t"yhka inehkd ivfv vhgah rzug cr hrugha

vgucan hruyptk udhn ihbgc :wt wng 'wd ;s tghmn tcc

susu cegh hbc ohjt ,cvt e"ec urntba ohrcs
ohshnk,v in sjt h"g xupsk ubfuvu ue,guv

Note: The following presentation was prepared from Rav Glickman’s notes on a shiur delivered in Cong. AABJ&D in West
Orange, N.J. The Rav requests that corrections and suggestions be forwarded to ravglickmanshiur@earthlink.net. Special thanks
to the participants and especially William Kohn, Esq. for his observations during the shiur which helped illuminate some of the
points herein.

The Rationale for the Oath of the ,m̈§en¦ C§ vsIn

¤

In the course of discussing thḦ¦j h¦Cr’s

© extension of the ihS¦ of ,m̈§en¦ C§ vsIn, ¤ the trn̈§ ¨ D cites a
question posed and answered by vC̈r: © ?g©cĦh vb̈g£Y© v© ,©me§ n¦ vsIn
¤ vrIT
¨ vr§
¨nẗ v©n h¥bP§ n¦ - Why did
the Torah say that one who admits part of the claim must take an oath? This is a strange
question at first blush. We wouldn’t expect vC̈r© to question the Torah’s rationale for
requiring an oath when the respondent makes a partial admission of liability. While
there is a rich literature on the question of ,Iu§mn¦ v© h¥ng£y© , this is out of character for vC̈r© as
we shall see later.

Furthermore, the answer does not befit a question about the rationale for imposing an
oath: IcIj kg©
© C h¥bp§ C¦ uhb̈P̈ zhg¥
¦ n os̈ẗ ih¥t vëz̈£j- it may be presumed that a person does not act
brazenly in the presence of his creditor. This does not explain why the respondent
should be forced to take an oath; au contraire, it suggests exactly the opposite! He is
likely not lying. Why would the Torah compel him to swear if we can presume he is
telling the truth?

We can better understand the force of vC̈r’s © question with a careful reading of the
oh¦bIJtr.
¦ h"¦Ar© writes: IkUF§C r©pF̈ tk¤J Iryp̈§
§ k vs̈h¥ct
£ ch¦Jn¥ F§ IcJ̈£j tk§u- [Why does the Torah compel
him to take an oath] and doesn’t consider him like one who returns a lost object since he
didn’t deny the whole thing?- In other words, the Torah appears to be inconsistent here.
When one returns a lost object, he has potentially placed himself into the same situation
as a ,m̈§en¦ C§ vsIn-
¤ he admits that he found the object that he has returned. Even if the
owner claims part of the object is missing and that the finder appropriated it for
himself, he is nonetheless exempt from an oath. vC̈r’s © question, then, is not about the
rationale for the requirement, but about this apparent inconsistency in Torah law. Why
does the Torah exempt a person who returns a lost object from taking an oath but
requires an oath for ,m̈§en¦ C§ vsIn? ¤ The force of vC̈r’s © question is a search for systemic
coherence.

And so we see explicitly in J"trv̈ wxI,: vsIn§

¤ C vg̈Uc§J chḧ©j vn̈k̈ tr̈§eS¦ tn̈g© y© h¥JUr©p§k vC̈r© t,̈ẗ tk
,m̈§en¦ C§ - vC̈r’s
© intention is not to explicate the rationale for the law. The J"tr refers to a
tḦ§dUx in the ninth er¤¤P where iIg§nJ
¦ h¦Cr© is explicitly said to have used tr̈§eS§ tn̈g© y© to explain
a vf̈k̈£v. We will v"zgc return to that discussion later.

We drew a somewhat vague comparison between the vs̈h¥ct £ ch¦Jn¥ and the ,m̈§en¦ C§ vsIn:
¤ we
reflected that there is some implicit admission on the part of the finder of a lost object
just as the ,m̈§en¦ C§ vsIn ¤ makes a partial admission of liability. Let’s tighten this up. The
t"c̈yh
§ r¦ cites a fuller explanation by h"¦Jr. © This appears to be a different tẍrh¦
§ D and not an
intepretative reading of the JUrh¥P as we have it in our edition: 'tUv vs̈h¥ct £ ch¦Jn¥ tv̈S§ h"arhp
Ikf§
ªC r©pF̈ hgC̈
¥ h¦tS§ Id¦n Iryp̈§
§ k- for he is [like] a returner of a lost object, to be exempted [by a
Id¦n ,©bg£y© ] since if he had so desired he would have denied the entire matter.

