The Nature of the Shevua Accompanying Yachaloku

  • Rav Moshe Taragin
The first mishna in Bava Metzia describes the division of a contested garment jointly clutched by two disputants. Is this a court-imposed division as a compromise? Unable to determine ownership, the beit din orchestrates a settlement? Or, perhaps this division is a derivative of the classic resolution known as ha-motzi mei-chaveiro alav ha-ra’aya, which typically reinforces the position of the lone possessor against the claims of the prosecutor. When two people clutch the garment, they are each considered in legal possession of half, and each is awarded half based on the principle of ha-motzi mei-chaveiro alav ha-ra’aya. The division of the garment is not a procedural compromise, but rather an application of a fundamental principle awarding the possessor; in this instance, each possessor receives the part that he is in possession of.
This question greatly impacts the nature of the shevua that each party must take to facilitate the division. If this is a court-administered division, it is reasonable to expect the two parties to swear to support their claims/holds on the disputed garment. If, however, they receive their portions based on the application of the principle of ha-motzi mei-chaveiro alav ha-ra’aya, no oath should be necessary. When a defendant triumphs based on his chezkat mammon (a different term for ha-motzi mei-chaveiro alav ha-ra’aya), no oath is necessary. 
The gemara (Bava Metzia 2b) appears to pose this question: Why should the parties swear if the yachaloku division is merely an application of chezkat mammon? The gemara’s answer is unclear: Is this division a procedural compromise, and not a derivative of ha-motzi mei-chaveiro, so that the shevua is justifiable? Or can a shevua be levied even if the yachaloku is merely a double application of the principle of ha-motzi mei-chaveiro?
It appears that R. Yochanan wrestled with this question, as the gemara twice cites his rationale for the shevua (3a and 5b). According to R. Yochanan, the shevua is only necessary for broader social concerns. If disputed items were immediately divided among disputants, unsavory people would grab onto already owned items and lodge untrue claims, hoping to receive a share. By requiring an oath prior to division, we are discouraging aggressive and exploitative behavior. Evidently, the oath is not necessary to strengthen the respective positions and claims of the current disputants to enable a beit din administered yachaloku. In theory, the actual division can be processed based on chezkat mammon without any oath. The oath stems from extrinsic social concerns: They take an oath in the current litigation to discourage future aggression. Evidently, R. Yochanan did not discern inherent function for the oath.
Other gemarot, however, speak in very different terminology, suggesting that not everyone agrees with the aforementioned logic. Even R. Yochanan may only be presenting only the immediate motive for instituting the shevua. Were it not for broader social concerns, Chazal would not have interfered and added arbitrary oaths. Once a social agenda existed, however, Chazal felt comfortable mandating an oath that reinforces their claims and respective possessions and allows a beit din imposed compromise known as yachaloku
This question can dramatically influence the scope of the shevua. The original mishna’s scenario concerns a garment that was disputed and jointly held on the edges. In this instance, each party receives 50% after taking an oath. The gemara (7a) asserts that if the two disputants are actually holding on to the garment proper, they receive the percentage that they are clutching (which may not be equal), while the remaining part, which is disputed but not clutched, is divided equally. The Rambam (To’en ve-nit’an (9:7)) claims that the percentage that is actually physically grasped is divided without an oath, while the middle part” of the garment can only be divided equally in the wake of a shevua. The Rambam’s position is clear: The part of the garment that is actually grasped is divided based on applying chezkat mammon, and that division does not require an oath. By contrast, the disputed part, which is not physically grasped, is divided based on a court-administered compromised, and this requires an oath. The original Mishna described a scenario in which no part of the disputed garment was actually clutched and the entire division is a court-sanctioned compromise; a shevua is therefore required upon the entire garment.
Tosafot (7a) s.v. Machavi disagrees, requiring an oath on the entire garment, even the sections that are physically grasped by the two parties. It appears that Tosafot view the oath as purely extrinsic. Thus, even when allocating percentages of the garment based upon chezkat mammon (for the portions actually physically held), a shevua is necessary. To summarize the nature of the shevua preceding yachaloku will affect its scope. If the shevua is merely extrinsic to protect against future aggression, it would be broadly applied to any yachaloku and to any part of the garment being divided. If, however, the shevua reinforces claims and possessions in advance of a court imposed yachaloku, it may not be applied when yachaloku emerges from an application of ha-motzi mei-chaveiro alav ha-ra’aya.
This question would also influence the scope of an interesting exemption presented by the gemara. The mishna (2a) describes disputes about purchased items, with each disputant claiming that he is the rightful purchaser. The gemara proposes asking the seller who the rightful purchaser is. Why should each party take an oath if the seller can clarify the situation? Based on this interjection, Rabbenu Tam inferred that a lone eid – though not potent enough to sway the actual monetary verdict – would be sufficient to absolve litigants from taking oaths. Thus, the gemara sought the testimony of a single witness to acquit one of the parties from their oath.
