ב"ה
Rambam - 1 Chapter a Day
Shvuot - Chapter 7
Shvuot - Chapter 7
1When a person issues a financial claim against a colleague which would require the latter to pay were he to admit liability1 and the colleague denies his obligation and takes an oath or the plaintiff administers an oath to him and he denies any obligation. If he is lying, the defendant is liable for an oath concerning a sh’vuat hapikadon.2 The above applies even if the defendant does not respond Amen.3אהַתּוֹבֵעַ חֲבֵרוֹ בְּמָמוֹן שֶׁאִם הוֹדָה בּוֹ יִהְיֶה חַיָּב לְשַׁלֵּם, וְכָפַר וְנִשְׁבַּע, אוֹ שֶׁהִשְׁבִּיעוֹ הַתּוֹבֵעַ וְכָפַר - הֲרֵי זֶה הַנִּתְבָּע חַיָּב בִּשְׁבוּעַת הַפִּקָּדוֹן, אַף עַל פִּי שֶׁלֹּא עָנָה אָמֵן.
For with regard to a sh’vuat hapikadon, one is liable whether he took the oath on his own initiative or another person administered the oath to him and he denied any obligation, even though he did not respond Amen. For denying the claim after the plaintiff administered the oath is equivalent to responding Amen.4שֶׁבִּשְׁבוּעַת הַפִּקָּדוֹן, אֶחָד הַנִּשְׁבָּע מִפִּי עַצְמוֹ, וְאֶחָד שֶׁהִשְׁבִּיעוֹ אַחֵר וְכָפַר, אַף עַל פִּי שֶׁלֹּא עָנָה אָמֵן - חַיָּב, שֶׁכְּפִירָתוֹ אַחַר שֶׁהִשְׁבִּיעוֹ הַתּוֹבֵעַ כַּעֲנִיַּת אָמֵן.
2This does not apply when the plaintiff lodges a claim which if acknowledged by the defendant, i.e., if he would admit that it is true, would not require him to make payment, e.g., he lodged a claim concerning a k’nas.5 For a person is not required to pay a k’nas based on his own admission.6 In such an instance, if a person denied an obligation, he is exempt from a sh’vuat hapikadon, but liable for a sh’vuat bitui.7בתְּבָעוֹ בְּמָמוֹן שֶׁאִם יוֹדֶה לוֹ וְיֹאמַר כֵּן הַדָּבָר לֹא יִהְיֶה חַיָּב לְשַׁלֵּם, כְּגוֹן שֶׁתְּבָעוֹ בִּקְנָס, שֶׁאֵין אָדָם מְשַׁלֵּם קְנָס עַל פִּי עַצְמוֹ, וְכָפַר וְנִשְׁבַּע - הֲרֵי זֶה פָּטוּר מִשְּׁבוּעַת הַפִּקָּדוֹן, וְחַיָּב מִשּׁוּם שְׁבוּעַת בִּטּוּי.
3Similarly, if the plaintiff lodged a claim concerning landed property, a servant, or a promissory note, and the defendant denied the claim and took an oath, he is exempt from a sh’vuat hapikadon, but liable for a sh’vuat bitui, for he took a false oath.גוְכֵן אִם תְּבָעוֹ בְּקַרְקַע אוֹ בְּעֶבֶד אוֹ בִּשְׁטָר, וְכָפַר וְנִשְׁבַּע - פָּטוּר מִשְּׁבוּעַת הַפִּקָּדוֹן, וְחַיָּב בִּשְׁבוּעַת בִּטּוּי, שֶׁהֲרֵי נִשְׁבַּע עַל שֶׁקֶר.
