Translation:Shulchan Aruch/Choshen Mishpat/87

Paragraph 1- If one make a claim against another for money or an item in a situation where the defendant is able to make a claim that the incident never occurred, I returned it to you or I had purchased it and the defendant partially confesses, the defendant is biblically required to take an oath. Similarly, if the defendant completely denies the claim and a solo witness contradicts him, the defendant is biblically required to take an oath, even if the only reason we know the defendant may be obligated is due to the witness. If, however, the defendant completely denies the claim and there is no solo witness contradicting him, he would be exempt from a biblical oath, whether the claim is only a loan or deposit. The defendant would, however, be required to take a heses oath. Even in a case where the plaintiff says you have a maneh of mine and the defendant says this never occurred, he would be required to take a heses oath so long as the plaintiff made a certain claim, as was explained in above in Siman 75. Even in a case where the defendant partially confessed, if he said here is the partial amount that I confess to, the defendant would only be required to take a heses oath. This that the defendant can say “here it is” is only where the partial amount that he admits to is accessible in his possession in front of court and can be given immediately. If, however, the defendant says “the item is in my house and I will give to you,” the concept would not apply. Even if the party were to give a collateral on that which he confesses, it would not be considered “here it is.” There are those that say that collateral is considered “here it is” because even a document is considered “here it is.”

Paragraph 2-  If the plaintiff made a claim on two vessels and the defendant confessed on one of them and says here is the vessel and the plaintiff claims that the defendant used the vessel he confessed on and caused it to depreciate in value and the defendant admits or it is known, that would not qualify as “here it is.” If the plaintiff made a claim on 200 and the defendant confessed on a maneh in a situation where the defendant was not able to deny the maneh, such as where that maneh obligation was the result of a court action, the confession would not qualify as a partial admission.

Paragraph 3-  If it is apparent to the judge that the defendant is engaged in trickery by saying “here it is” just to absolve himself from the oath, the defendant would be required to take a biblical oath.

Paragraph 4- If the plaintiff says you have a maneh and vessel of mine in your possession and the defendant responds that he only has the vessel and here it is, and the plaintiff says this vessel is not mine, the defendant would take a heses oath and would include in his oath the fact that this is the plaintiff’s vessel. If the defendant admits that this is not the plaintiff’s vessel but that he swapped it out for the plaintiff’s vessel, he would be required to take a biblical oath even though the new vessel is worth the same as the original. ''According to the view that collateral is considered “here it is,” this is no worse than collateral. It seems to me that this is only where the vessel is worth the same as the vessel the plaintiff made a claim on.''

Paragraph 5-  There is no oath from one who is considered a partial confessor following a complete denial and is obligated on the basis of his claim. For example, if the plaintiff claimed a maneh from the defendant and the defendant says he did not borrow and he then says he borrowed 50 and paid back, the defendant is established as a fraudster for that money. Similarly, one who is obligated on a portion on the basis of his full denial would not be required to take a biblical oath. See above 75:5.

Paragraph 6-  If one partially confesses and has a solo witness supporting him, there are those that say the witness would exempt him from an oath and there are those that say that it would not exempt him from an oath. ''The primary view is the first opinion and this is the appropriate way to rule. The same would apply where the plaintiff’s writings support the defendant and he would be exempt from an oath. There are those that say that the same applies where one swears and collects and if he has a witness that supports him he would collect without an oath. This that we said that a supporting solo witness exempts one from an oath is only where the defendant makes a claim that is believable without a migu. If, however, we only believed the defendant because of a migu that he could have made another claim, he must swear as if he made the other claim.''

Paragraph 7-  An oath that the court requires one who is required to take an oath to take is referred to as the “judges’ oath,” whether the litigant was obligated biblically or rabbinically. There are three forms of biblical oaths: one who partially confesses, one who completely denies and has a solo witness contradicting him and the guardian oath where the guardian claims that the item that was deposited with him was lost, stolen, died or something similar, in which case the guardian would swear on an uncertain claim, even though the owner of the item does not know if the guardian’s claim is true or not.

Paragraph 8-  Any oath other than the aforementioned three are rabbinical oaths but are still referred to as “judges’ oaths.” With respect to rabbinical oaths, there are two categories of oaths: (i) those that come via a certain claim and a denial, such as the oath of a worker or one who impairs his document or something similar, and (ii) those that come via an uncertain claim, such as the claim of partners, sharecroppers or something similar. There is another form oath that was instituted by the later generation of the Talmudic Rabbis that is called a heses oath. Although the court would make one swear the heses oath, it is not called a “judges’ oath.” Paragraph 9-  The following  are the differences between a biblical oath and a rabbinical oath. If one is required to take a biblical oath and does not want to swear, the court would go down into his properties and give the plaintiff that which he claims. One who is required a rabbinical oath and does not want to swear and he is one of those who would swear and be exempt, such as one who is swearing on an uncertain claim or a heses oath, we would place a nidui for 30 days. If he does not come to make a claim on his nidui, the court would give him mardus lashes, void the nidui and would not go down to his properties. One is permitted to call such a person a sinner because he violated the words of the Rabbis.

