Siman 96

One does not swear regarding the claims of a cheresh, a shoteh, or a katan a shevuat de'oraita, because they are not sentient and their claim is not a claim. In the parsha of guardians it is written, "When a man gives to his fellow," and not a katan, and certainly not a cheresh or a shoteh who are inferior to a katan. Even if he is an adult at the time of his claim in beit din and claims against him regarding the time of his childhood, we do not listen to him. Whether he comes with his own claim or with his father's claim and the other admitted to him a part of the claim, we do not obligate him in a shevuat de'oraita, because this one who admitted is only like a restorer of a lost object, for he could have denied everything to him and would be believed with a migo. For even though regarding an adult we do not say a migo of denying everything, as has been explained in siman 75, nevertheless regarding a katan it is a good migo. Similarly, if he denied everything and one witness came and testified for the katan, he does not swear since there is no claimant there, for the claim of a katan is not a claim at all. And some say that based on the witness he is obligated to swear a shevuat de'oraita just as with an adult who claims based on a witness even though he himself does not know of this, as has been explained there; and such is the primary view [Taz and Urim VeTummim]. According to this, a katan who said to an adult, "I have a maneh in your hand" or "My father has a maneh in your hand," and the other says, "You have only fifty in my hand," he is exempt from a shevuat de'oraita. But if he claimed in his adulthood that he saw in his childhood that he borrowed a maneh from his father, and he admitted to him a part, he swears a shevuat de'oraita since the giving was from an adult and the claim is at the time of his adulthood. However, if he claimed in his childhood his father's claim and the other admitted to him a part, and he returned and claimed from him in his adulthood, he is not obligated in a shevuat de'oraita because the admission preceded the claim [Urim VeTummim], for the claim in his childhood is not a claim and the admission of the defendant was an admission.

Some say that the oath of shomrim is sworn even to a minor, such that if one was a shomer for a minor and claims that it was stolen or lost, he swears the oath of shomrim. This is because the claim against shomrim, even for an adult, is not a claim of certainty but rather a claim of doubt, and the shomer does not swear because of the claim but rather because of his guardianship. If so, there is no distinction between an adult and a minor. And even though regarding shomrim it is written "a man," nevertheless it must be said that this only comes to exclude a partial admission regarding a loan. And some disagree on this, for perforce the Torah excluded the guardianship of a minor from shomrim, and one does not swear to a minor the Torah oath of shomrim even if he sued him when he was an adult, since the giving occurred during his minority. Our teacher, the Rema, ruled accordingly. And even if he was negligent in his guardianship, some say he is exempt, for since the Torah excluded this from the law of shomrim, it excluded it even from the law of negligence. And some say he is liable for negligence, and such is the primary ruling [Shach]. And if the father of the minor handed it to him to guard and died, and the minor sued him, he is liable for every law of shomrim [ibid.], for the giving was from an adult. And as for the fact that the lawsuit is from a minor and is not a certain claim, we are not concerned by it, for all lawsuits of shomrim are claims of uncertainty.

Even though one does not swear a Torah oath based on the claim of a minor, one does swear a heset oath for the sake of the order of the world, so that everyone will not take the property of a minor and go his way. And even if it was a minor who is not sharp regarding matters of negotiation, one swears a heset oath based on his claim. It follows that you learn that a minor who claimed against an adult, whether he admitted to a portion or whether he denied everything, behold, this person swears a heset oath and cannot reverse the oath upon the minor, for one does not swear a minor at all, and one also does not impose a herem stam upon him because he does not have the cognitive capacity to understand the punishment. And some say that one does not swear based on his claim unless he has reached the age of the pe'utot, which is from six years old and up, for then he has some cognitive capacity and his purchase is a purchase and his sale is a sale regarding movables, as I wrote in siman 235, and less than this, one does not attend to his claims at all, and even a herem stam is not given based on his word [Urim VeTumim]. And some say that even though one swears a heset oath to a minor, nevertheless, regarding documents one does not swear to him at all even when admitting to a portion, such as when he claims three documents from him and he admits to one, because the oath for documents is a rabbinic enactment, as I wrote in the previous siman, and we do not make an enactment upon an enactment [Sma]. And likewise regarding lands and slaves. But regarding those who swear and take, such as one who impairs his document and the like, he does not take without an oath; since there is the flaw of impairment and the like, how shall he take from the minor without an oath? This is not like the one who disagrees in this [Urim VeTumim]. And likewise regarding all oaths of doubt that are of rabbinic origin, such as the oaths of partners or a member of the household, when he admitted that he was the partner of the minor or a member of his household, one swears based on his claim; for specifically an oath imposed by the Torah was excluded, but not rabbinic oaths when there is a flaw, such as one who impairs his document or a partner who might permit it to himself and the like. Therefore, the beit din shall appoint an apotropos for the minor and he shall swear the partner. And the main laws of the oaths of apotroposim—when he is obligated to swear and when he is not obligated—will be explained in siman 290 with the help of Heaven.

