An oath that I ate or that I did not eat, That I will eat or that I will not eat

Sources:

 

            This summer we will be studying the third chapter of tractate Shevuot. In the first shiur, we will try to define the prohibition and the liability to bring a sin-offering for an oath relating to the past and for an oath relating to the future.

 

            See the Torah verses, Shemot 20:7; Vayikra 5:4; 19:12; Bemidbar 30:3. See also the Mishna in Shevuot 19b, until "ve-shelo akhalti"; Mishna, Shevuot 25a; 26a (in the framework of understanding the view of Rabbi Yishmael), "Ipukh ana… she-ha-ma'aseh kodem li-shevua."

 

 

            Shalom to all the participants in this shiur. This summer we will be studying part of tractate Shevuot. This short tractate deals with various different topics. The first two chapters deal with the ritual impurity of the Temple and of the sacrificial offerings, and other matters, and there is no essential connection between them and the name of the tractate. Chapters 4-5 and 6-8 of the tractate deal with special cases of liability that the Torah imposes in specific situations connected to a false oath: shevuat ha-eidut, an oath denying that one has knowledge regarding a monetary claim brought against another person, and shevuat ha-pikadon, an oath concerning an entrusted object. Perhaps we will touch upon these issues in the future. Chapters 6-7 discuss in a most fundamental manner the matter of shevuat ha-dayyanim, an oath that is imposed by the court in certain situations, a topic that is treated also in other places in tractate Bava Metzia and elsewhere. Our study will focus on the third chapter of the tractate. This chapter deals with shevuat bitui: a person swears about the correctness of a certain fact, or he swears that he will behave in a certain manner. In so far as one accepts upon himself a future obligation, there is a great similarity to the central issue of another talmudic tractate – tractate Nedarim. It is only natural then that from time to time we will refer to the relevant passages in that tractate.

 

 

            In this shiur we will examine the sources for the prohibitions that are transgressed when taking a false oath, and for the liability to lashes and a sin-offering in such a case. Let us first survey the biblical verses that serve as the foundation for this discussion:

 

1. In the Ten Commandments it is stated: "You shall not take the name of the Lord your God in vain; for the Lord will not hold him guiltless that takes His name in vain" (Shemot 20:7). From the plain sense of the verse one might understand that this is a prohibition to take a false oath in the name of God, as we find, for example, in the words of King David: "He that has clean hands, and a pure heart; who has not taken My name in vain, and has not sworn deceitfully" (Tehilim 24:4). However, according to the primary halakhic interpretation of this verse, we are dealing with the prohibition of shevuat shav, of taking an oath in vain, as is spelled out in detail in the Mishna in Shevuot 29a – an oath that is patently false, e.g., one who swears "that which is contrary to the facts known to man, saying of a pillar of stone that it is of gold." One who takes such an oath is liable for lashes for having taken an oath in vain, if he did so intentionally, and he is exempt if he took the oath inadvertently. It should be noted that, according to the Yerushalmi, which is codified as law by the Rambam, even a true oath can fall into the category of an oath taken in vain: "That one takes an oath on a known matter concerning which no one has a doubt, e.g., one took an oath that the sky was the sky, that a stone is a stone, on two [objects] that they are two, and the like. Even though there is no doubt about the matter for a person of sound mind, one takes an oath to strengthen [the appreciation of] the matter."`[1] This clarifies more clearly the distinction between an oath taken in vain and a false oath. The latter part of the verse, however, "for the Lord will not hold guiltless," relates in general to the severity of false oaths in their various forms, as is explained in Yoma 86a. And in the words of the Rambam: "Although a person who took a false oath or an oath in vain is given lashes, and similarly, one who takes a [false] shevuat ha-eidut or shevuat ha-pikadon brings a sacrifice, they do not receive complete atonement for the sin of taking a [false] oath, as it is stated: 'God will not hold guiltless [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 it is stated: '[You shall not take a false oath in My name, for] you will desecrate the name of Your God' (Vayikra 19:12). Therefore a person must be very careful with regard to this sin, more than with regard to all other sins" (Hilkhot Shevuot 12:1; see also Hilkhot Teshuva 1:2).

