💾 Archived View for scholasticdiversity.us.to › scriptures › jewish › t › Mishneh%20Torah%2C%20Oaths… captured on 2024-03-21 at 15:45:07. Gemini links have been rewritten to link to archived content
-=-=-=-=-=-=-
11 [1] Just as there is a negative commandment forbidding an oath taken in vain and a false oath, so, too, there is a positive commandment for a person who is obligated to take an oath in court to take that oath in God's name, as [Deuteronomy 6:13] states: "And you shall take an oath in His name." This is a positive commandment. For taking an oath in His great and holy name is one of the paths of His service. It is a great measure of glorification and sanctification to take an oath in God's name. [2] It is forbidden to take an oath on any other matter together with God's name. Whoever combines another matter with the name of the Holy One, blessed be He, in an oath will be uprooted from this world. For there is no one who is fit to give honor by taking an oath in his name except the [Absolute] One, blessed be He. [3] It is permitted for a person to take an oath to fulfill a mitzvah in order to encourage himself [toward its performance]. Although he is under oath [to observe] it from Mount Sinai [onward], [he may take an oath, as implied by Psalms 119:106]: "I took an oath and I will uphold it - to observe Your righteous judgments." [4] The oath which the judges administer to individuals who are obligated to take an oath is called: "The oath of the judges." [This applies whether the person] is liable for an oath according to Scriptural Law or according to Rabbinic Law. [5] There are three types of oaths for which one is obligated according to Scriptural Law:
a) A claim involving movable property was lodged against a person by a colleague. He admitted liability for a portion and denied liability for a portion.
b) [The defendant] denied liability for all the movable property, but one witness testifies against him, contradicting his statements.
These two oaths come in response to a definite claim and a denial.
c) When a watchman claims that the article entrusted to him was lost, stolen, died, or the like, he is required to take an oath, because of the doubt, for the owner of the entrusted article does not know if the watchman is making a true claim or not. This oath is of Scriptural origin, as [Exodus 22:10] states: "The oath of God will be between them." [6] All oaths which the judges require aside from these three are of Rabbinic origin. They are also called "the oath of the judges." Within these oaths of Rabbinic origin, there are also two categories:
a) Oaths administered because of a definite claim and denial: e.g., the oath [taken by] a hired worker, [the oath taken by] one who impugns his promissory note, and the like.
b) Oaths taken when [the plaintiff] has a claim of a doubtful nature, e.g., the oaths taken by partners, sharecroppers, and the like.
In the laws of financial matters, the obligation of all these types of oaths and the associated laws will be explained. [7] There is also another oath which was ordained by the Sages of the Talmud. It is called a *sh'vuat heset*. Although it is administered by the court in the present era, it is not referred to by the term "the oath of the judges." [8] An oath of the judges, whether of Scriptural or Rabbinic origin, whether stemming from a definite or an indefinite claim is [administered in] the following [manner]: The person taking the oath holds a Torah scroll in his arm. He must stand and take the oath or recite a curse using God's name or one of the terms used to describe Him. [Either] he pronounces the oath himself or it is pronounced by the judges. My masters ruled that an oath of the judges is administered only in *Lashon HaKodesh*. [9] What is meant by an oath pronounced by [the defendant] himself? For example, he says: "I am taking an oath by God, the Lord of Israel...", "...by He whose name is graciousness...", "...by He whose name is mercy that I am not liable to this person at all." Similarly, if he says: "May one be cursed to God..." or "...cursed to He whose name is graciousness if I owe anything to that person." [10] What is meant by an oath pronounced by the judges? For example, they tell him: We are administering an oath to you by God, the Lord of Israel...", "...by He whose name is graciousness that you are not liable to this person at all" and [the defendant] answers *Amen*. Or they say: "May so-and-so be cursed to God..." or "...cursed to He whose name is graciousness if he owes money to that person and does not acknowledge the debt" and [the defendant] answers *Amen*. This is the oath of the judges. [11] When the judges administer an oath without the defendant holding a [sacred] article in his hand, they have made an error. He must take the oath again while holding a Torah scroll in his hand. If he was holding *tefillin* when they administered the oath to him, he is not required to take the oath again. For he held [an article equivalent to] the Torah in his hand, for they are like a scroll. If they administered the oath while [the defendant] was sitting, he does not have to take the oath again. [12] At the outset, an oath should be administered to a Torah scholar while seated and while holding *tefillin*. He need not hold a Torah scroll. Holding *tefillin* in his hand [fulfills the requirement of] a sacred article. He takes an oath in *Lashon HaKodesh*, as we explained. [13] There is no difference between a *sh'vuat heset* and an oath of the judges except that [the latter] must be taken [while] holding a sacred article and a person who takes a *sh'vuat heset* does not hold a Torah scroll. Instead, an oath is administered to him by God's name or using one of the terms used to describe Him, either an oath or a curse which he utters or which the court states, as is the practice with regard to the oath of the judges. It has already become the universal custom for the synagogue attendant or another person to hold a Torah scroll while a *sh'vuat heset* is being administered to cast fear [into the heart of the defendant]. [14] The judges administer the oath to the person taking it in any language that he understands. The *Geonim* ruled in this manner. My masters, however, ruled that an oath should be administered only in *Lashon HaKodesh*. This ruling should not be relied upon.
