Rambam - 3 Chapters a Day

As the Rambam specifies in the following halachah, this refers to a claim involving movable property. According to Scriptural Law, there is no obligation to take an oath with regard to landed property, slaves or promissory notes.

The expression: “Which he said: ‘This is it,’” is interpreted by our Sages (Mechilta on the verse, Bava Kama 106b) as indicating that the defendant acknowledges a portion of the plaintiff’s claim. The implication is that the defendant is saying: “This is it”- i.e., this, and only this, is what I owe, and not what you claim.
As explained by Bava Kama 107a, although the simple meaning of the verse does not appear to be referring to a claim made by a lender against a borrower, our Sages inferred that this is the intent.
The Talmud continues, explaining the verse’s intent: A borrower would never deny entirely a claim made by the lender. Since he did him a favor, there is no way that he could have such a presumption. Nevertheless, because he did not have the entire sum immediately at hand, he did not admit the full amount. Instead, his feeling was that he would admit only what he could pay immediately, and he would pay the other amount when he could.

Were a witness not to testify, in such an instance the defendant would not be held liable at all, as stated in Halachah 3.

Sh’vu’ot 40a.

Ibid. The Talmud cites Deuteronomy 19:15: “One witness shall not rise up against a person for any iniquity or any sin.” It explains that the verse also endows the testimony of one witness with a certain amount of power. For it serves as an exclusion, implying that although such testimony alone cannot obligate a person for committing a transgression, it can obligate him to take an oath.

See Chapter 1, Halachah 2; Chapter 2, Halachah 8.

See Hilchot Sechirut 11:6, which describes an oath taken by a worker who claims that he did not receive his wages although his employer claims to have paid him.

See Hilchot Chovel UMazik 5:4, which states that an injured person is allowed to collect his claim when two witnesses testify that he entered the domain of the accused whole and left after being injured, even though they did not see the injury being inflicted.

See Hilchot Malveh V’Loveh 14:1, which states that if a person admits that a portion of the debt mentioned in a promissory note has been paid, he must take an oath before collecting the remaining portion.

See Sh’vu’ot 44b, which mentions several other instances when such an oath is taken: a person who claims that property was stolen from him and there is substantial circumstantial evidence corroborating his claim (see Hilchot Gezelah 4:2), a storekeeper who disputes a client’s claims with regard to payment (Hilchot Mechirah 20:8). Similarly, there are other circumstances when such an oath is required.

When there is a question whether or not a partner or a sharecropper may have stolen something from their colleague while performing business on his behalf, or perhaps they were not exact when making a reckoning with him, he is required to take an oath (Hilchot Sh’luchin V’Shutafin 9:1).

A Torah scroll [or tefillin, if the person taking the oath is a Torah scholar (Hilchot Sh’vu’ot 11:8)].

Or money.

Bava Metzia 3a explains that if in fact the defendant owed money to the plaintiff, he would not be able to be so brazen as to deny the debt entirely. Although this rationale applies primarily with regard to a loan, the same law is applied to any instance where the defendant denies an obligation entirely (Seifer Me’irat Einayim 87:5).

Since the defendant admits and pays a portion of the claim immediately, that portion is not considered at all, and it is as if he denies the plaintiff’s claim (i.e., the remainder of the plaintiff’s claim) entirely. This is referred to as heilech.
There is a difference of opinion among the commentaries when a defendant admits that he has possession of a portion of the articles a plaintiff claims to have entrusted to him. Does the principle of heilech apply even though the defendant does not physically return the objects to the defendant or does it not? See the glosses of the Maggid Mishneh and the Kessef Mishneh at the conclusion of Chapter 3.

I.e., does not admit to the obligation the plaintiff’s claims, but admits to owing another type of article. In such a situation, the claim that is denied and the claim that the defendant admits are considered two separate matters. With regard to the claim the defendant denies, he is denying it entirely and hence, is not required to take an oath at all. See Chapter 3, Halachot 8 and 15.

Sh’vu’ot 40b states that this oath was ordained by Rav Nachman, one of the leading Sages in the midst of the era of the Amoraim. The rationale is that we assume that a person would not bring a dispute to court unless there is a certain basis for his claim. Nevertheless, since there are no witnesses, the defendant is not under any obligation according to Scriptural Law. Therefore, this oath was instituted to force the defendant to relate to the claim seriously and in that ay, clarify the matter to whatever degree possible.

The Sefer Me’irat Einayim 75:16 interprets the term hesset as meaning “placed upon” i.e., it is an oath that 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.

See Hilchot Sh’vu’ot, Chapter 11.

Even when he does not admit his obligation. Taking a false oath was a very serious matter, and often, rather than risk even the remote possibility of such a transgression, people would choose to pay the claims demanded of them.

The Rambam is emphasizing that an oath required by Scriptural Law cannot be reversed and be required of the plaintiff before collecting his due. The rationale behind this principle is that on the basis of the claims made by the principals, the defendant would be liable. He is, however, given the opportunity of freeing himself from this liability by taking the oath. If he fails to avail himself of this opportunity, he remains liable, as stated before.
This point is a source of controversy among the Amora’im (Sh’vu’ot 41a) and the Rishonim (see Tosafot). For there are authorities who maintain that the obligation for a Scriptural oath may also be reversed. Nevertheless, the Rambam’s perspective is followed by the Shulchan Aruch (Choshen Mishpat 87:11) and all the later authorities.
It must be emphasized that even the Rambam and the others who maintain that the obligation for a Scriptural oath may not be reversed agree that after the defendant pays, he may sue the plaintiff and require him to take a sh’vu’at hesset that the money was rightfully due him (Siftei Cohen 87:29).

This is a measure ordained by the Geonim in the post-Talmudic period as a deterrent for plaintiff’s against forcing a defendant to take an oath when it is unnecessary.

The Maggid Mishneh and the Kessef Mishneh also emphasize that an oath ordained by the Sages of the Mishnah that a defendant must take - in contrast to a sh’vu’at hesset ordained by the Amoraim - may not be reversed.