 

2. In Parashat Kedoshim we find a verse that is clearly dealing with a false oath: "And you shall not swear by My name falsely, so that you profane the name of you God: I am the Lord" (Vayikra 19:12). It is clearly stated in this verse (and so too in the previous source) that the oath for which there is liability is an oath taken in the name of God – a matter that is subject to a broad disagreement among the Rishonim – and that the basis for the liability is the profanation of the name of God.

 

3. In Parashat Matot we find the source of the force of a vow (neder) alongside an oath (shevua): "When a man vows a vow unto the Lord, or swears an oath to bind his soul with a bond, he shall not break his word; he shall do according to all that proceeds out of his mouth" (Bemidbar 30:3). Alongside the need to explain the difference between an oath and a vow, which we will attend to over the course of our study, this verse teaches us about the common denominator between the two, namely, that a person can obligate himself with new obligations for the future through his own speech. The end of the verse, "he shall do according to all that proceeds from his mouth," indicates that there is a positive commandment to fulfill such obligations.[2]

 

3. In Parashat Vayikra we learn about the sin-offering that must be brought for the inadvertent transgression of the prohibition relating to a shevuat bitui. Among the various cases in which there is liability for a variable sin-offering (in contrast to a fixed sin-offering brought for the inadvertent transgression of a prohibition, the intentional violation of which bears the penalty of karet [excision]): "Or if any one swear clearly with his lips to do evil, or to do good, whatsoever it be that a man shall utter clearly with an oath, and it be hid from him; and, when he knows of it, be guilty in one of these things" (Vayikra 5:4).

 

 

            The first Mishna in our chapter lists four cases of shevuat bitui: "That I will eat, and that I will not eat, that I ate, and that I did not eat." However, a Mishna later in the chapter records a fundamental Tannaitic dispute as to whether at all there is liability to bring a sin-offering for a shevuat bitui in the case of an oath relating to the past:

 

Rabbi Yishmael says: He is liable only for an oath in the future, for it is stated: "to do evil or to do good." Rabbi Akiva said to him: If so, we know only such cases where doing evil and doing good are applicable; but how do we know such cases where doing evil and doing good are not applicable? He said to him: From the amplification of the verse. He said to him: If the verse amplifies for that, it amplifies for this also. (Shevuot 25a)

 

            According to Rabbi Yishmael, the verse that imposes liability for a sin-offering speaks only of "to do evil or to do good," and even though we expand this to include a future obligation that does not fall into the category of doing evil or doing good (an issue that is clarified on p. 25a), we do not expand this to include an oath relating to the past. It stands to reason that the fundamental difference between an oath relating to the past and an oath relating to the future concerns the essence of the oath. An oath relating to the past is a report about a known fact, and such a report can be true or false. In contrast, an oath relating to the future creates a new law. Before the person took an oath that he would not eat a certain food, he was permitted to eat it, whereas after he took the oath a new law pertained to him, and it became forbidden to him to eat it. This is not a descriptive statement but a statement that changes reality. Rabbi Yishmael apparently understood that the liability to bring an offering applies only to the creation of a law: "to do evil or to do good," and therefore it does not apply to an oath relating to the past. It is, however, stated in the passage there that even according to Rabbi Yishmael there is liability for lashes for a false oath relating to the past, and therefore it seems that the matter is slightly more complicated according to him, and we will try to clarify the matter when we deal with the prohibitions that bear liability for lashes with regard to a false oath.

 

            When the Gemara (Shevuot 26a) discusses the derivations that underlie Rabbi Yishmael's position, it asks why does he include future actions that do not fall into the category of doing evil or doing good, but exclude actions in the past, and it brings two answers which seem to accord with what we have said, with a certain difference between them:

 

1. "Rabbi Yitzchak said: [We include only oaths] similar to [the oath] to do evil, or to do good, where the prohibition is on account of 'he shall not break his word' (Bemidbar 30:3), but exclude this [oath] where the prohibition is not on account of 'he shall not break his word,' but on account of 'you shall not lie' (Vayikra 19:11)." According to Rabbi Yitzchak, the liability for a sin-offering is a liability based on a prohibition. The prohibition that is appropriate for an oath relating to the past is "you shall not lie." It is not clear which prohibition this is, perhaps "You shall not take a false oath in My name," but in any event it is clear from what he says that the reference is to a transgression involving the verbalization of a falsehood (Rashi: "You shall not lie – when you take an oath, it should not be a lie). However, the prohibition that is appropriate for "to do evil or to do good" is the prohibition of "he shall not break his word" – a prohibition that assumes that a person's speech imposes upon him the challenge and obligation to uphold his word and not break it, but does involve a falsehood when that speech issues from his mouth. 