Although it has become customary to administer oaths in *Lashon HaKodesh*, the person taking the oath should be familiarized with the matter until he understands the wording of the oath. [The rationale is that] the oath of the judges is a *sh'vuat hapikadon* itself. People have even adopted the custom of administering a *sh'vuat heset* in *Lashon HaKodesh*. [15] Everyone who is obligated to take an oath of the judges that comes about because of a definite claim and denial, whether it is of Scriptural or Rabbinic origin, is subjected to an admonition, as will be explained. Everyone who is obligated to take an oath, whether of Scriptural or Rabbinic origin, because of a doubtful claim need not be subjected to an admonition. [16] How is an admonition administered to the person taking the oath? We tell him: Know that the entire world trembled at the time the Holy One, blessed be He, told Moses [Exodus 20:7]: "Do not take the name of God, your Lord, in vain." For with regard to all the transgressions in the Torah, as [Exodus 20:7] states: "[God] will not cleanse one who takes His name in vain."
With regard to all the transgressions in the Torah, retribution is exacted from him [alone], but with regard to [a false oath], retribution is exacted from him and from his family who conceal the matter for him. Moreover, this causes retribution to be exacted from "the enemies of the Jews," for the entire Jewish people are responsible for each other, for [Hoshea 4:2-3] states: "Swearing, denying, murdering.... Therefore the land will mourn and all who inhabit it will be forlorn."
With regard to all the transgressions in the Torah, [retribution] is suspended for two or three generations if he possesses merit, but with regard to [a false oath], retribution is exacted immediately, as [Zechariah 5:4] states: "'I have let loose [the curse],' declares God, the Lord of Hosts, 'It will come into the house of the thief and the house of he who took an oath in My name falsely.'"
"I have let loose" implies immediately. "It will come into the house of the thief" - this refers to deceiving people, i.e. one who does not have money owed to him by a colleague and yet lodges a claim against him to require him to take an oath. "He who took an oath in My name falsely" - this should be interpreted literally. [The verse continues:] "It shall destroy it, its wood, and its stones." Entities that cannot be destroyed by fire and water will be destroyed by a false oath. [17] The concept [conveyed] by this admonition is told [to the person taking the oath] entirely in a language that they understand, so that they will understand the matter and the sinner will repent and correct [his conduct].
If he says: "I am not taking the oath," he is released, but he must pay what his colleague demands. Similarly, if the plaintiff says: "I will not subject him to an oath and I release him," they may depart. [18] If [the defendant] says: "I will take the oath," and [the plaintiff] persists in the claim, the people there say to each other: "Turn away from the tents of these wicked men."
[The court] tells [the defendant]: "We are not administering the oath to you according to your understanding, but according to our understanding and the understanding of the court." [19] Although this admonition is not administered for an oath taken because of a claim involving a doubt or a *sh'vuat heset*, the judges should implore the litigants exceedingly [before administering these oaths] perhaps they will retract and so there will be no oaths taken at all. [20] It is a clear and obvious fact that anyone who takes an oath of the judges or a *sh'vuat heset* falsely, is liable for taking a [false] *sh'vuat hapikadon*, the details of which have already been explained. Even though he willfully [took the false oath], he does not receive lashes. [Instead,] he is obligated to pay what he owes plus an additional fifth. [The fifth] is one fourth of the principal, so that the principal and the fifth are equal to five. And he must bring a guilt offering if the oath was taken in court, as we explained.
Version: Mishneh Torah, trans. by Eliyahu Touger. Jerusalem, Moznaim Pub. c1986-c2007
Source: https://www.nli.org.il/he/books/NNL_ALEPH001020101/NLI
License: CC-BY-NC