The rationale is that according to Scriptural Law, the defendant is not liable. Our Sages gave the plaintiff an additional opportunity to advance his claim. If he chooses not to avail himself of that opportunity, the defendant is not put at a disadvantage.

For as stated in Halachah 3, when a defendant denies a claim entirely, he is required to take a sh’vu’at hesset.

See Halachah 6.

A sh’vu’at hesset is, however, a less severe oath, and so the plaintiff has not simply returned to his initial situation.

E. g., a partner or a sharecropper.

His is given the number of lashes that the court deems as appropriate punishment for his undesirable conduct.

Since there is no claim against him according to Scriptural Law, his property is free. Although our Sages raised a question with regard to these claims and required an oath, they did not create a lien of any sort against the person’s property.

The Maggid Mishneh explains that the obligation to take such an oath is mild. Therefore, our Sages gave the defendant the opportunity to free himself from this responsibility by giving the option to the plaintiff. With regard to other oaths, since they are more severe, the defendant cannot absolve his responsibility by reversing the oath.
The Shulchan Aruch (Choshen Mishpat 87:11) adds that if there are other claims that the defendant would have to include in his oath because of the principle of gilgul sh’vu’ah, the requirement to take the oath cannot be reversed.

This includes a Rabbinic oath taken by a defendant other than a sh’vu’at hesset.

As explained above, our Sages instituted the obligation for a sh’vu’at hessel, based on the assumption that a person would not lodge a. claim against a colleague unless the colleague in fact owed him money. This assumption would no longer apply if an oath were required for an indefinite claim.
The Shulchan Aruch (Choshen Mishpat 75:17) states that the defendant does not even have a moral and spiritual obligation (chiyuv latzeit yedei shamayim) to take such an oath.

I.e., he is unsure whether a debt was ever incurred.

He is sure about the fact that the debt was incurred, but unsure whether it was repaid.

This is speaking about a situation where the person’s father is deceased or at least not present.

The Rambam maintains that these cannot be considered definite claims, because the person himself cannot know with certainty whether or not the debt was undertaken or repaid. The Ra’avad differs, maintaining that there is no difference whether he lodges a claim in his own name or whether he issues it in his father’s name. The Shulchan Aruch (Choshen Mishpat 75:21) mentions both views without clarifying which one should be followed. All agree, however, that if the person claimed: “I am certain that you owe my father this-and-this amount,” it is considered to be a definite claim.

If witnesses have observed this fact, the defendant would be obligated to take an oath to clear himself of responsibility. In this instance, however, it is only the plaintiff’s word against his own. Hence, he is not liable for an oath.
The Ramah (Choshen Mishpat 75:17) maintains that if the circumstantial evidence supporting the plaintiff’s claim is powerful, the defendant can be required to take a sh’vu’at hesset.

The text of the Mishneh Torah possessed by the Maggid Mishneh and similarly, several authoritative manuscripts, read: “a maneh,” rather than “a kor of wheat.” In principle, there is no difference between the two versions.

Such an oath is also a deterrent, for if the defendant did in fact know of the obligation, and was trying to procrastinate, the obligation to take such an oath would force him to confront the issue. For otherwise, by continuing to deny knowledge of the matter under oath, he would be transgressing a very severe sin.
Moreover, if the defendant were not required to take an oath in this situation, rather than deny an obligation - and be forced to take an oath - every defendant would say: "I don't know," and not incur such an obligation (Maggid Mishneh).

Neither financially, nor to take a more severe oath. The reason we do not obligate him financially is that the plaintiff has not proved his claim. Hence, we allow the defendant, the present possessor of the funds, to retain possession (Maggid Mishneh).

He never admitted incurring an obligation. Note the Tur and the Shulchan Aruch (Choshen Mishpat 75:9), which state that in such a situation, the defendant has a moral and spiritual obligation to pay the claim. Siftei Cohen 75:26 emphasizes that the obligation is solely the defendant’s. If the plaintiff seizes the money, he is obligated to return it.

As the Rambam writes in Chapter 4, Halachah 8, when a defendant obligates himself in a portion of a claim and says: “I do not know,” with regard to the remainder of the claim, he is required to take an oath that he does not owe his colleague the remainder of the money claimed. Since he cannot take that oath, for he claims not to know the extent of his liability, he is obligated to pay the entire amount. Similarly, in the present situation, since the defendant admitted owing the plaintiff something, and claimed not to know the extent of his obligation, it appears that he should pay the entire claim.
A distinction can, however, be made between the two instances, because in our halachah the defendant never admitted a portion of the claim lodged by the plaintiff; he never admitting owing him wheat. Hence, he is not considered to be a modeh b’miktzat, and is not obligated to take an oath. Therefore, he is freed of the further obligations as well.

Which are less valuable than wheat.
The Ra’avad differs with the Rambam, noting that - as the Rambam himself rules in Chapter 3, Halachah 8 - that if a person claims a colleague owes him wheat and the colleague replies that he owes him barley, the colleague is not required to pay the barley. Similarly, in this instance, the Ra’avad maintains, the defendant should be released of all obligations.
The Ra’avad does, however, offer a basis for the Rambam’s ruling. One of the explanations for the ruling in Chapter 3 is that by saying, “I owe you barley,” the defendant is speaking facetiously. He does not really mean what he says, but instead is joking with the plaintiff. In this instance, since he takes a sh’vu’at hesset that he does not know which type of grain he owes, he is obviously accepting the fact that he does owe him one type of grain. See Siftei Cohen 88:35.
The Shulchan Aruch (Choshen Mishpat 88:17) quotes the Rambam’s ruling. The Tur and the Ramah maintain that the defendant does not owe the plaintiff anything at all. He does, however, have a moral and spiritual obligation to pay the barley he admitted owing. The Siftei Cohen 88:36 questions the Ramah’s ruling, maintaining that if speaking about a moral and spiritual obligation, he is liable to pay the wheat that the plaintiff claims.