According to this reading, the ,m̈§en¦ C§ vsIn

¤ has a course of action available which would
strengthen his legal position, i.e., to deny the entire matter. The vs̈h¥ct
£ ch¦Jn¥ also has an
alternative course of action which would not open him to suspicion, i.e., to let the lost
object sit where he found it and not involve himself (ignoring the obligation to return
lost objects just as we ignore the obligation to tell the truth). By choosing either to
admit part of the plaintiff’s claim or to declare the finding of the lost object, one has
worsened his legal position.

How does this answer fit our revised understanding of the question? vC̈r© asks why the
,m̈§en¦ C§ vsIn
¤ takes an oath even though there is a Id¦n ,©bg£y© that should exempt him. The
answer: IcIj kg©© C h¥bp§ C¦ uhb̈P̈ zhg¥
¦ n os̈ẗ ih¥t vëz̈£j, meaning there is no Id¦n; the ,m̈§en¦ C§ vsIn
¤ had no
course of action available that would have put him in a stronger position because
people do not do that. No one would brazenly deny the full claim if one in fact owed
money. A partial admission means one owes something; we do not give the respondent
the benefit of the stronger claim (a denial of everything) because he could not or would
not advance that stronger claim of no liability. The effect of the vëz̈£j, then, is to negate
the Idn.

The Nature of the Idn Claim

The analogy to the vs̈h¥ct

£ ch¦Jn¥ is helpful in clarifying the meaning of the Id¦n ,©bg£y© . One
might fairly conclude that the Id¦n is an argument for the credibility of the weaker claim.
Since the respondent could have made a stronger claim and did not, it seems safe to
assume that what he now claims is true.

But can this really be?! Would not every scoundrel avail himself of this defense? One
might brazenly lie, making any false claim for which there were a stronger claim, and
wait for the ihS¦ ,h¥C to rule in his favor on the basis of the Id¦n.

We can see the Idn at work in the words of the o"©Cn§ r© in ig̈y¦
§ b§u igIy
¥ ,If§kv¦ [wt wkv 'h¦JJ
¦ er¤
¤P]:

I,b̈g£y© kg© ch¦JT̈¤J s¤xp§ v¤ W§k ih¥t Ik ohr§ ¦nIt 'kIsd̈ of̈j̈ vḧv̈ Ukh¦pt© §u- and even if [the respondent}
should be a great sage, the [court] says to him “You have no potential loss in replying to
his charge”- Ik chḦ©j vT̈©t ih¥t s©mh¥F Ubgh ¥ sIT§
¦ u- “and you should tell us how it is that you do not
owe him [anything]”- Ik T̈r© §zj§ v¤ §u Uhv̈¤a h¥bP§ n¦ It ok̈Ig¥n ohrc̈S
¦ Uhv̈ tk¤J h¥bP§ n¦ - “[whether] because
these things never happened or because they did but you paid him back”- ih¦bS̈ Ubẗ hr© ¥vJ
¤
oIen̈ kf̈§C r©nIk kIfḧ¤J lIT¦nC§ - for we decide cases from what [QuT¦n] he is at all capable of
saying.

The o"©Cn§ r© explains the court’s instructions to the respondent to speak up and not be
fearful of telling his side of the story: we give him the benefit of the strongest claim he is
capable of making. The v¤bJ § n¦ o¤j¤k further explains: the respondent may be afraid of
explaining the circumstances since a simple denial does not open the door to further
questions. For instance, he may fear that if he were to admit he borrowed money but
repaid it, the court may demand proof that he indeed repaid the loan. The court
instructs him to recount the full circumstances with the assurance that nothing he may
say will be used against him if he might otherwise make a stronger claim.

In other words, the force of the Id¦n [QITn in the o"©Cn§ r’s
© carefully worded Hebrew
formulation] is that any information supplied exclusively by the respondent does not
negatively impact his position. The respondent always receives the benefit of the best
claim he might make on his own behalf whether or not he in fact does so.

In his ohrUgh¦
¦ J .¥cIe [wd in̈h¦x 'wc e¤kj¥ ] in̈r¤
§x©u ib̈j̈§kt¤ wr d"vrv describes the two contrasting
interpretations of Id¦n. The first is the commonplace notion that the weaker claim is more
credible because one has no impetus to harm his own legal position when the stronger
claim cannot be challenged. This case is known as hs£ ¥vx© i©bt
£ [we are ourselves witnesses].
There is no testimony from eyewitnesses that substantiates his claim. We use our own
logic on his behalf, as we the court testify for him: ?r¥EJ © §k Ik v©n- What reason would he
have to lie [since the stronger claim would also be believed]?

