To’en veNit’an - Chapter 5

I.e., Canaanite slaves. See the Siftei Cohen 95:18, who discusses whether the same laws apply with regard to a Hebrew servant.

The intent is property consecrated to the Temple treasury. Oaths are required with regard to property consecrated to a synagogue, for the writing of a Torah scroll, or to be given to the poor [Shulchan Aruch (Choshen Mishpat 95:1)].

E. g., if he is an unpaid watchman and he claims that the article was lost or stolen, or he is a paid watchman and he claims that it was destroyed by forces beyond his control.

But is, instead, freed of liability.
If, however, a person is required to take an oath concerning another matter, based on the principle of gilgul sh’vu’ah (Chapter 1, Halachah 12), he may be required to include a denial of a claim involving these matters in that oath [Shulchan Aruch (loc. cit.)].

For consecrated property belongs to the Temple, not “your colleague.”

For it is not an article that can be given from hand to hand, like money or a utensil (Sh’vu’ot 42a).

Sh’vu’ot, ibid., establishes this equation as follows. Leviticus 25:40 states: “And you shall give them (servants) as an inheritance to your sons afterwards, as an ancestral heritage.” The term “ancestral heritage” refers to landed property. The verse teaches that servants are considered to be equivalent to such a heritage.

The Maggid Mishneh clarifies that if the plaintiff demands the worth of the paper on which a promissory note was written, the defendant may be required to take an oath, because that paper is of financial worth.

The contemporary halachic authorities have raised questions with regard to the currency used today, for it is not of any integral financial worth. Moreover, it is not even valued against a precious metal standard, but is basically a “promissory note” issued by a particular government. Should such a note be considered “money” (literally “silver”) or merely a promissory note?

I.e., this excludes an instance where the plaintiff does not have a definite claim, but instead is unsure whether or not the defendant owes him a debt. Thus, it excludes most claims involving watchmen, for generally the owner will not be able to lodge a definite claim against a watchman.

I.e., while holding a Torah scroll or tefillin.

When a watchman knows that he must take a severe oath if the article is lost, he will be more careful concerning it.

The Ra’avad maintains that the Rambam’s words require explanation. He accepts the Rambam’s ruling in a situation where the owner is demanding that the defendant fill up the cavities that he dug and repair the damage. If, however, the defendant is demanding financial reimbursement, seemingly that should be judged as a claim involving money, not one involving land. What difference does it make whether the claim involves personal injury or damage to landed property? What concerns the plaintiff is financial reimbursement.
The Maggid Mishneh maintains that the Rambam would not accept the Ra’avad’s distinction, explaining that ultimately what concerns the plaintiff is that his land be restored to its initial state. He does not care whether the defendant fills up the cavities themselves or pays someone else to do it. Hence, the claim concerns landed property. Netivot HaMishpat, Biurim 95:6, explains why damage to land is governed by different laws from personal injury. With regard to land, the damage can be restored. With regard to personal injury, by contrast, there is no way a limb can be restored. (Note, however, the Siftei Cohen 95:18, who maintains that the Rambam would accept the Ra’avad’s perspective.)
The Shulchan Aruch (Choshen Mishpat 95:6) quotes the Rambam’s words, while the Tur and the Ramah cite the Ra’avad’s position. See also the notes on Halachot 4 and 5.

In all these instances, the defendant is not considered to have admitted a portion of the claim, because the admission of the obligation for the landed property is of no consequence.

The Rambam La’Am explains that the Rambam’s intent is that the defendant is not required to take the oath regarding the landed property because of the principle of gilgul sh’vu’ah, but because the demand for the landed property is an integral element of the plaintiff’s claim. [In his Commentary to the Mishnah (Kiddushin 1:5), the Rambam explicitly mentions the rationale of gilgul sh’vu’ah. The Tur and the Shulchan Aruch (Choshen Mishpat 95:5) also refer to this concept.]
One might ask: What difference does it make why the defendant must take the oath concerning the landed property? In reply, it can be explained that when the oath is required because of the principle of gilgul sh’vu’ah, it is only administered at the request of the plaintiff. If he does not make such a request, it is not administered. According to the logic of the Rambam LeArn, by contrast, the judges administer the oath on the landed property without the plaintiff making a request.

