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Week 120 - Tuesday - 12 March 2002

SHEVUOT: CHAPTER 4: MISHNAH 5

"I adjure you to come and testify for me that so-and-so has a bailment, loan, stolen object and a lost object of mine." "We swear that we know of no testimony on your behalf," they are liable only once. "We swear that we do not know that so-and-so has a bailment, loan, stolen object and a lost object of yours," they are liable for each one. "I adjure you to come and testify for me that so-and-so has a bailment: wheat, barley and spelt of mine." "We swear that we know of no testimony on your behalf," they are liable only once. "We swear that we know no testimony on your behalf that so-and-so has wheat, barley and spelt of yours," they are liable for each one.

Kehati

This mishnah continues to treat the laws of oaths of testimony. It teaches that if a person adjures witnesses to testify concerning various claims of his against another person, and they swear that they know of no testimony on his behalf, they are liable on only one count, if they do not enumerate the claims. But if they do, they are liable for each claim separately.

If a person said to witnesses: "I adjure you to come and testify that so-and-so has bailment - that I gave him for safe deposit - loan - money on loan - stolen object - that he stole from me - and a lost object of mine," which he found, and they replied: "We swear that we know of no testimony on your behalf" - but did not repeat his detailed claims - they are liable only once - on account of one oath. But if they said: "We swear that we do not know that so-and-so has a bailment, loan, stolen object and a lost object of yours - detailing the items claimed - they are liable for each one - because they swore with respect to each claim. Similarly, if he said to witnesses: "I adjure you to come and testify for me that so-and-so has a bailment: wheat, barley and spelt of mine” - i.e. the claim is for a single bailment, consisting of separate items, and they replied: "We swear that we know of no testimony on your behalf" concerning all these things that you are claiming - they are liable only once - i.e., for one oath only. But if they said: "We swear that we know no testimony on your behalf that so-and-so has wheat, barley and spelt of yours" - i.e. they detail in their oath the several items of the plaintiff's claim - they are liable for each one even though there is a claim of only a single bailment because they mentioned each item in their oath.

Some commentators ask why the mishnah words the reply of the witnesses, "We swear that we know of no testimony." Since the claimant said, "I adjure you," they are already sworn as we learn from "and hears the voice of adjuration" (Lev. 5:1), and the witnesses do not have to use any terms of oath, nor even to respond "Amen." And this is the principle form of the oath of testimony. (See Tosefot Yom Tov and his answer). However, some commentators explain that the mishnah alludes to two kinds of oath of testimony, and it is to be understood as follows: If he said to witnesses: "I adjure you to come and testify for me etc.," and they replied: "We know of no testimony on your behalf” without using any expression of oath and without responding "Amen," Or, he said to them: "Come and testify for me...," and they replied: "We swear that we know of no testimony..." (Melekhet Shelomo; Tiferet Yisrael).

SHEVUOT: CHAPTER 4: MISHNAH 6

"I adjure you to come and testify for me that I have a claim against so-and-so for damages, for half-damages, for twofold, fourfold or fivefold compensation, or that so-and-so violated my daughter, or seduced my daughter, or that my son struck me, or that so-and-so wounded me, or that he set fire to my haystack on the Day of Atonement," they are liable.

Kehati

The law is that a person, admitting an act for which the penalty is a fine, is free from paying the fine, even if later accused by witnesses of the offence. This being so, witnesses are ineffective alone to force one accused to make restitution. They are only effective when their evidence is coupled with the accused’s denial. Witnesses who had therefore been adjured and they denied on oath having any knowledge of the matter, are exempt from the liability of the oath of testimony. (Rambam Hilkhot Shevuot 9:4) This mishnah teaches that if a claimant adjured witnesses to testify for him in a matter involving both kenas and mammon, or in a matter involving both the punishment karet and mammon, they are liable to the oath of testimony penalty, because of the restitution-payment involved.

If a person said to witnesses: "I adjure you to come and testify that I have a claim against so-and-so for damages, or for half-damages - for damage caused by pebbles which scattered from beneath an animal's feet, and for which the owner pays only half-damages (Bava Kamma 2:1). These half-damages are considered by the Gemara to be mammon and not kenas. For twofold - payment which the thief owes for his theft. Twofold includes the capital-value which is mammon - fourfold or fivefold compensation - for stealing and slaughtering or selling an ox or a lamb - fivefold for an ox and fourfold for a lamb; the capital value, mammon is included in the total amount to be paid by the thief - or that so-and-so violated my daughter, or seduced my daughter; apart from the kenas imposed by the Torah, the accused must also pay compensation for shame and defect; these payments are mammon - or, that my son struck me - without, however, inflicting a wound, so no capital punishment is involved (see Mishnah Sanhedrin 11:1), but he must pay compensation, mammon for shame and pain - or that so-and-so wounded me, or set fire to my haystack on the Day of Atonement" - even though the penalty for these offences, if committed on the Day of Atonement is karet, the offender is also liable for damages (see Bava Kamma 8:3). Since in all of these cases, mammon is to be paid - the witnesses are liable for transgressing an oath of testimony if they denied their knowledge.

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