Sheluchin veShuttafin - Chapter 9

Partners who both invested in the partnership, or partners in an investment arrangement. The Hagahot Maimoniot differ and maintain that the manager of an investment partnership (iska) is not required to take this oath. Both views are cited by the Ramah (Choshen Mishpat 93:4) Note, however, Halachah 6.

In contrast to one appointed by the deceased before his passing. The reason for the difference between them can be explained as follows: A guardian appointed by the court is very happy that he was chosen for this appointment and therefore is willing to undertake this responsibility even though he will be required to take an oath. One appointed by a private individual, by contrast, does not derive such satisfaction. Hence, it is possible that he will refrain from accepting the appointment because he will be required to take an oath.

When, however, a woman is charged merely with managing her household expenses, she cannot be required to take an oath [Shulchan Aruch (Even HaEzer 97:1)].

Who manages certain household affairs, as stated in Halachah 4.

Despite the fact that this oath was instituted by our Sages, it must be taken while holding a sacred article, as is required when taking an oath mandated by Scriptural Law.

There is a parallel to this in Scriptural Law. A watchman is required to take an oath if he claims that an entrusted article was destroyed in a manner that does not require him to pay, although the owner of that article does not know whether or not his claim is valid. There is, however, a distinction between the oath mentioned in this halachah and an oath taken by a watchman. A watchman is automatically required to take an oath. In this instance, an oath is required only when the plaintiff suspect wrongdoing and demands that the oath be taken.

The plaintiff can require that this oath be administered at any given time. He need not wait until their relationship is terminated [Ramah (Choshen Mishpat 93:1)].

For an oath is a serious matter and will not be taken lightly.

I.e., although generally an oath is not required unless the plaintiff has a definite claim against the defendant (see Hilchot To’en V’Nit’an 1:7), an exception is made in this instance, because of the rationale stated by the Rambam.

A me’ah is one sixth of a dinar, and 32 p’rutot.

It would appear that the reference is to Hilchot To’en V’Nit’an 3:1. See the following note.

As explained in Hilchot To’en V’Nit’an, a person who admits a portion of a claim is not required to take an oath unless the claim against him is for more than two me’ah. Following the principle that the Rabbis structured their rulings in imitation of Scriptural Law, this Rabbinic oath is not required unless there is a claim of two me’ah.
Hilchot To’en V’Nit’an also states that the defendant must admit at least a p’rutah’s worth of the claim against him. If, however, he denies the claim entirely he is not required to take such an oath. There are some authorities who maintain that such a motif is required in the present situation as well. The Rambam, based on the rulings of his teacher, Ri Migash, differs and maintains that in these instances, even if the defendant denies the claim entirely, he is required to take an oath.
This is the interpretation of the Kessef Mishneh. Sefer Me’irat Einayim 93:7 takes issue with the Kessef Mishneh’s interpretation of the Rambam’s ruling, and maintains that the Rambam also requires the defendant to admit a portion of the claim. The Siftei Cohen 93:3 supports the Kessef Mishneh, explaining that this view is also evident from the Rambam’s Commentary on the Mishnah (Sh’vuot 7:8).

I.e., even though the heirs are unsure of the matter, we advance this claim on their behalf.

In his Kessef Mishneh, Rav Yosef Karo question the Rambam’s statements, explaining that it is possible to say that the law the Rambam quotes as a proof applies only in situations where the heirs suspect that the widow took two silver me’ah.
The Lechem Mishneh supports the Rambam’s ruling, explaining that from Ketubot 87a, the source for the ruling with regard to the widow, it appears that after the death of her husband, his heirs require her to take an oath on the business she conducted during his lifetime. It is highly unlikely that they knew the detail of these affairs to the extent that they could have strong suspicions concerning money that she did or did not take.
In his Shulchan Aruch (Choshen Mishpat 93:3), however, Rav Yosef Karo quotes the Rambam’s ruling with regard to a partner. With regard to a widow who served as a guardian, he quotes both views, but appears to favor the opinion stated by the Rambam [Shulchan Aruch (Even HaEzer 98:4)].

A Torah scroll or tefillin, as stated in Hilchot To’en V’Nit’an 1:2.

