Siman 87

There are five types of oaths: Oaths of the Torah and oaths instituted by the sages of the Mishnah—and these two types of oaths are called "oaths of the judges"—and the shevuat hesset instituted by the sages of the Gemara for one who denies everything, and the oath instituted by the Geonim for a borrower who says he has nothing with which to pay, and gilgul shevua, which is also from the Torah. Oaths of the Torah apply to three matters: in a monetary matter, the oath of one who admits to a part (modeh be-miktzat), and an oath to contradict a witness, and the oaths of guardians. There is a distinction between them: for modeh be-miktzat, one is only liable when the claimant asserts a certain claim (bari), while an oath to contradict a witness applies even when the claimant asserts a doubtful claim (shema) and sues him only based on the witness, as written in siman 75. The oaths of guardians also apply to a doubtful claim and there is no certain claim at all. All oaths of the Torah are to exempt oneself. Among the oaths of the Mishnah, some are to swear and be exempt, and some are where one swears and takes. Similarly, some apply specifically to certain claims, and some where one is liable even for a doubtful claim. These are those who swear and take and their claim is certain: one who impairs his document, which was explained in siman 84; and one who claims regarding a document that it is paid or was made on condition and demands an oath, as explained in siman 82, for this oath is as severe as an oath of the Mishnah as written there; and one who reduces his document when the other claims "swear to me" in siman 84; and the oath of the heirs of a lender when the borrower claims the document is paid, as explained in siman 82; and where one witness testifies that the document is paid in siman 84; and a laborer where the employer says "I gave you your wages," which will be explained in siman 89; and one who was robbed or injured in siman 90; and a shopkeeper regarding his ledger in siman 91; and one suspected regarding an oath, where the opposing party swears and takes in siman 92. All these swear and take, and the oaths are based on certain claims, and all of them are severe oaths. And these are those who swear on doubtful claims and swear and are exempt: partners, sharecroppers, guardians (apotropin), a member of the household, and a woman who conducts business within the house, which will be explained in siman 93; and they are also severe oaths with the holding of a sacred object. There are those who swear and take on doubtful claims when collecting from orphans, from purchasers, or not in the presence of the defendant, which will be explained in siman 108 and 106. All these oaths that pertain to the marriage contracts of women also follow these laws, as written in Even HaEzer siman 96. And shevuat hesset, which the sages of the Gemara instituted for one who denies everything: so too, all claims in monetary matters where the claimant asserts a certain claim and the defendant denies, he swears hesset and is exempt. Similarly, matters for which one does not swear by the Torah, such as lands, slaves, and documents, which will be explained in siman 95, one swears hesset on them and is exempt. "Hesset" is a term for an assessment (shuma) that the sages placed upon him as an oath, as in "If the Lord has incited (hesitakha) you against me" [Rashi, Shevuot 40b]. Every shevuat hesset is to exempt oneself and when the claimant asserts a certain claim. And the oath instituted by the Geonim when a borrower claims he has nothing with which to pay is a severe oath like that of the Torah, and it will be explained in siman 99. Gilgul shevua is such that if the oath itself is from the Torah, the gilgul is also from the Torah, and if it is rabbinic, it is also rabbinic, as written in siman 94. The reasons for all the oaths, why the sages of blessed memory instituted them, will each be explained in its place with the help of Heaven. Sometimes a beit din has the power to administer an oath even on a doubtful claim when it appears to them that through this the matter will be clarified, and similarly to administer an oath to witnesses if they see that false testimony is treated lightly by people, as written in siman 28. There are other types of oaths in the Torah, but their essence is not monetary, such as the oath of a sotah, an oath of utterance, an oath of testimony, and an oath of deposit. Even though an oath of deposit is monetary, nevertheless it is not mandatory; rather, he swears of his own accord, and when he swears falsely and confesses, he is liable for the principal, a fifth, and a guilt offering. They were explained in the Rambam, Laws of Oaths. [And a Gaon explained "hesset" as a term for heaviness].

One who claims money or an object from his fellow: if the defendant is unable to retain possession of them—for example, if there are witnesses that he said to him at the time of the loan, "Do not repay me except in the presence of witnesses," or if there is a shtar with witnesses, and similarly if he deposited the object with him in the presence of witnesses and witnesses now see the object in his possession—there is no shavuah here, for we obligate the defendant to return the money or the object; only regarding a shtar is the borrower able to administer a shavuah to the lender, as I wrote in siman 82. But if the defendant is able to retain possession of the money or the object—for example, if the loan was oral and he did not say to him, "Do not repay me except in the presence of witnesses," or a shtar in the borrower's own handwriting, for he is believed to say "I repaid," as I wrote in siman 69; and similarly regarding an object when he deposited it not in the presence of witnesses, for he is believed to say "it is purchased in my hand," or if he deposited it in the presence of witnesses but they do not see it now in his possession, for he is believed to say "I returned it to you"—in this case a shavuah is applicable. And if he admits to a part, he is obligated in a shavuah de-oraita. And similarly, if he denies everything and one witness contradicts him, he is obligated to swear a shavuah de-oraita to contradict the witness, even if it is not known to the claimant except by the word of the witness, as I wrote in siman 75. But if he denied everything and there is no witness contradicting him, he is exempt from a shavuah of the Torah, whether regarding a loan or a deposit, and he is obligated in a shavuah hesset. There is no difference between when he says that he repaid him, or that he says the claimant owes him a corresponding amount, or that he says "these things never occurred" (lo hayu devarim me-olam); regarding everything he must swear a hesset, provided that he claims against him with a certain claim (te'anat bari). The reason why the sages instituted hesset was explained there in section 4. And there it was explained regarding the shavuah of one who admits to a part that it is a decree of the Torah. And regarding money, when two witnesses testify about the part, he is also obligated in a shavuah de-oraita. And regarding objects, when they saw a part in his possession from his deposit that he is claiming, he is established as a liar and pays, as is explained there. And if one witness testifies about the part, he swears a shavuah de-oraita on the part, and by means of gilgul he shall swear on the rest [so it appears to me].

Even when he admits to a part, if he said to him, "Here it is [Heilach] regarding the part that I admit," he is only liable for an oath of Hesit. It is not called Heilach unless the part that he admits to him is prepared in his hand before the beit din to give to him immediately, and regarding the remainder, he is like one who denies everything. But if he said, "Behold, it is in my house and I will give it to you," it is not called Heilach since it is not prepared in his hand in beit din. And even if he gives him a mashkon for what he admitted to him, it is not called Heilach since the mashkon will not remain in his hand. And even if he gave him permission to sell it, nevertheless, since it still requires an assessment by beit din, it is not called Heilach. Therefore, if he gave him permission to sell it without an assessment by beit din and he will receive the debt he admitted from this object, it is Heilach and he is exempt from an oath of the Torah [Shach], for this is like one who paid him with the equivalent of money. And some say that a mashkon is considered Heilach, since he is secure in what he admitted to him, it is as if it were collected. And the primary view is like the first opinion [ibid.]. And even if he lent to him upon a mashkon, it is not considered like Heilach. But if he took a mashkon from him not at the time of his loan by the authority of beit din, it is like Heilach since he acquires the mashkon according to the Torah [ibid.].

That which we said, that anything which is not prepared in his hand before the beit din to give immediately is not considered "heilech," this is specifically regarding a loan, but not regarding a deposit. For when he says, "I admit to you a portion of it and it is placed in my house," even though it is not currently in his hand, it is considered "heilech," because in any place where the object is placed, it is in the domain of the claimant. And a document is also considered like "heilech" if he has land, as written in siman 75, section 8; see there. And even regarding a loan where we said that it is not called "heilech" if it is not prepared in his hand, it appears to me that if he says, "Wait a little and I will go to my house and bring it before you, and why should I swear a biblical oath? Behold, it is in my power to delay my oath a little and in the meantime I will bring them," his claim is a valid claim. [And Rashi, of blessed memory, in Bava Metzia 4a, s.v. "and heilech": I did not spend them and they are yours in whatever place they are, thus far his words, disagrees with all the poskim. And perhaps his intention is like our words, and he means to say: they are yours and I will bring them. And in the Hagahot Asheri there it is written that it must specifically be those same coins that he gave him, and without this it is not "heilech"; see there. And it is a wonder what reasoning this is, and I have not found a companion for him. And what is more a wonder is that he wrote that all this is from the commentary of Rashi. And it is possible that he means to say that Rashi holds that when those same coins themselves are in existence, he does not need to bring them to the beit din, but other coins are not called "heilech" unless he brought them to the beit din; and it requires further study.]