This ruling applies even if the sequence is reversed and the defendant makes his partial admission before the plaintiff lodges his claim. As long as the plaintiff states that he is certain that the money is owed him, the defendant is liable.

The Shulchan Aruch (Choshen Mishpat 75:9) states that the defendant may have a conditional ban of ostracism issued against the plaintiff. The Ramah adds that if the defendant later claims: “I remember that I paid you,” his word is accepted, provided that he supports his claim with an oath.

Since he admits that he was liable, and he is not sure that he had paid, the doubt is not considered to be in his favor and he is obligated to make restitution. In his Commentary on the Mishnah (Bava Kama 10:8), the Rambam explains that this refers to a situation where the person

In his Commentary on the Mishnah (Bava Kama 10:8), the Rambam explains that this refers to a situation where the person to whom the money is owed is in doubt whether in fact he lent the money. Implied is [as reflected in the ruling of the Shulchan Aruch (Choshen Mishpat 75:11)] that if the person to whom the admission is being made says: “I am certain that you do not owe me anything,” the person who is making the admission has no obligation whatsoever. As the Shulchan Aruch explains, even if the person making the admission is certain that he is liable, he has no obligation at all, because it is as if the person to whom the admission was made has waived the debt.

Since there is no claim being lodged against him, he is not liable.

Halachah 6.

I.e., without the defendant being required to take the oath. The rationale is that according to Scriptural Law, the defendant is not liable at all. Although the Rabbis instituted the sh’vu’at hesset to protect the plaintiff’s interests, by doing so they did not intend to place the burden of responsibility on the defendant entirely.

For otherwise the matter will never be settled, for each litigant will refuse to take the oath. Alternatively, the fact that the plaintiff is not willing to take an oath indicates that his claim is not entirely valid.

Rabbi Yosef MiGash, the Rambam’s teacher, writes (Responsum 75) that he established this ordinance. Afterwards, he discovered that Rav Yitzchak Alfasi or one of the prior Geonim had done the same.

I.e., the plaintiff accepts this ban.

An oath contains God’s name. From the defendant’s perspective, it is not an unnecessary oath for it is necessary for him to protect his property. Nevertheless, in an ultimate sense, if the claim is indeed spurious, the plaintiff is causing God’s name to be mentioned without a valid reason. This is a mark of disrespect.

In the original Hebrew, the Rambam is borrowing the wording of Exodus 23:1.

As evident from the following halachah, this includes even a sh’vu’at hesset. This concept is stated by the Shulchan Aruch (Choshen Mishpat 94:1).

The Maggid Mishneh quotes Kiddushin 27b, which explains that the principle of gilgul sh’vu’ah - including other subjects in an oath - is derived from Numbers 5:22, which states that when a sotah (a woman suspected of adultery) is forced to accept the malediction against her, she must answer: “Amen, Amen.” This is interpreted as an affirmation that she did not commit adultery with the person with whom she was suspected of transgressing, nor with any other man. Similarly, our Sages claim, we can postulate that a person against whom a financial claim has been lodged may be required to include in that oath not only the specific claim mentioned previously, but any other claim.
Our Sages (ibid. 28a) also derive from the malediction of a sotah that the principle of gilgul sh’vu’ah applies even when the fundamental claim is indefinite (e.g., a claim against a partner, when the plaintiff is not certain that the claim is true) or when the claim that the plaintiff wants to include is indefinite. For the husband of the sotah is not certain that she transgressed. The Shulchan Aruch (Choshen Mishpat 94:1) quotes this principle, but states that when the plaintiff’s claim is indefinite, there must be other evidence that substantiates it for the defendant to be required to take an oath.

Hilchot Sechirut 11:9.

As explained (ibid.:6), according to Scriptural Law, when a worker claims that his employer has not paid him, the employer is not obligated at all. Our Sages, however, appreciated that an employer may be busy with his other workers and nay not pay careful attention to whether or not he paid one particular worker. And the worker is in great need of his wages. Therefore, they were lenient and granted him the option of taking an oath to collect his due. Furthermore, they did not enforce stringencies with regard to this oath. As the Rambam states there: “We are not lenient with any other people who come to take oaths, with the exception of a worker. In his case, we are lenient and invite him [to take the oath], saying: ‘Do not cause yourself aggravation. Take the oath and collect your due.’”

I.e., for various reasons, he does not desire to take an oath regarding these claims and would rather accept the financial loss involved in paying the initial claim.

He is not, however, obligated with regard to the indefinite claims [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 94:3)].

The Ra’avad questions why the Rambam did not deal with the question of whether or not the defendant has the right to reverse the responsibility for oaths on the plaintiff.

I.e., a sh’vu’at hesset when compared to a severe Rabbinic oath, or even a severe Rabbinic oath when compared to a Scriptural oath.

The Ramah (Choshen Mishpat 87:25) quotes Rabbenu Asher, who states that if the defendant is bankrupt and unable to pay, he is not required to take an oath if he denies the claim. For until he is able to pay, his admission or denial is of no consequence.

The Tur and the Ramah (ibid.) state that since the person should be punished for such conduct if the claim were true, it is appropriate to issue a conditional ban of ostracism.

A k'nas is defined as a payment that is more or less than the value of the object damaged. All personal injury is considered to be a k'nas, because there is no person who would be willing to undergo personal injury for the money that he would receive. Significantly, the Ra'avad maintains that cases of personal injury are not k'nasot.

As stated in Hilchot Nizkei Mammon, loc. cit. The source for the concept is Exodus 22:8, which states: “Those who are judged guilty by the judges shall pay double to their colleague.” Implied is that someone found guilty by the court is forced to pay double, but someone who admits his own guilt is not required to make such restitution.