The second interpretation of Id¦n is reminiscent of our reading of the o"©Cn§ r© above. In the
words of the ohrUgh¦
¦ J .¥cIe: uk J¥hJ ¤ ,Ubn̈¡
tb¤v© j© f§CS§ ,Ubn̈¡
t¤b ihS¦ tUv¤J tk̈¤t hs£
¥vx© i©bt
£ og© y© n¦ Ibh¥tS§ k"h
igIy
¥ tUv¤J ,tz vb̈g£y© kg© o©D in̈¡
t¤b ,r¤
¤jt© vb̈g£y© iIgy¦ § k- we should say that [the Idn] does not
[operate on the basis of] hs£
¥vx© i©bt
£ but rather is a principle of credibility for the credibility
of the other claim that he can make renders him credible on this one. In other words, the
respondent’s choice of the weaker claim does not compromise his legal position; he
continues to enjoy all the credibility of the stronger claim that would have been
accepted had he only chosen to make it.

h"¦Jr’s
© Analogy Revisited

To recap: vC̈r© questions the Torah’s apparent inconsistency in requiring an oath for vsIn ¤
,m̈§en¦ C§ . h"¦Jr© explains that the tḧ§JUe relates to the inconsistency between the ihS¦ of ch¦Jn¥
vs̈h¥ct
£ and ,m̈§en¦ C§ vsIn,
¤ i.e., the former being exempt from taking an oath, the latter not.

Many ohbIr£jt© read h"Jr’s suggestion of vs̈h¥ct

£ ch¦Jn¥ as an alternative to Id¦n rather than an
analogy to it. An example will make this clear. The g© JIv§ ª h h¥bP© writes that h"¦Jr© introduced
the vs̈h¥ct
£ ch¦Jn¥ precisely because Idn would not work as a argument for exempting one
from taking an oath. The presence of a Idn, the g© aIv§
ª h h¥bP§ writes, is not sufficient grounds
for exempting a respondent from an oath. h"¦Jr© introduces the finder of the lost object
because he is exempt from an oath unlike the respondent who has a ud¦n ,©bg£y. ©

The g© JIv§
ª h h¥bP§ clearly did not have the same reading in h"¦Jr© aUrh¥P as the t"c̈yh
§ r.
¦ In the h"p’s
view, Idn does not enter the equation at all. The ,m̈§en¦ C§ vsIn
¤ is analogous to the vs̈h¥ct £ ch¦Jn¥
in an entirely different way: each deserves the court’s acceptance because each
needlessly harms his own financial position. The returner of the lost object needlessly
forgoes ownership of whatever he returns. He is not subject to an oath that he returned
the entire object because he might have kept whatever he does return for himself.
Forgoing ownership is a strong indication that he is telling the truth. Similarly, the
respondent who admits to partial liability might have denied the entire claim and
avoided paying anything. The actions of each are strong indications that they are telling
the truth. It is on this basis that vC̈r© questions the requirement that a ,m̈§en¦ C§ vsIn
¤ take an
oath.

In the t"c̈yhr’s
§ reading, h"¦Jr© compares the implicit Id¦n of the vs̈h¥ct
£ ch¦Jn¥ to the Idn of the
,m̈§en¦ C§ vsIn.
¤ This reading assumes that the court does indeed exempt the respondent
from taking an oath on the basis of a Id¦n. Before discussing this vf̈k̈£v, however, we need
to address a much more fundamental issue in h"Jr’s interpretation of vC̈r’s © question.

A Fundamental Problem in h"¦ar© ,©yh¦J

In several places throughout x"©J, including on the very next page [c"g ws ;S], h"¦Jr© writes
that the exemption of the vs̈h¥ct
£ ch¦J
¦ n¥ from the responsibility of swearing that he has
indeed returned the entire object is of rabbinic origin! How then could vC̈r© be asking
about the vrIT’s
¨ apparent inconsistency in requiring a vg̈Uc§J for ,m̈§en¦ C§ vsIn
¤ when the
exemption for a vs̈h¥ct £ ch¦Jn¥ is only oh¦nf̈£j ,©bë©,n¦ !? In other words, there is no
inconsistency in the vrIT
¨ at all, for vrIT©
¨ v i¦n the vs̈h¥ct
£ ch¦Jn¥ is indeed obligated to take an
oath!?

One simple strategy to resolve the problem in h"¦Jr© is to maintain that the vs̈h¥ct £ ch¦Jn¥ is
also rUyP̈ from taking an oath vrIT© ¨ v i¦n. The force of the statements that the ib̈C̈r©
exempted him from taking any oath is that even the ,¤xh¤v ,gUc§ © J, an additional vg̈Uc§J that
the ib̈C̈r© instituted to deter fraud, is not obligatory. When the vb̈§Jn¦ teaches in ihyh¦ ¦ d, for
example, okIg iUehT h¥bP§ n¦ g©cJ̈¦h tk vs̈h¥ct
£ t¥mun©v, the intention is only the additional oath
ib̈C̈r©s¦
§ n. Such a JUrh¥P can be found in the ,¤mC¤Ue§n vÿh¦J as well as in the oh¦bIr£jt© .