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Everyone Suspected of False Shevuot

Shevuot (7:4) | Yisrael Bankier | 14 hours ago

This week we learnt about shevuot that one is biblically obligated to make in the context of a financial dispute. The seventh perek however opens by teaching that in general one who makes the biblically obligated shevuot exempts themselves from payment. For example, where the defendant partial admits to the amount claimed against him. In that case he is required to make a shevuah in order to exempt himself from the full claim.

The Mishnah however continues by explaining that there are several rabbinically obligated shevuot, after which the person can extract payment or an object from the other party. One of these cases is where the person biblically obligated to make a shevuah is not trusted due to violating certain transgressions (chashud). In such cases the obligation to make the shevuah is transferred from the defendant to the claimant, such that after making the shevuah he can extract what he claims is due to him.

The Mishnah continues by addressing the case where both parties are not trusted with making a shevuah. According to R' Yossi the shevuah "returns to its place". R' Meir however argues that the disputed funds are shared between the two parties. How do we understand the position of R' Yossi? What does he mean that the "shevuah returns to its place"?

The Gemara (47a) provides two explanations. The first is Rav and Shmuel who maintain that the shevuah returns to har sinai. Rashi explains that it was there that Hashem made Am Yisrael swear not to steal, and He will punish those that falsely deny owing another money. As far as Beit Din is concerned however, they can neither enforce a shevuah or extract funds. R' Abba however explains that it returns to the defendant who was obligated to make a shevuah to exempt himself from payment. Since he is unable to do so, he must pay.

The Tifferet Yisrael (Boaz 7:3) ties the debate to two explanations in the Tosfot in Bava Metzia (5a). There the Tosfot asks, why in the case where only the defendant is suspected, do we move the shevua to the claimant? In the case where the claim was for one-hundred and the person admits to fifty, but is unsure of the additional fifty, he is not able to make a shevuah. There we say that since he cannot make a shevua he must pay the full amount - mitoch. Why do we not say the same thing in case of a chashud? Since he cannot he is suspected and cannot make a shevuah he should simply be obligated to pay.

The Tosfot provides two answers. The first is that if we said that anyone suspect of false shevuot must pay, then it runs a risk that people will continually engineer situations that would require this person to make a shevuah to unjustly drain him of his money. So that he can survive -- kedei chayav -- the shevuah is moved to the claimant. The second answer is that this case is different. The other case is where the person is simply unable to make a shevuah due to lack of knowledge. In this case the defendant is willing to make a shevuah, yet beit din forbid it. In other words, mitoch does not apply and he is really exempt. The Chachamim however apply a kenas (fine) that the claimant can make a shevuah to extract the funds.

The Tifferet Yisrael explains that these two understandings of why the shevuah is moved to the claimant is behind our debate. R' Abba aligns with the first understanding. That is, when only the first defendant is suspected, he is obligated to pay, yet we move the shevuah to the claimant kedei chayav. If however both parties are suspected, kedei chayav is no longer a concern. Firstly, we do not assume that everyone is suspected of false shevuot that we need to be concerned for this situation. Secondly, since both parties are suspicious individuals, the party would already take protective measure not to fall into the trap. The being the case, R' Abba maintains that we fall back on the base position that the defendant is obligated to pay.

Rav and Shmuel however maintain the second explanation that the chashud is exempt, yet Chachamim apply a knas. If however, the other party is also chashud, then there is more of a reason now to apply a knas to the claimant removing that power to extract the funds with a shevuah. Therefore it "returns to sinai" and we cannot obligate the defendant to pay.

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