Shabbat Parashat Shoftim| 5770

Hemdat HaDaf Hayomi: A Partner's Oath (48b)

Av 28- Elul 4, Shevuot 42-48

This week in the Daf Hayomi, we will learn the seventh chapter in Masechet Shevuot, which deals with various oaths that the Sages instituted in special situations. One of these oaths is the partner's oath; an oath that the Sages instituted for someone who deals with money that belongs to someone else, such as one partner who deals with his partner's money.  The partner may be obligated by the owner of the money to take an oath that he didn't take any money for himself that he wasn't supposed to. Even if the owner of the money is not certain that something was taken from him, and he is just suspicious, he made demand that this oath be taken.

The Gemara (48b) explains that the reason for this institution is that people who deal with other people's money have a tendency to justify illegally taking some, claiming that, since they work hard to create a profit, they deserve some extra money. The Rishonim disagree as to how to explain the Gemara's reason.

The Mordechai (Shevuot 772) explains that, since these people justify to themselves that they may take the money, it is likely that they indeed took some, and the owner's suspicion is reasonable, and therefore the Sages obligated them to take an oath. The Rambam (Shluchin Veshutfin 9, 1), however, explains that, since these people have a tendency to justify taking, the Sages wanted to create a deterrent to prevent them from taking. The deterrent is that at any point in time they may be obligated to take an oath. The fear of the oath will cause them to conduct themselves in a proper and righteous fashion.

It is possible that there is a practical difference to this dispute. According to the Rambam, there is no need for a specific suspicion for an oath to be obligated. The Sages wanted the possibility of an oath to always be present, so that it will be an effective deterrent. However, according to the Mordechai, only if there is reason to suspect the partner, in conjunction with the fact that people have a tendency to justify taking, will there be a sufficiently serious suspicion to impose an oath. Indeed, the Taz (Choshen Mishpat 93) rules that there must be some sort of proof to give credence to the suspicion for an oath to be obligated. 

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