Shiur #03: The Prohibitions Relating to False Oaths (Part II)

  • Rav Shmuel Shimoni
Sources:
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.
 

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Shiur 3: The Prohibitions Relating to False Oaths (Part II)
 
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.
 
I. The action that leads to liability for lashes and disqualifies a person as a witness regarding an oath relating to the past or to the future
 
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:
 
One who transgresses with an oath, whether a vain oath or a false oath regarding money or bitui, is disqualified… Some authorities say that he is disqualified only if he took an oath relating to the past, where when the oath issued from his mouth it was already a lie. But if he took an oath relating to the future, e.g. "I swear I shall not eat," and he ate, he is not disqualified. (Shulchan Arukh, Choshen Mishpat 34:5)
 
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:
 
It seems to me that if one swears that he will not eat, and he eats, he is liable for lashes, and he is a wicked person, and therefore disqualified to give testimony or take an oath. But if he swears that he will eat or make a payment, and he fails to do so, since he is not liable for lashes, as he did not perform an action, he is also not disqualified to give testimony or to take an oath.
 
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.
 
II. The position of the Rambam
 
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:
 
If a person takes an oath concerning one of these four categories and does the opposite, he has taken a false oath. For example, he took an oath not to eat and he ate, or that he would eat and he did not eat, or that he ate, when he did not eat, or that he did not eat, when he had eaten. With regard to these matters, it is stated (Vayikra 19:12): "You shall not swear by My name falsely." If he willfully swears falsely, he is liable for lashes. If he does so inadvertently, he must bring an adjustable sin-offering, as it is stated (Vayikra 5:4): "And it became concealed from him and he did not know and became guilty."
 
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":
 
This provision has no source in the Written Law. Instead, we learned from Moshe our teacher through the Oral Tradition that the phrase: "He shall not break his word" means that he himself should not abuse it in a frivolous and brazen manner, as it is stated (Vayikra 19:13): "[For] you will desecrate the name of Your God." Nevertheless, if a person changed his mind and retracted, a sage may release him [from the oath].
 
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:
 
That which we have written that an oath is not subject to the prohibition of "He shall not break," is the position of Rav Dimi in this passage. Even though the law is not in accordance with his position in the case of "I swear that I ate," and "I swear that I did not eat," for according to him, the prohibition in those cases is from: "You shall not take [the name of the Lord your God] in vain," nevertheless, regarding what he said that "vows come under the prohibition of 'He shall not break his word,'" that is to say, but not oaths, the law is in accordance with his position, and not in accordance with Ravin who said that even with oaths, every case of "I shall not eat" and "I shall eat" come under the prohibition of "He shall not break his vow." And even though the law is in accordance with him regarding what he said that: "[If he said: I swear] I have eaten,' or, '[I swear] I have not eaten,' [and it was untrue,] it is a false oath," regarding what he said about: "'[I swear] I shall eat,' or [I swear] I shall not eat," the law is not in accordance with him. It turns out that the law is not entirely in accordance with either one of them, but rather "I have eaten," and "I have not eaten," and "I shall eat," and "I shall not eat," all come under the prohibition of "And you shall not swear by My name falsely," and vows come under the prohibition of "He shall not break his word." Some authorities rule in all cases in accordance with Ravin, but this does not appear correct, for throughout the Talmud we find "He shall not break his word" in connection with vows, and not with oaths.
 
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:
 
[When a person says:] "I swear that I will eat this loaf today," and the day passes without him eating it, should he have acted unintentionally, he must bring an adjustable guilt offering. If he acted willfully, he is not liable for lashes, because he did not perform an action, even though he violated [the prohibition against] taking a false oath.
Why is a person who took an oath that he ate liable for lashes [if] he did not eat and one [who took an oath] that he did not eat [liable] if he did eat, even though he did not perform an action? Because at the time he took the oath, he was taking a false oath. If, however, a person takes an oath that he will perform [a particular activity], it is not a false oath at the time it was taken. (Hilkhot Shevuot 4:20-21)
 
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.
 
III. The position of the Tosafot in Gittin 35a
 
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:
 
He who says: "I shall not sleep three days," is administered lashes, and he may sleep immediately.
 
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:
 
The Tosafot explain: That is to say, the same applies to a vow, that is, that lashes are administered since in the end he will transgress the prohibition of "He shall not break his word," and he may sleep immediately. It is learned from here that even with regard to a vow, whenever one takes a vow that is impossible to fulfill, e.g., "I vow my eyes from sleep for three days, or forever," or "I vow myself from all eating for ten days, or forever," lashes are administered, and he may sleep or eat immediately. But this is not correct, as they only said this regarding oaths, where as soon as the vow emerged from his mouth, he already took a vain oath, and he is immediately liable for lashes for having transgressed the prohibition to take a vain oath. But here, as long as he does not sleep, he has not transgressed the prohibition of "He shall not break his word," so how can there be lashes before he transgresses a prohibition?
 
