Parshas Naso

Parshas Naso:
 
Oaths: Rolling and Shaking in the Jewish Courts

 

By: Rabbi Yehonoson Dovid Hool

 
 


 

OATHS: ROLLING AND SHAKING

IN THE JEWISH COURTS
 

   

Beis Din serves the function of arbitrating monetary disputes between Jewish litigants according to Halachah. More often than not, there is no contradiction between the parties as to the circumstances of the case; rather the dispute is halachic in nature with each side bringing legal arguments to validate his claim. In other words the dispute is about who is right and who is wrong, and not about what happened. Occasionally, however, the two parties do make contradictory claims as to the facts of the case, and then it is the task of Beis Din to ascertain what really occurred, and to rule accordingly. Witnesses, documentation and other evidence all have their place in Halachah, but one of the most interesting tools by which to discover the truth that is at Beis Din’s disposal is the shvu’ah – the oath.



Related Audio Shiurim

Bava Metzia, Daf 98:
Oaths in Today’s Bais Din
Rav Dovid Grossman

Rosh Bais HaVaad

Bava Basra, Daf 34:
Of Vows & Bounced Checks
Rav Shlomo Cohen

Dayan Bais Din Ahavat Sholom, Yerushalayim


Sponsor an Issue of the PARSHA PERSPECTIVES



Primarily there are three Torah-mandated oaths that a litigant in Beis Din can find himself obliged to swear:
Modeh Bemiktzas (Partial Agreement): A defendant who admits to part of a claim but denies the rest must swear to that effect or else pay the full claim.
Eid Echad (One Witness): Beis Din does not accept as true a single witness’s testimony corroborating the claimant’s version of the events, but the testimony does provide enough grounds to require the defendant to swear an oath refuting the witness’s statements.
Shomrim (Guardians): A guardian of another’s property (including renters and borrowers) must swear an oath as to what happened to the object that was entrusted to him if he claims that it was destroyed due to circumstances for which he bears no responsibility.

 
In addition to these three shvu’os (oaths) that are mandated by the Torah, there are additional shvu’os that were instituted by the Sages for certain situations in which there is circumstantial evidence that may back-up a claim against a defendant.
 
In this week’s Parsha (Bamidbar 5:22) we find the concept of gilgul shvu’ah – the “rolling oath.” The Sotah - a wife who is suspected of being unfaithful – must respond to the oath administered by the kohen (priest) with the affirmation, “Amen, Amen.” Why does she have to say Amen twice? Rashi explains that the Torah is telling us that not only must the Sotah swear that she was not unfaithful on the occasion in question (the first Amen), but she must also swear another oath (the second Amen) stating that she was not unfaithful on any other occasion even though there is no real evidence to support that accusation.
 
Our Sages understood that this right of the claimant to make the defendant ‘roll’ (migalgal) from one shvu’ah to another is not restricted to the case of the Sotah. Any time a defendant in Beis Din is obliged to take an oath, the claimant can add a gilgul shvu’ah. He can insist that the defendant respond with an oath of denial to other reasonable claims that he has against the defendant (even though on their own these latter claims would not require an oath of denial on the part of the defendant).

 

As can be imagined, this right of the claimant to migalgal a shvu’ah has important practical ramifications. Let’s briefly discuss a 1967 case that appeared before the Beis Din in Haifa (headed by R’ Yaakov Rosenthal, zt’l, who passed away just a few weeks ago). There was a father who had three children. One of the children managed the father’s estate while the father was still alive, and he continued to manage the estate on behalf of his brothers after the father died. At a certain point, his two brothers demanded from their brother/manager a full accounting of expenses incurred by the estate. The accounts that they subsequently received contained discrepancies that raised suspicions. The two brothers then demanded that the third brother, the manager, swear a guardian’s oath that he had not misappropriated any funds. At that point, the brother/manager presented a document signed by his father stating his full confidence in his son’s trustworthiness, and absolving him from any requirement to provide accounts for his management. Case closed, wouldn’t you think?
 
The Beis Din ruled that this document was only valid with regard to management of the estate during the father’s lifetime. However, once he died, his children inherited him and the estate then belonged to all three brothers. The brother who managed the estate never received a waiver from his two brothers similar to the earlier one that he had received from his father. Therefore, the Beis Din required the administrating brother to swear an oath that his activities managing the estate after the father’s death were proper. And this is where our “rolling oath” comes in.
 
In this case, although the administrator had a waiver that absolved him from swearing an oath about his activities before his father died, he nonetheless had an obligation to swear to his brothers about the management that was performed after the death of their father. Then, by virtue of the halachah of gilgul shvu’ah, he became obligated to take further oaths regarding all of the additional reasonable claims that his brothers’ had made, which in this case included the period before the father died.
 
An important point should be noted about the place of the shvu’ah in the modern-day Beis Din. Due to the severity of the sin of swearing falsely, today’s batei dinim do not usually force a litigant to actually make an oath. The Talmud tells us that when the Ten Commandments were given at Mt. Sinai, only the third commandment not to take Hashem’s Name in vain (which refers specifically to swearing a false oath) caused the entire world to tremble in awe. Chazal tell us that if a person swears falsely to a shvu’ah, then even the opposing litigant who had demanded the shvu’ah is held accountable because Hashem’s Name was taken in vain on his account! So fearsome is this prohibition that one should completely avoid all oaths, even when attesting to what one knows to be the truth.
 
As such, during the last hundred years or so it has become customary for Beis Din to refrain from imposing any oaths. Rather, in circumstances which would have otherwise warranted an oath from a defendant, Beis Din will usually rule that in lieu of the oath the defendant must pay a percentage of the claim as a compromise. Of course, the amount of this compromise payment will depend on the merits of the case and the justifications for the plaintiff’s claim, but as a general rule a defendant’s obligation to take a shvu’ah translates into an obligation to pay a third of the claim against him. 
 
Only a little while ago on the chag (holiday) of Shavuos, we once again accepted the Torah anew. We heard the Asares haDibros (the Ten Commandments) in shul. Some of us may have even tried to imagine ourselves listening to them at Kabbalas haTorah on Har Sinai. Did we shake at the awesome third commandment not to take Hashem’s Name in vain as the world did over three and a half millennia ago? As we have seen, Beis Din will go to great lengths to avoid the possibility of Hashem’s Name being used to serve falsehood – a timely reminder of the fear and awe that the Name of Hashem should arouse in all of us.

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