The Prohibitions Relating to False Oaths (Part II)

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In the next shiur we will continue to clarify some of the points that were discussed in the previous shiur. We will examine the definition of an action that bears liability for lashes. For this purpose it is recommended that one continue with the Gemara on p. 21a until the first colon on p. 21b.  See also the Rambam's position: Sefer ha-Mitzvot, negative commandments 61, 157; Hilkhot Shevuot, introductory headings; 1:1-4; 6:2 (regarding the release of an oath by a sage); Hilkhot Nedarim, introductory headings; 1:4; 3:7-8; Hilkhot Sanhedrin 19:4.

 

 

 

In today's shiur we will continue the discussion that we began last week concerning the prohibitions that are transgressed when one takes a false oath relating to the past or a false oath relating to the future, and the relationship between liability for lashes, according to Rav Dimi and Ravin, and liability for a sin-offering, according to Rabbi Akiva and Rabbi Yishmael. It is recommended that one review last week's shiur before moving on to this week's shiur.

 

 

According to the Gemara on p. 21a, a person who swears that he will do something, but fails to do so, is not liable for lashes, either because the warning that he receives is regarded as a warning given in doubt, or because his transgression does not involve an action. On the other hand, if he swears falsely about the past, he is liable for lashes. Though generally speaking an offense of speech is defined as a transgression that does not involve an action, the Torah teaches that lashes are administered for a vain oath, and this novelty was expanded by way of various derivations so that it applies also to a false oath relating to the past. The Ri Migash explains that this novelty is based on the fact that an oath relating to the past involves a certain level of action:

 

Since the oath relates to the past, it turns out that he  becomes liable at the time that he utters the oath, Therefore, even though it does not involve a major action, nevertheless there is a minor action, the movement of the lips. Therefore the Torah includes it for lashes. But [if he said: "I swear] I shall eat," but he did not eat, where he does not become liable at the time of the oath, so that you could say that there is movement of the lips, it turns out that there is neither a major action nor a minor action, and in such a case the Torah does not include it for lashes.

 

On the other hand, regarding a negative oath (where he said: "I swear I shal not eat"), the Gemara says that it is obvious that there is liability for lashes, since there is a transgression that involves an action. The implication is that there is no need for a special derivation, and that, using the terminology of the Ri Migash, this is a "major action."

 

It follows from this that whereas regarding an oath relating to the past, the offensive action is the oath itself, and therefore there can be liability for lashes, even if we have to make use of the novel idea of a "minor action"; regarding an oath relating to the future, the offensive action is the breaking of the oath, and even if the foundation of the transgression is the falsehood of his words, the act of breaking the oath is the action through which the person lies, and we are dealing with a clearer action than that in the case of a false oath relating to the past.

 

It is interesting to compare this to the laws governing the disqualification of a person who swore falsely to offer testimony. The Shulchan Arukh rules:

 

 

According to the opinion of "the authorities who say,"[1] a person becomes disqualified to offer testimony only if he takes an oath that is clearly false, e.g., a false oath relating to the past, but not if he takes an oath that only turns out to be false or becomes false at some later stage. In contrast to this position, the Rivash (Responsa, no. 311) writes:

 

 

According to the Rivash, wherever there is liability for lashes, there is also disqualification to give testimony. But according to the other opinion, the two realms do not overlap, and it is only with regard to an oath relating to the past that there is a clear cut lie that disqualifies the person from giving testimony.

 

 

The position of the Rambam, according to the simple understanding, accords neither with that of Rav Dimi, nor with that of Ravin. We will examine his opinion, but it should be understood from the outset that the Rambam's understanding of the prohibition regarding an oath relating to the future will only become clear at a later stage of our study.