There are five payments for personal injury: the damages suffered by the injured person, his pain, his medical treatment, his loss of employment and the embarrassment he suffered. The damages and the pain are considered k’nasot, as explained above, but the payments for medical bills and unemployment are considered to be ordinary financial claims. With regard to embarrassment, Hilchot Chovel UMazik states:
It was when he admitted [before the court] that he caused the injury, that he brought about the embarrassment. For when an injury is caused in private, a person is not caused any embarrassment. It is his admission before the court that embarrasses him.
Since the claim is twofold, including certain matters that are ordinary financial claims, a sh’vu’at hesset is required.

A claim for a k’nas may be arbitrated only by a judge possessing the unique semichah (ordination) passed down teacher to student from Moses. That ordination could be conveyed only in Eretz Yisrael and ceased to exist shortly after the composition of the Mishnah. Courts of a later period or courts without such judges in the Talmudic period did not have the authority to judge claims involving k’nasot. See Hilchot Sanhedrin 4:1 1-14; 5:8-10.

Embarrassment is a k’nas. Nevertheless, a person who admits embarrassing a colleague is liable, for the reason mentioned above.

For once the judgment was rendered, the obligation resembles an ordinary debt.

I.e., since we follow the above principle.

For he is denying a monetary obligation, and not a k’nas.

As defined in the following halachah.

For besides the financial dimensions of the matter, taking a false oath involves the desecration of the honor of God’s name. See Hilchot Sh’vu’ot 1:16, which states: “The entire world trembled when the Holy One, blessed be He, told Moses: ‘Do not take the name of God, your Lord, in vain’ (Exodus 20:7).”

As explained in Hilchot Sh’vu’ot 1:1-3, a sh’vu’at bitui is a false oath taken by a person with regard to his past actions - i.e., he says that he did something that he did not do, or he says that he did not do something that he did do. Alternatively, it refers to an oath that the person will or will not do something in the future, and the person violates that oath.
The commentaries note that in his commentary on Sh’vu’ot 31b, Rashi speaks of the person being considered to be suspect only when he takes an oath that is false, but not if he later performs an act that violates his oath. According to the Rambam, however, it can be explained that just as a person is disqualified for committing any sin, he is disqualified for performing an act that violates an oath (Maggid Mishneh).
The Rivash (Responsum 311) explains that even the Rambam would accept Rashi’s ruling. For in Hilchot Edut 10:2, the Rambam rules that a person is disqualified as a witness only when he transgresses a prohibition that is punishable by lashes. Since lashes are not administered for violating a sh’vu’at bitui when a person took an oath that he would or would not perform a particular deed, a person who performs such a violation is not disqualified from taking an oath in the future. The Shulchan Aruch (Choshen Mishpat 34:5, 92:2) quotes both opinions without deciding in favor of either.

Sh'vuat ha'edut refers to a situation where witnesses know of a matter that pertains to a claim that one litigant lodges against another. The witnesses refuse to testify, and the litigant has them take an oath that they do not know of any pertinent testimony (ibid. 1:12).

Sh'vuat hapikadon refers to a situation where a person has money that belongs to another person and denies it under oath (ibid. 1:8).

The Rambam defines four types of unnecessary oaths: a person who takes an oath that an object whose identity is known is in fact something else - e.g., a person who takes an oath that a man is a woman; one who takes an oath that an object whose identity is known is in fact that object - e.g., a person who takes an oath that the heavens are the heavens; one who takes an oath that he will not perform a mitzvah - e.g., he swears that he will not put on tefillin; or he takes an oath that he will perform an action that it is impossible for him to do - e.g., he takes an oath that he will go three days without sleep (ibid. 1:4-7).
Such a person is considered to be liable to take a false oath, because - even though the oath he originally took was not false - the fact that he could deal so flippantly with God’s name, indicates that there is the possibility that he will lie.

For just as he took a false oath in the past, it is possible that he will take a false oath in the future.
Note the Shulchan Aruch (Choshen Mishpat 92:2), which states that a person is placed in this category even for violating a ban of ostracism declared by the community.

See Hilchot Edut, Chapter 12.

See Hilchot Gezelah Va’Avedah 4:7.

Gambling is not considered to be theft according to Scriptural Law. Nevertheless, according to Rabbinic Law, if a person has no other occupation than gambling, he is disqualified as a witness (ibid. 10:4).

A person is disqualified as a witness for willfully performing a transgression. We assume that if he will willfully commit any other transgression, he might also take a false oath.

For we do not accept testimony a person gives against himself, and he is not disqualified as a witness on that basis (Hilchot Edut 12:2).

I.e., although he is not halachically disqualified, we take precautions lest his statements be true.

E. g., in a situation where a person is arbitrarily choosing witnesses, he should not choose this person.

Instead of reversing the obligation to take the oath, as stated in the following halachah.
The Maggid Mishneh quotes the opinion of the Remo who states that this law applies only with regard to a defendant who is required to take an oath to defend his property. When, by contrast, a plaintiff who has the opportunity to take an oath to expropriate property from the defendant admits that he should be disqualified from taking an oath, we in fact disqualify him. The Shulchan Aruch (Choshen Mishpat 92:5) quotes this ruling.
The Shulchan Aruch also quotes the opinion of the Tur, who states that when a defendant admits to being disqualified, the option is given to the plaintiff. If he desires to take an oath to support his claim and then collect his due, he is given that opportunity. The Siftei Cohen 92:6 clarifies that this applies only to a Scriptural oath and not a sh’vu’at hesset.

This excludes a watchman, as the Rambam proceeds to explain.

I.e., a severe Rabbinic oath that resembles a Scriptural oath.

And thus, the plaintiff also does not have the option of taking the oath.