Paragraph 10-  There are those that say that if one is required to take a rabbinical oath and he prematurely takes possession of the item and does not want to swear, we would not remove the item from him.

Paragraph 11-  There is another distinction between them. With respect to a biblical oath, if the required party reverses the oath to his adversary and says swear and collect, we would not listen to him if his adversary does not want to swear. Similarly, those that swear and collect cannot reverse their oaths to their adversaries without consent of the defendant, even if it is a rabbinical oath. Similarly, partner-oaths and other similar oaths on uncertain claims cannot be reversed because the adversary is making an uncertain claim. There are those that say, however, that if the party says swear to me that you are suspicious of me on this, he has the right. The plaintiff can, however, say that he only wants a heses oath from the defendant and not a partner-oath to avoid having the oath reversed, in the manner that will be explained in seif 12. If, however, it is a case of swearing to be exempt, which is a heses oath, the defendant can reverse the oath to his adversary. Thus, an oath can only be reversed if it is a heses oath. Even a heses oath can only be reversed where the defendant does not have a secondary oath on the heses oath. If, however, he has a secondary oath, the heses oath cannot be reversed.

Paragraph 12-  Although those that swear and collect cannot reverse an oath to their adversaries without the consent of the defendant, if the plaintiff says I do not want this regulation that the Rabbis instituted for me and I should be like any other plaintiff and the defendant should swear a heses oath to me, we would listen to him. If the defendant goes ahead and reverse the oath back on the plaintiff, we would listen to the defendant. If the plaintiff does not want to swear, the defendant will be exempt.

Paragraph 13-  There is another distinction between a biblical oath and rabbinical oath. With respect to a biblical oath, if the defendant is suspect with regards to the oath, his adversary would swear and collect. With respect to a rabbinical oath, if the defendant was suspect, he would be exempt without taking an oath as will be explained in Siman 92. If the plaintiff wants, however, he can place a general cherem. There is also another distinction between a biblical oath and rabbinical oath. A biblical oath requires the grasping of a holy item and the same would apply to a rabbinical oath with the exception of a heses oath which does not require the grasping of a holy item. If a party took an oath that requires the grasping of a holy item without grasping the holy item or if the court ruled he should take a heses oath while grasping a holy item and the party does not want to swear and pays instead, it is considered to be an error on a mishnaic matter and the ruling would be reversed.

Paragraph 14-  If a defendant completely denies the claim and takes a heses oath and the plaintiff then brings a solo witness, the defendant would swear a biblical oath while grasping a holy item. ''The same would apply if the party swore a biblical oath and it was then discovered that he was suspect, and his oath would be of no effect and he would pay. See later at the end of Siman 92.''

Paragraph 15-  The holy item must be a sefer torah. The party cannot say “I swear on this sefer torah.” Rather, he must hold the torah in his hand and say “I swear on hashem.” If he held tefillin, he would not have to take another oath. A scholar may grasp tefillin in his hand, even in the first instance. There are those that say that this is only true the first time he swears, but any time after that the scholar would be like anyone else and would require a sefer torah. ''There are those that say that “sefer torah” is not literal and the same would apply to any books with God’s names. There are those that say that the custom is to have a party take a judges’ oath with the torah in front of him and his hand on the torah, but he does not have to take the torah in his arm. This is in fact what we do when we make people swear for tax purposes. For other oaths, like a woman that swears regarding her kesubah, however, she would swear on another book.''

Paragraph 16- The party must swear with hashem’s name or with any of the kinuyim while standing. If the party took the oath while sitting, he would not have to take another oath. A scholar may even sit in the first instance, whether the oath was biblical or rabbinical and whether it was on a certain or uncertain claim. If two parties were quarreling over a case and they both swore that they would only make true claims and later one party was obligated to swear to his adversary, there are those that say that he would not be exempt by virtue of his first oath. ''There are those that say that if they originally swore while grasping a holy item and while complying with the laws of oaths, the party would not have to swear again. Rather, we would remind him of his original oath. See later in seif 34.''