An adult who sues a minor—if he claims against him regarding a matter in which the minor has a benefit, such as business dealings after he has reached the age of "pe'otot" as written in siman 235, as they instituted this for the benefit of the minor, and the minor admitted, they collect from his property. And if he does not have it, he shall wait until he has it and pay. And if the minor denied, they wait until he grows up and he shall swear a shevuat hesset, for in his minority they do not administer an oath to him as has been written. And if he claimed against him regarding a matter in which the minor has no benefit, such as damages and injuries, even though he admits and even if he has from what to pay, he is exempt, and even after he grew up he is not liable to pay. And if the plaintiff was of those who swear and take, such as a hired worker and the like, where there is a benefit to the minor so that workers will hire themselves out to him, behold, this one swears and takes from the minor. But the shopkeeper does not swear and take from the minor, for the minor has no benefit in this, since he is liable to give to the workers who swear and take from him, and the shopkeeper caused his own loss by giving his money based on the minor's word, and as has been written in siman 91. And see what has been written in siman 235, section 16.

A kinyan of a minor is nothing, as it is written: "a man drew off his shoe" etc., and not a minor. Therefore, witnesses who saw his kinyan shall not write a document regarding this, and his kinyan is not effective even in a case where his gift and his sale are valid, such as with movables after the age of the pe'otot; however, his kinyan is nothing [Urim VeTumim] because he does not possess the mental capacity to understand the content of the kinyan.

The cheresh and the shoteh are not attended to for any claim, neither for their claim against others nor for the claim of others against them, not for a light oath nor a severe one, and certainly not for payments. However, the blind person is like a healthy person regarding all monetary matters; he swears all types of oaths, and others swear regarding his claims. There is one who wrote that the law of the cheresh is like the law of the katan, that in a matter where he has a benefit, his admission is an admission just as with a katan, and our teacher, the Rema, agreed with this opinion. But the shoteh, even if he was healed and admitted, is not liable to pay, even when one lent to him with witnesses during the time of his folly, for it is a "loss of one's own volition." It goes without saying that we do not administer an oath to him when he is healed. A cheresh is one who does not hear and does not speak, but one who speaks and does not hear is like a person of sound senses in all his matters. Similarly, one who hears and does not speak, who is of sound mind but became mute, is like a person of sound senses in all his matters, except that it is not possible to receive an oath from him, for a written oath is not effective because regarding an oath it is written, "to express with the lips." Many of the great authorities ruled accordingly. However, in a place where being "sworn by the mouth of others" is effective, such as in the oath of testimony and the oath of a deposit, writing is effective; if they said to him, "I adjure you that if you have a deposit you shall admit it," and he wrote in writing, "You have nothing in my hand," he is liable on account of the oath. And similarly, regarding a rabbinic oath, a nod of the head is sufficient; if they adjure him whether he took anything or the like, and he nodded with his head, it is like an oath regarding a rabbinic law. And the reason is that regarding a rabbinic oath, it is sufficient when he is sworn by the mouth of others, and nodding is like the acceptance of the oath; and certainly writing is effective when they adjure him and he writes that he accepts the oath, except regarding testimony where he is disqualified, as I wrote in siman 28.