For when a person is required to take a Scriptural oath, it is as if he is under obligation to the plaintiff - and with the oath, he absolves the obligation. If he does not absolve the obligation with an oath, he must absolve it financially.
It must be emphasized that there is another opinion in Sh’vu’ot 44b, 47a, the source for this halachah, which states that the money in question should be divided. I.e., since there is an unresolved doubt regarding to whom it is due, we divide it. This difference of opinion was perpetuated in the generations after the Talmud, with Geonim and Rishonim taking both positions. In the later generations, the Shulchan Aruch (Choshen Mishpat 92:7) follow the Rambam’s view, while the Tur and the Ramah adopt the other position.
The Ramah also quotes an opinion that maintains that the Rambam’s position is followed only when at the outset, the plaintiff did not know that the defendant was suspect. If, however, he knew that he was suspect when he entered into a business agreement with him, he cannot lodge a claim against him that would require him to take an oath. For if that were the case, a person who is suspect would constantly be at the mercy of others.
See also the Rambam’s Commentary on the Mishnah, where he explains that the defendant may have a conditional ban of ostracism issued to protect his rights.

The Siftei Cohen 92:11 states that the same laws apply when a plaintiff lodges a claim against the defendant on the basis of the testimony of one witness, when the plaintiff himself does not know of the matter.

According to the Rambam, in such a situation, the defendant would be released from his responsibility. The Remo argues that even in such a situation, the defendant is required to pay the claim.

In which instance, he is liable unless the article is returned intact.

E. g., a hired worker, a person who was injured, a person from whom property was stolen or the like.

The Maggid Mishneh states that although this law is not stated in the Talmud, it is a product of deduction. If our Sages will not allow a person who is suspect of taking a false oath to protect his resources by taking an oath, certainly they will prevent such a person from taking an oath so that he can collect property from others.
The Lechem Mishneh explains that there is no reason to amplify a person’s legal power because he is suspect to take a false oath. According to Scriptural Law, the person has no right to collect his claim. Although our Sages gave him the right to take an oath and collect his claim, it is unthinkable that they would grant him what he claims without requiring an oath from him.

By admitting that a portion has been paid (Hilchot Malveh V'Loveh 14:1).

I.e., plaintiffs who have the right to collect their claim according to Scriptural Law - e.g., a person who seeks to collect from heirs.

It is suggested that the text should read “or,” rather than “and.” Thus, it would refer to an instance where a defendant claims to have paid the debt and demands that the plaintiff take an oath (ibid.:2). This version appears correct because even without the defendant’s asking, when a plaintiff impairs the legal power of a promissory note, he is required to take an oath.

The Ra’avad differs with this ruling, maintaining that if the authenticity of the signatures of the witnesses to the promissory note is validated, the bearer is allowed to collect the debt stated in the promissory note without taking an oath. His rationale is that the obligation established by a promissory note has the power of Scriptural Law. Although the Rabbis instituted a safeguard and required that an oath be taken, their intent was not to disqualify the promissory note. Hence, in a situation where the safeguard cannot be put into effect, it is ignored.
The Maggid Mishneh explains that the Ra’avad does not differ entirely with the principle stated by the Rambam and would accept it with regard to cases involving a paid worker, or a claim of theft or injury or the like. When, however, a valid promissory note is involved, the Ra’avad maintains that the promissory note should not be disqualified. The Shulchan Aruch (Choshen Mishpat 92:9) quotes both opinions, but in (Choshen Mishpat 82:8, the Shulchan Aruch writes that the Ra’avad’s view is logical. See the Siftei Cohen 92:14, who brings further support for the Ra’avad’s perspective.

E. g., a partner or a sharecropper.

Because he is suspect to take a false oath.

Instead, the defendant is freed from liability without taking an oath.

Perhaps the Rambam adds this point to emphasize the strength of the argument. Even those authorities who rule more stringently in Halachah 4, rule leniently here.

I.e., as stated in Halachah 4, since the plaintiff does not have a definite claim, there is no way that he can take an oath.

Although the responsibility to take a sh'vu'at hesset can be reversed (Chapter 1, Halachah 10), that is left to the choice of the defendant. We do not arbitrarily force that decision upon him.

For according to Scriptural law, the defendant would be released without an oath.

Scriptural Law gives the defendant the stronger position. Allowing the plaintiff the opportunity to take the oath would reverse that position entirely.
The Shulchan Aruch (Choshen Mishpat 92:11) emphasizes that a conditional ban of ostracism is passed against anyone who denies a claim lodged against him.

Although a defendant usually has an option of reversing the responsibility to take an oath, an exception is made in this instance, because of the reason mentioned by the Rambam. This ruling does not have an explicit source in the prior Rabbinic literature, but is instead a product of deduction (Maggid Mishneh).

By reversing the responsibility for the oath, the defendant would be hoping to be absolved without taking an oath.

See Chapter 5, Halachah 10.

The Maggid Mishneh writes that this law is also a product of deduction and is not explicitly stated in the Talmud.

I.e., if we are speaking of a Rabbinic oath that enabled the suspect person to collect his claim from the defendant - e.g., a worker or a person who claims injury or theft.

I.e., if we are speaking of a Scriptural oath that enabled the suspect person to free himself from liability.

With regard to lashes, Deuteronomy 25:3 states: “Your brother will be degraded in your eyes.” Makkot 23a states: “Once he is ‘degraded,’ he is your brother” - i.e., his position is no longer lowered because of his sin.

In this context, by repentance the Rambam does not mean merely regret over the evil he has performed and a commitment to do good in the future (the definition he gives in Hilchot Teshuvah 2:2). Instead, that resolve must be accompanied by the performance of an act that shows the sincerity of that commitment, as indicated by Hilchot Edut 12:5-10.
The Rambam’s statements appear to imply that receiving lashes alone is not sufficient to restore a person’s status. This raises a question, for the Rambam states (ibid.:3-4):
If two [people] came and testified that he repented and showed remorse or he received lashes, he is acceptable.... Whenever a person was liable to receive lashes, his status is restored whether he repents or received lashes in court.
The Lechem Mishneh maintains that the apparent contradiction can be resolved by interpreting our halachah as meaning “he received lashes or repented.” In his Kessef Mishneh (in his gloss on Hilchot Edut), Rav Yosef Karo explains that from the continuation of the Rambam’s words in Hilchot Edut, it is apparent that a person who committed a sin that did not bring him financial benefit is restored to his previous status after receiving lashes. If, however, the sin involved financial benefit, he must also repent. Rav Karo applies this understanding as halachah in his Shulchan Aruch (Choshen Mishpat 34:29).

