Siman 94

Our sages, of blessed memory, said: From where do we derive gilgul shevuah from the Torah? As it is stated regarding a sotah whose husband warned her regarding a certain man and she secluded herself with him, and he makes her drink the bitter waters to examine her, whether she is pure or not, and the kohen adjures her, and it is written: "And the woman shall say, Amen, Amen." And the tradition arrived that for this reason "Amen" was doubled twice: that the kohen rolls upon her to adjure her if she did not commit adultery with another man, even though the husband only warned her regarding a certain man, and without a warning it is impossible to make her drink; nevertheless, since she is forbidden to her husband even if she committed adultery with another man, he rolls it upon her even though the warning was not regarding him. And from this we learned gilgul shevuah. Therefore, our sages, of blessed memory, said that anyone who is obligated in a shevuah in beit din, even a shevuat hesset, his litigant can roll upon him any claim that he has against him, even though he did not come with him now to judgment for these claims, and even if for these claims he would not have been able to adjure him—just as with a sotah, where regarding another man he would not have been able to make her drink since he did not warn her regarding him. However, which claim can he roll upon him? Specifically such a claim that if the defendant were to admit to the plaintiff, he would be liable for money by his admission, just as with a sotah, for even if she committed adultery with another man, she is forbidden to her husband. But such a claim that even if he were to admit to it he would not be liable for money but only for a shevuah—for example, if he rolls upon him a claim that he was a partner with him and became obligated to him in a shevuat hashuataphin, and the defendant says "I was not your partner"—one does not roll such a claim, for even if he were to admit to him that he was his partner, he would not be liable for money but only for a shevuah. However, if he admits that he was his partner, or if it is known that he was his partner, he can roll upon him that he did not profit at all during that time, or that he did not profit more than what he showed in the account, and so too anything similar to this. Only regarding a hired worker does one not roll, as I wrote in siman 89, for "to it he lifts up his soul," see there.

There are some among the early authorities who wrote that when the defendant reverses the oath upon the plaintiff, that he should swear and take, the defendant may not roll other claims upon him. They wrote the reason is because the reversal of an oath is rabbinic, and the rolling of an oath upon a rabbinic oath is also rabbinic, and we do not make a regulation upon a regulation. Our teacher, the Rema, brought this opinion in section 1. The great later authorities disagreed regarding this, for if we say that this is called a regulation upon a regulation, if so, even when the defendant swears a shevuat hesat or other rabbinic oaths, we should not roll upon them for this reason. Rather, it is certain that rolling is like the primary oath, and just as in a Torah oath rolling is like the primary oath, so too in rabbinic oaths, for whatever the sages regulated, they regulated similar to the Torah [Shach and Taz and Urim VeTummim and Netivot HaMishpat]. And so too regarding one suspected of perjury where the opponent swears and takes, he can also roll upon the opponent whatever he wants [Urim VeTummim]. And in my humble opinion, it appears that the reason of the early authorities is not because of a regulation upon a regulation according to the simple meaning of the phrasing, but rather this is the explanation: since the sages gave permission to the defendant to reverse the oath upon the plaintiff, he cannot reverse upon him more than what he wanted to make him swear regarding this claim, for if he does so, this is not a reversal but an addition. And this is their intent in what they said "a regulation upon a regulation," meaning to say that the essence of the oath is rabbinic, and they added in the regulation to reverse it upon the plaintiff, and if they were to regulate regarding it more than a reversal, it would be like a regulation upon a regulation. But regarding one suspected of perjury in a Torah oath where the opponent swears and takes, certainly he can roll. Therefore, in my humble opinion, one should not reject the ruling of our teacher, the Rema, and the early authorities [Ritva and Terumat HaDeshen].

If the judges know that the plaintiff has claims against the defendant that may be included as a gilgul in this oath, the beit din includes the gilgul on its own, even if the plaintiff did not request to include them, just as in the case of a sotah where the kohen includes the gilgul on his own without the husband's request. However, if the beit din does not know at all that he has further claims, they should not include a gilgul nor should they arouse the plaintiff regarding other claims, so as not to be like lawyers [Shach]. And even though the kohen also does not know of another man, it is different there, for since there is a basis for the matter, as she secluded herself with this one, it is as if there is grounds to suspect her.

