THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 71 - OATHS (part 1)

The best evidence in any type of litigation is the testimony of two uncontradicted witnesses whom the judges of the Beth Din believe. Lacking two witnesses, the halachah often relies on the oath to be taken by one of the parties, the theory being that a person would not take an oath to back up a spurious plea. Thus throughout Jewish civil law there are references to different types of oaths. The oaths are to be taken by either the plaintiff (the one who sues) or the defendant (the one who is being sued). How an oath is taken and with what words have to be employed is left for a later lesson.

In those cases where an oath is required, the party taking the oath will win the case if he takes the oath and under most circumstances, lose the case if he fails to take the oath. There is also an oath to be taken by Reuven, a nonparty to the litigation. This type of oath is taken if a party to the litigation summons Reuven, a person whom he alleges witnessed an event to testify and Reuven refuses to testify, stating he did not witness the event. He is not a witness testifying in Beth Din; witnesses testify without taking oaths. He denies that he has knowledge relating to the event and takes an oath to that effect. 

As for Torah oaths, some deal with the judicial system, and some do not deal with the judicial system. However, all Mishnaic oaths and Rabbinic oaths deal with the judicial system. There is also an oath instituted by the Geonim that deals with the judicial system. 

It is the plaintiff who always has the burden of proof and failing to meet this burden, his complaint will be dismissed. Under certain circumstances, the burden shifts to the defendant and he may meet this shifted burden by taking an oath. There are also cases in which the Rabbis permitted a plaintiff to take an oath and win the case. 

In this lesson and the next series of lessons we shall set forth all of the Torah, Mishna, Rabbinic and Geonic oaths. There are 29 judicial oaths in number. 

As stated above, there are other Torah oaths that do not deal with the judicial system or if taken in beth din are not taken by a party to the litigation. I have designated these oaths as nonjudicial oaths. 

In Volume 3, Chapter 87 of A Restatement of Rabbinic Civil Law, there is set forth all of the oaths that there are in Jewish law. When I first published that volume, I thought that it was the first time in halachik history that all these oaths had been set forth in one place. A few years later, while thumbing through the back of a Gemara Shevu’ot I found a chart written by Rabbi Yaakov of Barcelona in the eleventh century. His exposition is written for a person who has knowledge of oaths, or better yet, has a great deal of knowledge regarding oaths. I have set them forth for the readers of my books, the educated layman. 

We shall commence with the Torah non-judicial oaths. There are five in number.

TORAH NON-JUDICIAL OATHS

[1] The rashly uttered oath (shevu’oth bitui). This is an oath that is made and thereafter violated. To be classified as a rashly uttered oath, it must be possible for the swearer to do or to have done that which he swears. It is divided into four parts, two in the past and two in the future. For example, a person swears that he ate meat yesterday or he did not eat meat yesterday. Or he swears that he will eat meat tomorrow or he will not eat meat tomorrow. When he violates or did violate the oath, he is guilty of falsely swearing a rashly uttered oath. 

[2] The vain oath (shevu’oth shav). This oath is also divided into four parts. 
(a) A person makes an oath stating a known fact is a fact. For example, he swears that a stone is a stone.

(b) A person makes an oath stating that a known fact is not a fact. For example, he swears that a pillar of marble is made of gold.

(c) A person takes an oath not to fulfill a Torah commandment (shevua l’vatail et hamitzvah). For example, a person swears that he will not eat matzah on Passover night, which is a violation of the Torah command to eat matzah Passover night.

(d) A person takes an oath to do something that is not within his power to due (shevua al davar sha’in koach bo la’asoth). For example, a person swears that he will walk from New York to California in two days.

[3] The oath of objects (shevu’oth hapikadon). Actually this is the oath arising from a bailment (an object belonging to one person held by another person for the first person). I have called this oath the oath of objects since it deals with objects and/or money the plaintiff alleges is in the hands of the defendant and the defendant denies the plaintiff’s plea by stating that he does not have the plaintiff’s object or money in his hand. In halachah it is called the “oath of bailments”, but I call it the oath of objects so that it not become confused with the oath of bailees. In the latter case, to be discussed in a future lesson, the bailee/defendant does not deny that he had at one time the object in his hands; instead he has a reason why he is not liable for its loss. The defendant there takes an oath to be relieved of liability and those oaths I have called the oaths of the bailees.

[4] The oath arising from testimony (shevu’oth haeiduth). One of the parties to a litigation states that a person has knowledge about a pending litigation. The proposed witness takes an oath denying that he has such knowledge, if this is his contention.

[5] The oath of the suspected adulteress. Before the suspected adulteress drinks of the bitter waters, the priest makes her take the following oath in a language that she understands, as set forth in Numbers 5:19-22. 

She is first told that she brought this upon herself for she secluded herself with this particular man after her husband, in front of witnesses told her not to seclude herself with this particular man, and then witnesses testify that she secluded herself with this particular man against whom she was warned. “If a man has not lain with you, and you have not strayed in defilement with someone other than your husband, then be proven innocent by these bitter waters that cause curse. But if you have strayed with someone other than your husband, and if you have become defiled, and a man other than your husband has lain with you, May Hashem render you as a curse and as an oath amid your people, when Hashem causes your thigh to collapse and your stomach to distend. These waters that cause the curse shall enter your innards to cause stomach to distend and thigh to collapse. And the woman responds Amen, amen.

IYH, commencing with the next lesson and continuing on for as many lessons as necessary, we shall discuss judicial oaths.

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