The principle of migo means that a person is freed from an obligation because there is another more acceptable claim available to him than the claim he offers. We assume that had he desired to lie he could have told the better lie. For example, if the signatures of the witnesses to a promissory note have not been verified, the defendant’s word would be accepted if he claims that the promissory note is a forgery. Therefore, if he claims that he repaid a loan, his claim is accepted, for had he desired to lie, he could have claimed that the promissory note is a forgery.
Similarly, in the instance at hand, since there are no witnesses, if the person had denied that he was his colleague’s partner or sharecropper, his word would have been accepted. Hence, one might argue that it would be appropriate to free him from the obligation of taking an oath on the principle of migo. For had he desired to lie, he could have claimed that he was not the partner.
The Rambam does not accept this view. Although he agrees that the principle of migo is effective in freeing a person from a financial obligation, he maintains that it cannot be used to free a person from the obligation of taking an oath.
The Turei Zahav (Choshen Mishpat 296:1) explains the Rambam’s logic as follows: Torah law often relies on the principle of chazakah - i.e., since this is the logical probability, we presume that it is indeed the case. Nevertheless, as we see from Pesachim 4a, when it is possible to clarify a situation, we do not rely on a chazakah, and instead require that a clarification be made. Similarly in the present instance - although there are other situations where we rely on the principle of migo. In this instance, since it is possible to clarify the matter by requiring an oath, we make such a requirement.
It must be emphasized that the Rambam’s opinion is not accepted by all authorities. The Maharam of Rutenberg and other Ashkenazic masters maintain that an oath is not required in such a situation. His opinion is quoted by Rabbenu Asher and the Tur. Both the Shulchan Aruch (Choshen Mishpat 93:2) and the Ramah quote the Rambam’s ruling in this instance. In other contexts (see Choshen Mishpat 296:1), the Ramah does mention the view of the Ashkenazic authorities.

Because of his involvement, we fear that he may take leniency with certain matters.

Since he is not involved in the business affairs of the household, there is no suspicion that he will take moneys belonging to the household for himself. Therefore, unless a definite claim is issued against him, he cannot be required to take an oath.

In contrast to one appointed by the court. (See the notes on Halachah 1; see also Hilchot Nachalot 11:5.)

She cannot even be required to take an oath concerning these matters through the principle of gilgul sh’vuah (that while taking an oath concerning one matter, she may be required to take an oath concerning another) [Shulchan Aruch (Even HaEzer 98:5)].

I.e., the Rambam is speaking about a situation where money is needed to pay for the burial and funeral, and the woman sells some of the property of the estate to meet these costs. We fear that if she knows that she will be required to take an oath with regard to her business dealing, he will refrain from doing so, and the deceased will remain unburied. In the Talmudic age, when refrigerated morgues did not exist, an extended wait would cause the deceased’s corpse to decompose and become foul-smelling.

From the Rambam’s wording, it appears that an agent is certainly required to take an oath when he receives a wage for his services. One might, however, think that when the agent performs these services merely as a favor, he cannot be required to take an oath - for then a person might refrain from doing such a favor - and it is therefore necessary to explain that even in such a situation, the person is required to take an oath (Sefer Me’irat Einayim 93:10).
This point is significant, for there are opinions that maintain that the administrator of an investment partnership is not required to take this oath. These opinions maintain that since he is receiving a fee for his services, he will not take the license of taking from the investment’s resources. As mentioned in the notes on Halachah I, the Rambam does not accept this view.

In his Kessef Mishneh, Rav Yosef Karo mentions that the Rambam’s view is not accepted by the Rashba, who maintains that an agent cannot be required to take an oath unless he shares in the profit, or unless he continuously carries out business on behalf of the principal. In his Shulchan Aruch (Choshen Mishpat 93:4) he quotes both opinions.

For even the partner who did not do business had the opportunity to take from the goods or the funds of the partnership.

For he has nothing to do with the workings of the partnership.

He may, however, have the court issue a conditional ban of ostracism [Halachah 9; Shulchan Aruch (Choshen Mishpat 93:6)].

Remaining silent at the time of the dissolution of the partnership is tantamount to admitting that he harbors no suspicions against him.

For when one person has a definite claim against a colleague, he can bring the matter to court even though many years have passed since the occurrence of the event on which the claim is based. The fact that two people were once partners does not deprive either of the right to issue such a claim (Kessef Mishneh).

As explained in Hilchot To’en V’Nit’an 1:12, whenever a person is required to take an oath, the plaintiff can require him to take an oath concerning any other claim the plaintiff has against him. This is called gilgul sh’vuah. Our halachah introduces a concept that is slightly innovative. For as reflected in the latter clause of the halachah, despite the fact that the plaintiff’s claim - both the claim that requires the first oath and the claim concerning which the second oath must be taken - is not definite, the defendant may still be required to take an oath (Kessef Mishneh).

Even a sh’vuat hesset, which is a more lenient oath than other Rabbinic oaths, as evident from Chapter 10, Halachot 1-2.

Thus, the debts are also considered as if they have already been divided.

For no evaluation is necessary. All that is required is that each partner come and take his share, as stated in Chapter 5, Halachah 9. This ruling applies even if the partners do not know the exact amount of cash remaining.

For ultimately that article will be returned. See Chapter 5, Halachah 9, with regard to the manner in which produce must be divided.

For once it is weighed, it is known how it will be divided.

Halachah 7.

As mentioned in Chapter 3, Halacbah 11, in Hilchot Gezeilah 4:8, and in other sources, in the post-Talmudic period, the Geonim ordained that as a measure of protection against false claims, a conditional ban of ostracism could be issued against anyone who performs the wrong one litigant alleges that the other is committing. Although the litigant's name is not mentioned, the Geonim felt that the ban might frighten him and cause him to admit his guilt.