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 Shabbat Parashat Pekudei| 5764P’ninat MishpatSh’vuot(Oaths) - Part I - Introduction
The institution of sh’vuot (oaths) is a major one in halachic literature, but in modern practice, it is rarely implemented. There is a practice to avoid administrating sh’vuot at almost all cost. Rather, we replace the sh’vua with payment of a certain percentage of the money being argued about. However, the topic is still central to Choshen Mishpat, and we should discuss it.
We will discuss the sh’vuot that beit din administers (shvuot hadayanim). There are also oaths that a person makes of his own volition, which may require him to do something or refrain from something. However, those are related to the laws of Yoreh Deah, dealing with “ritual law,” and not to Choshen Mishpat and the functioning of batei din. The purpose of a sh’vua in beit din is to provide a degree of proof to one’s claim, by his preparedness to swear, before accepting the claim.
Sh’vuot break up into a few different categories. There is a distinction in severity, and somewhat in implementation, between Torah obligated and rabbinically obligated sh’vuot. The Torah mentions sh’vuot in two contexts and hints at them in a third context. The Torah says (Shemot 22:7,10) that when one watches an object for his friend and something happens to the object, he must swear that what happened is something for which he is not responsible. (What that is depends on the type of watchman he was). A second case is one who admits part of his friend’s claim but denies the rest (ibid.:8). A third case is when one witness testifies that someone owes money, which requires the defendant to swear to counteract the testimony. This is implied from the pasuk that only two witnesses are sufficient to extract money (Devarim 19:15), implying that one witness would have some impact, namely to require an oath (Sh’vuot 41a). The common denominator between these three cases is that the defendant is the one to swear in order to exempt himself from payment (Sh’vuot 44b).
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