Paragraph 17-  The following is the judges’ oath process. The party swearing grasps a sefer torah in his arm while standing and swears with God’s name or a kinui as an oath or as an alah either on his own or via the judges. How does one swear on his own? He says, “I hereby swear in the name of the God of Israel” or “I hereby swear by the one whose name is merciful” or “the one whose name is finding favor, that I do not owe this person anything.” Similarly, if the party said “he should be cursed to hashem the God of Israel” or “he should be cursed to the one whose name is mercy” or “the one whose name is finding favor, if this individual has anything in my possession.” How does one swear via the judges? “We place an oath on you in the name of the God of the Jews” or “by the one whose name is finding favor, that this person does not have anything in your possession” and the party responds “amen” or they judges say “so and so the son of so and so shall be cursed to hashem the God of the Jews” or “to the one whose name is finding favor, if so and so has money in his possession and does not confess” and the party responds “amen.” There are those that say that the judges’ oath must be in front of a minyan or on the day of entry, but I have not seen those with this custom.

Paragraph 18-  According to the Rambam, even a heses oath must be with God’s name or a kinui, whether it is an oath or alah. There is no difference between a judges’ oath and heses oath except the grasping of a holy item. The other Rabbis did not agree with the Rambam and they said a heses oath is not with God’s name or a kinui, but with a simple oath or curse.

Paragraph 19- There are those that say that in later generations they nullified the oath with God’s name because the punishment for such an oath is severe. They had the custom to swear with a curse.

Paragraph 20-  We make the party swear in whatever language he understands. The court would intimidate him prior to making him swear and would say to him, “you should know that the entire world trembled when God said not to take his name in vain. For all sins in the Torah it says ‘he will be cleansed’ whereas here it says ‘he shall not be cleansed.’ For all sins in the Torah, God collects from the sinner himself, whereas here he collects from the sinner and his family. Moreover, he causes God to collect from the ‘enemies’ of the Jews because all Jews are responsible for one another. For all sins in the Torah, punishment may be delayed two or three generations if the sinner has a merit, whereas here punishment is exacted immediately. Things that cannot be destroyed by fire and water can be destroyed by a false oath.” If he says I want to swear and his adversary, the plaintiff, is standing there, the judges would say to each other “please distance yourself from the tent of these wicked people.” The court would say that they are not making him swear on his own intention but on the judges’ and court’s intention. ''If there is a possibility of trickery, the judge should explicitly address any possibility of trickery in the party’s heart. Similarly, the judge has permission to make the party swear while grasping a holy item even in a situation where it is not required or to intimidate the party with other matters if the judge sees the need.''

Paragraph 21-  We only intimidate when it comes to a judges’ oath which is made via a certain claim and a denial, whether it is a biblical or rabbinical oath. With respect to an oath that one is obligated via an uncertain claim, whether it is a biblical or rabbinical oath, as well as a heses oath, however, no intimidation is necessary. Nevertheless, the judges must pressure the parties- perhaps one of them will retract before there has to be any oath.

Paragraph 22- Anyone who is obligated to swear should place a general cherem before he swears on anyone who makes a claim against him for something he is not obligated on in order to make him swear for naught, and the party making him swear should answer amen, whether the oath is biblical or rabbinical, and even if it is a heses oath.

Paragraph 23-  By law, every oath must be made in the presence of the party’s adversary ''or in front of the witness. If the plaintiff does not know the truth other than on the basis of the witness, the party does not have to swear in the presence of the plaintiff. If the party swore outside the presence of his adversary and the oath was done properly with the knowledge of the court, the party would be exempt, even if he did not swear in a public place and one could say the party would be embarrassed in front of his adversaries. Notwithstanding the foregoing, in the first instance, the plaintiff can tell the defendant to swear to him in the place where the incident occurred because the people there know about the matter or because it is a public place. If, however, the defendant is not going to that place right now, the plaintiff must wait until the defendant comes and the defendant must then swear and cannot say I will only swear in my city.''

Paragraph 24-  If one makes numerous claims against his adversary, we make the defendant swear just one oath on all the claims. If the defendant was required to take two oaths on two claims- one stringent oath and one lenient oath- we would have the defendant take the stringent oath and roll the other matters into that oath. ''If one makes a claim against his adversary that he owes him money and says that he has other claims against him which he does not want to claim now, we would tell the plaintiff that he should make all claims together. If the plaintiff does not want to and the defendant says he owes the plaintiff nothing, the defendant would swear and be exempt from all claims the plaintiff has against him to date.''

Paragraph 25-  If one makes a claim on his adversary that even had the defendant confessed to he would not owe the plaintiff any money, and the defendant denies the claims, we would not require the defendant to take a heses oath. How so? If the plaintiff says you told me you were going to give me a maneh and the defendant says this never happened, we would not have the defendant take a heses oath or place any cherem because even if the defendant confessed he would not owe the plaintiff anything. The same would apply if the defendant does not have with what to pay back and we would not have him swear on his denial. If the plaintiff says you cursed me or spread a false rumor about me and the defendant says this never occurred, we would not place a cherem on this. The same applies to anything similar. ''There are those that say that we would place a cherem on this because if the claim turns out to be true we would fine the defendant. If one makes a claim against his adversary that he stole from him or robbed him and the defendant denies it, the defendant would need to swear even though according to the plaintiff the defendant is disqualified from swearing. This is only where the primary claims is monetary. If, however, the primary claim is on the sin, we would not have him swear. If a woman claims that the defendant swore to give her prostitute-payment and he denies it, he would be obligated to swear.''