One does not roll further claims onto the defendant unless the defendant asserts a claim of certainty regarding the gilgul, such that he denies the plaintiff; just as with a sotah, where the woman asserts with certainty that she did not become defiled with another man. However, if the defendant asserts a claim of "perhaps" regarding the gilgul, one does not roll it onto him to swear thus in his gilgul—that he does not know of this claim of the plaintiff. But the plaintiff does not need to assert a claim of certainty, and even on his claim of doubt one may roll a gilgul, just as with a sotah where the husband does not know for certain that she was defiled by another man, provided there is a basis for the matter regarding his claim of "perhaps" for the gilgul. For example, regarding the oath of partners, when he rolls a gilgul upon him, it is considered a basis for the matter because he might permit it to himself; for behold, even with a sotah there is a basis for the matter, as she secluded herself. And let it not be difficult for you regarding what we wrote, that on a claim of "perhaps" by the defendant one does not roll a gilgul, for behold in siman 93, section 14, we wrote there that the partner shall swear by way of gilgul that he does not know that there was such a loss, see there. And why should he swear, behold he claims "perhaps"? It is different there, for this is all included in the oath of partners—that he did not withhold anything of his own because he does not know that there was such a loss [Urim VeTummim]. However, if regarding the essence of the oath he claimed that he does not know and became obligated to swear on this, he can roll a gilgul [Shach]. And there is room to doubt whether he can roll other matters onto this as well where the defendant says "I do not know," since the essence of the oath is on "I do not know," or whether there is no distinction in this, and it is not similar to a Torah oath whose essence is on "perhaps," such as the oath of guardians, where one rolls a gilgul even on "perhaps," as will be explained. And see in section 10.

That which we have said, that when the defendant claims "perhaps" regarding the gilgul we do not apply a gilgul, was explained in siman 75, section 21, that this is specifically when the claimant does not claim with certainty that the defendant definitely knows regarding this claim that he is charging him with; but when he claims that the defendant definitely knows, then we apply a gilgul upon him even when he claims "perhaps." And an oath whose essence is based on "perhaps," such as the oath of guardians, we apply a gilgul even with a "perhaps," for the gilgul is like the essence of the oath itself [and the difficulty of the Shach from siman 344 is well-settled, and delve into this]. And there are those who say that when the defendant is liable for a shevuat hesset on the "perhaps," such as when one claims a maneh from him and he says "I do not know if I became indebted to you," as written in siman 75, that we apply it as a gilgul upon the severe oath; and if he is exempt even from hesset, we do not apply it as a gilgul [Taz]. And there are some of the Rishonim who disagree with this entire law fundamentally and hold that if he claims regarding the gilgul "I do not know," we adjudicate this with the law of "since he is unable to swear, he must pay," as written there in section 21.

One who became obligated in an oath, even a heiset [Shach], and the plaintiff began to roll upon him other matters that he had not previously claimed during the claims that resulted in the obligation of the oath, and when the defendant saw this, he said, "I do not wish to swear, but rather I will pay for the initial claim for whose denial I became obligated in an oath," we do not listen to him. For since he consented to the oath, the gilgulim automatically took effect upon him, and the beit din says to him: "Either give him everything he rolled upon you from the certain claims, or swear regarding all of them." And even if he wishes to give him the value of the gilgulim as well, but the plaintiff specifically wants the objects themselves that he is claiming because he suspects that he set his eyes on these objects of his, it is also within the power of the plaintiff to insist that he give him the objects themselves or that he swear regarding them. And this is specifically when the plaintiff rolls upon him a certain claim; but when he rolls upon him a doubtful claim, the defendant can say, "Regarding the primary claim I will pay and not swear, and regarding the gilgul I will neither swear nor pay." And even though regarding the plaintiff a doubt is like a certainty in a gilgul, as has been explained, nevertheless, regarding this matter the power of the doubt is not like the power of the certainty. For in a certainty, the defendant is forced to either pay for all of them or swear regarding all of them, but in a doubt, if he wished, he pays for the primary claim and is exempt from the gilgulim. And if it is difficult: why do we need, in a certain claim of the plaintiff, to make the defendant swear by means of a gilgul? Behold, even without this, he can make him swear a heiset on a certain claim! It can be said: for example, where he became obligated to him in a severe oath, and his desire is to roll it into the severe one [it appears to me]; or alternatively, it could be that even in a certainty one does not swear regarding it on its own if not by means of a gilgul, such as where he exempted him from an oath on this claim but not from a gilgul of an oath [Urim VeTummim], or in a claim of "I had a pruzbul and it was lost," which was explained in siman 67 that one does not swear regarding this, or when he claims regarding interest that he took it in a permitted manner, which was explained in siman 82 that one does not swear regarding this [Shach]. And there are those who hesitate regarding pruzbul and interest: since according to the law he is exempt from an oath, why should he not also be exempt from a gilgul? [Urim VeTummim].

