeeper who takes an oath because of his account book, by contrast, may not take an oath and collect from a minor. The rationale is that the minor does not derive any benefit from this. For regardless, he must pay his workers who take oaths and collect from him. Thus it is the storekeeper who caused himself a loss, because he gave his money because of a minor's word. Similar laws apply in all analogous situations.

Halacha 12

With regard to a deaf-mute and a mentally or emotionally incapable individual, we do not concern ourselves with them with regard to any claim, not a claim that they lodged against others, nor a claim that others lodge against them, nor for a lesser oath, and, needless to say, not for a severe oath or to compel them to make financial restitution. A blind man, by contrast, is considered to be a healthy person with regard to all matters concerning such subjects. He must take all types of oaths if required, and oaths are taken in response to his claims.

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