4Why is one who took an oath concerning such claims exempt from the obligations of a false sh’vuat hapikadon? Behold, were he to have acknowledged his obligation, he would have been held liable and required to pay what he denied. Because Leviticus 5:21-22 states: “Concerning an entrusted object, a financial deposit, a robbery; he oppressed his colleague, or discovered a lost object.” All of this concerns movable property which if he would admit his liability he would have to make financial restitution from his own domain. This excludes landed property for it is not movable property. For landed property is always revealed before its owner8 and is always in their possession.9 Similarly, it excludes servants, for an equation is established between servants and landed property.10 And it excludes promissory notes, for their actual substance is not of financial value.11דוְלָמָּה נִפְטַר מִשְּׁבוּעַת הַפִּקָּדוֹן, וַהֲרֵי זֶה אִלּוּ הוֹדָה הָיָה מְשַׁלֵּם מַה שֶׁכָּפַר? לְפִי שֶׁנֶּאֱמַר "בְּפִקָּדוֹן אוֹ בִתְשׂוּמֶת יָד אוֹ בְגָזֵל אוֹ עָשַׁק אֶת עֲמִיתוֹ אוֹ מָצָא אֲבֵדָה" (ויקרא ה, כא-כב) - הַכֹּל מִטַּלְטְלִין, שֶׁאִם יוֹדֶה בָּהֶן יוֹצִיא מָמוֹן מִתַּחַת יָדוֹ; יָצְאוּ קַרְקָעוֹת שֶׁאֵינָן מִטַּלְטְלִין, וַהֲרֵי הֵן לִפְנֵי בַּעְלֵיהֶן וּבְחֶזְקָתָן; וְיָצְאוּ עֲבָדִים, שֶׁהֻקְּשׁוּ לְקַרְקָעוֹת, וְיָצְאוּ שְׁטָרוֹת, שֶׁאֵין גּוּפָן מָמוֹן.
5The above laws apply whether one took an oath after the plaintiff lodged a claim against him or whether he took it on his own initiative even though a claim was not lodged against him.12האֶחָד הַנִּשְׁבָּע אַחַר שֶׁתְּבָעוֹ בַּעַל הַמָּמוֹן אוֹ הַנִּשְׁבָּע מֵעַצְמוֹ אַף עַל פִּי שֶׁלֹּא תְבָעוֹ.
What is implied? He took the initiative and said: “Why are you following me? Do I have any money belonging to you? I am taking an oath that I am not in possession of any of your money.” Since he denied an obligation and took an oath, he is liable, even though the plaintiff did not lodge a claim against him.כֵּיצַד? כְּגוֹן שֶׁקָּדַם וְאָמַר 'לָמָּה אַתָּה הוֹלֵךְ אַחֲרַי, כְּלוּם יֵשׁ לְךָ בְּיָדִי מָמוֹן? שְׁבוּעָה שֶׁאֵין לְךָ בְּיָדִי מָמוֹן?' הֲרֵי זֶה חַיָּב בִּשְׁבוּעַת הַפִּקָּדוֹן, הוֹאִיל וְכָפַר וְנִשְׁבַּע, אַף עַל פִּי שֶׁלֹּא תְבָעוֹ זֶה.
6One is liable whether he took an oath to the person to whom he owes the money or to his agent who was given power of attorney. For a person’s agent is equivalent to his own self.13ואֶחָד הַנִּשְׁבָּע לְבַעַל הַמָּמוֹן עַצְמוֹ אוֹ לִשְׁלוּחוֹ הַבָּא בְּהַרְשָׁאָתוֹ - שֶׁשְּׁלוּחוֹ שֶׁל אָדָם כְּמוֹתוֹ.
7One is not liable for a sh’vuat hapikadon unless he requires him to take an oath in a language that he understands.14זוְאֵינוֹ חַיָּב בִּשְׁבוּעַת הַפִּקָּדוֹן עַד שֶׁיַּשְׁבִּיעוֹ בְּלָשׁוֹן שֶׁהוּא מַכִּירָהּ.
8When a person consciously takes a sh’vuat hapikadon, even though he takes a false oath and is warned by witnesses at the time he takes the oath, he is not liable for lashes,15 but instead must merely bring a guilt offering.חהַנִּשְׁבָּע שְׁבוּעַת הַפִּקָּדוֹן בְּמֵזִיד - אַף עַל פִּי שֶׁנִּשְׁבַּע לַשֶּׁקֶר, וְהִתְרוּ בּוֹ עֵדִים בִּשְׁעַת שְׁבוּעָתוֹ - אֵינוֹ לוֹקֶה, אֶלָא מֵבִיא אֲשָׁמוֹ בִּלְבָד.
For the Torah excluded him from those who are liable for lashes and obligated him to bring a guilt offering whether he transgressed willfully or inadvertently, as we explained.16שֶׁהֲרֵי הַכָּתוּב הוֹצִיאוֹ מִכְּלַל חַיָּבֵי מַלְקוּת, וְחִיְּבוֹ אָשָׁם בֵּין בְּזָדוֹן בֵּין בִּשְׁגָגָה, כְּמוֹ שֶׁבֵּאַרְנוּ.