 

The Rambam writes in Hilkhot Shevuot 1:3:

 

 

It follows from the words of the Rambam, that the prohibition that is transgressed in each of the four cases (I ate, I did not eat, I will eat, I will not eat) is the prohibition of "You shall not swear by My name falsely." This prohibition is the foundation of the liability for lashes in the case where he took the false oath willfully, and it is the foundation of the liability for a sin-offering in the case where he took the oath inadvertently. The Rambam clearly rules in accordance with the view of Rabbi Akiva, that there is liability for an offering even in the case of an oath relating to the past, and according to the simple understanding he also accepts what follows from Rabbi Akiva's wording in the Mishna that the liability for an oath relating to the past and the liability for an oath relating to the future is essentially the same, and the Rambam clarifies that the common foundation is the idea of falsehood: "He has taken a false oath." But as for the prohibition for which lashes are administered, the Rambam appears to veer from the view of Rav Dimi, that in the case of an oath relating to the past, the lashes are administered for transgressing the prohibition of "You shall not take the name of the Lord your God in vain"; and it also veers from the view of Ravin, that in the case of an oath relating to the future, the lashes are administered for transgressing the prohibition of "He shall not break his word." Conceptually, it can argued that the Rambam's position is not that novel, for according to Rav Dimi, it is clear that the principle underlying the various liabilities is the falsehood, with a subtle distinction between two types of falsehood. Even according to the view of Ravin, which according to the simple understanding goes in a different direction, we have already seen that the Ri Migash, whose teachings greatly influenced the Rambam,  had a different reading of the passage, and that according to his reading, even according to Ravin the underlying principle is falsehood. But, as for the formal prohibition for which the lashes are administered, the Rambam's view does not accord with the view of either one of the Amoraim. 

 

The Rivash, in his Responsa,[2] proposes a different understanding of the Ramban's position, according to which the Rambam ruled in accordance with his understanding of the view of Ravin. According to him, the Rambam understood the view of Ravin regarding an oath relating to the future in a manner similar to the way the Tosafot understood the view of Rav Dimi in that case, that the lashes are administered both because of "And you shall not swear by My name falsely," and because of "He shall not break My word." According to the Rivash, Ravin said: "[If he said: 'I swear] I shall eat,' or, '[I swear] I shall not eat' [and he broke the oath], he transgresses: 'He shall not break his word.'" But he meant that he is administered lashes also because of "You shall not swear by My name falsely." And the Rambam wrote: "For example, he took an oath not to eat and he ate… With regard to these matters, it is stated '"You shall not swear by My name falsely.'" But he means that he is administered lashes also because of "He shall not break his word." And the Rivash explains: "He [the Rambam] did not bother to mention 'He shall not break his word,' and whether he also violates that prohibition with an oath relating to the future, because it is not his way to mention extra prohibitions, and he mentioned the well-known prohibition, that which includes shevuat bitui relating to the future and to the past, and not 'He shall not break his word,' which is special for vows." According to the Rivash, it turns out that there is a twofold problem regarding an oath relating to the future; the falsehood, and this is the prohibition for which an offering is brought if he took the oath inadvertently; and alongside this there is also the law that the person who took the oath created a law for himself similar to a vow, and in the case of a willful oath lashes can be administered for transgressing this prohibition.

 

It may be possible to bring support for the Rivash's understanding from the wording of the Rambam in his Sefer ha-Mitzvot in his explanation of the mitzva of "He shall not break his word": "The Torah warns us not to transgress that which we took upon ourselves as an obligation through speech, even if this was without an oath, and this is the matter of vows." It may be understood that this prohibition applies even to speech by way of an oath. In similar fashion, the Rambam writes in Hilkhot Shevuot 6:2 (based on the Gemara in Chagiga 10a) that the Torah bases a sage's capacity to release a person from his oath on the verse: "He shall not break his word":

 

 

From this too it is possible to conclude that "He shall not break his word" applies also to an oath.

 

However, if we adopt a more comprehensive perspective, it is difficult to adopt the Rivash's interpretation of the Rambam. The Rambam counts the prohibition of "He shall not break his word" in Hilkhot Nedarim and there it is mentioned frequently; but nowhere is it mentioned in relation to oaths (see also Hilkhot Sanhedrin 19:4). The verse of "He shall not break" deals of course also with oaths, and therefore it is possible to learn from it laws like that mentioned in 6:2. But it is difficult to find support for the argument that according to the Rambam one who breaks his oath is liable to lashes also because of this prohibition.

