Rambam - 3 Chapters a Day

If [both] or one of [the plaintiff's] witnesses was unacceptable, a relative,1 or even one of those disqualified from testifying by Rabbinic decree, the king - who is not fit to give testimony2 - was one of his witnesses, or the witnesses heard the testimony from other witnesses,3 [although] they both denied [knowing testimony] and took an oath, they are not liable for a sh'vuat haedut,4 for had they testified, they would not have obligated [the defendant] to pay.5

[If the plaintiff said:] "I am administering an oath to you that you come and testify on my behalf that so-and-so promised to give me 200 zuz, but he did not," and [the witnesses] denied [knowledge of the matter] and took an oath, they are not liable for a sh'vuat haedut. For even if they would testify concerning the matter, the defendant would not be liable financially because of his statement.6 Similar laws apply in all analogous situations.

If one charged [witnesses] with testifying that he was a priest or a Levite, or that he was not the son of a woman who underwent divorce or chalitzah,7 and [the witnesses] denied [knowledge of the matter] and took an oath, they are not liable for a sh'vuat haedut. For this is not a financial claim.

[Similarly, although the witnesses] denied [knowledge of the matter] and took an oath, they are not liable for a sh'vuat haedut [if the plaintiff] charges them with testifying [with regard to the following claims]:

his son inflicted a wound upon him,

so-and-so kindled his grainheap on the Sabbath,

so-and-so raped or seduced his virgin daughter who had been consecrated.

[The rationale is that] if they were to give this testimony the defendant would be liable for execution by the court8 and not for making financial recompense as we explained in Hilchot Na'arah.9 Similar laws apply in all analogous situations.

If there was [only] one witness, he denied [knowledge of a financial claim], and an oath was administered to him, he is not liable for a sh'vuat haedut. [The rationale is that] the testimony of one witness does not obligate financial payment.10

If one charged two witnesses with testifying that his wife committed adultery and they denied [knowledge of the matter] and took an oath to that effect, they are liable for a sh'vuat haedut. For if they had testified, they would have caused her to forfeit [the money due her by virtue of] her ketubah.11 Thus the one who charged them with testifying would be freed from liability. Hence the witnesses have denied a financial claim.

If [a husband] charges witnesses - [either witnesses] who observed him administering a [sotah] warning12 or those who observed her entering into privacy with the man concerning whom she was warned - with testifying, and they denied [knowledge of the matter] and took an oath to that effect, they are not liable for a sh'vuat haedut. [The rationale is that] even if they had testified, [the testimony] would not result in a financial claim only in the obligation to have her drink [the sotah] waters. Although this testimony [can] cause her to forfeit [the money due her by virtue of] her ketubah if she does not drink [the sotah waters],13 a matter that could lead to a financial claim is not considered as a financial claim. For it is possible that she will drink the waters and not invalidate her ketubah.

[A witness] is liable for a sh'vuat haedut [in the following situation. A man] issued a [sotah] warning to his wife. She entered into privacy [as observed by] two witnesses and then committed adultery, [as observed by] one witness after being warned and entering into privacy. If [the husband] administered an oath to this witness that he come and testify and he denied knowledge [of the matter], he is liable. Although he is only one witness, if he would have delivered this testimony, the woman would have been divorced without receiving [the money due her by virtue of] her ketubah as explained in Hilchot Sotah.14

Similarly, in any other instance where the testimony of one witness creates a financial obligation, if that witness denies knowledge [of the matter] and took an oath or an oath was administered to him in court supporting his denial, he is liable for a sh'vuat haedut.

What is implied? Both the plaintiff and the defendant were reputed [to take false] oaths15 and hence they are not given the opportunity to take oaths, [the plaintiff] administered an oath to one witness that he should come and testify that so-and-so owes him a maneh and he denied [knowledge of the matter], he is liable for a sh'vuat haedut. For were he to have testified, the defendant would have been required to pay because of his testimony, as will be explained in Hilchot To'en.16 Similar laws apply in all analogous situations.

