THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 77 • MISHNA OATHS • Oath #5: Victim's Oath

The next oath that we shall discuss is what I have designated as Oath #5, the oath of the victim of a robbery or of an assault. Ordinarily a plaintiff in a civil case against an alleged robber or thief will have to prove two things: (1) the robbery or theft; (2) the amount of money or the value of the object that was stolen or robbed. If he cannot supply such proof, he may take the oath of this lesson and win the case. This is also an oath that originates with the Rabbis of the Mishna. It is taken only when there is no other way for the victim to prove his claims for there are no witnesses or documentation. This differs from the oath of the hired laborer of the last lesson. There the enactment to permit the plaintiff, the hired laborer to win the case by taking an oath rested on compassion for the hired laborer. In this lesson the reason is to punish the person who has violated the sanctity of the homeowner’s home by permitting the homeowner who has no cogent proof as to the robbery and as to the value, to take an oath and win the case. Because the oath enacted against the robber is in the nature of a penalty, if the robber dies, his heirs are not responsible to the homeowner on the mere oath as described in this lesson.

There are a few other situations that are similar to the case of the victim of the robbery and they are also covered by this oath and may take the oath to win the case.

In order to be eligible to take this oath there are certain requirements that the plaintiff (victim of the alleged robbery) must prove by competent testimony of two witnesses, who may be the same two witnesses for proving all or some of the requirements or may be different witnesses. The witnesses must testify to the following matters. (1) The robber entered into the victim’s house. He may have entered as a thief does, trying not to be observed, or he may have announced his intentions that he intends to enter to retrieve something that is his that the homeowner refuses to return to him. (2) The robber went in empty-handed. (3) The robber come out with (a) objects under his cloak which they cannot identify, or, (b) objects were carried out openly, but they do not know what these objects were, or (c) the witnesses know what some of the objects were but do not know what the others were. (4) The objects were seen in the possession of the robber just prior to the trial. 

Before the homeowner will be permitted to take the oath he must testify that he knows what was stolen. The alleged stolen objects would be the type that the victim could have owned himself. That is he had the financial ability to buy and maintain such objects. Also that the robber had access to the place in the house where the object was kept. If all of the above is present, the homeowner may take the oath. The oath is a Mishnaic oath and is take while the homeowner holds a sacred object. Assuming that all of the aforesaid criteria have been met, the homeowner will obtain a judgment against the robber for the amount of money he pleads was stolen and/or for the value of the objects he pleads were stolen.

Just as the homeowner is believed if he takes a oath as to what he claims was stolen, so may his wife or his caretaker or even the wife of the caretaker be believed with the oath they take. In all of these cases judgment will be rendered against the robber according to the items covered by the oath. This does not apply to the hired worker of the homeowner unless his duties include watching the house. The law does not apply if the homeowner suspects that the agent or the agent’s wife may have taken the missing object. 

A person set fire to his neighbor’s property, and there are two witnesses to the arson. The victim of the arson may take a Mishnaic oath, holding a sacred object, as to the value of the objects that were burned and he will obtain a judgment against the arsonist. There is the requirement that the victim is a person who would have such items in his possession, whether his own or borrowed or deposited with him.

Witnesses testify that a person informed to the authorities contrary to halachah and as a result of the informing the victim suffered damages. The victim alleges that he suffered a certain amount of damages and the informer disputes this amount. The victim may take a Mishnaic oath, holding a sacred object, and obtain judgment for that amount. 

There are witnesses that Reuven damaged the property of Shimon. The witnesses do not know the extent of the damage. Shimon may take a Mishnaic oath as to the amount of the damage and obtain a judgment for that amount. There is the requirement that Shimon is known to have such objects in his possession. 

Witnesses saw that Reuven entered Shimon’s house without any apparent wounds. They did not see him inside Shimon’s house. They also saw Reuven leave Shimon’s house wounded. Reuven pleads that Shimon assaulted him, and Shimon pleads that Reuven’s wounds were self-inflicted. Shimon does not plead self-defense. If Reuven and Shimon had bad blood between them, Reuven takes an oath and collects money for the assault. If there was no bad blood between them, it must be absolutely clear to Beth Din that the wound could only have been inflicted by Shimon. For example a tooth bite on Reuven’s back between his shoulders would not be self-inflicted. Only then will Reuven win the case be taking an oath. 
Reuven deposited with Shimon a closed package. Shimon was negligent with the package and it was lost. Reuven pleads that the package contained diamonds and jewels. Shimon admits that he does not know what was in the package. The Rabbis enacted that Reuven may take a Mishnaic oath, holding a sacred object and obtain judgment for the amount that he claims was the value of the package. This applies if it is realistic for Reuven to own or have deposited with him such diamonds and jewels. 

If Shimon pleads with certainty that the package contained trinkets with little value, Shimon may take a hesseth oath and owe just the value of the trinkets. If Shimon admits that the package contained diamonds but he does not know how many, there are two conflicting views. One is that Reuven obtains judgment for the amount he pleads without having to take an oath. The other view is that Reuven will obtain a judgment only after taking the Mishnaic oath. 

In setting up the restrictions stated in this lesson, it should be remembered that the enactment of the Rabbis is in derogation of the legal principle that the plaintiff has the burden of proof. Therefore there are restrictions on the plaintiff being able to avail himself of the oath and the scope is narrow. 
The subject matter of this lesson is more fully discussed in Vol. III, Ch.90 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