The Ra’avad questions the Rambam’s ruling, stating that this matter is the subject of a difference of opinion in Sh’vu’ot 43a between Rabbi Meir and the Sages. The Rambam appears to accept Rabbi Meir’s opinion, despite the fact that majority of Sages ruled otherwise.
The Maggid Mishneh offers a different interpretation of that passage, explaining that the difference of opinion applies in an instance when the crops will still benefit from being attached to the ground, although they are already fit to be harvested. If, however, they will not benefit at all from being attached to the ground, even the Sages would agree that they are considered movable property. This, the Maggid Mishneh maintains, is the situation that the Rambam is speaking about. As explained in the following note, in his own Commentary on the Mishnah, the Rambam explains the difference of opinion between the Sages and Rabbi Meir on the basis of other principles.

With these words, the Rambam is implying that the distinction he has made does not apply in all instances. See Hilchot Sechirut 2:4, where the Rambam does not differentiate between produce that is ready to be harvested and that which is not, with regard to the laws regarding watchmen. In all instances, the produce is considered to be landed property, and a Scriptural oath is not required.
The difference between the two instances is that a watchman is not hired to harvest produce. As long as the produce is attached to the land, it must be protected in the same manner whether or not it is ready to be harvested. Our halachah, by contrast, concerns a claim involving a sale. In such an instance, since the person sells the produce by weight as he would sell it if it had been harvested, it is considered movable property. Similarly, in Hilchot Mechirah 1:17, the Rambam states that with regard to the laws of acquisition, produce that is ready to be harvested is considered as though it has already been harvested. [See the Rambam’s Commentary on the Mishnah (Sh’vu’ot 6:7); Kessef Mishneh in his gloss on Hilchot Mechirah.]
The Shulchan Aruch (Choshen Mishpat 95:2) quotes the Rambam’s perspective. The Ramah brings several different conceptions of the passage. First, he cites that of the Nimukei Yosef, who maintains that the Rambam’s ruling applies only when the plaintiff demands financial restitution for his grapes. If, however, he demands the grapes themselves, they are considered to be Heilech, and an oath is not required. The Rashba maintains that whenever the plaintiff demands money, the claim is considered to involve movable property. A person is considered to be admitting a portion of the claim only when he demands that his grapes be returned, and the defendant admits to partaking of the grapes and hence cannot return them. These opinions bring up a larger issue: Can an oath be required in a claim that initially involves landed property, but ultimately results in a demand for financial recompense? See the notes on Halachah 2 and the following halachah.

This is the minimum amount he must deny for an oath to be required (Chapter 3, Halachah 1).

Rental of land is considered as land itself (Hilchot Sechirut 7:2). Therefore, if the defendant claimed that he had a right to dwell on the land for an extra month, that would be considered to be a claim involving land. In this instance, however, the claim solely concerns money. And money is considered to be movable property (Maggid Mishneh).

As is obligated of a person who denies a claim entirely.
When quoting this law, the Shulchan Aruch (Choshen Mishpat 95:4) borrows the Rambam’s wording, but comes to a different conclusion, stating that the defendant is not liable, not even for a sh’vu’at hesset. Sefer Me’irat Einayim 95:18 explains that this difference is dependent on the difference of opinion between the Rambam and other Rishonim (see Hilchot Sechirut 2:3 and notes) whether or not negligence is considered to be damage (see below). Since the Shulchan Aruch (Choshen Mishpat 95:1) accepts the perspective of the other Rishonim, according to his perspective, the defendant is not required to take an oath when he denies even accepting the article, because even if he did accept the plaintiff’s claim and admit negligence, he would not be liable.
The Siftei Cohen 95:17 explains the Rambam’s position at length, stating that it should be accepted instead of that of the Shulchan Aruch.

See Chapter 1, Halachah 6. The Kessef Mishneh explains that the plaintiff must include in his oath that the authenticity of the promissory note was verified, and that its loss prevented the plaintiff from collecting the debt.

The Kessef Mishneh asks: Why is the defendant liable? According to the Rambam, unless it can be proved that the promissory note was lost through the watchman’s negligence, the watchman is not liable. The Kessef Mishneh offers two resolutions:
a) we know that it is presently in the watchman’s possession, so that if he does not return it, the plaintiff will definitely lose his money;
b) since the watchman denies even taking the promissory note, it is obvious that he was negligent.