If he claimed two vessels from him and he admitted to one of them and said to him, "Heilech," and the claimant argued that he used this one that he admits to and its value decreased, and the defendant admits to him or the matter is known that its value decreased, this is not "Heilech," for this which decreased is lacking. And if he returns to him immediately in beit din the money that it decreased, it is "Heilech." And similarly, when he said to him, "I have a maneh and a vessel in your hand," and he said to him, "You have nothing in my hand except the vessel, and Heilech," and the claimant said, "This is not my vessel," if the defendant admitted that this is not his vessel, that it was lost and he gave him this vessel as a mashkon, he must swear a shevuat de'oraita as I wrote in section 3, for a mashkon is not "Heilech." And according to that opinion explained there that a mashkon is "Heilech," if it is worth as much as his vessel, it is "Heilech." And if he permanently transfers the vessel to him, according to everyone it is "Heilech." And similarly, if the defendant denies it and says that this is his vessel and it has not decreased from how it was, behold, he swears a shevuat hesset and includes in his oath that it is his vessel. And even if the claimant screams that this is not his vessel and it is not worth as much as his vessel, and if so this is not "Heilech," nevertheless, since according to the words of the defendant it is "Heilech," he does not have the power to obligate him in a shevuat de'oraita.

If it appears to the judge that the defendant is being evasive by saying "here it is for you" in order to be exempt from a Torah oath, he obligates him to swear a Torah oath. And if the judge has a doubt whether he is obligated in a Torah oath or a hesset oath—whether the doubt is due to the matter itself or whether the doubt is due to a dispute among the poskim—any doubt regarding an oath is ruled leniently, for one who is obligated in an oath can say "I stand by the opinion of the one who exempts me" [Shach]. And the same applies if the doubt is regarding a hesset oath, whether he is obligated to swear or not, for he does not swear from a doubt. Furthermore, just as in a doubt regarding money we follow the leniency for the defendant and do not extract money from a doubt, so too in a doubt regarding an oath we do not administer an oath from a doubt, except when it appears to the beit din that through the oath the matter will be clarified, for then they have the ability to administer the oath to him, as I wrote in section 1.

Regarding that which the Torah obligated an oath for one who admits to a part, some say that this is specifically only when he himself admitted that he owes the claimant a part of the claim. However, when he did not admit himself, but rather through his claims in beit din he became liable for a part, this is not "admitting to a part" for which the Torah obligated an oath. For example, if he claimed a maneh from him and he says, "I did not borrow," and witnesses testify that he borrowed fifty and they do not know if he repaid them or not—for if they knew that he did not repay, he would swear a biblical oath as I wrote in section 1 and in siman 75—but when they do not know if he repaid or not, he is not liable because of their testimony, but rather because he claimed "I did not borrow" and was established as a liar based on them, and became liable through his claim. There is no law of admitting to a part in this, even though he must pay the fifty because "anyone who says 'I did not borrow' is like one who says 'I did not repay,'" as I wrote there. And similarly, when he becomes liable for a part through the claim of denial itself, such as when he claims "I owe you nothing because this was so and this was so" and he erred, for even according to his own calculation he is liable for a part, and the beit din obligated him for the part that according to his calculation reaches the claimant, he is exempt from a Torah oath and swears a hesset oath on the remainder. And similarly, if one claims from his fellow one hundred gold pieces—fifty for what he borrowed from him and fifty for the value of his injury—and he swears that he injured him, and since he swears he takes the value of his injury as I wrote in siman 90 [16], this is not admitting to a part. And similarly, when he claimed one hundred from him and he answers him regarding fifty, "I do not know if I repaid you," and "fifty does not reach you at all," for the law is that he must pay fifty according to the law of "I do not know if I repaid you" as I wrote there, this is not admitting to a part to become liable for a biblical oath on the second fifty, for behold, he did not admit to a part of it, but rather became liable according to the law [it appears to me according to this opinion]. And there are those who disagree with all of this, since in any case, based on witnesses or based on his own claim, a part of the claim reaches the claimant by Torah law, he is liable for a biblical oath; let his verbal admission not be greater than a liability based on the beit din [Shach, subsection 13]. However, if the beit din obligated him for a part because he is not believed in his claim according to the law, this is not admitting to a part, for behold, according to his words he is not liable at all, but rather we do not believe him. And similarly when he becomes liable based on one witness. And according to this opinion we wrote in siman 75, section 10; see there.

It has already been explained in siman 75, section 5, that a supporting witness exempts from an oath, whether from a modeh be-miktzat oath or from a hesset oath, and even though there are those who disagree on this, nevertheless, this is the primary ruling and so it is proper to instruct. However, in a case where he is obligated to swear and is unable, such that he pays, a supporting witness does not exempt him from payment [Shach]. And even though since he supports him, he is exempted from the oath and "unable to swear" is not applicable, nevertheless, since without the witness he would be obligated to pay, it turns out that the witness exempts him from money, and one witness does not exempt from money. And similarly regarding an oath, when he has a supporting witness and a contradicting witness, or two against two, we consider them as if they do not exist and he swears. And there is no distinction in this regarding who came first, the contradicter or the supporter. And similarly, there is no distinction between a modeh be-miktzat oath and hesset in this [see Shach, subsection 46]. And similarly, a supporting witness exempts from herem stam, and some say that in this the witness does not exempt him when the plaintiff claims with certainty [Urim Ve-Tummim]. And if the handwriting of the plaintiff supports the defendant, certainly the defendant is exempt from an oath and from herem stam. And similarly regarding one who "swears and takes," when he has a supporting witness, he takes without an oath, except for a suspect where the law is that the opposing party swears and takes; one witness is not believed in this, for if not so, everyone would extract money from a suspect based on one witness [Shach]. And similarly regarding a reversed oath, where one was obligated in an oath and reversed it upon his litigant, and his litigant has a supporting witness, he is exempt from the reversed oath. And even though it is impossible for this law to exist, for from whatever side you look at it, since he is a supporter to this one, perforce he is a contradicting witness to the first and he would be obligated in a modeh be-miktzat oath, and in Torah oaths one does not reverse, as will be explained; nevertheless, it can be, for example, regarding lands, slaves, and documents where their oath is not from the Torah, or for example, after he reversed the oath upon him, the supporting witness came to him, and several other ways can be found [see Sma and Shach].

That which we have said, that a supporting witness exempts from an oath, this is specifically when the defendant claims a claim for which he could be believed without a migo, or even if he is believed with a migo, however, regarding the claim of the migo itself, if he had claimed it, this witness would also have supported him. For example, where he claims regarding a mashkon in his hand that he lent him such and such an amount, and he is believed with a migo that "it is purchased in my hand," and he has a witness supporting him regarding the sum of money he lent him; for then, even if he had claimed "it is purchased in my hand for such and such an amount," the witness would have exempted him from an oath since he testifies to the sum of money he gave him. But if we only believe him by power of the migo, where regarding this migo he would not have a supporting witness—for example, where one claims a pikadon from him and he says to him "I returned it to you," and he has a supporting witness that he returned it, and he is believed to say "I returned it" with a migo of "it was lost by an ones," and if he had claimed a claim of ones the witness would not have supported him, and on a claim of ones he would be liable for a shevuat dayanim—therefore, he is liable to swear also on the claim of "I returned it" as well, even when he has a supporting witness, and similarly in other matters [Netivot HaMishpat]. And in siman 296 it will be explained in section 4 that regarding a claim of "I returned" in a pikadon the law is not so, for if he has a supporting witness it exempts him from an oath even though his exemption is because of a migo of "it was lost by an ones," because this is not a complete migo but rather another reason, as I wrote there in section 3 [and it requires further study on the Netivot HaMishpat].

