THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 74 - TORAH OATHS - Oath #2: Plaintiff has One Witness

As has been stated so many times, the plaintiff is ordinarily required to produce two witnesses to substantiate his claim against the defendant. In the last two lessons we discussed the situation where the plaintiff had no witnesses to substantiate his claim. It was the defendant’s partial admission that thrust the oath upon him to win the case as to the balance of the claim that he denied. 

The next Torah oath that we shall discuss is the situation where the plaintiff has one witness to substantiate his claim (that which I designate as Oath #2). In the situation where the plaintiff has no complete way of proving his claim, if the plaintiff produces one witness to substantiate his plea, the defendant in order to win the case, must take a Torah oath to deny the testimony of the witness. Failing to take the oath will result in the plaintiff obtaining a judgment against the defendant for the relief demanded by the plaintiff in his complaint. The defendant, in order to win the case, will have to take an oath, although the plaintiff is not certain that the debt is due, if the witness testifies with certainty that the debt is due. 

There are differences between Torah judicial oaths and non-Torah judicial oaths. The Torah judicial oath is always on the defendant; if he elects to take the oath he wins the case. If he refuses to take the oath he loses the case, and the plaintiff will obtain judgment for the relief demanded in the complaint. The non-Torah oaths are divided into two classes, Mishna oaths and the Talmudic enacted hesseth oath that I have designated as Oath #27. There is also an oath enacted by the Geonim, which I have designated as Oath #28. The Mishna oaths are divided into two groups. Group A that are oaths taken by the plaintiff to win the case, which oaths I have designated as Oaths 4 to 17, and Group B that are oaths that are taken by the defendant to win the case, which oaths I have designated as Oaths 18 to 27. 

If the non-Torah oath is Group A, where the plaintiff will win the case if he takes the oath, if he refuses to take the oath, his complaint will be dismissed. 

If the non-Torah oath is Group B where the defendant could take the oath and win the case, he will not lose the case if he refuses to take the oath. The plaintiff cannot win since he does not know the facts to prove a case in his favor. In this situation the Beth Din puts the defendant under a ban for thirty days or until he takes the oath whichever comes sooner. If at the end of thirty days he does not take the oath, he is flogged under the direction of the Beth Din. After he is flogged he is released from the ban, but no judgment is entered against him in favor of the plaintiff.

In cases of Torah oaths if the defendant is not permitted to swear, as for example if he is a proven perjurer, he may not take the oath and he loses the case. In non-Torah oaths if it is the defendant who has to take the oath and he is a perjurer, he wins the case without taking the oath. However, the plaintiff may proclaim a ban on all those who should take an oath and fail to do so. See the procedure in my “A Restatement of Rabbinic Civil Law” volume 2, chapter 71.

In all cases of oaths, except for hesseth oaths instituted by the Rabbis of the Talmud, the person taking the oath must stand and hold a sacred object, such as a Torah scroll while taking the oath. He need not hold a sacred object when taking a hesseth oath. The current practice, however, is that even in cases of hesseth oaths the person taking the oath holds a sacred object. The purpose of requiring the holding of a sacred object even in the case of the hesseth oath is to instill fear into the heart of the person taking the oath.

The person who takes the oath stands while holding a Torah in his arms. He swears an oath employing the Name of God or by a recognized substitute of His Name. The oath is stated by the person taking the oath or by the judges. The oath may be administered in any language understood by the person taking the oath. The oath and each part should be fully explained to the person. If after hearing the admonitions he states that he will not take the oath then all of the laws of a person failing to take an oath follow. The simplest form of the oath taken by the person himself is: “I hereby swear by the God of Israel, that I owe nothing to the plaintiff”.

If the judges make the statement they may for example say, “We adjure you in the name of the Lord of Israel that you have nothing in your possession that belongs to the plaintiff”, and the defendant answers “Amen”. The judge should tell the person who is about to take the oath that the entire world shook when God told Moses the command Thou shall not take the Name of the Lord, thy God, in vain. (Exodus 20:7) Also regarding transgressing oaths it is stated, He will not hold guiltless (Exodus 20:7), while regarding other transgressions it is written, and holding guiltless (Exodus 34:7).

For all other transgressions the transgressor alone is punished, but in the case of false oaths, both the transgressor and his family is punished. The oath must be taken in the presence of the person who caused him to take the oath. In most situations this will be in the presence of the other litigant. If the other party is not present but Beth Din administered the oath, it is nevertheless valid. Also the oath should be administered in open Beth Din where many people can be present, so that the person taking the oath might be shamed into admitting that his plea is not true. He may feel that the public will know about his oath and someone may come forward to show that he took a false oath, if that is the case. Beth Din should determine the time and place of the oath so that it will be most effective to have the swearer tell the truth.

Similarly the beth din may want to have the oath administered in the community where the occurrence took place about which he is taking an oath, since there may be some people there who may know the facts of the case. If a person is required to take an oath to win a case, he may pronounce a ban on all those who make him take an oath, although the other person knows that he is not liable to take the oath, since the other person’s plea is false. 

The subject matter of this lesson is more fully discussed in Volume III, Chapter 87 of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores. Questions to quint@inter.net.il