We believe the testimony of this pair of witnesses even though it renders the oath as false. Although there is a difference of opinion concerning this matter in Bava Kama 106a, the Rambam follows the opinion of Rav Nachman, one of the leading sages in the midst of the generations of Amora’im.
Although a sh’vu’at hesset is a Rabbinic institution, if witnesses testify that a person took a false sh’vu’at hesset, that person is disqualified from taking Scriptural oaths in the future (Meiri).

Hilchot Sh’vu’ot 1:9; 11:20; Hilchot Gezelah Va’Avedah 7:8.

Whenever the Rambam mentions “an additional fifth,” his intent is a fifth of the new total. For example, if the false oath was taken with regard to four zuz, the defendant must pay five.
As stated in the above sources, a person who takes a false oath is also required to bring a guilt offering. Perhaps the Rambam omits mention of this, because he is speaking about the present era when sacrifices may not be brought (Or Sameach).

For his word, even when supported by an oath, is not powerful enough to counter the testimony of witnesses or a valid promissory note.

For it is possible that he did pay. Although his word is not accepted, it is not necessarily deemed a lie.

If they testified that he did not pay, their testimony would be in direct contradiction to his statements, and he would be disqualified.

This also would represent a direct contradiction.

Unless he admits owing a p’rutah, he has not admitted owing a significant amount of money, as reflected in Halachah 3.

Based on Kiddushin 11 b, the rationale for this requirement can be explained as follows: Exodus 22:6, which serves as the source for the obligation to take an oath, states: “When a man will give a colleague money or utensils....” The term kessef, “money,” or more precisely “silver,” refers to a me’ah, as the Rambam explains in the following halachah. And since the verse mentions “utensils,” using the plural - i.e., at least two - we can assume that it also refers to at least two measures of money.
There is a difference of opinion among the Sages (Sh’vu’ot 39b) whether the entire claim must be at least two me’in, or that the amount that the defendant denies owing must be that value. The Rambam - and the other authorities - follow the opinion of Rav. See Halachah 3.

See the Rambam’s Commentary on the Mishnah (Bechorot 8:7). The Rambam maintains that he received the tradition from his father, who in turn received it from his father and grandfather, in a train of tradition extending back to the early scholars that weights of silver are measured in barley corns.
Shiurei Torah defines a p’rutah as being equivalent to 1140 of a gram of pure silver.

I.e., without being mixed together with other metals. Kin’at Eliyahu questions why the Rambam use the word naki for “pure” in the first clause and mezukak in the second.

The term “holy shekel” is found in Exodus 30:13 and other verses. It refers to the measure designated by God to be used for ritual purposes.

See Hilchot Ishut 10:8; Hilchot Chovel UMazik 3:10. In his Commentary on the Mishnah (loc. cit.), the Rambam states that this also is a tradition that he received from his father, who in turn received it from his teachers.

Although as explained above, the concept is derived from the exegesis of a verse, the Rambam maintains that all concepts derived through the techniques of Biblical exegesis are midivrei sofrim, “from the words of the Sages.” (See Yad Malachi, K’lalei HaRambam, sec. 7.)

This interpretation is found in the Commentary on Sh’vu’ot, loc. cit. authored by Rav Yosef MiGash, the Rambam’s teacher.

The Kessef Mishneh explains the reasoning of the Rambam’s teachers as follows: They maintain that the defendant must deny two dinarim from the dinarim used in Jerusalem in that era. Two dinarim are equivalent to ten me’in, which in turn are equivalent to 160 barley corns. That figure must then be divided by eight, for the coins were only one eighth silver, yielding a sum of 20. From that, a half a barley corn, the equivalent of a p’rutah, is deducted, yielding a sum of 19 and 112.

For anything less than a p’rutah is not financially significant.

This halachah introduces the distinction to be clarified in the following halachah. Utensils are placed in a different category than money. Produce, by contrast, is considered in terms of its monetary worth.

Because the sum that he denied is worth less than the minimum amount stated in Halachah 1.

This is the version of the standard printed text of the Mishneh Torah. Other versions state 65 nuts; and still others, 100. The need for emendation is obvious, because if there is a question whether one nut is worth a p’rutah, four or five will not be worth two me’in.
Based on the Mishneh LaMelech, the Rambam La’Am explains the preciseness of the version that states 65 nuts. A me’ah is equivalent to 32 p’rutot. Thus, if there are 65 nuts and each nut is worth a p’rutah, the defendant will be acknowledging a debt of a p’rutah and denying a claim of 64 p’rutot - i.e., 2 me’in.

Because the admission he makes is not significant enough.

That the debt the defendant admits must be worth a p’rutah; and the amount he denies, two me’in.

I.e., acknowledging or denying any utensil is equivalent to acknowledging or denying the “money” mentioned in the verse cited above. See Sh’vu’ot 40b.
The Rambam’s statements are rooted in the rulings of Rav Hai Gaon. It must be emphasized that there are many Rishonim (e.g., the Ramban and Rabbenu Asher) who differ with the Rambam and maintain that although a utensil does not have to be worth two me’in, it must be worth at least a p’rutah. For anything less than a p’rutah is not financially significant. Although the Tur mentions the other view, the Shulchan Aruch (Choshen Mishpat 88:3) mentions only the Rambam’s position, and the Ramah does not differ. Sefer Me’irat Einayim 88:5 and the Siftei Cohen 88:2, however, mention the other views.
The Rambam’s position itself, however, warrants some explanation. In Hilchot Ishut 4:19, he states that if a person consecrates a woman with a utensil, for the consecration to be binding the utensil must be worth at least a p’rutah. In Hilchot Me’ilah, however, he speaks of transferring the holiness associated with money to a utensil “of any value,” which could be interpreted as meaning “worth even less than a p’rutah.” It appears that the Rambam did not have a universal principle to be applied concerning the matter, and judged each issue within its own context.