These are the matters that distinguish between a Torah oath and a rabbinic oath: one who is obligated in a Torah oath and does not wish to swear, the beit din seizes his property and gives to the claimant what he claimed, for since the Torah obligated him in an oath, he must either swear or pay. However, one who is obligated in a rabbinic oath and does not wish to swear—and he is among those who swear and are exempt, such as in an oath of hesset or those who swear regarding claims of doubt as I wrote in section 1—we do not have the power to seize his property, for the sages did not enact that he should pay if he does not swear. Rather, they place him under a ban [in ancient times] for thirty days; if he did not come and seek the removal of his ban, they strike him with lashes of rebellion [this too is as mentioned above]. And they do not strike him extensively like one who does not wish to pay his debt when he has the means to pay, as will be explained in siman 97, for there he is certainly liable, but here we do not know if he is liable [Sma]. And they only strike him because he transgresses the words of the Sages of blessed memory, and they release his ban, and it is permitted to call him a transgressor as long as he has not sworn. And if he is among those who swear and take and does not wish to swear, we do not attend to him; he shall not swear and he shall not take. And if he seized property, we remove it from him, since he seized it without permission. And some say that if he preceded and seized and did not wish to swear, we do not remove it from him. And both opinions can be sustained in the law: in a place where by law he would take without an oath, but the rabbis were stringent upon him that he should not take without an oath—such as a loan with a document when the borrower claims "swear to me," or one who impairs his document, or one who comes to collect from orphans or from purchasers, or a single witness testifies that the document is paid—in all these, if he seized property, we do not remove it from his hand. But in a place where by law he would not take at all, but the rabbis enacted that he should swear and take—such as a hired worker, a victim of theft, or a victim of injury—it is certain that we remove it from him when he seized without an oath [Shach]. And so too regarding an oath of hesset, when the defendant shifted it onto the claimant that he should swear and take, and he seized without an oath, we remove it from him, since by law he is not entitled to take, but rather this one shifted it onto him that he should take when he swears; and how shall he take without an oath? [ibid.]. And when he did not shift the oath, and the defendant must swear and be exempt and does not wish to swear, and the claimant seized from his property, the defendant is unable to remove it from his hand, for the claimant can say to him: "Since the sages imposed an oath upon you, I have the power to compel you with whatever is in my power" [Netivot HaMishpat]. And even though there is one who is uncertain about this, nevertheless, such is the primary law. But when the defendant is a suspect, where the law is that the claimant swears and takes, and the claimant seized without an oath, we remove it from him; for if not so, everyone would claim against the suspect and impose an oath upon him, and of necessity he would swear and take and seize without an oath, and you would not leave any life for the suspect [Shach]. And know that any seizure in this matter is only when he seized money, but seizure of movable property is nothing; for since he did not acquire the body of the movable property, we remove it from him, and automatically he shall not collect except with an oath, as is written in Even HaEzer siman 96 [Urim VeTummim]. And in a place where seizure is effective, it is effective even when he seized in the presence of witnesses [Shach], for this seizure is not like all seizures where when there are witnesses his seizure is nothing; for in all seizures there is a doubt in the law, but here there is no doubt in the law, for by law they are his, only that he requires an oath, and therefore when he seized we do not remove it from him. [And the Taz wrote that in the case of "swears and takes" when he seized and we do not remove it, nevertheless he can compel him to swear an oath of hesset; and it requires further study, for if there is power to compel him, let us compel him regarding the oath of the Mishnah. And so too what he wrote regarding a supporting witness, that if a contradicting witness comes afterward he is not believed, requires great study; and his proof from "wherever the Torah believed one witness, he is like two"—I am wonderstruck, what is the connection of one to the other? There the Torah believed him like two witnesses, and therefore one is not believed against him; and it requires great study.]

And there is another distinction between a Torah oath and a shevuat hesset regarding reversal: for in a Torah oath, if he wishes to reverse it upon his counterpart and says to him, "Swear and take," he cannot compel him, because the claimant can say to him, "The Torah cast the oath upon you; either swear or pay." But in hesset, he can reverse it, because the defendant says to him, "Behold, by Torah law I am completely exempt, and only the sages cast an oath upon me, and I do not wish to swear to be exempt; you swear and take, and if you do not wish to swear, let it remain according to Torah law." And rabbinic oaths where one must swear and take, he cannot reverse them upon the defendant and say, "Swear and be exempt," for the defendant can say to him, "I have no business with you; I am not claiming from you, and you are claiming from me, and by Torah law I am completely exempt, and only the sages gave you permission to swear and take; if you wish according to the enactment of the sages, the permission is in your hand, and if not, I have no business with you." And even in oaths where by Torah law he should have taken without an oath, such as one who impairs his contract and the like, and if so, seemingly he has the power to say to the defendant, "If you do not wish to accept the reversal, I will stand upon Torah law," nevertheless he cannot say so, for the defendant can say to him, "Since in any event the sages cast an oath upon you and that if not you shall not take, if you wish according to their enactment, good, and if not, I have no business with you." And some disagree and say that even in oaths where by Torah law he should not have taken at all, such as a hired worker and the like, nevertheless he can reverse, because he can say, "Since in any event the sages enacted for my benefit that I may swear and take, and since they strengthened my power so much to take money from you by means of an oath, all the more so is my power sufficient to cast the oath upon you so that you may be exempt" [Shach]. And the custom is like the first opinion, and so is the primary view, because the defendant can say to him, "It is true that the sages cast upon me to give money against my will if you swear, and I am commanded to fulfill their decree; nevertheless, that I should swear they did not decree upon me, and to me my oath is more precious than money, and by what power can you compel me?" [It appears to me]. And nevertheless, if this one who was obligated to swear and take seized [property], even if he seized in the presence of witnesses, he can say to the defendant, "I rely on the legal claim (kim li) like this opinion that I have the power to reverse upon you, and if you wish to swear, I will return your money to you, and if not, I will not return it" [ibid.], for many of the poskim hold so. And some say that specifically in a case where by Torah law he takes without an oath, his seizure is effective, but in a case where by Torah law he does not take at all, seizure is not effective [Urim VeTumim and Netivot HaMishpat], and so one should instruct.

And oaths regarding a doubt, such as the oath of partners and the like, are not reversed, for behold, he claims against him out of doubt, and how can he swear that he certainly robbed him? However, there is one who says that if he claims, "Swear to me that you suspect me of this," the law is with him; for even though one does not administer an oath on a claim of doubt, nevertheless, did the sages not institute this primary oath on a claim of doubt? Therefore, he is able to reverse it even on the doubt. For this is obvious, that this person who can administer an oath to him on a claim of doubt, this is specifically if he at least suspects him in his heart; but when he does not suspect him, it is forbidden for him to impose an oath upon him in order that he reach a compromise with him, and if he did so, behold, this is absolute robbery. Therefore, he can certainly administer an oath to him if he suspects him in his heart, even though it is a doubt to him whether the one administering the oath suspects him or not. And if the oath is by means of him saying that he heard from the mouth of a witness that he stole from the partnership, this person who requires the oath cannot reverse it upon the one administering the oath to swear that he suspects him; since he administers the oath to him on a certain claim by means of a witness, he does not have the ability to reverse it to him on a claim of perhaps and regarding an oath of perhaps [Urim VeTummim]. And if he wishes to reverse it upon him that he should swear that he heard from the mouth of the witness, he also does not have the ability, for behold, even if he did not hear, he has the ability to administer an oath to him on a "perhaps" according to the enactment of the sages [it appears to me]. And furthermore, there is a distinction, for regarding rabbinic oaths we do not say "since he is unable to swear, he pays," as I wrote in siman 75.

