הלכות שבועות

Just as there is a negative commandment forbidding an oath taken in vain and a false oath, so, too, there is a positive commandment for a person who is obligated to take an oath in court to take that oath in God's name, as [Deuteronomy 6:13] states: "And you shall take an oath in His name." This is a positive commandment. (positive commandment 7) and Sefer HaChinuch (mitzvah 435) include this commandment among the 613 mitzvot of the Torah. Note the Hasagot of the Ramban to Sefer HaMitzvot and the Ra'avad' objections at the beginning of the Mishneh Torah which differ and argue that this should not be considered as a positive commandment. See also Hilchot Nedarim 1:4 which states that there is a positive Scriptural commandment for a person to carry out an oath or vow he took. For taking an oath in His great and holy name is one of the paths of His service. It is a great measure of glorification and sanctification to take an oath in God's name.

It is forbidden to take an oath on any other matter together with God's name. Whoever combines another matter with the name of the Holy One, blessed be He, in an oath will be uprooted from this world. For there is no one who is fit to give honor by taking an oath in his name except the [Absolute] One, blessed be He.

It is permitted for a person to take an oath to fulfill a mitzvah in order to encourage himself [toward its performance]. Although he is under oath [to observe] it from Mount Sinai [onward], [he may take an oath, as implied by Psalms 119:106]: "I took an oath and I will uphold it - to observe Your righteous judgments."

There are three types of oaths for which one is obligated according to Scriptural Law:
a) A claim involving movable property 5:1). was lodged against a person by a colleague. He admitted liability for a portion and denied liability for a portion.: "one who admits a portion." See Hilchot To'en V'Nitan 1:1.
b) [The defendant] denied liability for all the movable property, but one witness testifies against him, contradicting his statements.).
These two oaths come in response to a definite claim and a denial.:7). Similarly, if the defendant is unsure whether he is liable or not, he may not take a Scriptural oath to absolve himself of responsibility.
The Rambam's statements here are significant in another context. There is a difference of opinion among the Rabbis if a plaintiff who makes a claim that is supported by the testimony of one witness must be certain of the veracity of the claim himself or whether he can be doubtful, but rely on the testimony of the witness. The Maggid Mishneh (in his gloss to Hilchot Gezelah 4:17 and the Kessef Mishneh (in his gloss to Hilchot To'en V'Nitan 3:6) maintain that the Rambam follows the latter view. Here, however, it appears otherwise.
c) When a watchman claims that the article entrusted to him was lost, stolen, died, or the like, he is required to take an oath, because of the doubt, for the owner of the entrusted article does not know if the watchman is making a true claim or not.:2; Hilchot Sechirut 1:2; 2:8. This oath is of Scriptural origin, as [Exodus 22:10] states: "The oath of God will be between them." states that the word Shema שמע serves as an acronym for the names of these three oaths: Shomrim, Modeh bimiktzat, eid echad, שומרים, מודה במקצת, עד אחד

All oaths which the judges require aside from these three are of Rabbinic origin. They are also called "the oath of the judges." Within these oaths of Rabbinic origin, there are also two categories:
a) Oaths administered because of a definite claim and denial: e.g., the oath [taken by] a hired worker, 11:6 which explains that when an employer denies owing a worker his wage, the worker may take an oath and collect his due. [the oath taken by] one who impugns his promissory note, 14:1. and the like. 44b mentions several other instances when such an oath is required of a defendant: a person who claims that property was stolen from him and there is substantial circumstantial evidence corroborating his claim (see Hilchot Gezeilah 4:2), a storekeeper who disputes a client's claims with regard to payment (Hilchot Mechirah 20:8).
b) Oaths taken when [the plaintiff] has a claim of a doubtful nature, e.g., the oaths taken by partners, sharecroppers, and the like. 9:1.
In the laws of financial matters, the obligation of all these types of oaths and the associated laws will be explained.

There is also another oath which was ordained by the Sages of the Talmud. 40b states that this oath was ordained by Rav Nachman, one of the leading Sages in the midst of the era of the Gemara. See Hilchot To'en V'Nitan 1:3.
A defendant is required to take this oath whenever he denies entirely a claim registered against him by a plaintiff. It is called a sh'vuat heset. 75:16 interprets the term heset as meaning "placed upon," i.e., it is an oath which our Sages placed upon a person. Others interpret it as relating to the root meisit, meaning "entice." The purpose of this oath is to entice a defendant to admit an obligation. Although it is administered by the court in the present era, it is not referred to by the term "the oath of the judges."