From this interjection (which is only rejected technically), the Maharam Mi-Rotenberg inferred that an eid echad or lone eid can acquit any shevua based on the principle of eid mesayei’a (see shiur link for an amplification of this concept []). Arguing against this extrapolation, the Ramban in the Milchamot Hashem claims that a lone eid cannot excuse litigants from shevuot in general, but he can exempt from the shevua of the mishna, since it functions only to prevent suspicious behavior.
The Ramban and the Maharam are essentially disputing the nature of the mishna’s shevua. Is this shevua an essential component of the litigation leading to yachaloku, or is it merely a “tack-on” oath to prevent future hostilities? The Maharam viewed it as an essential shevua. Thus, if one eid can acquit this shevua, he can similarly acquit any shevua. By contrast, the Ramban viewed this oath as merely extrinsic and hence weaker than typical litigation-related shevuot (shevu’ot to’an ve-nit’an). Thus, the possibility of exonerating this shevua through the testimony of a lone witness cannot be extrapolated to the broad exoneration of actual litigational oaths through the testimony of a lone witness. The clause of eid mesayei’a limited to this very unique oath of the mishna.
Additionally, the nature of the shevua preceding yachaloku may dictate its syntax. If the shevua is not intended to reinforce the distribution of the disputed items, the language of the oath does not necessarily have to reflect the actual portions that they receive. Based on a range of broader factors, the syntax of the shevua may not actually correspond to their respective “takes” of the disputed garment. However, if the oath is inherent and intended to strengthen their respective awards, the language may have to reflect the quantities that are awarded.
The gemara (5b) investigates the syntax of the oath and initially suggests that they each swear to fully owning the garment. This is the boldest possible oath and would clearly serve as a deterrent to unilateral and dishonest aggression. The gemara responds, however, that they cannot swear to full ownership, since they only receive an award of half the garment. Taken literally, the gemara demands a correspondence between the amount awarded and the actual text of the oath. This would suggest that the oath is not merely an extrinsic tack-on to prevent future aggression. Instead, it is meant to strengthen the halakhic hold upon the respective possessions of half the garment, so as to enable a court- imposed division. As such, the oath must reflect that award, and the option of swearing to full ownership is unacceptable.
Interestingly, Rashi offers a technical reason for disqualifying an oath to 100% ownership – it may lead to scoffing at beit din. Spectators will hear two oaths attesting to full ownership, followed by a court monitored allocation of only 50% to each party. As this would lead to the ridiculing of beit din, the option is rejected. Rashi was not troubled by an inherent discrepancy between the language of the oath and the actual award; the only reason that the gemara rejects this is the protection of the integrity of beit din. Perhaps Rashi implies that the purpose of the oath is merely extrinsic and, in the absence of external technical concerns, the language of the oath does not necessarily have to match the awards.
It appears that this very question was disputed by R. Chiya and R. Oshia in the gemara Bava Metzia (4a). Typically, a person who partially admits to a monetary claim must pay the confessed quantity (hoda’a) and swear about the denied quantity (kefira). This situation is known as modeh be-mikzat ha-ta’ana and entails one of three cases of a shevua d’oraita. Would the shevua entail if the defendant confessed to part of the claim and immediately rendered payment? This scenario is referred to as heilech and comprises a machloket between these two Amoraim.
R. Sheshet claims that heilech would hamper the classic modeh be-mikzat structure and no shevua would entail (see link for an elaboration upon the logic of this exemption []). R. Chiya argues with this conclusion, citing our mishna as an example of heilech in which an oath is still required: In the original mishna each disputant demands the entire garment and – as he is actually in possession of part of the garment – each receives half of his claim in an immediate fashion. Nevertheless, the mishna levies a shevua. Evidently, then, immediate payment in the case of a partially-confessed claim does not suspend a shevua.
R. Sheshet retorts that the shevua in the mishna cannot serve as a model for general shevuot. Just because a situation of heilech does not hamper the shevua in the mishna does not mean that it won’t hamper a classic shevua of modeh be-miktzat. Evidently, R. Sheshet maintains that the mishna’s shevua is completely extrinsic and is therefore not vulnerable to the effects of heilech in the manner that a classic shevua would be.
R. Chiya disagrees. The shevua of the mishna – though Rabbinic in origin – is modeled after a classic litigation-related shevua. The fact that it is not effected by heilech indicates that in general heilech has no impact upon all shevuot. If heilech were to affect general shevuot, it would have also hampered the shevua of the mishna, which is modeled upon classic shevuot.
R. Chiya and R. Sheshet thus debate whether the mishna’s shevua is purely extrinsic or acts as a litigation shevua to reinforce the respective awards. The sustainability of this shevua even under conditions of heilech may prove the general imperviousness of shevua to the effects of heilech assuming that the mishna’s shevua is indeed litigation-related.