Is a Shevua a Beirur or a Chov?

  • Rav Moshe Taragin

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This week’s shiurim are dedicated in commemoration of the yarhzeit of
Rabbi Lipman Z. Rabinowitz, by his family
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Please daven for a refua sheleima for YHE alumnus 
Rav Daniel ben Miriam Chaya Rut
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All three shevuot that are required mi-de’oraita are “defensive;” they are taken by the defendant “in place” of payment. When describing these oaths, the Torah employs two very different terms. One pasuk casts the shevua as an interaction between the two litigants: “Shevuat Hashem tihyeh bein shneihem” (Shemot 22:8). A different pasuk suggests that the oath is primarily directed toward beit din (Shemot 22:10). These two different formulations imply very different notions of shevua. Is an oath essentially an attempt to help beit din clarify the details of the disputed case? That is, in the absence of witnesses, beit din can demand that a defendant provide an oath to help ascertain the facts. Or is an oath primarily an obligation toward the tovei’a (plaintiff)? Perhaps under certain conditions the defendant, although excused from actual payment, must still offer the tovei’a his sworn statement affirming his innocence. To phrase the distinction differently, is a shevua a “beirur, an attempt to clarify the details of the case to beit din, or is it a “chov,” a non-monetary obligation to the tovei’a?

This core question shapes multiple applications of shevua. One application surrounds the concept of mitokh she-eino yachol li-shava meshalem, the principle that dictates that if the defendant cannot render a shevua, he must pay the disputed money. This principle is generally assumed to be a de-oraita halakha derived from a pasuk by the gemara in Shavuot (47a) (although the Ketzot Ha-Choshen, chapter 92, does cite a Maharshach who maintains that this is merely a Rabbinic adjustment). Those who cannot legally offer a shevua include a defendant who claims that he does not remember owing money, as well as a defendant who has been caught grabbing money that he claims is his. In either case, the inability to produce a shevua requires full payment.

On the surface, this seems to support the notion that a shevua is an interpersonal, non-monetary obligation. In typical cases, the defendant owes the tove’ia an oath-based explanation. In unique situations in which this verbal obligation cannot be met, the nitva must actually pay the disputed money. On the other hand, if shevua is merely an obligation to assist beit din in ascertaining the facts, the rule of mitokh would be attributed to a penal category; defaulting on oath obligations is penalized through payment requirements. Of course, the nature of mitokh dramatically affects the scope of when mitokh applies.

A second relevant question is the suitability of a suspicious person to render a shevua. The mishna in Shevuot (44b) establishes that a suspicious individual cannot defend his position with a shevua. Instead, the tovei’a has the option of HIMSELF taking an oath and extracting the disputed monies. In assessing this halakha, Tosafot (Bava Metzia 5a) offer two different opinions as to whether this suspicious person is completely unsuited for his shevua. According to one opinion, despite his suspect nature, he is a candidate for shevua, but beit din still “flips” the shevua to the tovei’a.

R. Naftali Trop maintained that this issue is dependent on the nature of an oath. If the entire purpose of an oath is to assist beit din, a suspicious person would be completely unsuited for this task. If, however, the primary role of a shevua is to offer verbal payment to the tovei’a, we might envision a suspicious person as basically obligated toward this debt. Beit Din may not be willing to process this oath, but fundamentally, the defendant is obligated to take the oath.

Another question that may be impacted is the issue of migu replacing a shevua. Most Rishonim believe that shevua may indeed by acquitted through a migu. In fact, the classic example of modeh be-miktzat shevua entails a built-in migu. The defendant had the option of denying the entire claim and escaping without a shevua. The logic of migu mandates that despite of his partial confession, he should be excused from his current shevua. Many maintain that the Amora Rabba asked this very question (see Bava Metzia 4a and assorted other gemarot, which quote Rava) and maintains that there is another reason that that this migu is flawed. Fundamentally, however, a migu DOES replace a shevua.

By contrast, the Ri Migash claimed that a migu CANNOT replace a shevua. In part, the Ri Migash may have viewed a shevua as an interpersonal OBLIGATION to the tove’ia, which cannot be absolved with a migu. Other Rishonim who maintained that migu can replace a shevua may have defined shevua as an attempt to clarify the facts to beit din, or a beirur. Since migu may provide an alternate beirur or clarification of truth, it may replace the need for a shevua.

Another interesting shevua rule which may be affected by the definition of shevua is the concept of gilgul. If a nitva is obligated to take an oath, he can be required to swear about previous litigations that, for whatever halakhic reason, did not yield oaths. For example, if he currently is swearing to defeat the incriminating testimony of a lone witness (eid echad), he can be required to ALSO swear regarding past denied claims about which he was not required to take an oath. The notion of gilgul is certainly more logical if a shevua is a responsibility to clarify the facts to beit din. Once he is mandated to swear, beit din can conceivably “stretch” the current shevua to include previously unresolved litigations. If a shevua is an interpersonal obligation to provide clarity to the tovei’a, the notion of expanding a shevua through gilgul would be far less obvious.

This question would also impacts how halakha defines cases that are immune to oaths. The gemara in Shavuot claims that oaths are not rendered regarding land disputes. What type of land disputes are exempted, those that involve land litigation or those that involve land collection? For example, although debts are litigations regarding funds, they may lead to land collection. Are such cases exempted from oaths because the collection will technically be rendered with land? Or is an oath required because the basis of the litigation is not primarily about land? What about a reverse situation in which the litigation surrounds land but the payment will be rendered in cash? For example, if the litigation involves land DAMAGES that will be compensated with money, can a shevua result? These two cases are hotly debated by the Rishonim. The first situation is termed a milveh ba’al peh (a non-contractual loan), while the second scenario is referred to as demei karka litigations surrounding land damage and is the source of a machloket between the Rambam and the Ra’avad.

Presumably, if a shevua is primarily directed to beit din as an attempt to clarify the uncertainties, the topic that beit din is currently deliberating would be paramount. If beit din is focused on land, no shevua should obtain, even if payment is rendered in money. On the other hand, if they are deliberating regarding a monetary dispute, a shevua should be mandated even if the payment will be rendered in land.

If, however, a shevua is an interpersonal, non-monetary payment, the key determinant should be the potential PAYMENT that the shevua absolves. If the potential payment (in the absence of a successful shevua) will be land-based, the shevua can be considered an oath about land, which is halakhically void. However, if the payment will be monies, even if the source litigation surrounds a land dispute, the shevua can be considered an exemptor of money and should apply.