The Kessef Mishneh explains that the Rambam is referring to his ruling in Hilchot Chovel UMazik 7:9, which states:
Similarly, a person who burns promissory notes belonging to a colleague is liable to pay the entire debt that was mentioned in the promissory notes. Although the promissory notes themselves are not of financial worth, [by burning them,] one causes his colleague a direct financial loss. [When does this apply?] Only when the person who [burned] the note admits that it had been validated [in court], that it was for such and such an amount of money, and that because it was burned the owner cannot collect the debt. If [the person who burned the note] does not believe [the owner] with regard to any of these points, he is required to pay only the value of the paper.
Similarly, in this instance, it appears that the defendant does not accept the fact that the owner will not be able to collect the debt, because the promissory note was destroyed. For if he accepted that claim, and admitted that the note was lost because of his negligence, he would be liable. As the Rambam states explicitly in Hilchot Sechirut 2:3, a person who was negligent and caused a promissory note to be lost is considered as though he destroyed it by hand.
The Ra’avad states that the Rambam’s ruling applies only when we know that the promissory note is in the defendant’s domain. Hence, he cannot free himself of liability, for he must take an oath that the entrusted article is not in his possession. The Maggid Mishneh rejects that position, explaining that a watchman for a promissory note is not required to take an oath that the promissory note is not in his possession.
The Maggid Mishneh explains that hence, in our halachah, the defendant is not liable, because the plaintiff cannot issue a definite claim that the article was destroyed due to the defendant’s negligence. The Kessef Mishneh rejects the Maggid Mishneh’s interpretation, stating that even if the plaintiff were to issue a definite claim, the defendant would not be liable.
According to the Kessef Mishneh, the defendant is not liable, because he tells the lender: “All I allowed to be lost was a piece of paper; you can still collect your debt.”
The Rambam La’Am maintains that the reference to Hilchot Chovel refers to the prior clause - serving as a proof that if the defendant must pay the entire amount mentioned in the promissory note. That text also refers to its explanation (see the notes on Hilchot Sechirut, loc. cit.), that there are types of negligence for which the Rambam would free a watchman of responsibility. With these two explanations, the Rambam’s text reads easily. If the watchman denies the claim, he must take a sh’vu’at hesset. If he reverses the obligation for the sh’vu’at hesset, placing it on the plaintiff and the plaintiff takes the oath, he must pay the full value of the note, as stated in Hilchot Chovel. If he admits taking it, but claims it was lost, he is not liable at all, for this is one of the situations where even if he was negligent, he would not be liable.

I.e., a person who is not involved in litigation against him (Sefer Me’irat Einayim 16:14).

The court will then copy any information that they feel is relevant and advantageous to him [Shulchan Aruch (Choshen Mishpat 16:4)]. The Shulchan Aruch continues, however, stating that if the possessor of the promissory note states that he does not possess such a promissory note, we do not require him to produce the promissory note in his possession.

We issue a ban of ostracism - without mentioning the name of the possessor of the promissory note - saying that any person who refrains from producing a promissory note demanded of him is under ostracism. This measure of protection was instituted by the Geonim.

This applies in several instances - e.g., the colleague claims that he possessed such a promissory note, but it was lost, or he denies ever having possessed such a note. When the other person claims that he definitely possesses such a note, an oath is required.

Since he has a definite claim, an oath may be required.

These three categories of individuals are considered to be incapable of controlling their conduct or understanding business matters. Hence, their claims are not regarded seriously by the court.

The continuation of this halachah focuses on the question of claims made by a minor. There are two difficulties with regard to such claims:
a) with regard to property that a minor inherits, a minor normally does not have firsthand knowledge of his father’s business affairs. Hence, the claims that he will issue on this basis are ordinarily considered indefinite. This applies even after the minor attains majority, as reflected in Chapter 4, Halachah 5.
b) claims that involve a minor’s property itself or matters with regard to which he had firsthand knowledge of his father’s affairs. With regard to these matters, although the minor has a definite claim, because he is a minor and thus considered to be not entirely capable of understanding, his claim - like a claim involving a mentally incapable individual - is not considered by the court.