When a woman administers an oath to one witness that he testify regarding the death of her husband and he denies [knowledge of the matter], he is liable for a sh'vuat haedut. Were he to have testified, she would have married and received [the money due her by virtue of] her ketubah.17

When does the above apply? When she could have collected [the money due her by virtue of] her ketubah from movable property.18 If, however, she could only have collected [this sum] by expropriating landed property, [the witness] is not liable for a sh'vuat haedut. This also applies if there are two witnesses, for when one administers an oath [to witnesses for claims] involving landed property, they are not liable [for a sh'vuat haedut,] as we explained.19

When a person administers an oath to witnesses in a court and both denied [knowledge of the matter] at once, e.g., the second witness began his denial immediately after the statements of his colleague,20 they are both liable for a sh'vuat haedut. Each one of them must bring a sin offering21 for his oath. If the first one denied [knowledge of the matter] and the second witness waited longer than the appointed time period and then denied [knowledge of the matter], the first [witness] is liable for a sh'vuat haedut and the second is exempt. For even if the second had acknowledged [the obligation], his testimony would not have obligated [the defendant] financially.22

If one of the witnesses acknowledged [the claim] and the other denied [knowledge of it], the one who denied is liable whether he made his denial before [the other witness' acknowledgement] or afterwards.23 If they both denied [knowledge of the matter] at the same time and then one took the initiative and acknowledged [the matter] immediately thereafter,24 he is exempt and the witness that persists in his denial is liable for a sh'vuat haedut.

When a person administered an oath to two pairs of witnesses who are both fit to deliver testimony and the first group denied [knowledge of the matter] and then the second pair denied knowledge of the matter, the first are not liable for a sh'vuat haedut. [The rationale is that] they are relying on the testimony of the second pair and that testimony is sufficient to expropriate money. Hence the defendant would not be liable to make financial restitution because of the testimony of these [witnesses] who denied [knowledge of the matter] alone.25

If the second pair of witnesses were related to the plaintiff or to the defendant by marriage and their wives were on their deathbeds, the first pair of witnesses are also liable. For at the time the first pair made their denial, the second pair were not fit to give testimony even though they will soon be fit to give testimony when [the women] on their deathbeds die.26 If the second pair make their denial after their wives die, they are liable for a sh'vuat haedut.

When a person charges his witnesses with testifying on his behalf and they deny [knowledge of the matter], he administers an oath and they answer Amen,27 he administers an oath four or five times and they respond to each oath outside the court, and when they come to the court, they acknowledge [the matter] and testify, they are not liable for a sh'vuat haedut, as we explained.28

If [when] they came to court, they persisted in their denial, they are liable for every one of the oaths [administered] outside the court.29

When does the above30 apply? When they answered Amen. If, however, they did not answer Amen, but [merely] denied [knowledge of the matter] after every oath, they are not liable unless the oath is administered in court, as we explained.31 [The rationale is that] they did not utter the oath themselves or answer Amen.

If [the plaintiff] administered an oath to [the witnesses] in court and they denied [knowledge of the matter] and then he administered an oath again four or five times and they deny [knowledge of the matter] each time, they are liable only once for a sh'vuat haedut.32 [This applies whether the oath was administered] in court or outside the court and even if they answered Amen or took the oath on their initiative time after time. [The rationale is that] after they denied [knowledge of the matter] in court, were they to retract and admit [knowledge of it], their testimony would no longer be effective.33

It can thus be derived that all the oaths that they take after denying [knowledge of the matter] in court involve a denial of testimony that would not obligate [the defendant] financially. [In that instance, the witnesses] are not liable for a sh'vuat haedut, but they are liable for a sh'vuat bitui, as we explained.34

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

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.

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

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.

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

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.

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."

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

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 owe anything to that person."

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.

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.

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

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].

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

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 an 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

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.

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 [his 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

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] tells [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

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

It is a clear and obvious fact 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

Although a person who took a false oath or an oath in vain is given lashes,1 and similarly, one who takes a [false] sh'vuat haedut or sh'vuat hapikadon brings a sacrifice,2 they do not receive complete atonement for the sin of taking a [false] oath, as [Exodus 20:7] states: "God will not cleanse [one who takes His name in vain]." He will not be absolved from the judgment of heaven until he receives retribution for his desecration of [His] great name, as [Leviticus 19:12] states: "[You shall not take a false oath in My name, for] you will desecrate the name of Your God." Therefore a person must be very careful with regard to this sin, more than with regard all other sins.3

This sin is considered one of the severe transgressions, as explained in Hilchot Teshuvah.4 Although it does not involve kerait or execution by the court, it involves the desecration of [God's] holy name which is more severe than all other sins.