A married woman who has become liable for an oath is administered the oath, for a woman is equal to a man regarding all laws and punishments in the Torah. If she refuses to swear, she is coerced just as a man is coerced. However, some say that when she is pregnant, she is not administered an oath and is not given a kabbalah; and even at the time when they announce a kabbalah in the synagogue, they remove her from the synagogue. And even though many of the laws of oaths are derived from a sotah, and regarding a sotah they indeed make pregnant women drink and administer an oath to them [Sotah 26a], nevertheless, such is the widespread custom. Furthermore, a married woman is only administered an oath in a case where there can be an immediate benefit from her oath, such as where there is reason to say she has money over which her husband has no authority, or to administer an oath to her if the deposit is not found in her possession. But if there is no immediate benefit from her oath, such as when it is known that she lost what they lent her and she has no money over which her husband has no authority, she is not administered an oath now, but rather after she is widowed or divorced [see Shach and Taz]. And they summon a married woman to the beit din or send to her, as will be explained in siman 124. If she does not have the means to pay now, the beit din writes a verdict for him that she shall pay when she is widowed or divorced. She is not coerced to sell her ketubah for its benefit of enjoyment because there is no benefit in this, as she might waive it to her husband, and one who sells a promissory note to his fellow and then waives it, it is waived, as written in siman 66. Also, the husband is not liable to pay by the rule of Rabbi Natan since the time for payment of the ketubah has not yet arrived [Sma]. The husband is not liable to pay for her if she does not conduct business within the house, but it is within his power to impose a herem stam upon him if he did not benefit from these funds or these objects [it appears to me]. If the husband admits that the funds or objects they are claiming from her came into his possession, he is liable to swear that they are not in his possession, and that he did not misappropriate them, and that he was not negligent regarding them in their being stolen or lost.

And if she is a woman who conducts business within the house, the husband is obligated to pay for her, and even if there are no witnesses but he admits it or does not wish to swear, for the matters are evident that she acted with his permission or that the money or the objects entered his domain, and everything is according to the matter and depends on the assessment of the eyes of the dayanim; for if not so, every person would take the money of his fellow through his wife and be exempt. And such is the custom, to collect from the husband everything that his wife borrowed, and even if she does not conduct business, if she only borrowed for the expenses of her house, he pays. And if she conducts business, if she took merchandise on credit or borrowed money, the husband is obligated to pay without hesitation. And specifically in a matter from which the husband has benefit, such as if she took merchandise on credit or borrowed money, even if the money and the merchandise were lost, he is obligated to pay. But if she was negligent with a deposit or caused damage directly, he is exempt from paying. And likewise, if it became known that she borrowed in secret from her husband or took merchandise on credit in secret, he is exempt from paying, and all the more so if the husband protested or publicized in the city not to lend her anything and not to give her credit, for he is not obligated to pay for anything she took or borrowed in any matter. The principle of the matter: these matters depend on the assessment of the eyes of the beit din, such as if it is known that the husband gives her permission to take credit or to borrow for a small amount and not for a large amount; if she borrowed a large amount, he does not need to pay, for he who lent her or gave her credit for a large amount caused his own loss, and so too anything similar to this. And to these matters that have been explained, most of the great Acharonim have agreed.

If that which she borrowed or took on credit is still in existence, they return them to the one from whom she received them in any event, for since the items are still in existence, they shall return to the original owners. And so too, a debtor who has nothing with which to pay his creditors, and merchandise is found with him which he took on credit from one man, they return the merchandise to that man and no other has a portion in it [Ba'er Heitev]. And such was the regulation of the land in ancient times, that when that merchandise is in existence, they return it to the one from whom he took it, even if he established the money against him as a loan [Tzemach Tzedek siman 117]. Although according to the essence of the law there is room to doubt this, nevertheless they practiced so. Therefore, if he exchanged it for other merchandise, there is no law of precedence in this [ibid.].

The Tur wrote at the end of this siman, and this is his wording: There is a custom that when they summon a married woman to a beit din, they investigate through her neighbors; if she is accustomed to conducting business with men, they summon her, but they keep her secluded according to her honor so that she is not disgraced. And if she is not accustomed to this, but rather she is modest and sits in her home, they ask the claimant regarding what he is suing her, and they ask him, "How did you give your money to a married woman?" And they weigh the matters in their hearts; if they see grounds for the matter, they summon her, and if they do not see a basis for the matter, they do not summon her, for he is seeking a pretext. And they do not do this only with a married woman, but they also do this for a virgin sitting in her father's house whose way is not to go out and come in. Thus far his words. And even though a judge may not hear the words of a litigant before the second litigant arrives, nevertheless, for the sake of this measure which contains a great benefit, they do so [our teacher, the Beit Yosef]. Furthermore, since this is for the benefit of the second litigant for the sake of his honor, there is not so much concern in this [it appears to me]. Completed with the help of Heaven, the laws of the claimant and the respondent.