THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 78 - MISHNA OATHS - Oath #8: Shopkeeper's Oath

We now skip over to what I have designated as Oath #8, the oath taken by a shopkeeper to win his case. We omit: Oath #5, the oath taken by a person who has been robbed (which was partially covered last week); Oath #6, the oath of a wounded person (which was also partially covered last week); and Oath #7, the oath of a person whose opponent is suspected regarding oaths.

Assume the following situation: Reuven works for Shimon and Shimon now owes Reuven $100. Instead of paying Reuven the $100, Shimon tells Reuven to go to the store owned by Levi and purchase merchandise there for $100. There is no question that Shimon gave such instructions to Levi. Either both Levi and Shimon admit this arrangement or there were witnesses present when such arrangement was made. Thereafter Reuven demands $100 from Shimon alleging that Levi did not give Reuven any merchandise. Simultaneously, Levi demands $100 from Shimon alleging that he delivered $100 worth of merchandise to Reuven. There are no witnesses to the transaction. Shimon could have protected himself by instructing Levi not to give any merchandise to Reuven until he obtained a receipt from Reuven, or that witnesses be present when Reuven obtained the merchandise. It is therefore Shimon who has brought the consequences upon himself by failing to make such instructions a prerequisite before Levi delivered the merchandise to Reuven.

The fact that Reuven takes the oath does not affect the rights of Levi, and the fact that Levi takes the oath does not affect the rights of Reuven. This is true since each Reuven and Levi can plead that he does not have any confidence in the oath of the other. 

The Rabbis of the Mishna instituted oaths so that both Reuven and 
Levi will obtains judgment against Shimon for $100 each. 

The oaths may not be taken until there has been pleas in Beth Din made by Reuven and Levi which contradict each other as to whether the merchandise has been given by Levi, the shopkeeper to Reuven the employee of Shimon. The oath that each must take must be in the presence of the other. Obviously one of the two is lying, either Reuven or Levi. It is felt that if they had to take the oath in each other’s presence, there might be a certain amount of embarrassment for the one not telling the truth to take an oath in the presence of the person who knows the truth. This requirement is waived if it is not possible to assemble them both together, as when one is overseas for an extended trip. 

The aforesaid laws apply if there was a course of conduct between Shimon, the employer, and Levi, the shopkeeper, whereby Levi paid the debts of Shimon by supplying merchandise to the employees of Shimon, and then Shimon, from time to time repaying Levi for the merchandise supplied to the employees. 

Shimon may at any time cancel the arrangement and then if Levi supplies merchandise to the employees of Levi he cannot seek reimbursement from Shimon. 

If Shimon, advances moneys to Levi, and in the presence of Reuven instructs Levi to give to Reuven a sum certain in merchandise upon Reuven making such request, and all present consent to such procedure, then Reuven has no further claim against Shimon. If Reuven denies having received the merchandise, Levi is believed when he pleads that he gave Reuven the merchandise. 

Assume that Shimon does not tell Levi to give Reuven a set sum but rather that his instructions to Levi is to give Reuven whatever amount of merchandise he says is due to him. If Reuven is not now in the jurisdiction to state how much he received, and Levi pleads that he advanced $200 in merchandise to Reuven, Levi will obtain a judgment for that amount without having to take an oath. It is Shimon who exposed himself to the danger of the open-ended claim of Levi. 

If Beth Din is convinced that the shop-books of Levi are reliable, in that he makes contemporaneous entries of all his transactions as they occur and Levi is honest, the shop-book will be admitted into evidence to prove the truth of the entry. Thus in all of the above cases, if Levi produces his shop-books and even if he has no present recollection of having give the merchandise to Reuven, Levi will obtain a judgment for the amount of his shop-book entry. If Beth Din is not convinced that the shop-books of Levi are to be relied upon, they may still be used by Levi to refresh his recollection of events that occurred. 

Levi pleads that Shimon instructed him to provide Reuven (and other employees) with merchandise, which Levi did. Shimon denies having given such instructions. Reuven acknowledges that he received $100 worth of merchandise from Levi in return for the work he did for Shimon. Shimon takes a hesseth oath and is free of liability to Levi. Levi pleads that Shimon instructed him to advance $100 to Reuven, and Shimon admits that he instructed him to advance $60, and Reuven admits receiving $100 in merchandise from Levi. Shimon may take a Torah oath of partial denial, (Oath #1) as to the $40 and will not have to pay the $40. If Shimon pleads that he recalls instructing Levi to supply $60 in merchandise and does not recall the other $40, since Shimon cannot take an oath of denial regarding the $40, he must pay it to Levi. If Shimon denies having given any instructions to Levi and Reuven denies having received any merchandise from Levi, then Shimon has no liability to Levi and need not even take an oath. 

If in all of these situations the role of Shimon is that of a minor who entered into the foregoing type of arrangement with Levi and Reuven, then there are two views. One view is that Shimon should be treated the same as an adult employer. There is also the view that Reuven takes the oath and collects from Shimon, the minor, but that Levi will not be able to collect, even with an oath, unless he has some other proof. 

If Shimon denies having given any instruction to Levi and Reuven denies that he received anything from Levi, then Shimon has no liability to Levi and need not even take an oath.

The subject matter of this lesson is more fully discussed in Vol. III, Ch.91 A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 
Questions to quint@inter.net.il