An oath of the judges, whether of Scriptural or Rabbinic origin, whether stemming from a definite or an indefinite claim is [administered in] the following [manner]: The person taking the oath holds a Torah scroll in his arm. 87:15) quotes opinions stating that the defendant should not hold the scroll. Instead, it should be placed before him and he should place his hand on it. He must stand and take the oath or recite a curse using God's name or one of the terms used to describe Him. [Either] he pronounces the oath himself or it is pronounced by the judges. My masters ruled that an oath of the judges is administered only in Lashon HaKodesh.

What is meant by an oath pronounced by [the defendant] himself? For example, he says: "I am taking an oath by God, the Lord of Israel...", quote Rashi (Sh'vuot 38b) who states that it has become customary not to administer oaths using God's name, for the awesomeness of the punishment for taking His name in vain would lay waste to the world. This principle is quoted by the Shulchan Aruch Choshen Mishpat 87:19). "...by He whose name is graciousness...", "...by He whose name is mercy that I am not liable to this person at all." Similarly, if he says: "May one be cursed to God..." or "...cursed to He whose name is graciousness if I owe anything to that person."

What is meant by an oath pronounced by the judges? For example, they tell him: We are administering an oath to you by God, the Lord of Israel...", "...by He whose name is graciousness that you are not liable to this person at all" and [the defendant] answers Amen. Or they say: "May so-and-so be cursed to God..." or "...cursed to He whose name is graciousness if he owes money to that person and does not acknowledge the debt" and [the defendant] answers Amen. This is the oath of the judges.

When the judges administer an oath without the defendant holding a [sacred] article in his hand, they have made an error. He must take the oath again while holding a Torah scroll in his hand. 38b).
The Rama (Choshen Mishpat 87:15) quoutes an opinion that states that a Torah scroll is not required. Any sacred text with God's name is sufficient. Similarly, in one of the Rambam's responsum, he writes that a Chumash is sufficient. If he was holding tefillin when they administered the oath to him, he is not required to take the oath again. For he held [an article equivalent to] the Torah in his hand,: "So that the Torah of God will be in your mouth." for they are like a scroll. If they administered the oath while [the defendant] was sitting, he does not have to take the oath again.

At the outset, an oath should be administered to a Torah scholar while seated and while holding tefillin. 38b.
The Siftei Cohen 87:41 quotes Rav Hai Gaon who states that the term Torah scholar has been given many definitions, but that employed today is "anyone who puts on tefillin." On this basis, the Siftei Cohen writes that in the present day, there is no difference between Torah scholars and ordinary individuals. He need not hold a Torah scroll. Holding tefillin in his hand [fulfills the requirement of] a sacred article. He takes an oath in Lashon HaKodesh, as we explained.

There is no difference between a sh'vuat heset and an oath of the judges except that [the latter] must be taken [while] holding a sacred article and a person who takes a sh'vuat heset does not hold a Torah scroll. Instead, an oath is administered to him by God's name or using one of the terms used to describe Him, with God's name in the present age, for we fear that people will take false oaths. Hence to reduce the punishment that might be incurred, God's name is not mentioned. To compensate for that omission, the court should employ various techniques to impress the person taking the oath with the seriousness of the matter. As the Radbaz states, his argument with the Rambam appears to be practical, but not theoretical. In the era of the Talmud, the Rambam's ruling would be followed.
Other authorities do not accept the Rambam's view even theoretically. They maintain that even in the era of the Talmud, a sh'vuat heset was not administered with God's name. The Shulchan Aruch (Choshen Mishpat 87:18) mentions the Rambam's view, but follows that of the other authorities. either an oath or a curse which he utters or which the court states, as is the practice with regard to the oath of the judges. It has already become the universal custom for the synagogue attendant or another person to hold a Torah scroll while a sh'vuat heset is being administered to cast fear [into the heart of the defendant].

The judges administer the oath to the person taking it in any language that he understands.. The Geonim ruled in this manner. My masters, however, ruled that an oath should be administered only in Lashon HaKodesh. This ruling should not be relied upon. 38b, 39a and the Tosefta, Sotah 7:1 states that an oath can be administered in any language.
Although it has become customary to administer oaths in Lashon HaKodesh, the person taking the oath should be familiarized with the matter until he understands the wording of the oath. [The rationale is that] the oath of the judges is a sh'vuat hapikadon itself. only if he understands what he is saying, as stated in Chapter 7, Halachah 7. People have even adopted the custom of administering a sh'vuat heset in Lashon HaKodesh.