That which was explained in section 11, that in a case where one swears and takes he cannot reverse the oath upon the defendant against his will, nevertheless, if the plaintiff says: Since that which the sages gave me permission to swear and take is for my benefit, and I do not desire this enactment, but rather I am like all other plaintiffs and let the defendant swear to me an hesat oath and be exempt—we listen to him. However, the defendant can also reverse it upon him, that he should swear an hesat oath and take, as with all hesat oaths, for from a defendant to a plaintiff one may reverse. And if the plaintiff does not wish to swear, the defendant is exempt, and the plaintiff cannot impose upon him anything but a cherem stam [Tur]. And according to this, this person who swears and takes is not able to gain through his reversal except from a severe oath to an hesat oath. And similarly, that which was explained in the previous section, that he can reverse an oath that comes upon a doubt and have him swear that he suspects him in his heart, and it is a severe oath like his own oath that this person who reversed it upon him was obligated in; nevertheless, this plaintiff can escape a severe oath by saying to the defendant: I do not desire from you the oath of partners which is severe, but only that you swear to me an hesat oath. And automatically, if he reverses it upon him, he will only have him swear an hesat oath, for the general rule in reversing an oath is: whatever type of oath one is obligated to swear, if he reverses it upon his counterpart, he too is obligated in that same oath.

And that which has been explained, that regarding a Torah oath one cannot reverse it upon the claimant—if the defendant did not wish to swear and paid the claimant, he can afterwards sue the claimant who took money from him for nothing and impose a heiset oath upon him. And specifically when he paid him; but before the payment, he does not have the ability to sue him to swear a heiset oath. And now it is the custom that the defendant deposits the money with the beit din and obligates the claimant in a heiset oath, for since he deposited it in beit din, it is like after payment [Urim VeTummim and Netivot HaMishpat]. And consequently, according to this, the claimant can reverse it upon the defendant to swear as with all heiset oaths. And so too in any place where the defendant reverses it upon the claimant to swear and take, he must first deposit the money in beit din, and so is the simple custom in every beit din. And so the custom has spread that in every place where a cherem stam is mentioned, he receives it explicitly in beit din [ibid.]. And furthermore, it is a simple custom that when the defendant reverses the oath upon the claimant to swear and take, and the claimant does not wish to swear, he gives the defendant a cherem stam; that is, the defendant receives it upon himself explicitly in beit din that he is not liable to the claimant. And when the defendant wishes, he reverses even this upon the claimant, that he should receive [the cherem] that he is liable to him and pay him. And if the claimant also does not wish, he imposes a "hen" upon the defendant, that he should say upon his "hen tzedek" that he is not liable to him. And when the defendant wishes, he reverses the "hen" upon the claimant, and if even this the claimant does not wish, the defendant is exempt and goes his way. And all these matters are not by law but merely custom; therefore, if there are places that have another custom in this, they should act according to their custom, for by the law of the Gemara there is in these matters only heiset and its reversal upon the claimant to swear a heiset oath and take, and if he does not wish, the defendant is exempt and goes his way. And so wrote the Tur in section 17 in the name of the Rif in a responsum. And know that even a heiset oath is not reversed except when there is no gilgul shevuah upon the defendant; but if there is also another oath by way of gilgul, he cannot reverse the primary oath upon the claimant and exempt himself from the gilgulim, unless it is his will to reverse also the gilgulim upon the claimant, and when he swears on the primary claim and on the gilgulim, he shall pay him for all of them, and he first deposits money in beit din for all the claims. And it is also in his power to reverse the primary oath upon the claimant to swear and take, and regarding the gilgulim he shall swear himself and be exempt; and this will be explained in siman 94 with the help of Heaven.

Furthermore, there is a distinction between the oaths regarding the matter of one suspected of perjury, for regarding a Torah oath, if the defendant was suspected of perjury, the opposing party swears and takes, and this is from the enactment of our Sages, of blessed memory. However, regarding rabbinic oaths, if the defendant is suspected, he is exempt, as will be explained in siman 92. And the reason is that since this oath itself is a rabbinic enactment, and this rule that regarding one suspected of perjury the opposing party swears and takes is also a rabbinic enactment, we do not make an enactment upon an enactment, unless the defendant desires that the plaintiff swear and take, in which case the authority is in his hand. And if he does not desire this, the plaintiff imposes upon him a herem stam and nothing more. And regarding oaths where the plaintiff swears and takes, if he is suspected, what his law is will be explained there with the help of Heaven.

There are further distinctions between the oaths of the judges, which are Torah oaths and oaths of the Mishnah, and the heset oath. For in the oaths of the judges, one must swear while holding a sacred object (nekitat chefetz), just as our forefather Abraham, when he adjured his servant Eliezer, adjured him with the mitzvah of circumcision, as it is written: "Place your hand under my thigh and I will adjure you, etc." And now, we adjure with a Sefer Torah, which is the most precious object of all that is in heaven and on earth. Therefore, the one swearing must hold the Sefer Torah in his hand and swear while standing, in order to intimidate him so that he tells the truth. However, a heset oath does not require nekitat chefetz. Any judge who administered an oath that requires nekitat chefetz without nekitat chefetz has committed an error regarding a matter of the Mishnah, and the person must swear again with nekitat chefetz. Similarly, if he wanted to administer a heset oath with nekitat chefetz, and because of this the person did not want to swear and paid, he also erred in a matter of the Mishnah, and the person returns and takes back his money from the one to whom he gave it and shall swear with nekitat chefetz. There are those who disagree on this and hold that if the judge ruled that a heset oath be sworn with nekitat chefetz, this is not an error in a matter of the Mishnah, for many poskim hold thus, that even heset requires nekitat chefetz. And even though the common practice is not so, nevertheless, if the judge ruled so and because of this he paid and did not want to swear, the judgment stands [Shach]. But regarding an oath with nekitat chefetz when it was performed without nekitat chefetz, he certainly returns and swears with nekitat chefetz. And all the more so when he was liable for a heset oath for a total denial and swore, and afterwards the claimant brought one witness, he returns and swears a Torah oath with nekitat chefetz to contradict the witness. Similarly, when one swore a Torah oath or the oaths of the judges among those who swear and take, and it became known afterwards that he is suspect, his oath is nothing; and in a Torah oath, the opposing party shall swear and take, and in the oaths of those who swear and take, he shall return what he took, and we judge as if he had not sworn, as will be explained in siman 92. And in an oath with nekitat chefetz, when he swears while holding the book, he should not say "I swear by this Sefer Torah," but rather he should hold the Sefer Torah in his hand and say "I swear by Hashem." And if he did not hold a Sefer Torah in his hand but rather tefillin, he does not need to return and swear with a Sefer Torah. And a talmid chacham, even initially, does not need to hold a Sefer Torah in his hand but rather tefillin, for a talmid chacham does not require such intimidation, as he knows for himself the gravity of the oath [and as proof of this, I heard from the oath that Jacob adjured Joseph and did not say to him "Place, please, etc."]. And also in this time, the law of a talmid chacham applies to this. And there is one who says that specifically the first time when the talmid chacham swears we give him this leniency, but from then on, he is like any other person and must swear with a Sefer Torah, for since he swore and swore again, he does not have the status of a complete talmid chacham, for a talmid chacham must distance himself from an oath. Our teacher, the Rema, wrote that some say that a Sefer Torah is not specifically required, but rather the same applies to other books that have Names within them. Thus far his words. And it seems to me that his intention is regarding the Prophets and Hagiographa that were written on parchment like a Sefer Torah, for then their sanctity is more stringent than tefillin; but printed books, their sanctity is inferior to tefillin, and since we do not adjure with tefillin, all the more so with them [and the difficulty of the Shach and the Taz is settled]. And that which he wrote "that have Names within them," perhaps he came to exclude the Megillat Esther which does not have Names, for even though its sanctity is equal to all the Holy Scriptures [as on it they did not disagree in Yadayim chapter 3], nevertheless, in books that have the Holy Names, the intimidation is greater [so it seems to me].

Our teacher, the Rema, wrote that there are those who say that it is customary to administer the oath of the judges such that the Sefer Torah is placed before him and he places his hand upon it, but he does not take it in his arm. And so they do when they swear regarding matters of taxes. But regarding other oaths, such as a woman who swears regarding her ketubah, she swears upon another book. Thus far his words. And among us, the simple custom regarding all types of oaths is that they light candles, and the one swearing wears a kittel, which is a garment of the dead, in order to intimidate him. And they open the Holy Ark, and he places his hand upon the Sefer Torah and swears. And there are those who are accustomed to command him to remove his shoes. And it is certainly proper to perform intimidations to distance people from oaths, for behold, even regarding a true oath it is written: "The Lord your God you shall fear, and Him you shall serve, and to Him you shall cleave," [and then] "and in His name you shall swear," as Rashi explained in the Chumash. And in all courts of law, they exert effort to distance the litigants from oaths. And in the Yerushalmi [Chapter 6 of Shevuot, Halacha 5] it is stated that even regarding a true oath there is danger [and so it appears in Gittin 35].

