A Shevuah of Modeh Be-Miktzat
Dedicated in loving memory of
Shmuel Nachamu ben Shlomo Moshe HaKohen
(whose yahrtzeit falls on 10 Tevet),
Chaya bat Yitzchak Dovid (whose yahrtzeit falls on 15 Tevet),
and Shimon ben Moshe (whose yahrtzeit falls on 16 Tevet).
A Shevuah of Modeh Be-miktzat
By Rav Moshe Taragin
Although many litigation scenarios create an obligation to take an oath, only three oath situations are Biblical in origin. A shomer (watchman) must swear regarding the whereabouts of a deposited item and a defendant must swear regarding money that he denies owing against the testimony of one witness. These two instances provide logical basis for the obligation of an oath. In the situation of a shomer, the original deposit included an obligation to testify under oath to the whereabouts of an "allegedly" lost item. Similarly, the presence of an opposing witness provides sufficient grounds to require an oath about the disputed money. Had two witnesses testified, the defendant might have been obligated to actually pay his litigant; one witness is insufficient to obligate paymen, but it certainly would seem sufficient to obligate an oath.
The third instance of a de-oraita oath is not as clear. If the defendant confesses to part of the debt (modeh be-miktzat), he must remunerate that portion while swearing that he does not owe the amount he denied. Why should partial confession trigger an oath-obligation on the remaining part of the claim? This issue is addressed by the Rishonim, primarily in their comments to Bava Metzia (4a) and Shavuot (42a).
Tosafot in Bava Metzia assert that modeh be-miktzat establishes a "taana chashuva," a "validated claim," or, as the Ramban in Shavuot puts it, a "taana sheyesh bo mamash." This may refer to the role of the partial confession in bolstering the original claim and obligating a shevuah. Typically, a claim by a litigant may be rejected and dismissed without a de-oraita oath obligation. However, once a claim has been even partially acknowledged (by partial confession), it becomes a "validated claim" and must be responded to in its entirety. Therefore, the confessed part must be paid while the denied part must be addressed through a shevuah. The partial confession strengthens the claim against the defendant, and this strengthened claim obligates an oath.
Interestingly, Tosafot in Bava Metzia towards the end of their comments - develop an entirely different idea. They claim that the partial confession creates "raglaim le-davar" likeliness or even suspicion which yields an oath obligation. This notion, which is also mentioned by the Ritva in his comments to Bava Metzia (4a), implies a very different model for the oath of modeh be-miktzat. Once a defendant partially confesses, he creates an "air of suspicion" and must swear to the veracity of his denied debt. By admitting to owing 50%, he displays a wavering that elicits the beit din's interest. To quell our uneasiness, he is obligated to take an oath.
The question of whether the modeh be-miktzat oath stems from a substantiated claim or from aroused suspicions could potentially produce some interesting nafka minot. One question concerns the caliber of the "claim" necessary to require a modeh be-miktzat shevuah. Conceivably, if the oath emerges from a substantiated claim, only a serious, high-grade claim would instigate an oath. However, if the oath is a product of the suspicious air created as a result of the partial confession, perhaps even a more pedestrian claim would require a modeh be-miktzat oath.
The mishna in Shavuot (45a) claims that certain rabbinic oaths were formulated in response to "uncertain claims," or "shema." For example, if a victim who witnessed a potential robbery claims that the thief MAY have taken something of particular value the alleged thief must swear. Would an oath be mandated if the litigant claimed "PERHAPS" you owe me $100, to which the defendant replied, "I owe you $50 and dont owe the remaining $50"? Would this setup trigger a modeh be-miktzat oath obligation? The mishna is not entirely clear on this matter, but the Ri Migash in his comments to Shavuot (45) asserts that a "shema" claim can not initiate a modeh be-miktzat oath. Perhaps he contended that the source of a modeh be-miktzat shevuah is the substantiated claim, and only a FIRM claim, or "ta'anat bari," can require an oath. Had the Ri Migash believed that the suspicious response of the defendant created the oath obligation, perhaps he would have concurred that an uncertain claim of shema followed by a suspicious "half confession" would also trigger a modeh be-miktzat oath.
A similar question emerges from the Ri Migash's statements regarding a litigant who is a minor. The mishna in Shavuot (38b) claims that a minor may not lodge a claim and obligate oaths. On first glance, it would appear that a minor is not considered a litigant, and his litigation is not halakhically acknowledged. In the absence of formal litigation, no oaths are mandated. The Ri Migash, however (in his comments to Shavuot 42), claims that the disqualification of a katan does not apply equally to all de-oraita oaths. Although a katan cannot obligate a modeh be-mikzat oath or an eid echad oath (an oath against one witness), he can trigger the oath of shomrim. One way to read this Ri Migash (one that is logically consistent with his aforementioned statement about bari claims) is that a katan can initiate litigation and he therefore can obligate the oath of a shomer. However, since his CLAIM cannot be deemed halakhic, he cannot instigate modeh be-mikzat oaths or eid echad oaths. This would suggest that the Ri Migash consistently viewed the substantiated claim of modeh be-mikzat as the source for an oath and that he denied uncertain claims or the claim of a katan as candidates to establish oaths.
Yet a third discussion surrounding the type of claim necessary to obligate modeh be-miktzat concerns a bari al yedei acher. What would happen if someone lodged a definite claim based on secondary information provided by another? The gemara in Shavuot (42b) appears to present such a case when it cites a machloket between the Chachamim and Rabbi Eliezer ben Ya'akov regarding someone who claims, "You owed my father money." If the defendant partially confesses, would he be obligated to swear about the money he denied? Rabbi Eliezer ben Ya'akov obligates an oath, even in response to the son's claim based upon the father's information. The Chachamim, however, deny a modeh be-miktzat oath in this example. This literal reading of the gemara is adopted by the Ra'avad.
The Ramban counters that no one - including Rabbi Eliezer ben Ya'akov - could possibly sanction a modeh be-miktzat oath through a bari al yedei acher, a claim lodged through second hand information. The Ramban cites a gemara in Bava Batra (135a) which effectively discounts bari al yedei acher as a claim capable of extracting monies in litigation. As such, it cannot be successful in obligating modeh be-miktzat oaths. The Ramban reinterprets the machloket between Rabbi Eliezer ben Ya'akov and the Chachamim so that no one allows a bari al yedei acher to instigate an oath.
Perhaps this debate also surrounds the role of a claim in establishing a shevuah. If the substantiated claim serves as the basis of the shevuah, we may require an authentic claim, lodged in a firm manner (bari) by a halakhically recognized litigant (gadol) and through independent and personal information (as opposed to bari al yedei acher). Perhaps the Ramban, in his rejection of bari al yedei acher, viewed modeh be-miktzat as a product of a bolstered claim, in agreement with the Ri Migash.
In contrast, the Ra'avad may have believed that it was possible to view the shevuah as stemming from the air of suspicion created by the partial confession. The actual claim is less necessary to generate the oath, and any claim would suffice. According to Rabbi Eliezer ben Ya'akov, even a bari al yedei acher would be sufficient.