To’en veNit’an - Chapter 1

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.