THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 72 - OATHS (part 2) - Torah Oaths #1: Partial Admissions

In the last lesson we discussed Torah nonjudicial oaths. We now commence our discussion of Torah judicial oaths. There are three Torah judicial oaths. This lesson shall discuss what we shall designate as oath #1, the Torah oath of partial admissions. 

There is what seems to be a paradox application of Torah oaths. As shall be seen, there is a great difference between a defendant who denies only part of the plaintiff’s unproved claim and a defendant who denies the entire claim. The defendant who denies only part of the claim is in an inferior position to the defendant who denies the entire claim of the plaintiff. The defendant who denies part of the plaintiff’s claim and admits part must take a Torah oath as to the part that he denies, otherwise he will lose the case as to that part. Thus if Reuven the plaintiff claims that the defendant Shimon owes him $100 and Shimon admits owing $40 and denies owing the balance of $60, and assuming no witnesses are there to testify, then Shimon must take a Torah oath of denial as to the remaining $60. Should Shimon take such oath he will win the case as to the $60; should Shimon fail to take such oath, he will have to pay the remaining $60. If when Reuven sued Shimon for $100 Shimon denies that he owed anything, Shimon would win the case without having to take a Torah oath.

In the absence of proof by the plaintiff, the defendant who denies a claim of the plaintiff in its entirety, his mere denial is sufficient for him to win the case. The plaintiff has merely a pleading alleging a claim, with no evidence to substantiate his claim. The difference is explained by the fact that one does not ordinarily have the audacity to deny the entire claim of the creditor to whom he owes money. On the other hand, his denial of part of the claim stems from his hope of being able in the near future to obtain the funds to be able to pay off the entire debt. Thus he admits that part of the claim corresponding to his ability to make partial payment to the plaintiff. The person who denies all of the claim does not have the pangs of conscience to the plaintiff since he owes him nothing, and thus his denial is genuine and he does not have to take an oath. 

There is also the view of held by the Rabbis that a person would not ordinarily institute a lawsuit against the defendant unless there was some substance to his pleas. Thus the Rabbis have instituted the hesseth oath for the defendant to take where the defendant denies the entire claim of the plaintiff. 

Where the defendant admits part of he plaintiff’s claim, this is the well known case of “modeh b’miktzath”. This applies to the situation where the plaintiff has no way of proving his claim, since he has no witnesses. (I have written on so many occasions, a person should not become a creditor unless he has witnesses to the transaction or obtains adequate writings or other ways of proving the debt.) Since the plaintiff has no way to prove his claim, the defendant can simply deny the existence of the liability. Or could admit that there was a liability at one time and that he repaid the obligation, or the object or money the plaintiff claims is in the hands of the defendant and belongs to the plaintiff is really the defendant’s, or any similar defense that the plaintiff cannot refute. The defendant has no options except to tell the truth. He must deny the entire claim or admit part of the claim. If he denies any liability, then the defendant will win the case and the complaint of the plaintiff will be dismissed. (As stated above the Rabbis instituted an oath known as the hesseth oath where the defendant denies the entire claim. However, we are now discussing only Torah oaths.) 

Assuming the defendant admits part of the claim . The admission must be specific to subject the defendant to a Torah oath of denial of the balance. For example, the plaintiff sues he defendant, claiming $100 for moneys loaned. The defendant denies the entire loan. Thereafter witnesses testify that he borrowed $40, but they do not now if he repaid the $40. The defendant does not take the oath of partial admission because the witnesses have not testified that he owes the money, merely that the loan took place. As a result of he foregoing the defendant will have to pay the plaintiff $40. This is not a case of partial admission since the admission does not come through his own (If two witnesses testify that he owes the $40, then their testimony would be tantamount to the defendant’s partial admission and the defendant would have to take the Torah oath as to the balance of $60 or lose the case regarding the $60.)

Assume that the defendant admits part of the claim and there is one witness who testifies that he does not owe the balance to which the defendant denies liability. There are two views whether the defendant still has to take a Torah oath of denial. The preferable view is that the defendant does not have to take a Torah oath of denial regarding the balance denied by him. There is an opinion that the defendant need not take a Torah oath of denial even if the witness he produced is a relative of his who would ordinarily not be able to testify on his behalf. The result would be the same if the books and records of the plaintiff showed that the defendant does not owe the balance. 

If the Beth Din is in doubt whether the defendant should take a Torah oath or a hesseth oath, the proper procedure is for the defendant to take the less sever oath. The same would apply if Beth Din has a doubt whether the defendant has to take a hesseth oath or need not take any oath; the Beth Din shall resolve the doubt in favor of the defendant that he need not take an oath of denial. 

As was stated at the outset, the Rabbis of the Talmud attempted to eliminate the paradox referred to above by instituting the hesseth oath to be taken by a defendant who denies the entire claim of the plaintiff. This oath applies whether the plaintiff’s claim is regarding moneys due or an object due. The defendant takes the hesseth oath only if the plea of the plaintiff is pleaded with certainty. It need not be taken if the plaintiff pleads a plea of uncertainty, such as I believe the defendant owes me $100. I believe I loaned him money or I loaned him money and I think that he did not pay it back. IY"H, the next lesson will take up another Torah oath that the defendant has to take, and some differences between Torah judicial oaths and other 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