Shvuot - Chapter 11

See Chapter 1, Halachot 7-8.

See Halachah 5 which mentions the oaths required by the court.

See Halachot 8-9.

Sefer HaMitzvot (positive commandment 7) and Sefer HaChinuch (mitzvah 435) include this commandment among the 613 mitzvot of the Torah. Note the Hasagot of the Ramban to Sefer HaMitzvot and the Ra'avad' objections at the beginning of the Mishneh Torah which differ and argue that this should not be considered as a positive commandment. See also Hilchot Nedarim 1:4 which states that there is a positive Scriptural commandment for a person to carry out an oath or vow he took.

For this reveals the reverence and awe in which God's name is held.

For that implies drawing a certain equation between that other entity and God.

See the Radbaz who explains why the expression: "As God lives and by the life of your soul" (II Kings 2:4, 4:30) is not a contradiction of this principle.

When the Jewish people were compelled by God to accept the Torah by oath. One might think that we would apply the principle (see Chapter 5, Halachah 11, and notes) that one oath does not take effect when another is already in effect. Hence, taking the oath would be taking God's name in vain. This is not so as the Rambam continues to explain.

Thus if David - a paradigm of pious conduct - could take an oath for this purpose, so can others.

In contrast to landed property, servants, and promissory notes (Hilchot To'en V'Nitan 5:1).

This situation is referred to by our Sages with the term modeh bimiktzat: "one who admits a portion." See Hilchot To'en V'Nitan 1:1.

"Whenever [the testimony of] two [witnesses] would require him to make financial restitution, [the testimony of] one [witness] obligates him to take an oath" (Ibid.).

If, however, the plaintiff suspects the defendant is liable, but is unsure of his claim, he cannot require the defendant to take an oath (ibid.:7). Similarly, if the defendant is unsure whether he is liable or not, he may not take a Scriptural oath to absolve himself of responsibility.

The Rambam's statements here are significant in another context. There is a difference of opinion among the Rabbis if a plaintiff who makes a claim that is supported by the testimony of one witness must be certain of the veracity of the claim himself or whether he can be doubtful, but rely on the testimony of the witness. The Maggid Mishneh (in his gloss to Hilchot Gezelah 4:17 and the Kessef Mishneh (in his gloss to Hilchot To'en V'Nitan 3:6) maintain that the Rambam follows the latter view. Here, however, it appears otherwise.

See ibid.:2; Hilchot Sechirut 1:2; 2:8.

The Ma'aseh Rokeach states that the word Shema שמע serves as an acronym for the names of these three oaths: Shomrim, Modeh bimiktzat, eid echad, שומרים, מודה במקצת, עד אחד

See Hilchot Sechirut 11:6 which explains that when an employer denies owing a worker his wage, the worker may take an oath and collect his due.

See Hilchot Malveh V'Loveh 14:1.

For example, Sh'vuot 44b mentions several other instances when such an oath is required of a defendant: a person who claims that property was stolen from him and there is substantial circumstantial evidence corroborating his claim (see Hilchot Gezeilah 4:2), a storekeeper who disputes a client's claims with regard to payment (Hilchot Mechirah 20:8).

See Hilchot Shluchim V'Shutafim 9:1.

I.e., in contrast to the oaths mentioned in the previous halachah which were established by the Sages of the Mishnah. Sh'vuot 40b states that this oath was ordained by Rav Nachman, one of the leading Sages in the midst of the era of the Gemara. See Hilchot To'en V'Nitan 1:3.

A defendant is required to take this oath whenever he denies entirely a claim registered against him by a plaintiff.

The Seifer Meirat Einayim 75:16 interprets the term heset as meaning "placed upon," i.e., it is an oath which 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.

This will impress him with the seriousness of the matter.

The Rama (Choshen Mishpat 87:15) quotes opinions stating that the defendant should not hold the scroll. Instead, it should be placed before him and he should place his hand on it.

I.e., he may not sit. Note, however, Halachot 11-12.

This term is used to refer to Rav Yosef Migash, the Rambam's teacher, and Rav Yitzchak Alfasi, Rav Yosef's teacher.

"The Holy Tongue," i.e., the Hebrew of the Tanach and the Mishnah. With regard to this ruling, see Halachah 14.

The Hagahot Maimoniot quote Rashi (Sh'vuot 38b) who states that it has become customary not to administer oaths using God's name, for the awesomeness of the punishment for taking His name in vain would lay waste to the world. This principle is quoted by the Shulchan Aruch Choshen Mishpat 87:19).

He is referring to himself.

See Chapter 2, Halachah 1.

For this is equivalent to a judge making an error in a law explicitly stated in the Mishnah, in which instance the law is that the judgment is revoked (Sh'vuot 38b).