 

Let us now examine the words of the Meiri, which do not explicitly refer to the Rambam, but which accord with his position:

 

 

According to the Meiri, the law is in accordance with Rav Dimi (like Rashi, and against the Tosafot), regarding an oath relating to the future and in accordance with Ravin regarding an oath relating to the past. If so, there is room to say that this is the position of the Rambam. It is also possible (as was suggested to me by Rav Yair Kahn) that the Rambam understood from the continuation of the Gemara that the assertion that was attributed to Ravin (in the name of Rabbi Abbahu), that regarding an oath relating to the future, lashes are not administered for "And you shall not swear by My name falsely," but because of "He shall not break his word," does not remain in place, and the Rambam rules in accordance with the Gemara's conclusion.

 

Rav Nechemya Raanan suggested another way to reconcile the Rambam's rulings with the Gemara. According to him, even though it clearly emerges from the Gemara that the Amoraic views were stated both according to Rabbi Yishmael and according to Rabbi Akiva, there is room to argue that the Gemara tends more to the view of Rabbi Yishmael. According to Rabbi Yishmael, there is a sharp split between an oath relating to the past, which bears liability for lashes but not for an offering, and an oath relating to the future, which bears liability for both of them; and consequently it is possible that there is a split between the nature of the liability for an offering and the nature of the liability for lashes. Rav Dimi concluded from this that the lashes come for the different variations of the principle of falsehood; whereas Ravin concluded from here that there is a fundamental difference between lashes for an oath relating to the future, which like an offering, relate to the violation of the autonomous law; and lashes for an oath relating to the past, which relate to the principle of falsehood. However, the Rambam rules in accordance with Rabbi Akiva, and according to him both the offering and the lashes, both relating to the past and relating to the future, relate to the principle of falsehood, and the picture is much simpler. Either way, according to the Rambam the foundation of all the liabilities is the falsehood. As stated earlier, over the course of our study, we will reexamine the position of the Rambam, but we will examine already now the action that bears liability for lashes which we discussed above:

 

 

In the case of an oath relating to the past there is liability for lashes even though there is no action, "because at the time he took the oath, he was taking a false oath." The Rambam does not mention that we are dealing here with a novel law introduced by the Torah, nor does he mention the idea of a "minor action," as did the Ri Migash. Rather he says that there is here a clear and explicit violation of the commandment not to swear falsely, since the oath is a lie from the moment it emerges from the person's mouth. In the case of a person who swears that he will eat, and then fails to do so, there is no action and there was also no falsehood when the oath emerged from his mouth, and therefore lashes are not administered. As we saw regarding the Gemara, his words imply that if one swears that he will not eat, and he eats, it is obvious that there are lashes, as there is an action of the ordinary kind. It is clear then that even though the prohibition is based on a false oath, the moment that the person lies with an oath relating to the future is not the time he takes the oath, but rather the time he breaks it, and if he breaks it with an action, this is a lie with an action, for which he receives lashes.

 

 

To conclude this shiur, we will refer to the unique position that emerges from the words of the Tosafot in Gittin 35a, s.v. ve-noderet and that is explained slightly more in the words of the Meiri in Nedarim 15a (who disagrees with it).

 

The Gemara on page 25a cites the words of Rabbi Yochanan:

 

 

According to most of the Rishonim, such an oath, which is viewed as being impossible to fulfill, is not a shevuat bitui, but rather a vain oath. It has no binding force, and there are lashes for a vain oath, as we will see later in the chapter. However, the Meiri has an interesting discussion about it:

 

 

According to the Meiri, the Tosafot understood that we are not dealing with lashes for a vain oath, as proposed by the Meiri himself, but for the prohibition of "He shall not break his word," which applies even to vows. According to the Tosafot, the prohibition of "He shall not break his word" can be transgressed at the time of the oath, even before the person actually breaks his commitment, if fulfilling his commitment is clearly impossible.  The Meiri understood that the person breaks his word when he breaks his commitment, and therefore it is clear that he cannot become liable for lashes before he actually breaks his word. It is clear, however, that the Tosafot understood differently. According to them, even the prohibition of "He shall not break" is essentially a prohibition against lying, which is based on breaking one's word. Therefore the prohibition can be transgressed, even before the commitment is actually broken, once it is clear that this will definitely happen. In such a situation, the lie is manifest from the moment that the words emerged from the person's mouth, and this is what allows for lashes to be administered for transgressing the prohibition of "He shall not break."

 

As stated above, this is an exceptional position. It is generally accepted that the prohibition of "He shall not break" relates to the violation of the law that the person created for himself, and not to the lie in his words.

 

(Translated by David Strauss)