Shiur #15: The Shevua of Modeh Be-Miktzat and the Reliability of the Claims
Three oaths are imposed by the Torah: 1) A shomer (watchman) must swear as to the circumstances surrounding the item he was watching. The obligation to take this oath seems be rooted to the original agreement contracted at the point of deposit. 2) An eid echad (lone witness) whose testimony supports the claim of the prosecution/tovei’a cannot obligate monetary payments, but he reinforces the prosecution’s claim enough to necessitate a shevua on the part of the defendant/nitva. 3) If a defendant/nitva is modeh be-miktzat, confessing to part of the prosecution’s claim, he has reinforced the original claim and must swear to defend his position regarding the remaining monies. Unlike the first type of shevua, the latter two oaths are not based on any prior agreement between the two parties. These oaths presumably stem from the fact that the claim of the tovei’a has been partially substantiated by the ensuing developments.
However, an interesting comment of Tosafot suggests a very different source for the modeh be-miktzat oath. Tosafot write (Bava Metzia 4a) that the partial confession has created raglayim le-davar (literally, grounds for the litigation). One way of interpreting this phrase is that the partial confession or corroborating witness has created suspicion surrounding the veracity of the defendant and his claims. Accordingly, perhaps the shevua does not emerge from the fact that the legal claim has been reinforced by corroborating evidence, but rather from newfound suspicions regarding the defendant. In this shiur, we will explore various halakhot that can be explained based on this view of the shevua.
The gemara (Bava Metzia 4a) introduces a situation in which a partial confessor (modeh be-miktzat) immediately renders payment for his confession – helakh (see http://etzion.org.il/en/exemption-helakh for an elaboration of this exclusion to modeh be-miktzat). For some reason, the immediate payment cancels the typical oath that is necessary in this situation. The Meiri cites one explanation that justifies this cancellation of the oath. By offering immediate payment, the defendant/nitva proves that his intent in his partial confession is not simply to procrastinate and hinder collection due to of insufficient funds. Typically, we suspect a modeh be-miktzat defendant of obstructing justice by partially confessing to a larger debt whose monies he does not yet possess; In this context an oath is imposed to compel the nitva to be more honest and thorough in his confession. The immediate payment in a helakh situation removes any suspicion, and thus no oath obligation emerges. This is a rather intuitive manner of explaining helakh, and it may reflect that the conventional obligation of modeh be-miktzat stems from the suspicion that a partial confession arouses.
Evidence for this explanation of the helakh exclusion (and consequently the attribution of modeh be-miktzat to the aroused suspicion) may be found in an interesting exception to helakh discussed by the Sefer HaTerumot. If the immediate helakh payment seems suspicious (the defendant is not “sincerely” paying quickly, but rather trying to “play the system” by offering payment merely to exonerate his oath through the dispensation of helakh), the modeh be-miktzat shevua is indeed installed. This exception may indicate that the general helakh exemption stems from the sincerity indicated by immediate payment, in contrast to the suspicion that a typical partial confession arouses. If the immediate payment is itself suspicious, we can easily envision the installment of the original modeh be-miktzat shevua.
The obligation of a modeh be-miktzat shevua in situations of suspicious claims may account for an interesting gemara in Shevuot (40b) regarding a litigation that does not present as modeh be-miktzat but nonetheless arouses suspicion. If a litigant insists that the defendant owes 100 shekels of wheat and the defendant partially confesses to owing 50 shekels of barley, no modeh be-miktzat shevua entails. The confession must be “mi-min ha-ta’ana,” the same content as the original claim. However, if the defendant/nitva interjects his partial confession –“ke-ma’arim,” as if he is merely manipulating the claims – he does take a modeh be-miktzat oath. It appears that his interjection was merely timed to prevent further expansion of the original prosecution claim which may have yielded legal complications including a possible shevu’a. Even though this litigation does not have the structure of modeh be-miktzat, a shevua is taken.
This is a remarkable gemara. Even though the formal structure of modeh be-miktzat does not emerge, a modeh be-miktzat shevua is taken because his quick interruption raises suspicion, implying that the entire modeh be-miktzat model is built on the premise of suspicion surrounding the defendant. If that suspicion is aroused even without the formal partial confession of modeh be-miktzat, a shevua is taken.
This view of the modeh be-mikzat shevua may also explain the potential exemption known as meishiv aveida. Several gemarot imply an exemption for someone who volunteers a confession about money that he could have easily denied. A volitional confession may not obligate a shevua simply because the nitva appears to be altruistic and not limitational or filibustering. For example, according to R. Akiva (4b), if a litigation was lodged about 5 shekels surrounding a contract that implies a debt of 2 and the defendant freely admits to 3, he is not obligated to swear about the remaining 2 shekels. He could have easily admitted to 2 shekels with the support of the contract. By freely confessing to 3, he appears to be cooperative and honest, and he is thus excused from the oath. Many opinions interpret this as a general and classic migu that augments the position of a defendant/nitva based on potential alternate claims. As such, it would not reflect upon the specific nature of shevua, since migu is employed in a very broad range of situations. However, Rashi views this as a unique shevua exemption known as meishiv aveida: The appearance of honesty and volunteerism cancels any potential shevua. Perhaps R. Akiva viewed a shevua as a product of suspicious behavior; if the partial claim appears to be altruistic, no oath is required.
This potential exemption of meishiv aveida appears to be Rabbinic in origin. The mishna in Gittin (48b) introduces this exemption to protect returners of lost objects from possible modeh be-miktzat scenarios and the consequential obligation of shevua. Nevertheless, although the concept may be Rabbinic it may only be possible by viewing the origins of the modeh be-miktzat shevua as based upon suspicious claims.
Finally, this view of shevua may account for shevua exemptions based on any corroborating evidence. Several gemarot imply that an oath can be cancelled if even moderate evidence supports the position of the defendant who is obligated in the oath. For example, the gemara (4b) claims that a contract that obscurely supports the defendant only in very general terms is sufficient to exonerate the shevua. This type of evidence may not be effective in typical situations, but it nevertheless exempts the oath. Similarly, Rabbeinu Tam claims that a lone witness (eid mesayei’a) can exempt a shevua even though his testimony is not sufficient to obligate monies. Additionally, various gemarot imply that a migu can cancel an oath. If an oath stems from the suspicious nature of the defendant, it is more reasonable that any evidence that affirms his honesty may exempt the shevua. If the shevua stems from the legal claims that have been reinforced by the partial confession, it would be far more complicated to cancel the shevua based on second level forms of evidence that do not operate in other fields of Halakha.