Siman 92

One who is suspected regarding an oath, we do not administer an oath to him, neither a Torah oath, nor a Mishnaic oath, nor a hesset oath. Even if the claimant says, "I will accept his oath," we do not listen to him. Even in a situation where this will cause damage to the claimant, such as in a case where we do not reverse the oath upon the opposing party to swear and take as will be explained, and it turns out that this suspected person is exempt without an oath—even so, we do not allow him to swear because of the desecration of the Name. For since he is suspected of swearing falsely, how can we allow him initially to utter an oath in vain, Heaven forbid [Sma]. And even though regarding a shopkeeper with his ledger it was explained in the previous siman that both swear and take, even though one of them will swear falsely, it is different there, for the beit din says to them that they cannot take except with an oath, and they do not allow them to swear as one, as is written there. And when the first one swears, he is in our eyes with a presumption of fitness, and we say that he swore truthfully, and the second certainly will not want to swear falsely. And if afterwards, even so, the second also wants to swear, we say that the second will presumably swear truthfully and the first swore falsely and his oath has already passed. But in any case, at the time of each one's oath, we say that the one swearing now will swear truthfully. But regarding a suspected person, where we know that he is already suspected of swearing falsely, how can we give him an oath [it appears to me, and see the Mordechai, chapter 6 of Shevuot, who raised this difficulty].

A person is called "suspect" if he swore falsely, whether he swore falsely regarding an oath of testimony—where they adjured him to provide certain testimony and he did not provide it, and it became known that he had knowledge of the testimony—or whether he swore an oath of deposit, where he swore that so-and-so did not deposit with him and it was clarified that he did deposit with him. And if there are witnesses that the deposit was in his hand at the time he denied it to him, he is disqualified immediately even without an oath. And it is not specifically oaths of testimony and deposit, which are evil toward Heaven and toward people, but even if he transgressed a vain oath or an oath of utterance—such as if he swore that he ate and he did not eat, or that he did not eat and he ate, or if he swore regarding the future that he will eat and he did not eat, or that he will not eat and he ate, which is evil toward Heaven and not toward people—he is also disqualified. However, some say that specifically regarding an oath of the past is he disqualified, such as "I ate" when he did not eat, for at the moment the oath left his mouth, it left as a lie; but regarding an oath of the future, such as "I will eat" and he did not eat, he is not disqualified, because at the moment he swore he did not swear falsely, as it was in his mind to fulfill it, and afterward his inclination overcame him to transgress, and it is like any other transgression, but he is not yet suspect of uttering a false oath from his mouth where the lie exists at the time of the oath. And even though he is disqualified for other transgressions as well, nevertheless it is possible that this transgression is light in his eyes since he prohibited it upon himself and the Torah did not prohibit it [Sma], and it does not appear to people that it should be equal to all transgressions of the Torah. And an acceptance has the law of an oath, as it is written in Judges [21]: "For the great oath was for whoever did not go up to the Lord at Mizpah, etc.," and we do not find that there was an oath there but rather an acceptance [the Gra]. Therefore, according to the first opinion that even for an oath of the future one is disqualified, one who transgresses the acceptances of the community is disqualified from an oath.

And so too, one who is disqualified from testimony due to a transgression—whether a Torah transgression, such as one who lends with interest or eats treifot and the like, or a rabbinic transgression, such as those who fly pigeons or play with dice—is called "suspect." And there are those who say that one who lifts his hand against his fellow to strike him, even if he did not strike him, is called "wicked" until he repents from his wickedness and accepts the judgment. And in this time, it is difficult to rule so, for it does not appear to many people that there is a transgression in this. But one who is accustomed to striking his fellow or his wife is certainly suspect. And one who is disqualified from an oath is disqualified even without a public proclamation, and even though for testimony a public proclamation is required as is written in siman 34, nevertheless for an oath, where the disqualification is only for himself, he is disqualified even without a public proclamation.

