THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 73 - TORAH OATHS - Oath #1: Partial Admissions (part 2)

In the last lesson we discussed some of the laws of the Torah oath taken by a defendant who admits part of a claim and denies the balance of the claim. (We designated that oath as oath #1 in our oath chart.)

To repeat, assume that the plaintiff sues the defendant for $100. The defendant is faced with several choices: (1) he admits that he owes the plaintiff $100 and the plaintiff obtains a judgment for $100. (2) the defendant denies he owes any money to the plaintiff, he denies the entire loan. According to Torah law the defendant will not have to do anything and he will obtain a judgment dismissing the complaint of the plaintiff. However, the Rabbis of the Talmud instituted an oath known as a hesseth oath that the defendant who denies the entire claim of the plaintiff has to take, and when he takes this oath, the defendant will obtain judgment dismissing the complaint of the plaintiff. Or the defendant may admit part of the claim and deny part of the claim. The defendant admits he owes the plaintiff $40 and denies the balance of the $60. The defendant has two courses of action. He may take a Torah oath denying that he owes the $60 and the defendant will win the law case regarding the $60 and he will have to pay only the $40 he admits. Or if the defendant refuses to take the Torah oath the plaintiff will obtain a judgment for the entire $100. 

In all of these cases it is assumed that the plaintiff does not have the proof for his claim. If not for the Torah requirement that a defendant take a Torah oath to win the case regarding the part of the plaintiff’s claim not admitted, it would have been logical to assume that the defendant would win the case regarding the denied balance without even having to take an oath. (See last week’s lesson why there is a Torah oath in this case.) Thus the requirements for the oath will strictly construed against requiring the defendant to take an oath to win the case. 

There is a minimum amount that the plaintiff must be suing for and the admission must be for a small amount. Since these minimums are so small there is hardly a case where they will not be present. They are described in A Restatement of Rabbinic Civil Law , Volume 3 at page 154.

The same minimum amount must be present if the plaintiff sues for recovery of objects, if the value is for the minimum amount and the defendant admits part of the claim and denies the balance there will be a Torah oath as to the balance. In the case of objects, the defendant does not have to take the Torah oath to win the case as to the denied balance unless his admission relates to the kind of thing that was claimed.

For example, the plaintiff pleads that the defendant owes him a bushel of wheat. The defendant admits that he owes half a bushel of barley. The defendant does not have to take the oath of partial admissions. The defendant does not even have to pay to the plaintiff the half bushel of barley since the plaintiff not having claimed the barley, it is assumed that he waived his rights against the defendant regarding the barley. This would be true even had there been witnesses regarding the barley, since an admission regarding himself is more powerful than any number of witnesses. If the plaintiff claims a bushel of produce and the defendant admits that he owes the defendant half a bushel of barley, he will have to take the Torah oath to win the case regarding the denied balance, since produce includes barley. This may also come up in foreign currency transactions. The plaintiff claims that he deposited $500 with the defendant. The defendant admits that the plaintiff deposited 1,200 Japanese yen with the defendant. The admission does not deal with the item pleaded. The plaintiff pleads that he deposited a large candlestick with the defendant, and if the defendant admits that he deposited a small candlestick with the defendant the defendant does not take a Torah oath.

It is assumed that there is not a question of semantics as to what large and small means, but rather the words have specific meaning in the community. If the plaintiff claims a bolt of silk of 100 yards, while the defendant admits receiving a bolt of 40 yards, the defendant is liable to the Torah oath. He is liable to the Toreh oath, since the larger bolt may be cut to the size of the smaller bolt. 

The thing claimed by the plaintiff must be measurable, weighable, or numerable, and the admission must be measurable, weighable or numerable. For example, the plaintiff claims $100 and the defendant admits $40. Or the plaintiff claims 100 bushels of wheat and the defendant admits 25 bushels of wheat. If, however, the plaintiff claims a sack of potatoes and the defendant admits that he received 10 potatoes, or the plaintiff pleads that he delivered 40 potatoes and the defendant admits that he received a sack of potatoes he wants to return, there is no Torah oath. 

The plaintiff sues the defendant for $100. The defendant admits that he owes $40 and hands the $40 to the defendant in Beth Din before the trial starts. He has eliminated the $40 from the claim of the plaintiff. The plaintiff’s claim is thus reduced to $60 and the defendant denies the entire $60 and thus the defendant does not have to take a Torah oath of partial admission regarding the $60, just a hesseth oath as the case when the defendant denies the entire claim of plaintiff.

In order for the defendant to be able to come within the exception of “Here, take it”, he must have money in Beth Din with him at the time that he enters his plea. 

f the defendant admits the $40 and states that he has it in his home, then it is not the equivalent of “Here, take it”, and is rather a partial admission, and the defendant must take a Torah oath regarding the other $60. Assume the plaintiff is suing to recover objects, for example two books he claims that the defendant borrowed from him. The defendant pleads that one of the objects is due to plaintiff and is . located in the defendant’s house or any other designated place, and the plaintiff can take it, it is the equivalent to “Here, take it”.

If, however, the plaintiff alleges that the object being returned has been diminished in value, and the defendant admits that it became diminished in value because he used it, then it is not the equivalent of “Here, take it’. If the defendant admits part of the claim that the plaintiff could have proved independently, then paying such part of the claim to the plaintiff in Beth Din is not the equivalent to “Here, take it”. The defendant would still have to take a Torah oath to be relieved of liability of the part that he denies. If Beth Din feels that the defendant’s paying to the plaintiff the amount he admits is a subterfuge to avoid taking a Torah oath, then the Beth Din will not relieve the defendant from taking a Torah oath to the part he does not admit.

The subject matter of this lesson is more fully discussed in Volume III, Chapter 88 of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores. Questions to quint@inter.net.i