One must swear by the Name or by one of all the epithets explained in the Rambam, Laws of Oaths, chapter 2, and while standing. If one swore while sitting, he does not return and swear again, as this is only for the sake of intimidation. Therefore, a Torah scholar, out of respect for his Torah knowledge, is initially made to swear while sitting. There is no difference in this regard between a Torah-mandated oath and an oath of the Mishnah, or whether the oath is regarding a certain claim or a doubtful claim, for in all of them one must swear by the Name or by an epithet and while standing. The order of the oath is as follows: the one swearing holds a Sefer Torah in his arm or places his hand upon it according to our custom that has been explained, and stands and swears by the Name or by an epithet, with an oath or with a curse. There is no difference whether the oath issues from his own mouth or from the mouth of the judges. How is it an oath from his mouth? That he says, "Behold, I swear by Hashem, God of Israel," or "Behold, I swear by Him whose name is Merciful," or "by Him whose name is Gracious," or by the seven names that are not erased which are explained there in the Rambam and in Yoreh Deah siman 276, "that I owe this person nothing." And in an oath of the judges where one swears and takes, he says that "this person owes me such and such." And how is it a curse from his mouth? That he says that he should be "accursed to Hashem, God of Israel," or by the epithets, "if I have anything belonging to this person." And he says the curse upon himself in the language of "Behold I," just as in an oath. And how is it from the mouth of the judges? That the judges say, "We adjure you by Hashem, God of Israel, that you have nothing belonging to this person," or "that this person owes you such and such," and he answers "Amen." And regarding the language of a curse, they say, "Behold, so-and-so son of so-and-so is accursed to Hashem, God of Israel," or "to Him whose name is Gracious, if so-and-so son of so-and-so has money with him and he does not admit it to him." And in a case of "swears and takes," they say, "if he takes from so-and-so for nothing," and he answers "Amen," for the answering of "Amen" is like uttering the oath from his own mouth. And among us, the custom is that he swears by himself, and so it is proper to do, for people do not consider the answering of "Amen" as grave as their own oath [it appears to me]. According to the Rambam, of blessed memory, even a hesset oath is by the Name or by an epithet, with an oath or with a curse. In his opinion, there is no difference between it and an oath of the judges except that it does not involve holding a sacred object. But the poskim did not agree with him, and they said that hesset is neither by the Name nor by an epithet, but rather with a plain oath or with a curse. Our early teachers wrote that in later generations they abolished swearing by the Name even in oaths of the judges because its punishment is great, and they practiced swearing with a curse [Rashi, Shevuot 38b; and Ra'avad, chapter 11 of Shevuot]. Even though in a curse one also mentions the Name, nevertheless it is not like an oath by the Name, for in an oath one swears "by the life of Hashem," but in a curse it is nothing but a malediction upon his soul [Sma]. And in hesset one does not mention the Name at all, but rather says, "I swear that I have nothing belonging to this person" [Shach]. And in the reversal of a hesset oath, the claimant says, "I swear that such and such is due to me from this person." Some say that oaths of the judges must be before a quorum of ten or on a day of assembly, for then many are present. Our teacher, the Rema, wrote that he did not see people practicing this. In our times, the custom even regarding a hesset oath is that if they can postpone it until a day of assembly, they postpone it, and in the meantime perhaps they will reach a compromise. We have already explained in siman 15 that when the judge sees that the claimant wants the oath so that the other will be forced to compromise with him, he does not administer the oath but rather gives him a herem stam. Besides this, there is an opinion that hesset is nothing but a herem [Sma, subsection 50]. The judge must be very careful in this, for in our times people distance themselves from an oath very, very much, and many times we see that one wants to impose an oath on his fellow in order to extract money. Therefore, the judge must act wisely in this. One of the great authorities wrote that in all his days he never ruled an oath for a Torah scholar who denies everything, only a herem, and that such is the custom in the entire land of Poland [Knesset HaGedolah]. Even if in our days we have not heard of this custom, nevertheless the judge has the power to act as it appears in his eyes, provided that his heart is toward Heaven.

One administers the oath to him in any language that he understands, and if he does not understand the holy tongue, one administers the oath to him in his language. They shall threaten him before they administer the oath to him and say to him: "Be aware that the entire world trembled at the hour when the Holy One, Blessed be He, said, 'You shall not take the name of Hashem your G-d in vain,' for His Name, may He be blessed, is the existence of the world, as it is written, 'For in Yah, Hashem, is the rock of ages.'" And one who applies His Name, may He be blessed, in vain weakens this strength and foundation [Maharsha]. The severity of its punishment is greater than other prohibitions in the Torah, for regarding all the transgressions in the Torah, when a person returns in repentance, it is said "and He will clear," but here it is said "He will not clear." Even if he returns in repentance, he is not cleared of punishment because of the desecration of the Name of Heaven. For all the transgressions in the Torah, punishment is exacted from him alone, but for a false oath, punishment is exacted from him and from his family. Furthermore, it causes punishment to be exacted from the enemies of Israel, for all of Israel are guarantors for one another. In the entire Torah, the guarantee only applies when it is in one's power to protest, but for a false oath, even one who does not have the power to protest is punished, and all this is because of the sin of desecrating Hashem. For all transgressions in the Torah, punishment is suspended for him for two or three generations if he has merit, but here punishment is exacted immediately, for the sin of desecrating Hashem burns more than fire. Things that fire and water do not consume, a false oath consumes them. If he says, "I will not swear," they release him and dismiss him from before the beit din so that he does not retract, as is written in siman 22, section 9, and he pays what his fellow claimed against him. Even according to that opinion explained there that without a kinyan he can retract, nevertheless they dismiss him so that he will be ashamed to retract; and regarding the law, we have explained there, see there. If he said, "Behold, I will swear," and his litigant does not exert himself to reach a settlement with him so that he will not be the cause of the oath, then the people standing there say, "Depart now from the tents of these wicked men." The beit din says to him, "Not according to your intent do we administer the oath to you, but according to the intent of the Omnipresent and according to the intent of the beit din." The version of the Rambam and the Tur is: "according to our intent and according to the intent of the beit din," and "our intent" is the intent of the litigants; and all this is so that he does not perform some deception in his oath. If, according to the understanding of the beit din, there is an aspect of deceit, the beit din must say to him and specify in his oath that he should not intend this deception, and they should not rely on what they said to him that he swears according to the intent of the beit din. Similarly, the beit din has the authority to administer an oath with the holding of a sacred object in a place where it is not required according to the law, as is written in siman 15. Similarly, the beit din has the authority to threaten him further with threats if it appears to them that the oath is light in his eyes, such as bringing a bier of the dead, extinguishing candles, and the like. These things are only permitted to the beit din, but the litigant has no authority to add anything of his own accord. One only threatens for the "oath of the judges," which is by way of a certain claim, whether it is from the Torah or from the Rabbis. But for an oath in which he became obligated because of a claim of doubt—whether from the Torah, like the oath of guardians, or from the Rabbis, like the oath of partners—such a great threat is not necessary, since the claimant himself does not know the truth. Similarly, regarding a shevuat hesset, even though the claimant claims with certainty, nevertheless, since it is not with the Name, such a great threat is not necessary. Nevertheless, the beit din must urge the litigants that perhaps they will reach a settlement between them so that he will not need to swear. If the judges fear that there will be a false oath here, Heaven forbid, they must threaten the one swearing with all types of threats and all types of oaths.