And so, anyone who is suspected of taking the money of his fellow is suspected regarding an oath, for what difference is there to me between the prohibition of robbery or the prohibition of a false oath? And even though there are people for whom the prohibition of an oath is more severe than robbery, nevertheless, it is not possible to rely on this and administer an oath to one suspected regarding money, as has been explained in siman 75. And let it not be difficult for you that if so, how do we administer an oath to any person? For either way: if he is telling the truth, why should he swear? And if he claims falsely and his desire is to rob, what will the oath avail? Since he is suspected regarding money, he is also suspected regarding an oath. For the matter is thus: we say that this man upon whom we impose an oath has no desire to rob, and that which he denies regarding the money is because perhaps he has some doubt of an old claim against the plaintiff, because of which he seizes him until the truth becomes clear to him; therefore, they administer an oath to him, and he is unable to swear since it is a doubt in his hand whether it is due to him from the plaintiff or not. And we can also say that this defendant evades admitting to the plaintiff because he does not currently have the money that he borrowed from him, or the deposit that he deposited with him is not under his hand, and they imposed an oath upon him so that he would tell the truth. But if it is clear to us that he denies the money of his fellow and his desire is to rob—for example, if there are witnesses that the money of his fellow has been in his hand from before, such that the robbery is certain—we do not administer an oath to him. Therefore, one who claims a loan from his fellow and he denied it, even though the plaintiff brings witnesses and they contradicted him, he is not disqualified, for we say that he is evading until he has money and will pay. And even if they saw money in his hand at the time that he denied it, nevertheless, perhaps that money was not his, and the loan that he borrowed he had already spent. And so, if he denies a deposit, we say perhaps the deposit was lost by him and he is evading until he finds it. But if witnesses testified that they saw the deposit in his hand at the time that he denied it and he knew of it, he is disqualified immediately, and we do not concern ourselves with the doubt of an old claim in a place where his robbery is clear to us. And if he says that he is withholding the deposit because of such-and-such a claim, we hear his claims if there is substance in them. And so, if he wants to pay for the deposit, he is not disqualified even if it is known that the deposit is in his hand and he violates "do not covet," because the prohibition of "do not covet" is not understood by people, for the explanation is even when one pays for it, and they imagine that the intent of the Torah is that one covets to take from his fellow by robbery; and even though in this there is a separate prohibition of "do not rob," it seems to them that the prohibition of "do not covet" comes to add another prohibition and to violate two prohibitions [Tosafot Bava Metzia 5b]. And there is no difference in disqualification regarding money whether the money came into his hand through a prohibition, such as theft and robbery, or whether it came into his hand permissibly, such as a deposit and a loan, and he robs it through his denial. And even according to the "there are those who say" in section 2, that he is not disqualified by an oath regarding the future and it is not similar to money, as has been explained there, for an oath is a prohibition that he prohibited upon himself [it appears to me].

A person does not become a chashud until witnesses come and testify that he committed a transgression for which he is disqualified. However, one who admits of his own accord that he is a chashud, and it is not appropriate to entrust him with testimony ab initio, nevertheless, if he knows testimony, he is fit to testify [Shach], for a person cannot make himself a rasha. And if he became liable for an oath, if he is among those who swear and take, they do not grant it to him, for the admission of a litigant is like a hundred witnesses. And also conversely, he does not have the power to reverse this severe oath upon the defendant; rather, the defendant shall swear a shevuat hesset and be exempt, for the claim of the chashud is no worse than other claims that have the power to obligate the defendant in a shevuat hesset. And if it is an oath to swear and be exempt, they adjure him and say to him: You do not have the power to exempt yourself from the oath by disqualifying yourself and causing loss to others; if you do not swear, you shall pay. And some say that if it is a Torah oath, if the plaintiff wishes, he swears and takes, for he says to him: Since according to your words you are a chashud, if so, it is upon me to swear and take according to the enactment of the sages that regarding a chashud, the opposing party swears and takes. But regarding a shevuat hesset, he cannot say so, for the defendant will say to him: Whichever way you look at it, if you believe me that I am a chashud, I am exempt without an oath, for we do not make an enactment upon an enactment; and if you do not believe me, I will swear and be exempt. And such is the primary ruling [see Shach, subsection 6].

