Unprompted Shevuat Pikadon

Shevuot (5:2) | Yisrael Bankier | 5 years ago

The fifth perek deals with shevuat pikadon – an oath denying the possession of an object or money belonging to someone else. The second Mishnah provides two examples. The first is if one asks another for his item back, and the other person then swore he did not have it. The second is if the person denied having it is his possession, the owner then adjured him to take make an oath and he responded "amen". In both cases, if he had deliberately lied, then he would be liable to bring a korban asham.

The Tosfot Yom Tov explains that the two cases in our Mishnah should not be understood as the complete list of scenarios that qualify as shevuat pikadon. The Tosfot Yom Tov argues that even if the custodian was not challenged and voluntarily made the oath, it would still be qualified as a shevuat pikadon. The Tosfot Yom Tov cites the Rambam (Shevuot 7:5) who states this law explicitly. (The Mishnah includes only these two cases because a shevuat edut, the topic of the previous perek, is only defined as such if the individual confronted the potential witnesses first.)

The difficulty with this explanation is that the Rambam rules in the next halacha that if someone else challenged the custodian, it would only then be defined as a shevuot edut if he was a shaliach (agent) with a harsha'ah (legal authority). If denying possession unprompted can qualify as a shevuat pikadon, why would it not be enough if someone else challenged the custodian that was not a shaliach or did not have a harsha'ah.

The Tosfot Yom Tov answers that the Torah requires that the shevuat pikadon be "lifnei amito" – in front of the owner. Even though in other area of halacha we have the principle of "shlucho shel adam ke'moto" – one's agent is considered like the one who sent him – in this case the harasha'ah is necessary since without it, the shaliach would not be able to legally extract the funds. (We find the same requirement in shevu'at edut also.)

The Chazon Yechezkel (Shevuat 2:5) however cites the Ri Migash who states that for it to be defined as a shevuat pikadon, the shevuah must follow the owner's claim. Does the Ri Migash then argue with the Rambam?

The Chazon Yechezkel does not thinks so and explains the Rambam differently. The Rambam provides an example of an unprompted shevua: "[the custodian asks] why are you coming after me? Do you think I have your money? I swear I do not have your money!" The Chazon Yechezkel explains that even though the owner did not challenge the custodian, it is only defined as a shevuot pikadon because of the context – the owner was approaching him. The Chazon Yechezkel cites R' Chaim who explains that even though for shevuat pikadon the claim of the owner is not required, the owner must nevertheless demonstrate that he wants his money back. This then explains why the Rambam adds the detail that the owner was pursuing the custodian.

Based on this explanation we can understand the requirement that the shaliach have a harasha'ah in a different manner. Recall, that until it is clear that the owner wants his money or property back, a shevuah would not qualify as a shevuat pikadon. Furthermore, it is only with the harsha'ah that the shaliach has the power to retrieve the property. Consequently, fit is only with the harasha'ah that we have a solid proof the owner is claiming is property be returned.

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