Everyone who is obligated to take an oath of the judges that comes about because of a definite claim and denial, whether it is of Scriptural or Rabbinic origin, is subjected to an admonition, as will be explained. Everyone who is obligated to take an oath, whether of Scriptural or Rabbinic origin, because of a doubtful claim need not be subjected to an admonition.

How is an admonition administered to the person taking the oath? We tell him: Know that the entire world trembled at the time the Holy One, blessed be He, told Moses [Exodus 20:7]: "Do not take the name of God, your Lord, in vain." For with regard to all the transgressions in the Torah, as [Exodus 20:7] states: "[God] will not cleanse one who takes His name in vain." 1:2.
With regard to all the transgressions in the Torah, retribution is exacted from him [alone], but with regard to [a false oath], retribution is exacted from him and from his family who conceal the matter for him. 39a derives this concept from Ecclesiates 5:5 which states: "Do not let your mouth cause your flesh to sin." "Your mouth" refers to taking a false oath and "your flesh" to one's family." Moreover, this causes retribution to be exacted from "the enemies of the Jews," 29a) use this expression as a euphemism. for the entire Jewish people are responsible for each other, 87:58 notes that this concept applies, not only with regard to a false oath, but to all the transgressions mentioned in the Torah. Nevertheless, there is a stringent aspect that applies with regard to a false oath, for with regard to other transgressions, the interrelation affects one when he has the opportunity to rebuke the transgressor and with regard to a false oath, it applies even when one does not have such an opportunity. for [Hoshea 4:2-3] states: "Swearing, denying, murdering.... Therefore the land will mourn and all who inhabit it will be forlorn."
With regard to all the transgressions in the Torah, [retribution] is suspended for two or three generations if he possesses merit, but with regard to [a false oath], retribution is exacted immediately, as [Zechariah 5:4] states: "'I have let loose [the curse],' declares God, the Lord of Hosts, 'It will come into the house of the thief and the house of he who took an oath in My name falsely.'"
"I have let loose" implies immediately. "It will come into the house of the thief" - this refers to deceiving people, i.e. one who does not have money owed to him by a colleague and yet lodges a claim against him to require him to take an oath. "He who took an oath in My name falsely" - this should be interpreted literally. [The verse continues:] "It shall destroy it, its wood, and its stones." Entities that cannot be destroyed by fire and water will be destroyed by a false oath.

The concept [conveyed] by this admonition is told [to the person taking the oath] entirely in a language that they understand, so that they will understand the matter and the sinner will repent and correct [his conduct].
If he says: "I am not taking the oath," he is released, 87:60 interprets this as meaning that he is sent away from the court. For once he leaves the court, he cannot change his mind and decide to take the oath. but he must pay what his colleague demands. Similarly, if the plaintiff says: "I will not subject him to an oath and I release him," they may depart. 5:1.

If [the defendant] says: "I will take the oath," and [the plaintiff] persists in the claim, the people there say to each other: "Turn away from the tents of these wicked men." 39b states, the negative repercussions of taking the oath affect them both. The Radbaz explains that the plaintiff shares in the responsibility, for he should have been more careful and not entered into a business arrangement without having the matter observed by witnesses. And if the oath is true, he should have been more careful with his accounts, so as not to require God's name to have been employed for such matters.
The Sefer Meirat Einayim 87:61 explains that when the plaintiff sees that the defendant is prepared to take a false oath, he should have offered a compromise rather than continue to pressure him and thus cause God's name to be taken in vain.
[The court] tells [the defendant]: "We are not administering the oath to you according to your understanding, but according to our understanding and the understanding of the court." 29a and Nedarim 25a which speak of a defendant employing deception while taking an oath.

Although this admonition is not administered for an oath taken because of a claim involving a doubt or a sh'vuat heset, 87:61 explain that when the plaintiff is making a definite claim, it is one person's word against the other's. Thus there is reason to think that the defendant's oath is false and to prevent him from doing so, we issue this warning. When, however, an oath is taken because of a doubt, the defendant is not being challenged. Hence, there is less reason to suspect that he would take a false oath. the judges should implore the litigants exceedingly [before administering these oaths] perhaps they will retract and so there will be no oaths taken at all.

It is a clear and obvious fact that anyone who takes an oath of the judges or a sh'vuat heset falsely, is liable for taking a [false] sh'vuat hapikadon, the details of which have already been explained. Even though he willfully [took the false oath], he does not receive lashes. [Instead,] he is obligated to pay what he owes plus an additional fifth. [The fifth] is one fourth of the principal, so that the principal and the fifth are equal to five. And he must bring a guilt offering if the oath was taken in court, as we explained.