One who is obligated to take an oath to his fellow, and the one imposing the oath asked the beit din to announce in the synagogue that perhaps there is someone who knows that this man is disqualified from taking an oath and should come and testify—this requester is worthy of a reprimand, and they rebuke him for wanting to shame him in public, since it is not known to us that there is a disqualification in him. And if he claims that he has witnesses who know that he is disqualified from taking an oath and they do not want to testify until they issue an announcement, and there are people who heard as much from the mouths of the witnesses that they will not testify until they announce [Bach], the authority is in his hand, or he may announce himself or the shamash shall announce according to the custom of the place, and those who know are obligated to testify as with other testimonies. And as for the fact that the witnesses do not desire to testify until they issue an announcement, even though they act not according to the law, nevertheless, since for whatever reason they have they request the announcement, the beit din is obligated to do so so that loss does not reach them through their testimony [it appears to me]. And a single witness is not believed to remove a Jewish man from his status of fitness, and they rebuke him when he testifies alone, for it is nothing but lashon hara when he testifies alone since the Torah did not believe him, as has been written in siman 28.

The sages enacted that one who is suspect regarding an oath and became obligated in a Torah oath, his opponent shall swear and take. For since the Torah cast an oath upon him and he is unable to swear, his opponent shall swear and take. We do not judge in this case the law of "since he is unable to swear, he must pay," for he desires to swear and says that he is able to swear, but it is we who do not allow him; so how can we obligate him to pay without the oath of the opponent? And this is specifically when the claimant claims a certain claim and he admits to a part, or that he claims against him by the word of a single witness, where he must swear to contradict the witness; and when he is suspect, the opponent swears and takes. And one should not raise a difficulty that regarding a single witness, why must the opponent swear? Behold, the witness who contradicts the suspect is a witness who assists him, and he should take without an oath. However, it is impossible to say so regarding a suspect, for if so, everyone would extract money from a suspect by the word of a single witness, and it would turn out that by the word of a single witness they extract money, and the Torah said that by the word of one they shall not extract money. Therefore, it is necessary that the opponent swear and take. But in a claim of doubt where the opponent is unable to swear, such as in the oaths of guardians where the guardian is suspect and claims that the deposit was stolen or lost, and the depositor is unable to swear that it is not so, for behold he does not know for certain that he was negligent with it or that he misappropriated it, the guardian is exempt without an oath. And we do not judge in this case "since he is unable to swear, he must pay" because of the reason that has been explained. And similarly, when he claims against him by the word of a witness and he himself does not know, the defendant is exempt without an oath [Shach]. Therefore, if the owner of the deposit claims a certain claim that he was negligent or misappropriated it, behold the claimant swears according to the enactment of the sages and takes.

And regarding rabbinic oaths, when he is suspected, if he is among those who swear and take, he can neither swear and take nor reverse this upon the defendant. For since the oath is only rabbinic, and the enactment that when one is suspected the opposing party swears is also rabbinic, they did not make an enactment upon an enactment. Therefore, it is only like other claims where the defendant swears a heset oath and is exempt. And so too regarding one who impairs his shtar and the like, when the lender is suspected and the borrower claims he paid him, the borrower swears a heset oath and is exempt. And some say that regarding a shtar we do not say this, for since he holds a validated shtar, he collects without an oath; for it is impossible to say that because the sages imposed an oath upon him and he cannot swear, he should lose his validated shtar. And such is the primary view [ibid.], only the defendant can impose upon him a herem stam. And if the suspected party was among those who swear regarding claims of doubt, which will be explained in siman 93, he does not swear and the opposing party does not swear, because it is not a Torah oath, and behold, even regarding a Torah oath one is exempt in a case of doubt as I wrote in the previous section. And so too if the suspected party became obligated in a heset oath, the defendant is exempt without an oath even though he claims against him with certainty; since it is an enactment, and an enactment upon an enactment we do not make, as I wrote. And he can only impose upon the defendant a kabbalah if he does not owe him such and such. However, the defendant can say "swear and take," and then he is exempt from kabbalah even if the plaintiff does not want to swear; but a herem stam he can impose upon him [Sma], for from this it is impossible to be saved in any manner, as I wrote in siman 71.

Regarding a Torah oath when both of them are suspect, some say that the oath returns to the defendant according to the law of the Torah, and since he is unable to swear, he pays. And even though we wrote that we do not adjudicate this law regarding a suspect, this is when there is a regulation that the opposing party may swear and take; however, when both of them are suspect, perforce we adjudicate thus. And some say they shall divide, for since the prevention is from both of them, why should the defendant lose everything? For behold, he stands and cries out that it is his will to swear and we do not permit him; therefore, they shall bear the loss equally. And our teacher, the Rema, ruled accordingly.