Anyone who has become obligated in an oath, whether from the Torah or from the words of our sages, of blessed memory, even a heset oath, the one swearing has the authority to cast a herem stam upon the one imposing the oath if he does not impose the oath for nothing; for if not so, everyone would impose an oath upon his fellow in order to extract money from him. Therefore, regarding one who became obligated in a heset oath and reversed it upon the claimant, the defendant does not need to accept the kabbalah, because this reason does not apply to the reversal of an oath, for he reverses it in order to be saved from swearing himself [Taz]. However, in an oath of doubt, he must accept it, as he has a suspicion against him. And the kabbalah does not take effect upon the one imposing the oath such that he would be punished unless it is clear in his heart that his fellow is innocent; but if it is also a doubt to him, he is permitted to accept [Urim VeTummim]. And when the one swearing says the kabbalah against the one imposing the oath, the one imposing the oath must answer "Amen." However, our custom is that every kabbalah a person accepts upon himself explicitly, and if so, the answering of "Amen" is not applicable.

Every shevuah must be in the presence of the opposing party so that he will be ashamed before him, since he knows the truth, and perhaps he will refrain from swearing. Therefore, if he claims against him based on one witness, he does not need to swear in the presence of the claimant, but rather in the presence of the witness. And even if the witness died, he does not need to swear in the presence of the claimant [Shach]. In the case of one who swears and takes, it must always be in the presence of the opposing party. However, in a case of a claim of doubt, he does not need to swear in the presence of the opposing party, for behold, he will not be ashamed before him [Urim VeTumim]. If they administered the shevuah to him not in the presence of the opposing party, if he swore properly and according to the intent of the beit din, he is exempt, for post facto this is not a hindrance. And even though he did not swear in his place, which is a place of many people where one could say he would be ashamed before them, nevertheless, it is not a hindrance post facto. However, initially, he can say that he should swear to him in the place where the business was conducted, where people there know of it, or that it is a place of many people, for perhaps he will not swear there due to the shame [Ketubot 85a]. However, if there is currently no way for the defendant to go there, he cannot compel him to go with him there to swear. And even if the claimant wants to take him at his own expense and pay him also for his trouble, he cannot compel him, since this obligation is not from the fundamental law [it appears to me]. But if the claimant wants not to administer the shevuah to him now and will wait until the defendant has business to come there, the authority is in his hand.

If two people sue one another and both are obligated to swear, and each one says that his fellow should swear first: if one is obligated in a severe oath, he must swear first, unless the beit din sees that if they prioritize the second, the matter will come to a compromise, the authority is in their hands [Urim VeTummim], and they perform a mitzvah to prevent an oath. And if the two oaths are equal, there is no law of precedence regarding them, and the beit din shall act according to their own judgment.

One who claims many claims against his fellow, they only administer one oath to him for everything. And if he became liable for two oaths for two claims, one light and one severe, they administer the severe one to him and include the remaining matters within it. And one who claims against his fellow that he is indebted to him, and says that he has other claims against him that he does not wish to claim now, and it is evident that his desire is to multiply oaths upon him, or to harass him, or to shame him with the degradation of the beit din, the beit din says to him that he is obligated now to claim all the claims and demands that he has against him. And if he does not wish to, and the defendant says that he owes him nothing, he takes an oath and is exempt from him for all claims that he had against him until that day. And if he claims against him afterwards for any matter and says that he was indebted to him prior to this oath, and he denies it, he will not need to take an oath because he was already exempted by this oath, unless he brings testimony or proof for his words. But if the beit din understands that the fact that he does not wish to claim all his claims now is not because of the aforementioned reasons, but rather that he is not yet clear on all his claims and needs time for this to calculate his accounts and the like, then the law is with the claimant. And regarding the likes of this we say that we attend to the claimant first, as was written in siman 24. And there it was explained that if through this the assets of the defendant are depreciated and damage will reach him from this, we do not listen to the claimant, and we command him to arrange all the claims that he has against him and claim them all at once.

Two who were in contention in a legal case and swore before the judgment that they would only plead the truth, and afterwards one of them became obligated in an oath to his fellow, some say that he is not exempted by the first oath, because at that time falsehood had not yet issued from his mouth; however, the final oath, which comes regarding a matter that has already occurred, and if he lies in it he issues a false oath from his mouth, is more severe to people. And some say that if they swore initially with a sacred object and with all the stringency of an oath, or in the case of a heset oath with the stringency of a heset oath, he does not need to return and swear; rather, they remind him of that oath. And in this manner, the Rosh, of blessed memory, ruled regarding one who swore to his fellow for known times, that they should remind him each time of that same oath. But if they swore initially not according to the stringency of a beit din oath, certainly he must return and swear a beit din oath. And so too if they previously made a tekiat kaf, even though the stringency of a tekiat kaf is like an oath, nevertheless he does not fulfill the obligation of an oath with this, for it is not as severe to people as the stringency of an oath. Therefore, if he gave him a tekiat kaf that he would pay him at such-and-such a time, and he claimed from him afterwards and he said "I paid," he must swear [Taz and Urim VeTummim], not like the one who disagrees in this. And all the more so according to the first opinion, for an oath where falsehood has not yet issued from his mouth is not similar to an oath where the falsehood has already occurred; and even according to the latter opinion, nevertheless it is known that tekiat kaf is lighter to people than an oath.

Anyone who claims against his fellow a claim where even if he were to admit he would not be liable for money, even though he denied, there is no obligation of an oath, even hesat. How so? If he claimed against him: "You said you would give me a maneh," and he responds "the matters never occurred," we do not administer an oath to him, and we do not even impose a cherem stam upon him. Not only this, but even if he sued him for an oath—that he sues him that he became obligated to swear to him, such as the oath of partners and the like—and he says that he was not a partner, and one witness testifies that he is a partner, we do not obligate him to swear to contradict the witness, for even if he were to admit, he is not liable for money but rather an oath, and we do not obligate an oath upon an oath. And so too, if he sues him that he swore or gave him a tkiat kaf to give him a gift and he denies, he is exempt from the oath even if he brought one witness for this reason, that we do not obligate an oath upon an oath; rather, the beit din shall warn him regarding his oath or his tkiat kaf and make him understand the gravity of the prohibition. And the reason we do not impose an oath upon an oath is that from whichever way you look at it: if he is suspected of violating the oath, what will this oath avail him? [Levush]. And even though one could say that now they would give him a more severe oath than that which he swore previously, and especially if he gave a tkiat kaf, which is not as severe to people as an oath, as I wrote in the previous section, nevertheless, we do not have the power to obligate him an oath for this, as an oath was only instituted for a denial of money and not for a denial of an oath. Therefore, even if he admitted to him that he swore to give him a certain thing, but claims that he waived it for him or that it was on such-and-such a condition, he is believed with a migo that he could have denied the oath or the tkiat kaf. But if there are two witnesses to the oath or to the tkiat kaf, we obligate him to pay, and he is not believed to say "you waived it for me," for waiver is a poor claim [Urim VeTumim], unless he brings proof for his words. And if he said "there was a condition in the matter" and the witnesses do not contradict him in this, in that they say "we do not know of this and it is possible he says the truth," we administer an oath to him regarding this, for since there are two witnesses, it is like an actual monetary obligation. And so too regarding a claim of a partner's oath, if he brings two witnesses that he was a partner, he can now administer an oath to him [it appears to me].

And similarly, if he claimed against him, "You cursed me," or "You spread a bad name about me," and he says, "These things never occurred," we do not punish him for this, and so too for anything similar to this. However, if he says, "You injured me," it is a monetary claim, for he is liable for medical costs and loss of work. And some say that even for a claim of a bad name we punish him with a curse, for if it were clarified to be true, they would fine him monetarily according to the assessment of the beit din; but we do not administer an oath to him, as it is not an actual monetary claim. And similarly, if he claimed against him something for which he is only liable for a kenas, we do not administer an oath to him, for even if he confessed he would be exempt, as one who confesses to a kenas is exempt. But if he claimed against him that they stood him in judgment over the kenas and he brought witnesses and the beit din obligated him to pay, and the other says, "These things never occurred," he must swear a shevuat hesset in a place where they judge laws of kenasot, for if he were to confess to this, he would be liable for money since he stood in judgment. And similarly, we do not obligate a hesset for a benefit of pleasure when he claims it, for a benefit of pleasure is not money; and even according to the one who holds that a benefit of pleasure is money, as will be explained in siman 350, nevertheless, an oath was not instituted for a claim of a benefit of pleasure. Therefore, one whose fellow claimed against him that he should return to him tzedakah money that he deposited in his hand to distribute to the poor, and this one answers him that he already returned it to him or that he himself distributed them to the poor [Levush], he is exempt without an oath, for the claimant has in this only a benefit of pleasure. And even though we administer oaths over consecrated property and over tzedakah, as will be explained in siman 95, and if so, we should administer an oath to him for the sake of the poor—this is specifically when the community or the beit din were claiming against him, for they stand in the place of the poor and have the power to administer an oath to him. But in this case where the individual claims against him, saying that he gave him his own money of tzedakah and he says that he returned it to him, it is money that has no claimants [Taz]. Therefore, if indeed the community or the beit din know of these monies, they can claim for the sake of the poor; and specifically when they know with certainty, but on a claim of doubt one cannot administer an oath but rather imposes a herem stam. And that which was explained, that the individual claimant cannot administer an oath to him, this is with ordinary people, but if the claimant was a tzedakah collector, he can administer an oath to him on a claim of certainty [see Urim VeTummim].

