Rabbi asks:

All of the Mishnah's and Gemara's cases of Shevu'as ha'Edus involve a person asking witnesses to back up their monetary claim. What would be the Halachah if the defendant asks witnesses to back up his denial of monetary obligation - if the witnesses swear falsely, would that also be called Shevu'as ha'Edus? Why is that case never mentioned in the Mishnah?

Rabbi, Yerushalayim, Israel

The Kollel replies:

1) The Mishnah (35a) states that if the "Nitba" -- the person being claimed from (the defendant) -- said to the witnesses, "I make you swear that if you know testimony for me, then you should come and testify," the witnesses are exempt. The witnesses are only liable if they hear from the "Tove'a" -- the claimant -- the demand to testify.

2) The Gemara on 35a (just before the second Mishnah) cites a Beraisa that derives this Halachah from the word "Lo" in Vayikra 5:1. The verse states "If 'Lo' will he tell, then he will bear his sin." The word "Lo" is written in the Torah on this occasion in an unusual way. It is comprised of Lamed-Vav-Alef. The Gemara explains that this means "If 'Lamed Vav' (to him) 'Lamed Alef' (not) will he tell, then he will bear his sin." "Lamed Vav" means "to him," "Lamed Aleph" means "not." This teaches that he is only liable if he does not say his testimony "to him," but if he fails to say his testimony to someone else he is exempt.

3) "To him" means to the special person who is usually involved in a scenario where witnesses are demanded to come and testify. This is the claimant, who is usually the one who looks for the witnesses to come and back him up. The Rambam, in his commentary on the Mishnah, summarizes the way of learning from this verse and writes, "He is only liable if he does not testify for the person claiming his rights, but if he fails to testify for the defendant, with the aim of exempting the defendant, the witness is exempt."

Kol Tuv,

Dovid Bloom

Rabbi asks further:

I don't think your answer is relating to my question. Why doesn't the Mishnah mention a case where the defendant (i.e. the Nitva) *calls* witnesses to testify and *exempt* him from payment - rather than the Tove'a calling witnesses to *demand* payment.

In fact, I noticed that the Gemara actually mentions such a case (in the situation where a man calls witnesses to exempt him from paying a Kesuvah, 32b). Why does the Mishnah always bring the other case (the Tove'a wanting to make a collection)?

The Kollel replies:

1) This is explained at the end of the first Mishnah on 35a, which states explicitly that if the Nitva says to the witnesses that they should come and give testimony for him, they are exempt. They are liable only if they hear the Tove'a telling them to come and give testimony.

The Gemara, immediately before the second Mishnah on 35a, explains that this Din is derived from the fact that Vayikra 5:1 has an extra "Vav" in the word "Lo." This teaches us that "Lo Lo Yagid" -- "He will not say it 'to him.'" The words "to him" mean "to the Tove'a." It is only if he refuses to give testimony to the Tove'a that he is liable.

2) The Gemara that I found on 32b about a Kesuvah is where there is one witness that the husband died in the war. Rav Papa says that if this witness either does not tell this to the wife or does not tell the Beis Din, then he is liable. This is because the wife lost her Kesuvah payment as a result of his refusal to testify.

However, in this case the wife is the Tove'a (it is not the husband who calls witnesses to exempt him from paying the Kesuvah). This is consistent with the Mishnah on 35a that it is only if the Tove'a asked them to testify that they are liable for not giving testimony.

3) I found an important statement of the Rambam in his Commentary on the Mishnah here (35a). He writes that one is liable for Shevu'as ha'Edus only if he refuses to give testimony to the Tove'a, but if he refuses to testify in favor of the Nitva, in order to exempt the Nitva, he is exempt.

4) This statement of the Rambam is a support for my argument that the reason why the Mishnah does not mention a case where the witnesses refuse to testify in favor of the defendant is that the Din of Shevu'as ha'Edus applies only if the witnesses refuse to testify in favor of the Tove'a.

5) The Chasam Sofer (Teshuvos V, Choshen Mishpat #43) was asked about the above Rambam. The problem is that the Rambam says more than the Mishnah. From the Mishnah it seems that the Nitva is saying to the witnesses that if they have testimony that they can give in favor of the Tove'a, then they should do so. This is a very specific case where the witnesses are exempt if approached by the Nitva. The Rambam appears to extend this to a general rule that when the Nitva is the one asking for the witnesses to come, even if he is asking them to testify in favor of himself, the Din of Shevu'as ha'Edus also does not apply.

6) The Chasam Sofer writes that initially this statement of the Rambam was also perplexing in his eyes. However, the Chasam Sofer proceeds to prove (at the present moment I will not go into how he proves this) that the Mishnah is telling us a general exemption of the witnesses if they refuse to testify for the Nitva.

7) The Chasam Sofer writes that the reason for all of this is that we derive the Parshah of Shevu'as ha'Edus from the Parshah of Shevu'as ha'Pikadon. In the latter Din, Reuven demands that Shimon should return his deposit. Since Shevu'as ha'Pikadon applies only when one denies the Tove'a, Shevu'as ha'Edus also applies only where one denies the Tove'a.

8) The Chasam Sofer concludes that the chapter in the Gemara of Shevu'as ha'Edus applies only where the witnesses refuse to give testimony to the Tove'a. If they refuse to testify for the Nitva, this is not the topic of our chapter in the Gemara.

9) According to the Chasam Sofer's words based on the Rambam, we can understand why the Mishnah never mentions a case where the witnesses refuse to come to the help of the defendant.

Kol Tuv,

Dovid Bloom