In what case are these words said? When he initially consented to the oath regarding the primary claim and afterwards wishes to retract. However, if when they obligated him in an oath he said, "I will pay and I will not swear," and after he said this they claimed other matters, he cannot roll them upon him. Since he consented to pay before he said that his desire was to roll other matters upon him, the gilgulim did not take effect upon him, and he shall litigate them on their own. And it appears to me that even if at the time of the claims the plaintiff said, "I am claiming such and such from him, and if he denies it to me he shall swear to me and I will roll further claims upon him," and the other denied it and the beit din ruled an oath upon him, and he said immediately, "I do not wish to swear and I will pay," he is exempt from the gilgulim; since at the time of the ruling, which is when the obligation of the oath took effect upon him, he said that he would pay. But if at the time of the suit he claimed the primary matter regarding a certain thing and said, "If you deny me, swear to me and I will roll upon you also such and such a claim," since he mentioned the matter explicitly, even when immediately following the ruling he said, "Behold I am paying the primary claim," it is of no avail, and he must either swear on everything or pay everything. And so it is implied in the Yerushalmi at the end of the seventh chapter of Shevuot, which the Rif and the Rosh brought there [for according to what the Rosh wrote there, that initially he claimed such and such a matter, it is difficult, for what do we have to do with gilgul? Behold it is from the primary suit! And also R. Z., why did he not rule on this? Rather, it is certainly as we explained, and examine this closely].

And that which we explained, that when he agreed to swear and when he heard the gilgulim he said "I will pay and I will not swear" that we do not listen to him, nevertheless, we also do not listen to the plaintiff when he claims that the defendant must pay him for the primary claim since he himself agreed to it and regarding the gilgulim he shall swear according to the law. For we say to the plaintiff that this which the defendant agreed to pay was only when he would not swear regarding the gilgulim, but when he swears regarding the gilgulim, he shall swear regarding everything, and why should he pay for the primary claim? And therefore, even if the defendant left the beit din when he agreed to pay the primary claim—and it was explained in siman 22 that if one accepted upon himself to pay and left the beit din he cannot retract—nevertheless here he can retract, for we are witnesses that this agreement to pay was intended in order to be exempt from the gilgulim oaths. And if so, since he was not exempted from them, he swears also regarding the primary claim.

One who became obligated in a shevuat hesset and sees that the claimant is rolling many claims upon him, and he reversed the gilgulim upon the claimant that he should swear and take, while regarding the primary claim he wishes to swear and be exempt—the claimant can compel him to either swear on everything or reverse everything upon him. And even though in every shevuat hesset the defendant can reverse it upon the claimant, and why should the gilgulim be diminished such that he cannot reverse them alone? For certainly it is so, that it is in his power to reverse, but in this case where he wishes to swear the primary oath, the claimant can roll the other matters upon him as well if he does not wish to reverse the primary claim and the gilgulim upon the claimant. However, the opposite of this: if the defendant wishes to swear on the gilgulim and wishes to reverse the primary claim upon the claimant, the right is in his hand. For the reversal of the primary claim is simple that it is in his power to do, and the claimant cannot say, "Since you wish to swear on the gilgulim, I will compel you to swear also on the primary claim." For with what can he compel him? For certainly a gilgul can be hung upon the primary claim, for so the Torah decreed to roll gilgulim upon the primary claim, but to hang the primary claim upon the gilgulim is not in his power (so the Gra explained the words of the Shulchan Aruch in section 6, and not like the Sma subsection 12, and with this the difficulty of the Taz is answered, and what the Taz and the Urim VeTumim wrote to settle it is very forced, and according to the Gra it is settled simply). And so if the gilgulim were from claims of doubt, when the defendant wishes to swear on the primary claim, he is forced to swear by gilgul on the doubts as well, or he must reverse all of them upon the claimant. And some say that even if the defendant wishes to swear on the primary claim and wishes to reverse the gilgulim upon the claimant, the right is in his hand (Sma ibid.). And for the law, it appears like the first opinion (the Gra subsection 16, and so it appears from the source of the law from the Ra'avad, chapter 1 of Toen, halacha 13, see there carefully).