Some say that this which the sages enacted regarding a suspect, that the opposing party swears and takes, applies specifically when the opposing party did not know at the time he conducted business with him that he was a suspect. However, if he knew of this, he is exempt without an oath, for if it were not so, everyone would conduct business with a suspect in order to obligate him in an oath, so that he himself would swear and take. And there are those who disagree regarding this, for there is no substance to this concern, as Israel is not suspected, Heaven forbid, of swearing falsely and taking; and if so, why would he do such a thing? And one of the great authorities decided that these two opinions do not disagree at all, for certainly in loans and business dealings the law is like those who disagree for the reason that has been explained, and the first opinion refers only to a deposit, when one deposited with a suspect and claimed the deposit from him and he admitted to a portion of it. For in this, he certainly relied upon him and accepted him since he trusted him, and why should we make an enactment regarding a deposit? Therefore, regarding any claim of a deposit when the depositor knew that he was a suspect, they did not make this enactment [Urim VeTumim].

One who is suspected regarding an oath and produces a document against orphans—since one may only collect from orphans with an oath, and he is unable to swear, he loses. This is not similar to what was explained in section 8, that with a validated document one collects without an oath; orphans are different, for one never collects from them without an oath. And behold, orphans do not collect from orphans because a person does not bequeath an oath to his children, as will be explained in siman 108; even though it is possible for them to swear, how much more so here, where it is impossible for him to swear, that he loses [Taz].

One who became obligated in a shevuat hesset and the claimant was suspect, the defendant cannot reverse his oath upon him, for the claimant is unable to swear. Therefore, the defendant must either pay or swear a shevuat hesset. The defendant cannot say that since the sages gave me permission to reverse it upon him and he is unable to swear, he should lose; for the primary obligation is cast upon him, except that they gave him permission that it is within his power to reverse it upon the claimant if it is within the claimant's power to swear. And when it is not within his power to swear, it is not within the power of the defendant to reverse it, and he must swear or pay. Such is the law when the claimant is a minor and the defendant became obligated to swear according to the details that will be explained in siman 96, that the defendant cannot reverse the oath upon the minor. From this itself there is a proof for the law of a suspect, for regarding a minor it is simple that when they enacted that the defendant should swear upon his claims, the enactment was without reversal, as reversal is not applicable to a minor. According to this, we see that reversal is not a prerequisite, and therefore also regarding a suspect it is not a prerequisite [as it appears to me in the intention of the Tur, section 16, see there].

One who became obligated in an oath, whether from the Torah or from the words of the sages, and swore, and afterwards witnesses came and testified that he was suspect at the time of the oath, his oath is of no consequence. If he took payment by means of the oath, he must return it, except for a validated contract with which he collects if it is validated, even according to the first opinion in section 8, after he swore. It is possible that also in these cases where by law they would collect without an oath, such as laborers, it is similar to a contract, so that when they swore they do not return their oath even when found to be suspect [see Shach subsection 14 and it requires further study]. If his oath was of those who swear and are exempt, if it was an oath from the Torah, the one opposing him shall swear and take payment. Regarding a rabbinic oath, this does not apply, for this enactment does not exist in a rabbinic oath, as has been explained there [Sma].

One always judges such a person as a suspect whose oath is no oath until he is lashed in beit din [in ancient times] and performs repentance. If there are witnesses that he was lashed and performed repentance, he returns to his fitness both for testimony and for an oath. Regarding one who ate a forbidden item, the lashes are the repentance, since he suffered bodily affliction corresponding to the pleasure he derived from the prohibition [ibid.]. In this current time, when we do not have lashes in beit din, the repentance depends on the assessment of the beit din and their understanding that he has returned to his fitness. The details of repentance are similarly explained in siman 34.

And now, in this time, when licentiousness has increased due to our sins and it is not in our power to protest, and even to rebuke them is not within our ability, one must be very exacting regarding the obligation of an oath. The beit din must be very deliberate regarding an oath, and when they have a doubt concerning the fitness of the man, they shall not administer an oath to him [it appears to me]. And so too, when the judge has proven assessments that this one is lying and denying, the judge has the power to reverse the oath [Be'er HaGolah] or not to administer an oath at all, as was written in siman 15; see there.