One who claims against his fellow, "You robbed me" or "You stole from me," and he denies it—even though according to the claim of the plaintiff he is disqualified from taking an oath because he is a thief or a robber, nevertheless he swears to him. For we say perhaps the defendant has a doubtful monetary claim against the plaintiff, and therefore he robbed him or stole from him in order to seize it, and when it becomes clear to him that he does not owe him, he will return it. And even though this is a weak pretext, we have already explained in siman 75 that even though we rule that one who is suspected regarding money is suspected regarding an oath, nevertheless, since for many people the prohibition of an oath is more severe than the prohibition of money, therefore any pretext, even a remote one, by which we are able to hang the matter so that this man is not suspected regarding money, we hang it upon. Therefore, if indeed the beit din or witnesses know him from before to be a thief or a robber, we do not give him an oath, and we reverse it upon his opponent, as will be explained in siman 92. And specifically regarding a claim of theft or robbery do we administer an oath; for even though there is money and a prohibition involved, as besides the robbery he violated a negative commandment of the Torah, nevertheless, presumably the essence of the plaintiff's claim is for the money. But if the essence of the claim is regarding the prohibition, even though there is also a monetary claim involved, we do not administer a shevuat hesat to him, for regarding such a claim the rabbis did not institute a hesat. Therefore, a woman who claimed against a man that he had relations with her and she became pregnant from him—and naturally there is also a monetary claim involved, as she claims sustenance for the child—and he denies it, saying he did not have relations with her; or a woman says to a man, "You betrothed me"—and naturally there is also a monetary claim involved, as he would be obligated in her sustenance—and he says, "I did not betroth you," we do not give him a shevuat hesat, but rather we impose upon him a herem stam. And specifically a hesat we do not swear him, but we find a Torah oath regarding a matter of prohibition, such as the oath of a sotah; however, the rabbis did not institute their oath in such a case. Moreover, even if she comes to beit din and says, "I became pregnant from so-and-so and I claim from him sustenance for the child," where the essence of her claim now in beit din apparently is for money, nevertheless we do not administer a shevuat hesat to him on this claim, for in such a case the rabbis did not institute it. And all the more so in a time when there is reason to fear that the licentious will shame upright people by imposing an oath upon them to extract money from them in exchange for the oath, that we do not impose upon them even a herem stam [it appears to me].

One who became obligated in an oath in beit din and left the beit din, and after some time his fellow claimed that he should swear to him, and he said, "I have already sworn"—if he is among those who swear and take, he is not believed until he brings proof for his words. But if he is among those who swear and are exempt, he is believed. And specifically regarding an obligation of a rabbinic oath, we cannot adjure him that he should swear that he already swore this oath that the sages obligated him, for we do not make a regulation upon a regulation, and we do not obligate an oath upon an oath. And even if he claims, "Swear to me on the essence of the claim that you did not borrow," and similarly regarding other monetary claims, since according to both of them he already became obligated in an oath [Urim VeTummim], and according to the words of the defendant he already swore, if so, the essence of the oath when they give it to him now is upon an oath, and we do not obligate an oath upon an oath. However, regarding an oath of the Torah, when he says, "I have sworn," we adjure him with a hesset oath that he swore [Sma and Shach]. And also regarding a hesset oath where we said that we do not obligate him, nevertheless, he accepts upon himself with a cherem stam that he already swore. And if he previously stipulated with him before witnesses that he should not swear except in the presence of witnesses, he is not believed to say that he swore. And likewise, when he is found to be a liar, he is no longer believed; for example, if he says that he swore on such-and-such a day and witnesses testify that he did not, and their hand was in his hand on this day and they know that he did not swear, he is no longer believed to say, "I have sworn." And in this, there is no distinction between when the beit din said to him, "Go out and swear to him," or "You are obligated to swear to him," for even though in matters of money there is a distinction in this as has been explained in siman 79, regarding an oath there is no distinction, for regarding the matter of an oath there is no distinction between the expression "Go out" and the expression of obligation, for even when they said, "You are obligated to swear to him," it is a final ruling [Shach]. And specifically regarding an oath that the beit din obligated him is he established as a liar, but if he obligated himself in an oath, he is not established as a liar [Urim VeTummim]. Our teacher, the Rema, wrote that in this time, when it is customary to swear in the synagogue before a shamash or witnesses, he is not believed to say that he swore until he brings proof for his words; and if he contradicts the shamash, he is not believed [ibid.], for since the shamash was appointed for this, he is believed like two witnesses. And if he said that he swore before the shamash and the shamash died or went to a distant land, he is believed [Shach]. And if he claims, "You waived the oath for me," he is not believed, for waiver is a weak claim; and furthermore, if the claim of waiver were effective, everyone could claim thus, for it is well that regarding the claim "I swore" one can rectify it and say to him before witnesses, "Do not swear except before witnesses or in the synagogue," but regarding the claim of waiver, would not everyone claim thus? And what would the sages have achieved in their regulation? And so is the essence of the law, not like the one who disagrees in this [Shach and Taz]. But if he swears that he waived it for him, he is believed, for what difference is it to me whether it is an oath on the essence of the claim or an oath on the waiver? And when he claims a claim of waiver regarding an oath of the Torah in which he became obligated and wants to swear on this that he waived it for him, he must swear on the waiver also an oath of the Torah [Urim VeTummim]. And it is not similar to the claim "I swore" regarding an oath of the Torah where we said that he is only obligated to swear a hesset oath, for in the claim "I swore," behold according to his words he already swore an oath of the Torah; but regarding waiver, we say to him: "Let it be according to your words, swear to him on this an oath of the Torah just as you were obligated in the essence of the oath." And furthermore, waiver is a weak claim, and even regarding an obligation of hesset one cannot exempt oneself with a claim of waiver as I have written; therefore, regarding an oath of the Torah, we cast upon him an oath of the Torah even regarding a claim of waiver.

One who swore a shevuat hesset and afterwards confessed on his own with a complete confession to a portion of the debt: if he confessed by way of repentance, that he regrets having sworn falsely, he pays what he confessed, and from the remainder he has already been exempted by his first oath; for since he confessed by way of repentance, we maintain the presumption regarding the remainder that he swore truthfully. However, if he confessed not by way of repentance, since he confessed of his own accord that he swore falsely, there is no substance to that oath and it is considered as if he did not swear. Therefore, what he confessed he pays, and he swears a second time on the remainder a shevuat de'oraita according to the law of one who confesses to a portion. And why do we not judge him as one suspected regarding oaths? Because a person does not make himself out to be wicked. Nevertheless, some say that the plaintiff has the ability to say: "Since by your own words you are suspected regarding oaths, I shall swear and take," according to the law of a suspected person which will be explained in siman 92 [Shach], and there this will be explained. [And according to this, one can settle the words of the Rif which the Tur brought in section 43 and wondered about him, and it deals with a case where the plaintiff claims thus, see there].

