Torah Community Connections

Week 120 - Monday - 11 March 2002

SHEVUOT: CHAPTER 4: MISHNAH 3

What is an oath of testimony? A person said to two people: "Come and testify on my behalf." "We swear that we know of no testimony on your behalf," or they said to him: "We do not know any testimony on your behalf.'' ''I adjure you,'' and they said, “Amen”, they are liable. If he adjured them five times, outside the court, and they came to court and admitted, they are exempt. But if they denied it, they are liable on each count. If he adjured them five times in court, and they denied it, they are liable only once. R. Shimon said, what is the reason? because they cannot again admit it.

Kehati

This mishnah gives examples of oaths of testimony and teaches further rulings concerning this kind of oath.

What is an oath of testimony? A person said to two people: "come and testify on my behalf," and they said, "We swear that we know of no testimony on your behalf” - thus perjuring themselves - or they said to him - without swearing - we do not know any testimony on your behalf - and he said, "I adjure you" that what you said is true - and they said, "Amen"- but it was not true - they are liable for a graded offering (see Tosefot Yom Tov and Tiferet Yisrael). If he adjured them five times, outside the court - and they denied it each time - and they came to the court and admitted - that they were unaware of evidence - they are exempt - because they are not liable for denials made outside the court, as stated in mishnah 1, for it is written: "If he does not tell it, then he shall bear his iniquity". (Lev. 5:1) - This applies only if in a place where his telling would have caused the accused to pay (Gemara). And even R. Meir who holds that a witness who swears on his own volition is liable even if he does so outside the court, agrees that in this case they would be exempt, since they admitted it in court (R. Nissim).

But if they denied it also in court, they are liable on each count - for each oath that he adjured them outside the court in keeping with the verse: "And it shall be when he shall be guilty of one of these things" (Lev. 5:5). The verse obliges him to bring an offering for each adjuration (Gemara). But if he adjured them five times in court, and they denied it - irrespective of whether they denied it each time he adjured them or only at the end - they are liable only once - on account of one oath. R. Shimon said, what is the reason they are liable on only one count? Because they cannot again admit it - once they denied knowledge in court they cannot retract and admit it for the Torah says: "If he does not tell it," which the Sages interpreted to mean that once he has given evidence, he cannot retract it and give it again. Hence they are liable only for their first denial, the others being unacceptable by the court. Even if they kept silent and only denied it after having been adjured five times, we do not consider it a five-fold denial, to make them liable on each count, for if their first silence was construed as a denial, then, as we have already stated, they are liable only for the first denial. If, on the other hand, it does not imply a denial, then there is only one oath. For an oath cannot take effect where one already exists and they are already adjured. Hence, they are liable on one count only.

SHEVUOT: CHAPTER 4: MISHNAH 4

If both denied together, both are liable; if one after the other, tile first is liable and the second is exempt. If one denied and the other admitted, the one who denied is liable. If there were two groups of witnesses, and the first denied, and then the second denied, both are liable, because the testimony could be upheld by either of the two.

Kehati

This mishnah teaches that witnesses are liable only if their denial causes the plaintiff loss.

If both denied together - the Gemara explains that the second witness started his denial immediately after the first one completed his, both are liable to an offering for an oath of testimony; if one denied after the other - after a slight pause so that the two testimonies were repeated - the first is liable and the second is exempt - the first witness having denied any knowledge of the matter, the testimony of the second serves no purpose, for payment cannot be exacted on the testimony of a single witness. Consequently, the denial of the second witness did not affect the plaintiff's claim, and he is exempt from the oath-of-testimony offering. If one denied and the other admitted - it is irrespective whether the first or second denied - the one who denied is liable to an offering, for his denial caused loss to the claimant. The Gemara explains that the mishnah teaches that if both denied together, and one of them retracted immediately, he is exempt while the other, who maintains his denial, is liable. If there were two groups of witnesses - whom the claimant adjured to give evidence - and the first denied, and then the second denied, both are liable, because the testimony could he upheld by either of the two groups - independently of the other. The Gemara explains that if the second group consisted of suitable witnesses, the first group is exempt, because they relied on the second group, and, consequently did not cause the claimant loss. However, the mishnah refers to a case in which, when the first group made its denial, the witnesses of the second group were related to the claimant or accused through their wives who were dying. The mishnah teaches that although the majority of dying people actually die, the second group is not able to testify as long as the wives are yet alive. Consequently, there was only one (the first) group which was liable for its denial. If the second group, after their wives' death, when their testimony became acceptable, also denied its knowledge, it is also liable. It is to such a case that the mishnah refers in saying that "both are liable because the testimony could be upheld by either of the two groups."

This explanation follows Rambam. Rashi, however, explains that the witnesses (of the second group) were related to each other through their wives who were sisters, and this disqualified the group from giving evidence. So also Bartenura (but see Tosefot Yom Tov who queries both interpretations).

Return to Mishna Yomit Index

Visit the Mishna Yomit Archives