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The Propriety of Taking an Oath in Bet Din according to Halacha1
Introduction
The name of Hashem, as we would expect, must be used very carefully. Due to its great sanctity and holiness, there are rules and limitations as to when and how it may be used.
One might surmise that it should also be prohibited to take an oath using the name of Hashem. The Rambam (Sefer HaMitzvot, Lo Ta’aseh 62) indeed counts not swearing in vain using Hashem’s Name as one of the 613 Mitzvot. In addition, it is generally assumed, correctly, the only potentially appropriate place for a Shevua would be in Bet Din, religious court, when necessary to protect the interests of one of the litigants (see below). Otherwise, though, taking an oath should not be done.
However, despite these expectations, the Torah actually says quite explicitly (Devarim 10:20), BiShmo Tishavea, “You shall swear in His name.” Moreover, the Rambam (Mitzvot Asseh 7) somewhat surprisingly counts this as one of the positive Mitzvot. How is this Passuk to be understood, and what are the parameters of this directive?
Understanding the Mitzvah of Taking a Shevua
The Rishonim appear to dispute the definition of this Mitzva. The Rambam (ibid.) explains that this Mitzvah applies when one needs to officially confirm or deny a claim. In this case, says the Rambam, there is a Mitzvah to take an oath using the Shem Hashem. The Ramban there (Hasagot to Sefer HaMitzvot) appears to interpret the Rambam to mean that in this situation, it is an obligation to do so, and disagrees with this approach. He argues instead that this phrase is only intended to derive the negative – that swearing by other gods is forbidden – a concept referred to as “Lav HaBa Michlal Asseh”. Consequently, the implication is that one is permitted, not obligated, to swear by the name of Hashem when necessary, but one may not swear by other gods.
However, the language of Rambam himself in the Mishneh Torah (Hilchos Shevuos 11:1) seems to indicate that one should not push himself to swear, and it is not a Hiyuv – obligation. Rather, it is only if he is forced to by the Bet Din due to being in the situation where the Torah mandates it (discussed below), then he fulfills it if done it properly.2
Taking a Shevua to Fulfill a Mitzvah
There may be another situation where taking an oath would be relevant outside the confines of Bet Din. The Gemara (Nedarim 8b) says that it is permitted (though not necessarily obligated or specifically recommended) to encourage oneself to fulfill a certain Mitzvah by taking a Shevua to do so, a Halacha in accordance with which the Rambam (Shevu’ot 11:3) rules as well.
The Ramban (Hasagot cited above) in fact interprets the phrase “U’Vo Tidbak” – you shall cling to Him – which directly precedes the phrase of “BiShmo Tishavea” in the Passuk under discussion, to refer to this situation: attaching oneself and binding oneself to a Mitzvah by taking a Shevua.3 The Rambam, though (Mitzvat Asseh 6), interprets the Devekut here as performing acts that bring one emotionally closer to Hashem, such as serving Talmide Hachamim, marrying their daughters, doing business with them, and the like.
Taking a Shevua Nowadays
Although it is unclear when this Minhag began, the common practice today is that a Shevua is never administered, even by a Bet Din, in any situation, due to its severity and resulting punishment should it be performed improperly or falsely.4 Even in cases where the Torah or Hachamim command a defendant to swear to deny a claim and thereby exempt oneself, it is not performed anymore. If this is the case, how do we afford defendants the protection they would have received from the Shevua to deny a claim?
The practice today is that if there is a basis easily discerned for the claim against the defendant, we would execute a Peshara – a legal compromise.5 This compromise would dictate that the defendant must pay part of the money, usually either 1/3 or 2/3 of the total sum, depending on the perception of the Dayanim as to the likelihood of the truth of the claim.6
Shevua according to Torah Law and Rabbinic Law
According to the Torah, the only time a Shevua D’Orayta is required in court is when someone is defending himself against the claim of another. For example, a Shomer, legal guardian, may agree that he was given merchandise by another, but insists that he cannot return it because it was stolen. In this case, where there is a certain amount of truth to the claim of the one requesting the money, but there is a counterclaim why the money should not be returned, a Shevua D’Orayta would be administered. This type of Shevua is referred to as a Shevu’at HaNiftarin, an oath taken by one to exempt himself from liability.7
There are some cases where Hachamim instituted that a Shevua can be taken even to extract money from another, known as a Shevu’at HaNotlin, an oath for taking money. For example, Reuven claims he is owed by Shimon a debt of 100,000 dollars and has a Sh’tar, a legal document, to prove it. Shimon though claims that he has paid the debt already. In this case, the fact that Reuven possesses the document indicates that Shimon has not yet paid, as otherwise the document would have been torn up already upon payment of the debt. This is what is referred to as the claim of Sh’tarcha B’Yadi Ma’e Ba’e – “why is your document in my [Reuven’s] hands”. Therefore, Reuven may collect the money, but some Amora’im in the Gemara add that rabbinically, he can only collect the money with a Shevua that he has not yet collected the money.8
Even during the time when oaths were administered in Bet Din, these types of cases were generally the only times that it was done. The idea that exists in secular law of being under oath in court, and committing perjury if he is lying does not exist within the Halachic system.
