ד׳ באלול ה׳תש״ע (August 14, 2010)

Shevu’ot 48a-b – Taking an oath when there is no claim

According to the Mishnah there are a number of people who the court will require to take an oath even though there is no claim against them. These people include:

  • Partners
  • Sharecroppers who get a percentage of the produce
  • An apotropus – a legal guardian appointed by a parent or by the courts to protect the interests of orphans
  • A woman who is in charge of the financial workings of the household
  • ben bayit – someone who is a consistent guest and has free access to a household

 

The Gemara on today’s daf (=page) clarifies that there has to be some level of claim, and that the Mishnah’s intent is to teach that even if there is a ta’anat shema – even if the plaintiff raises a suspicion – it is enough for the court to obligate the defendant to take an oath. While ordinarily the bet din will only take seriously a ta’anat bari – a claim that is made by the plaintiff with certainty – given the close relationship that exists in these cases we recognize that a person might feel that it is his right to take something extra and the court is willing to require an oath based on a weaker claim.

 

With regard to the ben bayit, the Gemara quotes a baraita that explains that we will not obligate someone to take an oath simply because he comes and goes in the home on a regular basis, rather the Mishnah is referring to someone who has a position of financial responsibility in the home, e.g. he brings in and out workers or merchandise. The Me’iri explains that an ordinary ben bayit cannot be made to swear that he did not take anything from the house, since we do not work with the assumption that people are thieves. It is only if there is reason to suspect that the individual may believe that he is within his rights in taking something that we are willing to suspect him of overstepping his rights.

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