The Rama (Choshen Mishpat 87:15) quoutes an opinion that states that a Torah scroll is not required. Any sacred text with God's name is sufficient. Similarly, in one of the Rambam's responsum, he writes that a Chumash is sufficient.

For Exodus 12:9 says of tefillin: "So that the Torah of God will be in your mouth."

This is a token of respect for him. See Sh'vuot 38b.

The Siftei Cohen 87:41 quotes Rav Hai Gaon who states that the term Torah scholar has been given many definitions, but that employed today is "anyone who puts on tefillin." On this basis, the Siftei Cohen writes that in the present day, there is no difference between Torah scholars and ordinary individuals.

See Halachah 8.

The Ra'avad states that it is not customary to administer a sh'vuat hesit with God's name in the present age, for we fear that people will take false oaths. Hence to reduce the punishment that might be incurred, God's name is not mentioned. To compensate for that omission, the court should employ various techniques to impress the person taking the oath with the seriousness of the matter. As the Radbaz states, his argument with the Rambam appears to be practical, but not theoretical. In the era of the Talmud, the Rambam's ruling would be followed.

Other authorities do not accept the Rambam's view even theoretically. They maintain that even in the era of the Talmud, a sh'vuat heset was not administered with God's name. The Shulchan Aruch (Choshen Mishpat 87:18) mentions the Rambam's view, but follows that of the other authorities.

I.e., even languages other than Lashon HaKodesh.

For the Sh'vuot 38b, 39a and the Tosefta, Sotah 7:1 states that an oath can be administered in any language.

And a person is liable for a sh'vuat hapikadon only if he understands what he is saying, as stated in Chapter 7, Halachah 7.

See Halachah 20.

See Halachah 6.

In the following two halachot.

For the prooftext from Zechariah cited in the admonition is speaking about a definite claim. See also Halachah 19.

See also Chapter 12, Halachah 1; Hilchot Teshuvah 1:2.

Sh'vuot 39a derives this concept from Ecclesiates 5:5 which states: "Do not let your mouth cause your flesh to sin." "Your mouth" refers to taking a false oath and "your flesh" to one's family."

Here the intent is the Jewish people themselves. Our Sages (see Sukkah 29a) use this expression as a euphemism.

The Sefer Meirat Einayim 87:58 notes that this concept applies, not only with regard to a false oath, but to all the transgressions mentioned in the Torah. Nevertheless, there is a stringent aspect that applies with regard to a false oath, for with regard to other transgressions, the interrelation affects one when he has the opportunity to rebuke the transgressor and with regard to a false oath, it applies even when one does not have such an opportunity.

The Sefer Meirat Einayim 87:60 interprets this as meaning that he is sent away from the court. For once he leaves the court, he cannot change his mind and decide to take the oath.

Once the plaintiff has retracted his request for the defendant to take the oath, he is considered to have waived his claim and can no longer prosecute it again. See Hilchot Mechirah 5:1.

This malediction refers to the plaintiff as well. For as Sh'vuot 39b states, the negative repercussions of taking the oath affect them both. The Radbaz explains that the plaintiff shares in the responsibility, for he should have been more careful and not entered into a business arrangement without having the matter observed by witnesses. And if the oath is true, he should have been more careful with his accounts, so as not to require God's name to have been employed for such matters.

The Sefer Meirat Einayim 87:61 explains that when the plaintiff sees that the defendant is prepared to take a false oath, he should have offered a compromise rather than continue to pressure him and thus cause God's name to be taken in vain.

As stated in Chapter 2, Halachah 15-16, this measure is employed so that later, the defendant will not try to absolve himself saying: "I had this-and-this intent in my heart when taking the oath." Since the oath is being administered to him according to the understanding of others, it is their interpretation that is upheld. See Sh'vuot 29a and Nedarim 25a which speak of a defendant employing deception while taking an oath.

Although he does not dispute the Rambam's ruling, the Radbaz questions why an admonition is not administered in these instances. The Meiri and the Sefer Meirat Einayim 87:61 explain that when the plaintiff is making a definite claim, it is one person's word against the other's. Thus there is reason to think that the defendant's oath is false and to prevent him from doing so, we issue this warning. When, however, an oath is taken because of a doubt, the defendant is not being challenged. Hence, there is less reason to suspect that he would take a false oath.

For in all situations, it is preferable that an oath not be taken. For this reason, courts have adopted the policy of trying to negotiate compromises in all litigation (Radbaz).

See Chapters 7 and 8.

I.e., it is one fifth of the new total and not one fifth of the original principal.

Chapter 1, Halachah 9.

The Ra'avad writes that at present since God's name is not mentioned in the oath administered by the judges, there is no liability for a guilt offering or to pay the additional fifth.