As the Rambam continues to explain, a claim lodged by a minor is not considered to be definite and does not obligate the defendant. Hence, if the defendant agrees to pay him anything, it is as if he is returning a lost object to the minor. Such an admission should not cause him to incur an obligation.
The Kessef Mishneh questions the Rambam’s ruling, for he maintains that when the minor comes with a definite claim, the person cannot be considered to be one who returns a lost object. Hence, he questions why, when the minor issues a definite claim and the defendant admits partial liability, is the defendant not obligated to take an oath?
Sefer Me’irat Einayim 96:2 explains that with regard to an obligation owed an adult, there is a logical basis to free him from the obligation to take an oath if he admits partial liability. We might assume that, had he desired to lie, he would have denied the obligation entirely. Bava Metzia 3a, b states that, nevertheless, an oath is required, because we assume that the defendant could not look the plaintiff in the eye and deny the debt entirely. Hence, it is possible that he admitted only a portion, because that is all he could pay immediately. With regard to an obligation owed a minor, this logic does not apply, because the defendant could deny the claim entirely. Therefore, if he makes an admission, he is considered comparable to a person who returns a lost article.

The Tur and the Ramah (Choshen Mishpat 96:1) maintain that in this instance an oath is required, since the oath is required because of the witnesses’ testimony and not because of the plaintiff’s (the minor’s) claim.

For even an adult does not have a definite claim against a watchman and, nevertheless, the Torah ordained that an oath should be taken.
The Ra’avad differs with the Rambam and maintains that an oath - even a sh’vu’at hesset - should never be administered because of the claim of a minor, even an oath of this nature. Moreover, according to the Ra’avad, even after the minor attains majority, an oath is not required for articles entrusted while he is a minor. The Maggid Mishneh brings a third opinion that states that a Scriptural oath should not be administered because of the claim of a minor, but a Rabbinic oath of this nature should be administered.
The Ra’avad’s rationale is that the fact that a minor entrusted the article to a colleague is not considered significant at all. He draws support for his ruling from the fact that the proof-text for these laws, Exodus 22:6, explicitly states: “When a man gives....” This wording provoked our Sages’ comment: “‘A man,’ this excludes a minor.” The Shulchan Aruch (Choshen Mishpat 96:1, 302:2) quotes the Rambam’s view, while the Tur and the Ramah follow the opinion mentioned by the Maggid Mishneh. See also Hilchot Sechirut 2:7.

As stated in Chapter 1, Halachah 2, in these instances our Sages required that an oath be taken despite the fact that the plaintiff does not have a definite claim.
The Ra’avad maintains that an oath is required only with regard to claims that stem from the business affairs that the minor inherits from his father, but not from his own. The Rambam’s view is, however, accepted by the Shulchan Aruch (loc. cit.).

The Ramban and Rabbenu Asher differ and maintain that if the minor is immature and does not realize the seriousness of financial transactions, we do not pay attention to the claims he lodges. The Shulchan Aruch (Choshen Mishpat 96:2) quotes the Rambam’s view, while the Tur and the Ramah cite the other perspective.

As Hilchot Mechirah 29:6 states, if a child understands the nature of business dealings, the transactions into which a minor enters are binding. It is to the minor’s advantage to pay if required to by law, for if he does not pay his debts, no one will want to engage in business with him in the future (Kessef Mishneh).

As the Rambam writes in Hilchot Chovel UMazik 4:20:
An encounter with a deaf mute, a mentally incompetent individual or a minor is undesirable. For if a person injures them, he is liable, but if they injure another person, they are not. For at the time they caused the injuries, they were not [fully] mentally competent.

As stated in Hilchot Malveh V’Loveh 16:5, when a person tells his workers to collect money from a storekeeper, the storekeeper claims to have paid him, and the workers claim never to have been paid, both the storekeeper and the workers must take oath, and then they collect their claims from the employer. As stated in our halachah, if the employer is a minor, only the workers are given this option.

These laws apply, despite the fact that, as the Rambam writes in Hilchot Mechirah 29:2, a deaf-mute may engage in business transactions.
There are authorities who differ with this opinion, and maintain that the same laws that apply to a child apply to a deaf-mute. The Shulchan Aruch (Choshen Mishpat 96:5) quotes both of these opinions without stating which one is favored, and the Ramah states that the latter view should be followed.