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Week 120 - Sunday - 10 March 2002

SHEVUOT: CHAPTER 4: MISHNAH 1

The oath of testimony applies to men but not to women, to non-relatives and not to relatives, to those fit and not to those unfit, and it applies only to those who are suitable to testify, whether uttered before a court or not before a court, when uttered on his own volition. If by others, they are not liable until they deny before the court; So R. Meir. But the sages say: Whether on his own volition or by others, they are not liable until they deny it before the court.

Kehati

This chapter deals with the detailed laws of the oath of testimony. As we have already explained in the introduction to the first mishnah of this Tractate, if a plaintiff asks witnesses who were in fact present at a financial transaction to give evidence in court, and they disclaim on oath any knowledge of the matter, they are guilty of transgressing an "oath of testimony," and are liable to bring a graded offering. As the Torah says: "And if a person sins, and hears the voice of adjuration, and is a witness, having seen or known of it, if he does not tell it, then he shall bear his iniquity... and it shall be when he shall be guilty... that he shall confess that wherein he has sinned. And he shall bring his guilt offering to the Lord for his sin which he has sinned a female from the flock, a lamb or goat for a sin offering... And if his means do not suffice for a lamb, then he shall bring two turtledoves or two young pigeons... But if his means do not suffice, then he shall bring the tenth part of an efah of fine flour for a sin offering" (Lev. 5:1 et seq.) The mishnah teaches that the oath of testimony applies only to those who are fit to be witnesses. Also, that if witnesses have been adjured by others, they are liable only when they disclaim their knowledge in court. If the witnesses uttered the oath themselves, there is a difference of opinion between R. Meir and the Sages as to whether they are liable if they did not disclaim their knowledge in court.

The law of the oath of testimony applies to men but not to women - for it is written (ibid.), "and is a witness," i.e., fit to be a witness and a woman cannot testify, for the Torah states: "Then the two men shall stand" (Deut. 19:17) - men but not women. The Gemara infers by analogy that this verse in Deuteronomy refers to witnesses; to non-relatives and not to relatives - for relatives are unfit to testify (Sanhedrin 3:4) - to those fit and not to those unfit to testify, by reason of offences committed, e.g., those liable to capital or corporal punishment (see introduction to Sanhedrin 3:3) - and it applies only to those who are suitable to testify - the Gemara explains that this is meant to exclude a) the king, because "the king does not testify" (Sanhedrin 2:2); b) those disqualified by Rabbinic law, e.g., a dice-player (see Sanhedrin 3;3) - whether uttered before a court or not before a court, when uttered on his own volition. If the witness swore on his own volition to the plaintiff that he has no knowledge of his case, he transgresses irrespective of whether he took the oath in or out of court.

If adjured by others - but if the plaintiff adjured the witnesses to give evidence, saying: "I adjure you to come and testify," and they said: "We know of no evidence on your behalf," but they did not utter an oath, nor did they say "Amen" - they are not liable - to bring a guilt offering - until they deny any knowledge before the court; so R. Meir - because the Torah states, "If he does not tell it, then he shall bear his iniquity" (Lev. 5:1). Hence that he is liable only if he denied knowledge in a place where his testimony would avail. The verse refers to a case of adjuration, for it states, "...and hears the voice of adjuration." However, R. Meir holds that if the witness swears on his own volition he is liable also if he denies his knowledge outside the court. This he deduces from the law with respect to oaths of deposit (infra Ch. 5) (Gemara). But the Sages say: Whether on his own volition or adjured by others, they are not liable until they deny it before the court - though the oath may have been taken before coming to court, as we see below, mishnah 3. The Gemara explains that though the Sages deduce the case of the oath of testimony from the law of the oath of deposit with respect to the liability of a witness who swore on his own volition, they disagree with R. Meir who also learns from there that a witness who not before a court swore on his own volition disclaiming any knowledge also transgresses the oath of testimony. The Sages hold that since it is clearly stated with respect to the oath of testimony that a witness adjured by others is liable only if he disclaims knowledge in court, the witness swearing on his own volition is also liable only if he denies his knowledge in court (see Gemara 31a). The halakhah follows the view of the Sages.

SHEVUOT: CHAPTER 4: MISHNAH 2

They are liable for willful transgression of the oath and for its unwitting transgression if they willfully denied the testimony; but they are not liable if their denial was unwitting. What are they liable to for the willful transgression of the oath? A graded offering.

Kehati

Continuing the subject of the previous mishnah, this mishnah explains when one is liable to an offering for an oath of testimony.

And they are liable to an offering for willful transgression of the oath - if they were totally willful, i.e., they remembered having witnessed the transaction; they willfully perjured themselves and they knew that they would be liable to bring an offering for their oath. The baraita, cited in the Gemara, states: In each case (of the graded offering, such as the declarative oath and impurity connected with the Temple - Rashi) the Torah states, "and it is hidden from him"; not so with respect to the oath of testimony. Hence both the willful and unwitting transgressor are liable for it. And for its unwitting transgression if they willfully denied the testimony - their error with respect to the oath consisted of the fact that they were unaware of the liability of an offering for this oath (Gemara), but in denying knowledge of the testimony they swore willfully.

But they are not liable if their denial was unwitting - i.e. if they were totally in error and forgot having witnessed the transaction. When later they remembered, they are not liable for an offering and they are not considered to have sworn falsely. In the circumstances, their oath was unavoidable. (Rashi) However, some commentators question this explanation, for in such a case their oath was a truthful one (Tosafot Shevuot 3lb). Rashi's comment is, therefore, understood as follows: When they swore that they did not know, they really did know, but did not take the trouble to think about it and remember. Their oath was, therefore, not, in fact, a truthful one, for as soon as they gave it some thought, they recalled it. Despite this they are exempt, for since they swore in good faith, the untruth of their statement was accidental (R. Nissim). The same applies if the witnesses were in error with respect to the oath; i.e., that they did not know that such an oath was forbidden (see Tosefot Yom Tov). What are they liable to for the willful transgression of the oath or for its unwitting transgression with willful denial of the testimony? A graded offering - as explained in the introduction to the previous mishnah.

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