 

2. "Rav Yitzchak bar Avin said: Scripture says: 'Or if any one swear clearly with his lips': the oath must precede the utterance, and not the utterance precede the oath; this excludes 'I ate,' or, 'I did not eat,' where the action precedes the oath." According to Rav Yitzchak bar Avin, the oath that bears liability for a sin-offering must be an oath that precedes the performance of the action, for the reasons stated. The difference between what he said and what Rabbi Yitzchak said lies in the fact that he does not connect the passage concerning a sin-offering to a particular prohibition, but rather he defines the liability for a sin-offering as relating to the creation of a law about the future and its violation.

 

 

            Rabbi Akiva disagrees with Rabbi Yishmael and maintain that there is liability for a sin-offering even in the case of an oath relating to the past. We must try to understand this view in light of what we suggested regarding the position of Rabbi Yishmael. If Rabbi Akiva accepts the fundamental distinction that we proposed between an oath relating to the past and an oath relating to the future, we must reach the conclusion that according to Rabbi Akiva there are two very different tracks leading to liability for a sin-offering for shevuat bitui: In the case of an oath relating to the past there is liability for the falsehood, and perhaps for the desecration of God's name that is involved; whereas in the case of an oath relating to the future, there is liability for transgressing the new law that the person who took the oath created for himself.

 

            However, Rabbi Akiva's wording suggests that we are not dealing with two different tracks: "If the verse amplifies for that, it amplifies for this also." Rabbi Akiva answers Rabbi Yishmael that there is no substantive difference between including future actions that do not involve doing evil or doing good, and including actions in the past. This implies that the liability for an oath relating to the future and the liability for an oath relating to the past are one and the same, and that they should be understood in the same manner. Since an oath relating to the past cannot be understood as creating a law, it is reasonable to assume that Rabbi Akiva's position is the opposite of that of Rabbi Yishmael, and that according to him, the liability for a sin-offering for a shevuat bitui is exclusively for the falsehood and the desecration of God's name that the oath involves. Therefore there is liability for a sin-offering even for an oath relating to the past, and according to him this principle applies also to an oath relating to the future.

 

            How are we to understand the principle of falsehood with respect to an oath relating to the future? Ostensibly, it can be argued that an oath is always a type of story: The person taking the oath tells a certain story and verifies it with the oath, and if it is a lie it is a serious transgression. This story can relate to the past, but it can also relate to the future, and if the event that the story claims will take place does not take place, the story will retroactively prove to be a lie. According to the simple understanding, however, this understanding is incorrect. The Gemara on p. 25a says that there is no liability for a false oath in the case of an oath that does not relate to the actions of the person taking the oath, e.g., "I swear that So-and-so will throw a pebble into the sea." This indicates that a story about a future event that in the end does not happen is not seen as a lie.

 

            Can we nevertheless categorize the prohibition of profaning an oath relating to the future under the prohibition against telling falsehoods? The answer to this might be yes. It may be argued that we are dealing with a type of falsehood that differs from that in the case of an oath relating to the past. When a person swears that he will do or not do something in the future, he is not reporting about a certain act, but rather he is accepting upon himself a certain obligation. If we accept the ethical assumption (which is far from being universally accepted) that one of the moral problems with not fulfilling an obligation that one accepted upon himself is the falsehood involved, it can be argued that even if there is no concept of a false report for facts that did not exist at the time of the oath, there is the notion of obligation, the breaking of which is a falsehood.