For then his denial is significant. His admission is considered significant, because the admission of any utensil is significant.

Because the sum that he denied was not of significance.

For then his admission is significant. His denial is considered significant, because the denial of any utensil is significant.

As stated in Chapter 1, Halachah 1.

The Maggid Mishneh raises a question with regard to the law when one witness testifies that a person accepted an entrusted object, noting that some Rishonim hold him liable for an oath and others do not. In his Kessef Mishneh, Rav Yosef Karo cites Hilchot Gezeilah 4:13 as an indication that the Rambam would hold the person liable for an oath in such a situation. In his Shulchan Aruch (Choshen Mishpat 75:23) he rules accordingly.

See also Hilchot Sechirut 2:8.

This refers to an unpaid watchman. Similar principles apply with regard to a paid watchman who claims that an article was destroyed by forces beyond his control.

Here too, the Rambam’s ruling is the subject of a difference of opinion among the Rabbis. The Rambam’s ruling reflects the position of his teacher, the Ri MiGash. Other authorities, the Ramban, the Rashba, and Rabbenu Asher differ. The rationale for their difference of opinion can be explained as follows: The obligation to take an oath when one admits a portion of a claim (modeh b’miktzat) is derived based on the principle of eiruv parshiyot - i.e., that the passages in the Torah referring to a defendant’s obligations and a watchman’s obligations are interwoven. The Rambam maintains that the interconnection teaches us only that a modeh b’miktzat is required to take an oath. It does not teach us anything about the nature of the oath. The other authorities, by contrast, understand the interrelation to be more encompassing. Therefore, they maintain that all the factors pertaining to modeh b’miktzat should also be applied to watchmen.
The Shulchan Aruch (Choshen Mishpat 88:5 quotes the Rambam’s view. The Tur and the Ramah, by contrast, favor the other perspective. Significantly, in a later chapter, the Shulchan Aruch (Choshen Mishpat 295:3) quotes the Rambam’s opinion, but states that “a majority of authorities differ with him,” which is interpreted as implying that the other view should be followed.

I.e., they cannot expropriate money that is worth less than a p’rutah. As explained in the notes on the following halachah, the Rambam’s statement is somewhat problematic.

This term refers to Rav Yosef MiGash and his teacher, Rabbenu Yitzchak Alfasi.

In his Commentary on Sh’vu’ot 40b, Rav Yosef MiGash explains his position. As mentioned above, he maintains that the concept of eiruv parshiyot teaches us only that a person who is modeh b’miktzat is required to take an oath. Therefore, the particulars defining the oath such a person must take are not relevant to other oaths.

It appears that the intent is guardians, sharecroppers and the like, who are obligated to take an oath according to Rabbinic law to clear themselves of all suspicion. It does not apply to watchmen, for as stated in the previous halachah, the Rambam does not require a claim to be equivalent to two me’in in such a situation.

The Rambam’s statements have aroused the attention of the commentaries, because:
a) they appear to contradict his statements at the conclusion of the previous halachah;
b) since the Rambam accepts his teachers’ basic premise - that the interrelation established by eruv parshiyot is not all-encompassing - why does he differentiate between one instance and another?
c) with regard to an employee who claims that he was not paid, in Hilchot Sechirut 11:9, the Rambam writes:
Even when his wage is only a p’rutah, if the owner claims to have paid him already, he should collect it only after taking an oath. Similarly, whenever a person takes an oath and collects his due, even if the claim is only one p’rutah, he may not collect it unless he takes an oath resembling one required by Scriptural Law.
This appears to be a direct contradiction to the Rambam’s statements here.
In their glosses on Hilchot Sechirot, the Maggid Mishneh and the Kessef Mishneh attempt to resolve the contradiction. The Maggid Mishneh explains that in Hilchot Sechirut, the Rambam made an exception, distinguishing between a worker and other claimants, because the worker is dependent on his wage.
The Kessef Mishneh states that although the Rambam differed with his masters, that difference was theoretical. He was not actually willing to rule against their opinion in an actual court decision.
The Siftei Cohen 89:2 explains the apparent contradiction between this and the previous halachah as follows. At the outset, for the plaintiff to be given the opportunity to take an oath, there must be a difference of two me’in between the two claims. Nevertheless, if when the time comes for him to actually take the oath, the plaintiff reduces his claim and takes an oath claiming only a p’rutah, his oath is accepted.
The Ra’avad argues in favor of the position of the Rambam’s teachers, explaining that the comparison the Rambam makes is faulty. A person taking an oath when a claim is lodged against him is taking the oath to defend his property. Hence, if the claim is not for a significant amount, he is not required to take the oath. A person taking an oath to collect his claim is, by contrast, trying to collect money that is due him. For him, the amount is significant, even if it is merely a p’rutah. With regard to a hired worker, the Shulchan Aruch (Choshen Mishpat 89:2) rules according to the perspective of the Rambam’s teachers.

I.e., he is not obligated to take a Scriptural oath. He is obligated to take a sh’vu’at hesset, as stated in Chapter 1, Halachah 3.

The Rabbis explain the derivation of this concept as follows: The source for the obligation to take an oath is Exodus 22:8: “which he said: ‘This is it.’” Such wording implies that the defendant is acknowledging the same article that the plaintiff is claiming.

A measure equal to half a kor.

As stated in Halachah 10, the defendant is not even liable to pay for the barley he admits to owe. See the notes on that halachah for an explanation of the rationale.

The fact that he gave the coins for safe-keeping - and not as a loan - is significant. When a loan is given, the emphasis is on the value of the coins, not on the coins themselves. When, however, an object is given for safe-keeping, it is possible to explain that the person is concerned with the coins themselves, not merely their value.
See the Shulchan Aruch (Choshen Mishpat 88:9-10), which makes this distinction, but which also quotes the opinion of Rabbenu Nissim, who does not.