One who denied everything and one witness contradicts him, and he swore to contradict the witness, and afterwards the claimant brought another witness, the second joins with the first and he pays him, even though he swore regarding it, for he did not acquire the money through his oath. Furthermore, he becomes disqualified from swearing based on the two witnesses. And even though even without the second witness he would become disqualified based on the first and the opposing party, as was written in siman 34, however, in that case he does not become disqualified immediately, but only after this when the opposing party testifies that he swore falsely; but at the time of the act he is not yet disqualified, for an opposing party is not believed at the time of the act because he is an interested party. But here, based on the second witness, he becomes disqualified immediately [Sma]:

Since the oath does not acquire the money for him, therefore even though the defendant swore and was exempted by the beit din, if the plaintiff subsequently seized money from him without witnesses and claims that he is seizing it for that same claim upon which the defendant swore to him because he swore falsely, the law is with the seizer. He is believed with a migo that he did not seize it, since he has no witnesses, and he swears a shevuat hesset and is exempted. And even if he previously administered an oath to him by means of a witness, and he swore to contradict the witness, and afterwards he seized from this one, we do not say that he is exempt from an oath because of the witness who assists him. The reason is that an assisting witness does not exempt one from an oath in a place where he only has credibility by power of a migo, as was written in this siman [Urim VeTummim], and not like the one who disagrees on this. But when he brought another witness, certainly we remove it from his hand without an oath, and he becomes suspected based on them, as was written in the previous section. And that which we said, that he swears a shevuat hesset, this is specifically when he seized coins; but if he seized an object, which is only like a mashkon and he must return it and receive coins, a shevuat hesset is not sufficient and he must swear while holding a sacred object since he comes to extract [Sha'ar Mishpat]. And so too, one whom the beit din exempted from swearing by means of an assisting witness, and afterwards the claimant seized without witnesses and desires to swear a Torah oath to contradict the witness, the law is with him and he shall swear a Torah oath to contradict the witness. The defendant cannot say that wherever the Torah believed one witness, he is like two, and how can the claimant subsequently seize, for he is like two witnesses? For in truth, the Torah did not believe one witness except for an oath and not for money [Ir HaGolah]. And all this that we explained—that even after the oath, if he seized without witnesses, the law is with the seizer—this is specifically regarding the first oath. But in a reversal of an oath, where the defendant reversed it upon the claimant that he should swear and take, and he swore and took, the defendant does not have the ability to subsequently seize from the claimant and claim that he swore falsely, since he himself believed him. Only if witnesses came can he extract it from his hand, for he only believed him against himself and not against witnesses [Tzemach Tzedek].

There are times when one takes an oath and afterwards witnesses came and the beit din nullified his oath and obligated him to pay, and nevertheless he remains in his status of fitness and does not become suspected. For example, where he claimed that he owes him a maneh by a shtar or by a kinyan, and the shtar was lost from him or the witnesses of the kinyan are not here, and the defendant answered him, "I paid you" or "I do not owe you." Now, if the plaintiff had produced the shtar or the witnesses of the kinyan, the defendant would not have been believed in his claim. However, since he did not bring the shtar or the witnesses, the beit din obligated the defendant to take an oath and be exempt, and he took the oath. Afterwards, the plaintiff found the shtar or the witnesses, and his oath was nullified and the beit din obligated him to pay. Nevertheless, he is not disqualified and does not become suspected, for the witnesses do not testify that he did not pay him, but rather that now he is not believed. Therefore, the lender shall take an oath and collect even if the borrower did not claim "take an oath to me." This is not similar to every shtar where, when the borrower did not claim "take an oath to me," the beit din does not obligate him in an oath, as I wrote in siman 82; for in this case, since the borrower took an oath previously, it is impossible to exempt the lender without an oath [it appears to me]. And the borrower remains in his status of fitness. And even if he claimed then "I do not owe you" and took an oath on this, it is also not a false oath, for it can be said that his intention was that he paid him and therefore he does not owe him, as I wrote in siman 79. Therefore, if he said "the matter never occurred" and took an oath on this, he becomes suspected. And if there is a trust clause in the shtar, he collects without an oath. And likewise, he does not become suspected when it is written in the shtar that he swore to pay him by a certain time, and the time passed and the lender claimed from him with the shtar, and the borrower claims that he paid him in its time. Behold, even though he is not believed since the shtar is in the hand of the lender and he is obligated to pay, nevertheless he does not become suspected through this, as has been written [Shach]. And Reuven who produced a verdict against the heirs of Shimon that their father was obligated to him in an oath, it was explained at the end of siman 69, see there.

A beit din should not administer an oath when it appears to them that the matter will be clarified, and the reason is that it appears like a vain oath, and all the more so since there is a concern that perhaps the opposite of his oath will be clarified and it will be found that it was a false oath and there will be a desecration of the Name of Heaven. Similarly, they do not entrust an oath to one who pursues an oath, for it appears that the oath is light in his eyes. And we have already written that if it appears to the beit din that the plaintiff only desires to impose an oath upon the defendant, they do not grant him an oath. And even when they grant an oath, they should not rush into this, and perhaps they will reach a compromise. Similarly, if it appears to the judges that the case is fraudulent, they should not administer an oath. And similarly, if it appears to them that the claim is poor, even if according to the law there is nothing with which to invalidate the claim, nevertheless, they do not grant an oath upon this if there is no drara demamona in this matter. And what is drara demamona? For example, if he said to him, "I have a maneh in your hand," and he said to him, "Yes," and the next day he said to him, "Give it to me," and he said to him, "I gave it to you"—this is drara demamona, for he admits that he took it but that he repaid him. But if when he sued him, he answered him "the matters never occurred," this is called where there is no drara demamona, and likewise in other matters. And the reason for this is that there are some of our teachers who ruled that where there is no drara demamona, they do not grant a shevuat hesset at all; however, for the law we do not establish it so, for in every denial we administer a shevuat hesset. Therefore, in such a shaky claim, one should not grant an oath except where there is drara demamona [see Tosafot Shevuot 41a, s.v. "u-man" and in the Rosh there].

Claims of shadchanut and brokerage and the like, where this one claims and that one denies him and says that he was not his shadchan or broker, or other claims between them: if according to the assessment of the beit din there are no poor or weak claims among them, their law is like other claims and one swears regarding this. However, when they see that they are poor and weak, they do not administer an oath, only a cherem hesset. And such matters depend on the understanding of the dayanim according to the matter and according to the claimant and the defendant.

Two or three who have a claim against one, and he swore to one of them, he is exempt also from the others, for a swear to one is a swear to a hundred since it is all one matter, and even if they were not all present at the time of the swear. And if two are obligated in a swear to one, if the beit din administered the swear with the language of an oath, saying "let whoever withholds his fellow's money be under an oath," the swear takes effect upon both of them and they answer amen. And if one swore by himself with the language of an oath, it is also sufficient when the second answers amen or says "I too am like him" or any other language that indicates he accepts the swear upon himself [Sma]. And if one swore by the Name and not with the language of an oath, it does not avail for his fellow to answer amen or another language, but rather he must say "I too am like him" [Shach]. And if it is a matter of partnership, answering amen is sufficient [Taz]. And he must say the amen or "I too am like him" within the time of a single utterance of the swear [Urim VeTumim], and if not, he must swear by himself.

Our teacher, the Beit Yosef, wrote in section 39 that there is one who says that regarding one who mentions the Name of Heaven in vain, the one opposite him swears and takes. Thus far his words. And even though it was explained in siman 34 that one is not disqualified from an oath except by way of a negative commandment, and in mentioning the Name of Heaven in vain it is a positive commandment of "The Lord your God you shall fear" [Temurah 4a], nevertheless, since he is unrestrained in this transgression, it follows that it is also light in his eyes to swear by the Name of Heaven falsely. And his disqualification is not because of a one-time occurrence, but rather when he is accustomed to mentioning it in vain [as mentioned above to answer the difficulty of the Tumim]. Nevertheless, there are some of our teachers who do not hold of this law, for the source of this opinion is from what is found in the Shas [Ketubot 85a] regarding a woman who was obligated in an oath and was accustomed to mentioning the Name of Heaven in vain, and they reversed the oath to the one opposite her; but there are those who explained that she would swear and not fulfill it [Tosafot, Shevuot 46a]. Therefore, this law is a legal doubt.