 

            If we adopt this formulation, we must identify the essence of the prohibition of breaking an obligation that was assumed by way of an oath. It may be suggested that when the person taking the oath does not fulfill his obligation, it turns out retroactively to be a false obligation.  Even if at the time that he obligated himself with the oath he intended to fulfill his obligation (for if not, it is easier to regard him as a liar), when he chooses at a later point not to fulfill it, he reveals thereby that his obligation was false. Alternatively, it may be suggested that breaking his obligation falls into the category of telling a falsehood, for in that way he turns his obligation into a lie, in the sense of: "The glory of Israel will not lie" (I Shemuel 15:29; as it is clear that the falsehood negated there is the future abandonment of the covenant).

 

            There appears to be room to suggest a practical difference between these two understandings, regarding the time that a warning must be issued so that there be liability of lashes for shevuat bitui. If the prohibition is breaking the oath, that is the moment at which the warning must be given, whereas if the breaking of the oath reveals retroactively that the oath was false, then the warning should be given at the time of the oath. According to the simple understanding of the talmudic passages, the time to issue a warning is right before he breaks the oath. It may be explained that even if the focus of the prohibition was at the time of the oath, the moment in practice that turned it into a prohibition was when he broke the oath, and therefore that is the relevant moment with regard to a warning, as it is the relevant moment for defining the sin as a prohibition that involves an action that imposes liability for lashes. We will return to these points in the talmudic passages that we will study in the future. In any event, an exceptional source in this context is found in Rabbi Chananel's commentary to Pesachim (63b): "When they warn him at the time of the oath not to swear." According to this opinion it stands to reason that the breach reveals retroactively that the oath involved a transgression. The discussion there relates to an oath that I will do a certain thing, for which, according to the Halakha, there are no lashes, whereas in the case of an oath that I will not do a certain thing, it stands to reason that the warning must be issued at the time of the prohibited action, as Rabbeinu Chananel himself says elsewhere (Shevuot 28b). It may be explained that the warning must be issued at the time when the person actively creates the prohibition. It is also possible that there is an essential difference between the two contexts, as we will see in the future.

 

            Parenthetically, it is possible that a slightly different explanation may be proposed for seeing an oath relating to the future as a false oath. It is possible that we are dealing with sort of a report about the future similar in nature to a report about the past. It is true that a person cannot swear about facts that occurred or that will occur in the future, but only about his knowledge concerning such factors. For example, if I swear that Reuven ate a loaf of bread, and afterwards it becomes clear that Reuven did indeed eat the loaf, but I could not possibly have known that, in my opinion there is room to consider the argument that I took a false oath, because an oath by its very essence relates to the swearer's knowledge. From this perspective, it is possible that in principle there can be no knowledge of a future event, but at the same time there is a certain exception based on the free will of the person who took the oath that allows a person to see himself as one who knows what he will do and what he will not do. It is possible that we will return to this idea, but for the time being it is not central to our discussion.

 

            In any event, we proposed various shades to the argument that according to Rabbi Akiva an oath relating to the future, like an oath relating to the past, is based on the prohibition of a false oath. We preferred this to the explanation that according to Rabbi Akiva there are two fundamentally different bases for liability: In the case of an oath relating to the past, liability is based on the lie, and perhaps the desecration of God's name, whereas in the case of an oath relating to the future, the liability is based on the breaking of the law that the person had created for himself. Our preference is based on the fact that Rabbi Akiva's wording indicates that the liability in the two cases is based on the same principle: "If the verse amplifies for that, it amplifies for this also." On the other hand, we can point to a difficulty, namely, that even according to Rabbi Akiva, the liability for a sin-offering for an oath relating to the past is derived from the liability for an oath relating to the future. This implies that the liability for an oath relating to the future is more fundamental, whereas the principle of falsehood is simpler and clearer in connection with an oath relating to the past. This problem might strengthen the possibility that despite Rabbi Akiva's wording, halakhically we are dealing with two separate principles.

 

            In the wake of the disagreement between Rabbi Akiva and Rabbi Yishmael, we focused in this shiur on the definition of the principle that imposes liability for a sin-offering for a shevuat bitui. In the next shiur we will deal with the prohibitions relating to oaths that are punishable by lashes, and we will try to integrate that discussion with the questions that were raised in this shiur.

(Translated by David Strauss)