9If one denied an obligation and took an oath concerning it four or five times or the plaintiff administered an oath to him four or five times and he denied each one of them, he is liable for a guilt offering for each individual oath.17 This applies whether this took place in a court or outside the court.טכָּפַר וְנִשְׁבַּע אַרְבָּעָה אוֹ חֲמִשָּׁה פְּעָמִים, אוֹ שֶׁהִשְׁבִּיעוֹ הַתּוֹבֵעַ אַרְבָּעָה וַחֲמִשָּׁה פְּעָמִים וְהוּא כּוֹפֵר עַל כָּל אַחַת וְאַחַת, בֵּין בְּבֵית דִּין בֵּין שֶׁלֹּא בְּבֵית דִּין - הֲרֵי זֶה חַיָּב קָרְבָּן אָשָׁם עַל כָּל שְׁבוּעָה וּשְׁבוּעָה.
The rationale is that were he to have admitted his obligation after making his denial, he would be liable to make restitution even though he made the denial in a court. Thus with each denial, he is making himself exempt from payment. Hence, he is liable for each individual oath.שֶׁאִלּוּ הוֹדָה אַחַר שֶׁכָּפַר - הָיָה חַיָּב לְשַׁלֵּם, אַף עַל פִּי שֶׁכָּפַר בְּבֵית דִּין, וְנִמְצָא פּוֹטֵר עַצְמוֹ בְּכָל כְּפִירָה וּכְפִירָה מִן הַתַּשְׁלוּמִין, וּלְפִיכָךְ חַיָּב עַל כָּל שְׁבוּעָה וּשְׁבוּעָה.
10If five different people were lodging claims against him and telling him: “Give us the entrusted article of ours that you have in your possession,” and he responds: “I am taking an oath that I do not have anything of yours in my possession,” should his oath be false, he is liable for only one sacrifice.18יהָיוּ חֲמִשָּׁה תּוֹבְעִין אוֹתוֹ וְאוֹמְרִין לוֹ 'תֵּן לָנוּ פִּקָּדוֹן שֶׁיֵּשׁ לָנוּ בְּיָדְךָ', 'שְׁבוּעָה שֶׁאֵין לָכֶם בְּיָדִי' - אֵינוֹ חַיָּב אֶלָא קָרְבָּן אֶחָד.
If he answers: “I am taking an oath that I don’t have anything of yours, or of yours,... or of yours, in my possession,” he is liable for each statement.19'שְׁבוּעָה שֶׁאֵין לְךָ בְּיָדִי, לֹא לְךָ, וְלֹא לְךָ, וְלֹא לְךָ, וְלֹא לְךָ' - חַיָּב עַל כָּל אַחַת וְאַחַת.
11If his colleague told him: “Give me the entrusted object, financial deposit, stolen object, and lost object of mine, that you have in your possession,” and he responds: “I am taking an oath that I do not have anything of yours in my possession,” should his oath be false, he is liable for only one sacrifice.20יאאָמַר לוֹ חֲבֵרוֹ 'תֵּן לִי פִּקָּדוֹן וּתְשׂוּמֶת יָד וְגָזֵל וַאֲבֵדָה שֶׁיֵּשׁ לִי בְּיָדְךָ', 'שְׁבוּעָה שֶׁאֵין לְךָ בְּיָדִי' - אֵינוֹ חַיָּב אֶלָא אַחַת.
Even if the total of all the claims is merely a p’rutah, they are all included together and he is liable.21וְאַפִלּוּ הָיָה לוֹ בְּיָדוֹ פְּרוּטָה אַחַת מִכֻּלָּן, הֲרֵי אֵלּוּ מִצְטָרְפִין וְחַיָּב.
12If he answers: “I am taking an oath that I don’t have an entrusted object, financial deposit, stolen object, and lost object of yours in my possession,” he is liable for each statement.22יבשְׁבוּעָה שֶׁאֵין לְךָ בְּיָדִי פִּקְּדוֹן וּתְשׂוּמֶת יָד וְגָזֵל וַאֲבֵדָה - חַיָּב עַל כָּל אַחַת וְאַחַת.
13If the plaintiff says: “Give me the wheat, barley, and buckwheat of mine that you have in your possession,” and the defendant responds: “I am taking an oath that I do not have anything of yours in my possession,” should his oath be false, he is liable for only one sacrifice.23יג'תֵּן לִי חִטִּים וּשְׂעוֹרִים וְכֻסְּמִין שֶׁיֵּשׁ לִי בְּיָדְךָ', 'שְׁבוּעָה שֶׁאֵין לְךָ בְּיָדִי' - אֵינוֹ חַיָּב אֶלָא אַחַת.