The difference between a Shevua to Extract and a Shevua to Exempt
As we noted, though, in principle, the Torah does not allow for a Shevua to be effective except for the case of Niftarin, where he wishes to exempt himself from a claim. What is the reason for this distinction? The basis for this type of Shevua may be that we normally apply the rule of HaMotzi M’Havero Alav HaRe’aya, one who claims money from another must prove his claim. In these cases, the Shevua simply is taken as an additional support for applying this principle, and allowing the one wishing to exempt himself to strengthen his claim. However, taking a Shevua is not considered a proof or evidence that he is owed the money, and would therefore not be taken to extract money.
Rav Hirsch (in his commentary on Parshat Mishpatim) suggests a deeper explanation for this issue. He notes that the word Shevua is related to the word “Sheva”, the number seven. The city Be’er Sheva is where Avraham and Avimelech signed their agreement under oath to each other. This is because seven represents nature operating under the orchestration of Hashem’s guiding hand. During the six days of creation, Hashem established the natural order so that the rain would fall, the sun would shine, and the animals would roam, which all appear to be natural activities. However, the seventh day of the week, Shabbat, and Hashem’s resting on that day, shows us that all of these seemingly natural phenomena come from Him, are not really natural at all.
When one takes a Shevua while holding a Sefer Torah, which is the required Halacha (see Rambam, Hilchot Shevu’ot ch. 11), he is testifying that all of his possessions belong to him only due to Hashem. Likewise, everything we gain during the six weekdays during our labor is in reality due to Hashem, which we mark by celebrating the seventh day of the week as Shabbat. Thus, the Shevua binds the symbolism of seven, the existence of Hashem, to his physical existence.
The reason why this can only be performed in a case of Niftarin, to exempt oneself from a claim, and not Notlin, to extract money from another, is that one can only testify that Hashem has given Him everything he has with regard to his own possessions, not what belongs to another. He cannot testify that the other’s possessions come from Hashem, as he has not experienced that in his life.
Sources:
1 Based on a Shiur by Dayan Yosef Greenwald
2 There is a well-known episode involving the Ga’on of Vilna where he was locked up by Russian authorities in Vilna for a time. At one point during this period, a girl had been kidnapped from the jail, and authorities suspected the Ga’on of Vilna was involved. Therefore, they forced him to take a Shevua using the name of Hashem. Rav Haim of Volozhin suggested that the reason this occurred was that the Ga’on of Vilna exerted himself to the utmost to fulfill every one of the 613 Mitzvot he possibly could, but he would never take a Shevua, due to the considerations discussed in the text. Therefore, suggested Rav Haim, Hashem facilitated events in such a manner that he would have the opportunity to fulfill this Mitzvah as well.
3 As mentioned, he does not interpret this as an obligation to do so, but as the Torah giving permission to do so in this context.
4 See Aruch HaShulhan (H.M. 92:15)
5 This is different from the times of the Gemara, where such a Shevua would be administered even if the basis for the claim was not readily evident, such as where a random person demands money from another, and the defendant claims he doesn’t even know the person. This is known as a Shevu’at Hesset.
6 For more on this, see an article written on the subject by Rav Shlomo Levi in Tehumin Vol. 12.
7 There are a number of other similar cases where there appears to be truth to each claim that a Shevua D’Orayta would be taken, such as Modde B’Miktzat, where the defendant agrees that he owes half the money demanded, but not the whole sum, or a case of Ed Ehad, where the defendant claims he owes nothing, but there is one witness against him claiming he does owe it (normally two witnesses are required to establish liability). See Rambam, Hilchot Shevu’ot 11:5 for a synopsis of these cases.
8 See the 6th chapter of Masechet Shevu’ot where these principles are discussed in more detail.