When a person takes an oath by the heaven and earth, by the sun, or the like, this is not an oath,5 even though his intent is He who created them. Similarly, one who takes an oath by one of the prophets or by one of the texts of the Holy Scriptures, this is not an oath, even if his intent is He who sent the prophet or gave the commandments in this text.6

Although these are not oaths, those who take them are subjected to a severe warning and we teach the people not to act frivolously in this manner. [Indeed,] we make it look as if these are oaths and give them an opening [to ask for their absolution] and absolve them.7

When does the above apply? With regard to other holy texts. [Different rules apply,] however, when one takes an oath by the Torah.8 If one takes an oath by what is written in [the Torah],9 his intent is by the names of God [it contains].10 If one takes an oath by it without any further definition, his intent is on the parchment [of the scroll] and it is not considered as an oath.11 If he took [the scroll] in his hand and took an oath by it,12 it is as if he took an oath by what was written in it and [the matter] is forbidden.13

[The following rules apply when] a person takes an oath by the Torah without any further definition. If he is a Torah scholar, he does not need to be released by a sage.14 If he is a common person,15 it is necessary that he asked to be released by a sage so that he will not treat oaths frivolously.16

When a servant takes an oath, his master does not have to compel him [to break the oath to nullify it].17 Instead, his [status] is the same after taking the oath as it was before he did so.18 [The rationale is that] his body is not his property for the oath he takes to be effective. With regard to oaths, [Numbers 30:3] states: "To forbid something upon one's soul." [Implied is that the verse applies to] someone whose soul is his property. It excludes a servant who is someone else's property. Thus [a servant's taking an oath] is comparable to taking an oath regarding someone else's property.19

Minors20 who take an oath are not obligated [to maintain their commitment, even though] they understand the significance of an oath.21 [Nevertheless,] we compel them to uphold their word to train them [in the observance of mitzvot] and to impress them with fear so that they do not act frivolously with regard to oaths. If the matter concerning which they took the oath is such that a minor could not maintain without suffering injury,22 e.g., he took an oath that he would fast or that he would not eat meat for a long time, his father or his teacher should beat him and rebuke him, and create the appearance that his oath [took effect, but] was released, so that he will not be habituated to treat oaths frivolously.

We must be very careful with children and train them to speak words of truth without [resorting to] an oath so that they will not be habituated to swear at all times like gentiles do. This matter is tantamount to an obligation for their parents and for those who teach young children.

When one hears a colleague mention God's name in vain, take a false oath in his presence, or recite a blessing that is unnecessary in which instance [his colleague] transgresses23 because he takes God's name in vain,24 as we explained in Hilchot Berachot,25 he must place him under a ban of ostracism.26 If he does not, he himself should be ostracized. The ban should, however, be lifted immediately so that it will not present an obstacle to others, for they will not know that he was placed under a ban. And if one would say, "Make it known that he [is under ostracism]," the entire populace will be under ban for [people] have already habituated their tongues to iniquity27 and oaths at all times.

When does the above apply? When the person taking this oath or reciting this blessing in vain does so intentionally? If, however, he does so inadvertently or does not know that this is forbidden,28 [a listener] is not obligated to place him under a ban of ostracism. Indeed, I maintain that it is forbidden to place him under a ban of ostracism, for the Torah did not [prescribe] punishment for an inadvertent transgressor. Instead, one should caution him and warn him not to repeat [the transgression].

It is not only a false oath that is forbidden. Instead, it is forbidden to mention even one of the names designated for God29 although one does not take an oath. For the verse [Deuteronomy 28:58] commands us, saying: "to fear the glorious and awesome name."30 Included in fearing it is not to mention it in vain.31

Therefore if because of a slip of the tongue, one mentions [God's] name in vain, he should immediately hurry to praise, glorify, and venerate it so that it will not have been mentioned [entirely] in vain. What is implied? If he mentions God's name, he should say: "Blessed be He for all eternity," "He is great and exceedingly praiseworthy,"32 or the like so that it will not have been [mentioned entirely] in vain.

It is permitted to approach [a sage] to have an oath released as we explained33 and there is no fault [in doing so]. [Indeed,] one who has hesitations about the matter is [showing] traces of heresy.34 Nevertheless, it is appropriate to show care in this regard. One should not respond [to a request] to release [an oath] unless it involves a matter concerning a mitzvah or a great need.35 It is of great benefit for a person never to take an oath at all.36If, however, one transgressed and took an oath, he should endure great difficulty and keep his oath,37 as [Psalms 15:4-5] states: "One who takes an oath to his own detriment and does not nullify it..., he who acts in this manner will never falter."

Blessed be God who grants assistance.