The Role of Suspicion in Generating a Modeh Be-Miktzat Shevuah

 

The previous shiur outlined two different models for the concept of modeh be-miktzat; it also explored three types of claims which may not be sufficient to obligate an oath.  If the oath stems from the substantiated claim, we may require a stronger "class" or category of claim to initiate a modeh be-miktzat oath.  This shiur will continue to explore the structural question of modeh be-miktzat by highlighting the role of suspicion in obligating the shevuah. 

 

Would a modeh be-miktzat shevuah emerge in a situation absent of suspicion?  If we could craft a STRUCTURE of modeh be-miktzat WITHOUT any lingering suspicion, perhaps we could prove whether the oath is produced because of suspicion or by the actual structure of substantiated claims. 

 

One such example may be the instance of heilich cited by the gemara in Bava Metzia (5a).  In this instance, the defendant does not merely agree to owing half of the claim; he actually pays it immediately! Although there are many possible derivates of heilich, the base example refers to a defendant who takes actual money from his pocket and repays half of the claim "on the spot."  The gemara asserts that in this instance no modeh be-miktzat oath occurs, but the gemara does not sufficiently explain the reason, although several options are presented by the Rishonim.

 

The Meiri claims that the efficient payment quiets any possible doubts.  Typically, a partial confession raises certain alarms; perhaps he owes the entire amount but is confessing to half to stall or avoid payment altogether.  Immediate payment, however, demonstrates the defendant's integrity and no suspicions are aroused.  In the absence of suspicion (raglayim le-davar), no modeh be-miktzat oath is mandated.  The Ketzot Ha-Choshen also asserts this idea as a possible explanation for the heilich exemption. 

 

Most Rishonim, however, do not justify the heilich exemption in this manner.  Does this indicate that many of them view the substantiated claim as the trigger for modeh be-miktzat oath, as opposed to the suspicion? Perhaps they think that even if the response DOES NOT raise alarm the structure of a substantiated claim is sufficient to generate the modeh be-miktzat oath.  Alternatively, they may agree that the suspicion factor is indeed the basis for the oath, but the instance of heilich still includes that factor.  Just because the defendant accelerates payment for the part he confessed to does not acquit him from suspicion on the part of the claim he denied. 

 

What would happen if the defendant responded in a manner that truly did present him in a "guileless" light, beyond any possible suspicion? The situation of meishiv aveida may provide this type of example.  The gemara provides several examples of meishiv aveida. The case of a nondescript shetar is discussed by the gemara in Bava Metzia (4b).  The contract describes a debt of "dinarim" without clarifying how many are owed.  The litigant claims that 5 are owed him while the defendant admits to 3.  As the shetar minimally refers to 2 dinarim (by the use of the plural term "dinarim"), the defendant could have easily confessed to 2.  By confessing to 3, he effectively awards the litigant more that he could have been expected to secure.  Although this structure is a classic modeh be-miktzat and Rebbi Shimon Ben Elazar does indeed obligate an oath, Rabbi Akiva excuses the oath since the defendant is considered a "meishiv aveida" – someone who voluntarily returns money without external compulsion.  This type of person – a meishiv aveida- is exempt from an oath. 

 

Here, again, it is unclear why he is exempt and the Rishonim offer several interpretations.  However, the simple reading of Rabbi Akiva's position suggests that this "good Samaritan" seems beyond suspicion, and in the absence of suspicion no oath can be obligated, even though a classic modeh b'mikzat structure emerged. 

 

Yet another example of the meishiv aveida case surrounds a situation discussed in the first shiur addressing modeh be-miktzat.  The gemara in Shavuot cites Rabbi Eliezer ben Ya'akov, who obligated an oath when a defendant partially responded to claim from a son claiming that his father was owed money.  Unlike classic litigants, the son is not as formidable or fearsome as the actual lender.  Typically, borrowers feel guilty toward their lenders and have difficulty outright rejecting their claims.  This presents the logic behind the suspicion in an ordinary case of modeh be-miktzat; perhaps the defendant, in fact owes the entire amount but was unable to fully reject his lender, and he chose a partial confession as a "stall tactic."  When responding to a son of the lender, however, the defendant could have easily denied the entire package.  His partial confession may be seen as an honest return of money owed rather than a stall tactic. 

 

In fact, the Chakhamim who disagree with Rabbi Eliezer ben Yaakov do exempt the defendant from the oath since he is considered a meishiv aveida.  These two meishiv aveida exemptions, for a defendant who offers more than the minimal amount described by a nondescript shetar and for a defendant who partially confesses to the claim of a son, may indicate that it is suspicion that generates a modeh be-miktzat shevuah. 

 

It should, of course, be noted that each example is the subject of a machloket Tannaim (between Rabbi Shimon ben Eliezer and Rabbi Akiva regarding the shetar and between Rabbi Eliezer ben Ya'akov and the Chachamim regarding the claim of a son).  In addition, even the twice repeated exemption of meishiv aveida may be understood in different manner. 

 

What about the reverse situation? The meishiv aveida and heilich examples highlighted cases of classic modeh be-miktzat structure without the element of suspicion.  Would an oath be obligated if suspicion arises even if the classic structure of modeh be-miktzat does not appear?

 

Several gemarot claim that if the confession is independent of the claim, no modeh be-miktzat oath develops.  For example, if the claim demands wheat and the defendant confesses to barley, a modeh be-mikzat oath cannot develop.  The gemara in Shavuot (40b) provides one exception to this rule.  If the litigant claimed wheat and, before he could continue, the defendant confessed to barley, an oath would be obligated if it appears that this quick response was manipulative.  If it appears that he only offered a confession of barley to preempt the actual claim of barley and thereby ruin the modeh be-mikzat structure, he is obligated to take an oath. 

 

Does this indicate that even without a modeh be-miktzat "setup," suspicion alone can generate the oath? The claim only included wheat (since the defendant "jumped in" and confessed to barley), but the suspicion of his preemptive response seems sufficient to launch a modeh be-miktzat oath even the absence of a modeh be-miktzat structure!

 

In response, some have suggested that by even though the litigant could not complete his claim and mention barley as well, the halakha considers that second part of the claim as having been rendered.  The defendant may have preempted the litigant, but this does not affect the intention of the litigant to claim both barley and wheat.  Perhaps this situation is, indeed, a classic modeh structure, as the claim INCLUDES both wheat and barley and the defendant admits to barley as he denies wheat.  Perhaps, then, suspicion alone cannot generate an oath without the modeh be-miktzat structure.