Shevuat Dayanim – Holding On

Shevuot (6:1) | Yisrael Bankier | 11 years ago

With the beginning of the sixth perek we began learning about shevuat ha’dayanim. These are shevuot that judges can obligate one to make. The first of these we learnt was biblical in origin. Broadly speaking it is when one partially admits to a financial claim against him. What qualifies as a claim and admission that would obligate one to make a shevuah is discussed in the perek. 

The Bartenura explains that what differentiates this shevauh from a shevuat heiset (which is rabbinic in origin) is that the person making the shevuah must hold an object of mitzvah when making the shevuah, e.g. a sefer Torah or tefillin. This is not the case when making a rabbinic shevuah. Let us try to understand this requirement.

The Gemara (38b) explains that the obligation is learnt from the shevua that Avraham required of Eliezer when he was sent to find a wife for Yitzchak.¹ It appears then that the requirement to hold something is biblical; this is the first understanding brought by the Rosh. 

The Tosfot however asks a question. Shevuot eidut, bitui and pikdon when prompted by others (mi’pi acheirim) are similar to shevuat pikadon. Why then is the requirement to holds something exclusive to shevuat dayanim?

The Rosh however provides another understanding of the Gemara that answers this question. He explains that the requirement to hold an object is rabbinic and the pasuk cited in the Gemara is an asmachta. The law to make the person hold a sefer Torah was instituted to create a sense of dread. The person should realise that making a shevuais not something that should be taken lightly. The requirement was instituted exclusively for shevuat dayanim since the Chachamim felt that that situation required it. 

Why was the sense of dread necessary?² The Chatam Sofer explains that it was to dissuade those that would potentially lie from taking the Shevua. The Rambam (Shevuot 11:16) details how the dayanim would warn one about to make a shevua. The warning elaborates in detail the severity of a sin committed by one that makes a false shevua. Presumably, holding a sefer Torah serves as another tool dissuading one contemplating making a false shevua.

The Ohr Sameach however provides a different answer. The intimidation is actually for the benefit of the litigants. If the party that was willing to lie is then scared he can decline to make a shevua without admitting he was wrong. The seriousness of the shevua can even dissuade someone who is telling the truth from making a shevua. If a person refuses to make a shevuat dayanim, beit din will subsequently forcibly extract the funds in question. This process therefore gives the person, who might have backed himself into a corner, a way out. He can refuse to take a shevua “because of it seriousness” and the funds are returned without him admitting the truth. 

¹ In that case Eliezer held the Mila. The Tosfotexplains that even though the Gemara teaches that a talmid chacham should ideally hold tefillin, that was the only explicit mitzvah that had been given at the time. Rashi explains that it was used since it was his first mitzvah and came to him through pain and was therefore dear to him.

² These opinions that follow were taken from the Otzar Iyunim, Shevuot (22), Metivta.

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