One claimed a maneh against him and he admitted to fifty, and regarding the remainder he claimed "I do not know," and the claimant rolled upon him several gilgulim, and the defendant responded to the gilgulim "you have nothing in my hand"—even though regarding the primary oath we judge the law of "since he is unable to swear, he pays," as was written in siman 75, nevertheless we do not obligate him to pay the gilgulim as well. And what is the law of the gilgulim? If they are matters that, had he claimed them on their own, the defendant would have been obligated to swear a shevuat hesset or a severe oath regarding them, he shall swear regarding them now as well. And if he would not have been obligated in an oath regarding them, even now he shall not swear, for they have no connection to the primary claim (Sma), since he does not swear regarding the primary claim but rather pays for it by Torah law, there is no gilgul here at all. And even though there is one who says that even when he is not obligated in an oath on the gilgulim on their own, nevertheless he is obligated here to swear on the gilgulim or to reverse them upon the claimant—and his reason is because even though he must pay on the primary claim, nevertheless the obligation of an oath did not depart from him regarding the gilgulim, since in truth he is obligated in an oath on the primary claim, only that it is not in his power to swear (Urim VeTumim, see there)—the halacha is not so (Sma and the Gra, and so wrote the Shach in siman 75). And likewise, if regarding the primary claim he denied and regarding the gilgulim he said "I do not know," and even if he is obligated in a shevua de-oraita on the primary claim, such as where he claimed a maneh and he admitted to fifty and denied fifty, and when he came to swear he rolled upon him further claims and he responded to the gilgulim "I do not know," he shall swear on the primary claim a shevua de-oraita and be exempt from swearing on the gilgulim, as was written in section 4, for when the defendant claims "perhaps" regarding the gilgul, there is no law of gilgul shevua in this, and we do not judge regarding the gilgulim the law of "since he is unable to swear, he pays," and he can only cast upon him a kabbalah that he does not know regarding the claims of the gilgulim. However, if he was obligated in an oath regarding the gilgulim even if he had claimed them on their own, such as where he says "I do not know if I became obligated to you" and the like, even now he shall swear regarding them.

If he became obligated to him for a Torah oath and he comes to include through gilgul a matter for which, had he sued him for it independently, he would have been obligated in a heset oath, our teacher, the Beit Yosef, wrote in section 8 that the defendant can say: "I will swear the Torah oath and be exempt, but regarding the gilgul, I am reversing it upon you so that you shall swear and take," according to the law of a heset oath which one is able to reverse. And there are those who disagree regarding this, for since gilgul shevuah is from the Torah, its law is like the oath itself; and just as he cannot reverse the oath itself upon the plaintiff—as we do not reverse a Torah oath, as was written in siman 87—likewise he does not have the ability to reverse the gilgul (Shach and the Gra). And there is one who says that since it has been explained that we do not apply the law of "since he is unable to swear, he pays" regarding gilgulim, and when he says regarding the gilgul "I do not know" there is no law of gilgul here, therefore even if he does not say "I do not know" but rather says that his heart pricks him regarding this oath and his desire is to reverse it upon the plaintiff, this is no worse than if he had said "I do not know" [Urim VeTummim]. And according to this, this law applies only to a claim of a loan, for when he says "I do not know if I became obligated to you" he is exempt from paying, but regarding a claim of repayment this law is not applicable, for if he were to claim regarding the repayment "I do not know if I repaid you" he would be obligated to pay, as was written in siman 75 (Netivot HaMishpat). And it appears to me that according to the first opinion that we wrote in section 9, regardless of this, the obligation is cast upon him to swear also regarding the gilgul since he swears regarding the primary claim and he did not claim regarding the gilgul "I do not know."