A p’rutah is made from copper. Hence, it is not considered to be of the same kind as a silver me’ah.

Even when these coins are made with the same metals, since the plaintiff made it clear that he was demanding payment of the currency of one country, the fact that the defendant admitted owing the currency of another country is not significant.

Because a large lamp and a small lamp are considered two different types of articles.

This does not necessarily mean changing the shape of the lamp. Its weight can be reduced by making the metal thinner.

The commentaries on Sh’vu’ot 43a, the source for this halachah, explain that this is speaking about an instance where the ends of the belt have distinct features. Thus, cutting the belt means altering it, so that it is a different article. If, however, cutting the belt means merely shortening it, then an oath is required.

For a curtain is usually a uniform entity with no distinction between its parts.

He is, however, required to take a sh’vu’at hesset, because he is denying the claim of the wheat.

This admission negates the admission made by the defendant.
After quoting the Rambam’s explanation, the Shulchan Aruch (Choshen Mishpat 88:12) states: Therefore, even if witnesses testify that the defendant owes him the barley, the defendant is not required to pay. For by denying the existence of the obligation, the plaintiff nullified all claims to that money. (The Siftei Cohen 88:16, however, does not accept this conclusion.)
There are, however, other authorities (Rabbenu Asher as quoted by the Tur and the Shulchan Aruch), who maintain that the defendant is freed from liability only when the plaintiff claims: “I lent you wheat on this date, at this hour,” and the defendant says: “It was barley.” Otherwise, the fact that a person demands payment for only one obligation is not proof that he nullifies others.

The rationale for this decision is that since the produce is in the plaintiff’s possession, if he says: “I did not nullify my claim to the barley,” there is no way to disprove this assertion (Sefer Me’irat Einayim 88:25).
The Tur and the Ramah (Choshen Mishpat 88:12) state that a distinction should be made whether the plaintiff seized possession of the barley before the case was heard in court (in which instance the Rambam’s ruling is accepted) or afterwards (in which instance the plaintiff is required to return the barley). They maintain that once the plaintiff has nullified his claim to the barley, he should not be allowed to maintain possession.

For he is admitting a portion of a claim. Thus, the oath is Scriptural in origin (Sefer Me’irat Einayim 88:21).

I.e., if the judges think that he answered early so that his response would not be of the same type as the claim, and he would thus not be required to take an oath.

For the wheat, as if he were denying a portion of the claim.

Since the plaintiff did not have the chance to complete his claim, the defendant is not considered to be a person who admitted a portion of the claim. This applies even if immediately afterwards, the plaintiff stated: “I was also planning to lodge a claim for barley.”
From the Rambam’s wording, it would appear that he is freed from the obligation to take the oath. Nothing is mentioned with regard to whether or not he is liable to make restitution for the barley. The Tur (Choshen Mishpat 88) states that the defendant is not liable for the barley. The Shulchan Aruch (Choshen Mishpat 88:14) appears to quote that opinion, but there is some debate, because the wording of his text is not clear. See the Siftei Cohen 88:28. The Shulchan Aruch continues, stating that if, however, the plaintiff says: “Certainly, you owe me barley, but now, I am not concerned with them. I am asking for my wheat,” the plaintiff is liable to make restitution for the barley.

The Maggid Mishneh, the Tur and the Ramah quote the Remo, who maintains that in this instance as well, if the judges feel that the defendant rushed to answer to prevent the plaintiff from completing his claim, they can require him to take the oath.

Hence, he must pay for the wheat he admits and take a sh’vu’at hesset with regard to the barley [Shulchan Aruch (Choshen Mishpat 88:15)].

From the plaintiff’s wording, it appears that he is concerned only with the oil and not with the jugs.

Thus, it is as if the plaintiff is claiming wheat and the defendant is admitting barley.

Thus, it is as if the plaintiff is claiming wheat and barley, and the defendant is admitting barley.

100 dinarim.

The Maggid Mishneh states that this law does not have a direct Talmudic source. Hence, there is room for differences of opinion among the Rabbis. The Ra’avad and the Rashba differ with the Rambam, citing several sources (e.g., Bava Metzia 97b) in support for their perspective. Other authorities (e.g., Rav Zerachiyah HaLevi, Sefer HaTerumot) argue in support of the Rambam’s approach. The Shulchan Aruch (Choshen Mishpat 88:19) accepts the Rambam’s ruling, and the later authorities follow suit.

The Maggid Mishneh explains that the Rambam’s wording implies that the defendant is bringing the utensil that is claimed with him to the court. Only then does the principle of Heilech (see the following note) apply. The Ramban and the Rashba maintain that as long as the entrusted article is in the watchman’s domain, the principle of Heilech applies. For wherever the article is, it belongs to its owner. The Kessef Mishneh clarifies that there is not necessarily a difference of opinion in theory between the Rambam and those authorities. See also the notes on Chapter 4, Halachah 3.

As mentioned in Chapter 1, Halachah 3, when a person admits a claim, but says: Heilech, “Here it is,” he is not liable at all. Since the defendant is denying the financial claim entirely and there is no other claim against him, he is not considered to be denying a portion of the claim.

The Tur and the Shulchan Aruch (Choshen Mishpat 87:4) clarify that this applies even when the utensil he is offering is equivalent to the utensil that was lost.

He must make this inclusion because of the principle of gilgul sh’vu’ah, as explained in Chapter 1, Halachah 12.

I.e., he is obligated to take the Scriptural oath required of a person admitting a portion of a claim with regard to the maneh. The rationale is that since he admits that the utensil he is returning is not the plaintiff's, he is admitting that he owes him a utensil. Since the plaintiff is claiming that he owes him money and a utensil, and he is admitting only the utensil, he is liable to take an oath. This resembles a situation where the plaintiff demands wheat and barley, and the defendant acknowledges only a debt of wheat.