If he answers: “I am taking an oath that I don’t have any wheat, barley, and buckwheat of yours in my possession,” he is liable for each statement.'שְׁבוּעָה שֶׁאֵין לְךָ בְּיָדִי חִטִּים וּשְׂעוֹרִים וְכֻסְּמִין' - חַיָּב עַל כָּל אַחַת וְאַחַת.
14If five different people were lodging claims against him and telling him: “Give us the entrusted article, financial deposit, stolen object, and lost object of mine, that you have in your possession,” and he responds to one of them: “I am taking an oath that I don’t have an entrusted object, stolen object, lost object, and financial deposit of yours, or of yours,... or of yours in my possession,” he is liable for each claim made by each individual. Thus he is liable for 20 guilt offerings.24ידהָיוּ חֲמִשָּׁה תּוֹבְעִין אוֹתוֹ וְאוֹמְרִין לוֹ 'תֵּן לָנוּ פִּקָּדוֹן גָּזֵל וַאֲבֵדָה וּתְשׂוּמֶת יָד שֶׁיֵּשׁ לָנוּ בְּיָדְךָ', וְאָמַר לְאֶחָד מֵהֶן 'שְׁבוּעָה שֶׁאֵין לְךָ בְּיָדִי פִּקָּדוֹן וְגָזֵל וַאֲבֵדָה וּתְשׂוּמֶת יָד, וְלֹא לְךָ, וְלֹא לְךָ, וְלֹא לְךָ, וְלֹא לְךָ' - הֲרֵי זֶה חַיָּב עַל כָּל טַעֲנָה וּטַעֲנָה, לְכָל אֶחָד וְאֶחָד; וְנִמְצָא זֶה חַיָּב עֶשְׂרִים אָשָׁם.
15If the defendant claims that he lost an entrusted object or denies receiving it, he took an oath, and afterwards admitted that it was in his possession, and then claimed that it was lost, took an oath, and then admitted that it was in his possession, he must pay the principal and an additional fifth for each oath that he took.25טוטָעַן שֶׁאָבַד הַפִּקָּדוֹן, אוֹ כָּפַר בּוֹ, וְנִשְׁבַּע, וְאַחַר כָּךְ הוֹדָה, וְחָזַר וְטָעַן שֶׁאָבַד וְנִשְׁבַּע, וְחָזַר וְהוֹדָה - מְשַׁלֵּם הַקֶּרֶן הָרִאשׁוֹן, וְחֹמֶשׁ אֶחָד עַל כָּל שְׁבוּעָה וּשְׁבוּעָה,
This is derived from Leviticus 5:24 which literally translates as “its fifths,”26 implying that the Torah took into account several fifths for one sum of principal.שֶׁנֶּאֱמַר "וַחֲמִשִׁתָיו יֹסֵף עָלָיו" (ויקרא ה, כד) - הַתּוֹרָה רִבְּתָה חֻמְשִׁין הַרְבֵּה עַל קֶרֶן אֶחָד.
What is implied? The principal was worth four zuz. One denied receiving an entrusted article, took an oath, and then admitted that he possessed it. Afterwards, he claimed that it was lost, took an oath and then made a second admission, and then claimed that it was lost, took an oath and then made an admission another time. He is required to pay seven zuz.27 Similar laws apply in all analogous situations.כֵּיצַד? הָיָה הַקֶּרֶן אַרְבָּעָה וְכָפַר וְנִשְׁבַּע וְהוֹדָה, וְחָזַר וְטָעַן שֶׁאָבַד וְנִשְׁבַּע וְהוֹדָה, וְחָזַר וְטָעַן שֶׁאָבַד וְנִשְׁבַּע וְהוֹדָה - מְשַׁלֵּם שִׁבְעָה. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה.
16A value less than a p’rutah is not considered as financially significant.28טזפָּחוֹת מִפְּרוּטָה, אֵינוֹ מָמוֹן.
Hence, if a person lodges a claim against a colleague for less than a p’rutah or for articles worth less than a p’rutah and the defendant denied the obligation and took an oath, he is exempt with regard to a sh’vuat hapikadon29 and liable for a sh’vuat bitui.30לְפִיכָךְ, הַתּוֹבֵעַ חֲבֵרוֹ בְּפָחוֹת מִפְּרוּטָה אוֹ בְּפָחוֹת מִשָּׁוֶה פְּרוּטָה, וְכָפַר וְנִשְׁבַּע - פָּטוּר מִשְּׁבוּעַת הַפִּקָּדוֹן, וְחַיָּב בִּשְׁבוּעַת בִּטּוּי.
Footnotes
1.
