Shabbat Parashat Acharei Mot-Kedoshim | 5769

Hemdat Hadaf Hayomi: Why does one who admits to part of the claim have to swear?

Baba Kama 119- Baba Metzia 7

The Gemara in the beginning of Baba Metzia deals with the laws of 'Shevuat Modeh Bemiktzat'- the obligation of one who admits to part of the claim to swear. When one sues another person for a certain amount of money, and the defendant admits that he indeed owes part of the amount claimed, the Torah requires the defendant to swear that he does not owe the full amount claimed. For example, if the plaintiff claims that the defendant owes him $100, and the defendant admits to owing $50, he must pay $50 and swear that he does not owe the other $50. The Gemara (3a) brings the following explanation for this:

"Rabbah said: Why did the Torah require one who admits to part of the claim to swear? A person is not able to be so brazen, as to lie to his creditor." Meaning, we are suspicious that the defendant really owes the entire amount, but wanted to deny the entire claim, however since he was not able to lie to the face of his creditor, he admitted to part of the claim, and if we would require him to swear, then he would admit to the entire claim.

The Rishonim tried to explain what exactly is Rabbah's question- "Why did the Torah require one who admits to part of the claim to swear?" According to Tosfot (ibid d"h Mipnei) Rabbah is asking why do we not believe him 'Migo' that he could have denied the entire claim. 'Migo' is a concept that states that if a person can make a certain claim that would have caused the court to rule in his favor, then even if he makes a different claim, he is believed as if he made the other claim. Therefore, according to Tosfot, the question is that this person who admitted to part of the claim could have denied the entire claim and would not have been required to swear, so why do we now require him to swear. Why do we not say that 'Migo' that if he denied the entire claim he would have been exempt from swearing, so too now that he admitted to part of the claim he should be exempt? To this Rabbah answers that this person was not able to deny the entire claim, because he could not lie in the face of his creditor and deny the entire claim.

According to this explanation of Rabbah's question, Rabbah's answer becomes problematic. The Rishonim (Tosfot Baba Kama 107a, Ran Shevuot 26b in the pages of the Rif, and more) proved from a few places in the Gemara that the concept of 'Migo' is applied even when the claim that the defendant could have claimed is one which involves lying in the face of his creditor. There are a few resolutions to this contradiction, but the resolution that the Shach (Choshen Mishpat end of siman 82 Dinei Migo seif 6) accepted is that there is a difference between when the 'Migo' is being applied to exempt the defendant from paying, and when it is applied to exempt the defendant from swearing. Since the threshold for obligating payment is higher than the threshold for obligating an oath, even a problematic 'Migo,' such as one based on a claim involving brazenness is sufficient to exempt from payment. However, a problematic 'Migo' is not sufficient to exempt the defendant from swearing,.

The explanation of the Tosfot to Rabbah's question is in contradiction to the opinion of the R"I Migash and the Rambam. According to the R"I Migash (Shevuot 45b) and the Rambam (Malveh Veloveh 13, 3), a 'Migo' is never applied to exempt the defendant from swearing.  It is only applied to exempt from payment.  Therefore, the question of why we do not exempt one who admitted to part of the claim from swearing, 'Migo' that he could have denied the entire claim, never begins. According to them, it appears that Rabbah is simply asking why the Torah required the defendant to swear in this specific case.       

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