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)
 
 
Sources for the next shiur: The Minimum Measure of Eating and Eating Less than this Measure – Introduction
 
Since we wish to continue our clarification of the definition of the prohibitions relating to a false oath, we will not be dealing at this stage with the Gemara's discussions at the beginning of the chapter, but rather we will continue to clarify the dispute between Rabbi Akiva and the Sages at the end of the first Mishna, which is discussed in the Gemara on p. 21b.
 
As an introduction to an examination of this dispute, which is connected to the question whether or not eating less than the size of an olive is considered an act of eating, we will dedicate this shiur to this issue, without getting into the discussions found in our chapter, with the hope that this study will provide us with tools that will help us in the future.
 
Sources:
 
1. Makkot 13a: "How much tevel is one to eat to become liable? Rabbi Shimon says: The merest morsel. The Sages say: The size of an olive." (We will soon deal also with the disagreement between them concerning eating a full creature.) See the discussion regarding Rabbi Shimon's view on p. 17a, before the Mishna: "Rabbi Shimon…"; Rashi, s.v. kakh machloket; Ritva and Chazon Ish (below); Tosafot, Shevuot 21b, s.v. velo amru, "… lo havi ela be-ke-zayit."
 
2. Yoma 74a: "Gufa, chatzi shiurasmakhta be-alma; Tosafot, s.v. keivan; [Ramban, Torat ha-Adam (below); Tzelach (below).
 
Ritva, Makkot 17a:
"'Rabbi Shimon says: Any minute quantity is sufficient for lashes; the olive-size mentioned by the Rabbis is required only for a sin-offering.' They explain that he had a tradition about this. And Rabbeinu Meir, z"l, gave a reason: Regarding lashes, since he ate deliberately, he attached significance to become liable even for the merest morsel. But regarding a sin-offering which is brought for inadvertent eating, we require the size of an olive to attach significance."
 
Chazon Ish, Choshen Mishpat, Likkutim, no. 23, on Makkot 17a:
"'Rabbi Shimon says: Any minute quantity is sufficient for lashes; the olive-size mentioned by the Rabbis is required only for a sin-offering.' The Ritva wrote in the name of the Rama: 'Regarding lashes, since he ate deliberately, he attached significance to become liable even for the merest morsel. But regarding a sin-offering which is brought for inadvertent eating, we require the size of an olive to attach significance.' This does not mean that it was pleasurable for him to eat the merest morsel. For if he ate it inadvertently, thinking that it was kosher meat, it was also pleasurable for him to eat the merest morsel. And furthermore, if he ate the merest morsel, he is immediately flogged, even if it was not his intention to stop. Rather he means that one who eats deliberately is punished for his rebellion against the Torah's command, and even when he eats the merest morsel his rebellion is great and he is worthy of punishment. But where he acted inadvertently, so that he requires atonement for his stumbling into eating forbidden fat, we require a minimum measure. This is also indicated by the wording of the Ritva."
 
Ramban, Torah ha-Adam, Sha'ar ha-MichushInyan ha-Sakana:
"Even if she needs a full measure, we feed her in amounts that are less than the full measure, so that they not join to the size of an olive in the time of eating a peras. So rules the author of the Halakhot. It would appear that we do this also for a sick person in order to reduce the prohibitions that carry liability for excision and lashes to mere prohibitions. You might ask: If so, why do they say that we feed him food, the prohibition of which is the least severe. Tevel or teruma, we feed him teruma. But surely regarding both of them it is merely a prohibition. Nevertheless, since when eaten in the full measure, the one prohibition is more severe than the other with respect to their punishments, so too when eaten in less than the full measure, the severity of the one prohibition is greater than that of the other. Alternatively: There we are dealing with a case where they assessed him that he requires a full measure, and he needs that the food be joined to form a full measure."
 
Tzelach, Pesachim 44a:
"At the beginning of the last chapter of Yoma it is explained that the reason that Rabbi Yochanan says that a half measure is forbidden by Torah law is 'since it could be joined.' According to this, in the case of a prohibition that is time bound, e.g., chametz on Pesach, where he ate less than a measure on the seventh day, in such a way that there was no time left to eat any more [on the seventh day] in order to complete the measure, this cannot be derived from 'any fat,' and therefore the Rambam derives it from 'You shall not eat.'"
 
 
 
 

[1] Which is based on the words of Rashi, Shevuot 46b, s.v. shevuat bitui, though there the context is disqualification for giving testimony.
[2] No. 445; see also no. 387.