The qualifications the Rambam mentions here make a distinction between mammon, a financial claim, for which one is liable for a sh‘vuat hapikadon, and k’nas, a fine, for which one is not liable, as stated in the following halachah.
2.
The term literally means “an oath concerning an entrusted object.” Its meaning in a halachic context is explained in this and the subsequent halachot.
If one takes such an oath falsely, he is liable to pay an additional fifth of the principal and bring a guilt offering as stated in Chapter 1, Halachah 9.
3.
With regard to other oaths, it is necessary for the person to answer Amen as stated in Chapter 2, Halachah 1. Nevertheless, a sh‘vuat hapikadon is a unique instance, as the Rambam continues to explain.
4.
If, however, he remains silent in response to the oath administered by the plaintiff, he is not liable even if he had denied his claim beforehand (Radbaz).
5.
A fine. In Hilchot Nizkei Mammon 2:8, the Rambam defines a fine as an instance where a person pays more or less than the monetary value of the damage he caused.
6.
See Hilchot Genevah 1:5. See also Chapter 8, Halachot 1-3, for illustrations of this concept.
7.
For he is taking a false oath regarding his past activity.
8.
In contrast to movable property which can be concealed.
9.
In contrast to movable property where possession may determine ownership in a situation of doubt, with regard to landed property, a person must display proof of ownership. See also Hilchot To’en V’Nit’an 5:1; Hilchot Gezeilah 8:14; 9:1.
10.
See Hilchot To ‘en V’Nit’an, loc. cit.
11.
Instead, they only serve as proof of an obligation (ibid.).
12.
Note the contrast to an oath concerning testimony (Chapter 9, Halachah 6-7). The gloss of the Torah Temimah to the prooftext explains that since the verse speaks of “deny[ing] his [obligation to] a colleague,” he is liable whether his colleague demands an oath of him or not.
13.
See Hilchot Shluchim 3:5, 7. See the Lechem Mishneh who emphasizes that the principal must have given the agent power of attorney to require an oath of the defendant. If, however, he merely gave the agent the authority to prosecute the claim, he may not require him to take an oath.
14.
For an oath can be taken in any language. Sotah 33a derives this from the exegesis of Leviticus 5:1.
15.
Neither is one who takes such a false oath liable for lashes for taking a false sh ‘vuat bitui.
16.
See Chapter 1, Halachah 9, which explains that one is liable for a sacrifice whether he transgressed willingly or inadvertently. As stated in the notes to Chapter 1, Halachah 8, one is not liable for lashes either because the transgression does not involve a deed, or because financial compensation must be given and a person is not held liable both for financial restitution and lashes.
17.
Note the contrast to an oath concerning testimony, as stated in Chapter 10, Halachah
18.
He is also liable to pay an additional fifth of the principal for each false oath, as stated in Halachah 15.
Since his response included all of them in one statement, it is considered only as one oath.
19.
Since he addressed each one individually, each statement is considered as an independent oath.
20.
Since his response included all of these items in one statement, it is considered only as one oath.
21.
In this instance, were they to have been considered individually, he would be exempt, for since each of the claims are less than a p'rutah, they are not significant individually. Nevertheless, since he included them in one statement, the sum is totaled as one and he is liable.
22.
Since he mentioned each item individually, each statement is considered as an independent oath and it is necessary that each claim concern the worth of a p ‘rutah.
23.
Although they are different species of grain, since he included them all in one statement, he is liable only once. Even though buckwheat is a subspecies of wheat, since it is mentioned individually, he is liable for it individually (Radbaz).
24.
I.e., this combines the principles stated in Halachot 10 and 12.
25.
Similarly, he is liable for a guilt offering for each oath as stated in Halachah 9.
26.
It says chamishitav rather than chamishoto.
27.
This figure can be explained as follows: The principal is four. He must pay an additional three, for each fifth is one fifth of the new total and not one fifth of the original principal (Chapter 11, Halachah 20). He is not, however, required to pay more than one for the second and third oaths, for one is required to pay one fifth of the principal and not a fifth of the fifths (Radbaz).
28.
This principle is also reflected in Hilchot To ‘en V’Nit’an 3:1 and Hilchot Sanhedrin 11. In Hilchot Shekalim 1 :3, the Rambam defines a p‘rutah as half a barleycorn of silver. Shiurei Torah defines this as 1140th of a gram of silver.
29.
For such an oath concerns a financially significant claim and this does not. The Sifra derives this from the exegesis of Leviticus 5:26.
30.
For he took a false oath, as in Halachot 2-3.
Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.
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The text on this page contains sacred literature. Please do not deface or discard.
