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Week 120 - Wednesday - 13 March 2002

SHEVUOT: CHAPTER 4: MISHNAH 7

"I adjure you to come and testify for me that I am a Kohen, or that I am a Levite, or that I am not the son of a divorcee, or that I am not the son of a halutzah, or that so-and-so is a Cohen, or that so-and-so is a Levite, or that so-and-so is not the son of a divorcee, or that he is not the son of a halutzah, or that so-and-so violated his daughter, or that he seduced his daughter, or that my son wounded me, or that so-and-so wounded me, or set fire to my haystack on a Sabbath," they are exempt.

Kehati

This mishnah teaches that if witnesses were asked to testify in a case not involving a money claim, and they perjured themselves saying they had no knowledge of it, they are not guilty of the offence of an oath of testimony. The Gemara explains that this law is derived by means of a gezerah shavah from the law of the oath of deposit. Just as there the Torah refers only to money claims, so also the law of the oath of testimony refers only to money claims.

If a person said to witnesses: "I adjure you to come and testify for me that I am a Kohen - and allowed to eat terumah, or that I am a Levite - and allowed to receive tithes, or that I am not the son of a divorcee, or that I am not the son of a halutzah - and am not therefore a profane priest (see Makkot 1:1). There is no money claim in any of these cases (see Tiferet Yisrael) - or that so-and-so is a Kohen, or that so-and-so is a Levite, or that so-and-so is not the son of a divorcee, or that he is sot the son of halutzah - Now, even in money matters the witnesses are not liable if a third party adjures them to testify that a person owes someone else money, but only if the claimant himself adjures them (infra mishnah 12). However, in money matters witnesses are liable when not adjured by the claimant himself if they were adjured by a person authorized by the claimant. No authorization is relevant or valid in the cases listed in the mishnah, since none of them involve financial claims. Or he adjured the witnesses to testify that so-and-so violated his daughter - somebody else's daughter (the person referred to earlier in the mishnah) - or that he seduced his daughter - so-and-so's daughter. Though apart from kenas he must also pay mammon, for shame and defect (previous mishnah), even if the adjurer is authorized by the claimant, he cannot render the witnesses liable to the oath of testimony. The authority of one authorized only has legal force with respect to money which was formerly in the claimant's possession, and is now in the hands of the accused, it does not extend to money demanded from a violator or seducer, which was never his - Or that my son wounded me - when he struck me - or that so-and-so wounded me on a Sabbath - set fire to my haystack on a Sabbath" - the offenders in these three instances are liable to capital punishment and are therefore exempt from payment (see Bava Kamma 8:5).

According to some commentators, the clause "that so-and-so violated his daughter," or "that he seduced his daughter" also refers to capital offences, for in both instances his own daughter is meant (see Rashi and Tosafot 34a). In all the instances mentioned in the mishnah, they are exempt - If the witnesses perjured themselves, declaring they knew no testimony.

SHEVUOT CHAPTER 4: MISHNAH 8

I adjure you to come and testify for me that so-and-so said he would give me two hundred zuz, but he did not - they are exempt, because they are only liable in the case of a claim for money which is like a deposit.

Kehati

This mishnah also teaches that the law of the oath of testimony applies only in cases of money claims.

If a person said to witnesses: "I adjure you to come and testify for me that so-and-so said he would give me two hundred zuz, but he did not" - and they denied any knowledge and were found to have perjured themselves - they are exempt from the oath of testimony offering - because they are only liable in the case of a claim for money which is like a deposit - for in regard to the oath of testimony, the Torah states: "If a person sins and hears the voice of adjuration" (Lev. 5:1) and concerning the oath of deposit it states: "If a person sins and commits a trespass against the Lord and lies to his neighbor in a matter of deposit" (ibid., 21). By means of the gezerah shavah we learn that just as the oath of a deposit applies only when reclaiming property, so the oath of testimony applies only when reclaiming property. The claim "that so-and-so said he would give me two hundred zuz" is not such a claim, for even if it is true, he is not bound to give him the money just because he said he would (Bartenura). Some commentators add that even if the claimant is a poor person, the donor would only be obliged because of the vow (to give charity), but he is under no obligation to the claimant, and the court would not exact payment if he does not want to keep his vow, though a ban would be put on him or he would be beaten until he keeps his word (Tosefot Yom Tov). Furthermore, he could free himself from his vow (Tiferet Yisrael). The witnesses are, therefore, exempt if they denied any knowledge, since even if they did testify, the author of the promise would not have to give him the money, for he could allege that he had changed his mind (Rashi).

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