Paragraph 26-  If one makes a claim on his adversary for something which the defendant would only be required to pay a fine, the defendant would not take a heses oath, because if he confessed he would be exempt. If, however, the plaintiff claims he took the defendant to court on the fine and brought witnesses and the court found him liable to pay, and the defendant said this never occurred, the defendant would be required to take a heses oath. Paragraph 27-  If one is obligated to take an oath in court and leaves court and his adversary subsequently makes a claim against him that he should swear and he responds that he already swore and it is a scenario where the party would swear and be exempt, he is believed. ''He must, however, accept on himself a general cherem that he swore. Today, however, where we have the custom to swear in shul in front of the caretaker or witnesses, the party is not believed to say he swore until he bring a proof to his claim.''

Paragraph 28-  If one took a heses oath and subsequently partially confessed on his own volition and it was done in a repentance-fashion where the party regrets swearing falsely, the party would be exempt from the remainder. If he confessed in a way that was not in a repentance-fashion, he would not be disqualified from swearing by virtue of his own words.

Paragraph 29-  If the defendant denied the entire claim and a solo witness contradicts him and the defendant swore to refute the witness and the plaintiff then brings another witness, the second witness will combine with the first witness and the defendant will pay the plaintiff even though he swore on the matter. The defendant will also become suspect by virtue of the two witnesses.

Paragraph 30-  Even if the defendant swore and was found exempt in court, if the plaintiff subsequently takes possession of something from the defendant without witnesses and claims he is taking possession on the item that the defendant swore on because the defendant did not swear truthfully, the party that took possession is in the right and would be believed with a migu that he did not take possession of anything from the other party. The party that took possession would take a heses oath and be exempt. It goes without saying that if the plaintiff brought witnesses after the defendant had taken a rabbinical or biblical oath we would take the item from the defendant and give it to the plaintiff and the defendant would become suspect on the basis of the witnesses’ testimony.

Paragraph 31- If the plaintiff claims that the defendant has a debt of his via a kinyan or document that was misplaced and the defendant says he paid it back or he does not owe anything and he swears and witnesses on the kinyan subsequently come or the plaintiff produces the document and it is verified, the defendant would pay once the lender swears. The defendant would not become suspect because the witnesses did not testify that he did not pay back and the defendant did not claim the incident never occurred. If there was a believability clause in the document or kinyan, the plaintiff would collect without an oath.

Paragraph 32- If Reuven produced a court ruling against Shimon’s inheritors stating that their father was found obligated in court to swear and Reuven says that Shimon did not yet swear, they would place a cherem in the presence of the inheritors on anyone who knows whether this money has been paid back to confess.

Paragraph 33- We do not require one to swear in a situation where we suspect that the truth will be made clear.

Paragraph 34- If one shakes hands with his adversary he does not become exempt from an oath. ''This is only where he is otherwise required to take an oath, such as where the defendant shook hands to pay the plaintiff what he owes and the defendant denies the loan. If, however, the plaintiff said the defendant shook hands to give the plaintiff a gift and the defendant denies it, the defendant would be exempt from the oath. Rather, the court would warn the defendant about the oath. The same would apply if the plaintiff says that the defendant took an oath to give him something and the defendant says the plaintiff waived the debt or it was given on such and such condition or that he shook hands on such and such condition, and the defendant would be believed with a migu that he could have denied. See above in seif 16.''

Paragraph 35- We do not have someone swear on a goodwill claim. Thus, if the plaintiff makes a claim to return the charity money he had deposited with the defendant so he can distribute it to poor people and the defendant responds that he already returned it, the defendant would be exempt without an oath because the plaintiff only has goodwill rights on the money.

Paragraph 36- If two or three plaintiffs have a claim against one defendant and the defendant swore to one of them, he would be exempt from the others.

Paragraph 37- We do not give over an oath to one who chases after oaths.

Paragraph 38- If it appears to the judges that the claims is fraudulent, they would not have the party swear. Similarly, if the claims seems to be deficient, the court would not have the party swear a heses oath in a case where there is no basis of a monetary claim.

Paragraph 39- There are those that say that if one mentions God’s name for naught, his adversary would swear and collect. If the plaintiff makes a matchmaking claim and the defendant says the plaintiff was not his matchmaker or some other claim between them, the law would be like any other monetary claim and the defendant would swear on it.