Only certain unique circumstances mandate a litigational oath (shevua to’en ve-nitan), and many litigations conclude without the imposition of oath. An interesting halakha known as gilgul shevua allows a litigant to expand a current oath to include additional litigations that did not legally conclude with an oath obligation. This halakha greatly empowers a tovei’a to resurrect past litigations and generate an obligation to swear. In this shiur, we will explore the nature of this halakha.
The gemara in Kiddushin (27) derives the concept of gilgul shevua from the experience of a sota. When eliciting an oath from the woman that she hasn’t committed adultery with the suspected man, the Kohen can probe unrelated cases of possible adultery. Although her present shevua concerns the specific man with whom she had private interactions, the Kohen can insist that she swear that she hasn’t committed adultery with other men or compromised other states of marriage (arusa, or while committed to yibum potential). The possibility of expanding the base shevua to include other uncertainties serves a source for gilgul shevua. For example, if a defendant is obligated to take an oath in a modeh be-miktzat situation, he can be required to swear regarding past litigations of kofer ba-kol (full denial) that did not independently obligate a shevua.
If the derivation from sota is direct, it would appear that litigational gilgul is structured similarly to sota gilgul. In each instance, the base shevua is expanded to include additional topics that do not independently obligate an oath. Gilgul allows a base shevua to be flexed to include a broad range of issues within the current shevua.
A different view of litigational gilgul would suggest that the base shevua is not being expanded, but instead entirely new shevuot are being initiated. Once a defendant is obligated to swear, he must address a full range of situations for which he is not obligated to swear. Once a person has been put under oath by a tovei’a, his position is legally weakened. Previous claims which terminated without a shevua can be relaunched and now evolve into a shevua, and even if claims were not previously launched, they can be currently initiated to yield a shevua obligation. This implies that gilgul does not broaden the original shevua, but rather creates new obligations.
This model of litigational gigul as enabling the launching of entirely new litigations would be discrepant with gilgul for sota, and the derivation would thus be less direct. This may influence the question of whether the derivation from sota is a direct extrapolation or a less direct form of gezeira shaveh (as claimed by Tosafot, Bava Metzia 97b, s.v. ba-yom).
A range of nafka minot evolve from this fundamental question about the structure of gilgul shevua. Perhaps the most reflective issue surrounds a scenario in which the base shevua was annulled. Would the gilgul be able to exist independently without the anchor of the original shevua, which has now dissipated? For example, if a shomer elects to pay instead of swearing, he can avoid the oath normally demanded from every shomer. Once his shevua obligation has already germinated gilgul shevuot, would these derivatives exist even once he annuls the base shevua by electing to pay full compensation?
The Yerushalmi (Bava Metzia, perek 3) seems to establish a machloket about this case. The dispute presumably surrounds the autonomy of the gilgul shevua derivative. If gilgul is a broadening of the original shevua, the derivative gilgul cannot exist autonomously of the base; once the base shevua is cancelled, all derivatives are meaningless. However, if gigul allows a tovei’a to generate independent new cases of shevua, they may certainly outlast any cancellation of the original oath, as they constitute new and independent litigations.
A second example of removing the base shevua surrounds a situation in which the defendant cannot swear and therefore must pay based on the rule of mitokh she-eino yakhol li-shava meshalem (see the shiur The Principle of Mitokh: Monetary Payments when an Oath is Defaulted, for a fuller elaboration of this principle). This mitokh doctrine may cancel the original shevua and render a monetary payment in its place. As such, perhaps no gigul extensions can be pursued. If, however, gilgul generates completely independent shevua obligations, the newly established shevua may exist even though the base shevua has been eliminated through the doctrine of mitokh.
A second gauge about the possible dependency between the base shevua and the gilgul derivatives may be the required symmetry between the two. If gilgul expands the original oath to include additional claims and shevua oaths, we may demand some proportion between the base oath and the derivative. For example, we may be able to expand a defensive oath, which is taken to protect current financial holdings (nishba’in ve-eino meshalem), to include a second defensive statement. For example, a base modeh be-miktzat shevua can possibly be expanded through gilgul to include kofer ba-kol full denials. However, we may not employ gilgul to expand a proactive shevua of nishba ve-notel to include defensive shevuot. For example, if a plaintiff is litigating against a person suspected of lying or chashud, he has the right to proactively take an oath and leverage his own shevua to allow collection. If gilgul simply expands the sweep of the base shevua, we may not be able to expand such a proactive shevua to include a defensive shevua.
Alternatively, if gigul entails generating separate and independent oaths, perhaps a nishba ve-notel shevua can trigger autonomous oaths that are dissimilar to the base oath in function. Rashi (Shevuot 48b, s.v. mahu) implies that this uneven gilgul is possible, whereas the Yerushalmi (Shevuot 7:1) suggests that it is not.
There is a debate as to whether litigational gilgul allows expansion to hypothetical cases that have not yet occurred at the point of the base shevuah. The Ohr Same’ach (2:2) discusses this question and rules that it cannot. Since these scenarios have not yet emerged, no oath can be generated. This stance implies that gilgul generates independent oaths, and it only applies to currant litigations that warrant stand-alone oaths. However, if gilgul merely adds adjunct information to an already extant base shevua, it can be expanded to include litigational issues which may not entail classic material for oaths, and perhaps hypothetical future scenarios can be included as well.
Finally, the structure of gilgul will heavily influence the degree of initiative necessary on behalf of the tovei’a. Must the tovei’a assert his rights for gilgul by lodging definite claims (bari) regarding the derivative cases? The Rambam (To’en Ve-nitan 1:12) appears to require initiative through a bari claim, whereas the Rosh (Bava Metzia siman 4) allows gilgul to emerge through the initiative of beit din, even without a proactive bari claim of the tovei’a. Presumably, the Rosh viewed gilgul as an expansion of the original shevua, and this expansion can be executed by beit din. The Rambam, in contrast, may have viewed gilgul as the ability of a tovei’a to spawn additional oaths in other cases. This can only be accomplished by lodging halakhically valid claims of bari about each of those independent situations.