1) THE SEVERITY OF A FALSE "SHEVU'AS BITUY"
QUESTION: The Beraisa (end of 38b) teaches that before Beis Din administers a Shevu'as Modeh b'Miktzas, Beis Din warns the defendant about the severity of making a false Shevu'ah. Beis Din describes to him how the entire earth trembled at the moment that Hash-m commanded at Sinai, "Lo Sisa Es Shem Hash-m... la'Shav" -- "You shall not bear the name of Hash-m your G-d in vain" (Shemos 20:7) (Shemos 20:7).
The Shevu'ah which Beis Din administers is equivalent to a Shevu'ah about a past event (Shevu'as Bituy). The Gemara earlier (20b) cites Rav Dimi who states that when one makes a false Shevu'ah about a past event, he transgresses the Isur of "Lo Sisa." However, Ravin there (21a) argues and says that one transgresses "Lo Sisa" only when he makes a Shevu'as Shav, but not when he makes a false Shevu'ah about a past event. Rather, when one makes a false Shevu'as Bituy, he transgresses the Isur of "v'Lo Sishav'u vi'Shemi la'Shaker" (Vayikra 19:12). Why, according to Ravin, does the Beraisa say that Beis Din warns the defendant about the severity of the Isur of "Lo Sisa," if the Isur which he stands to transgress is the Isur of "v'Lo Sishav'u"? (RAMBAN)
(a) The RAMBAN explains that Beis Din mentions the verse of Shevu'as Shav because the severity of a Shevu'as Shav is more commonly known. However, the Chachamim understood that the same severity applies to a false Shevu'ah about a past event.
(b) The RASHASH adds that the source for comparing a Shevu'as Bituy to a Shevu'as Shav is the verse that the Gemara cites earlier (21a) which compares a Shevu'as Bituy (Shevu'as Sheker) to a Shevu'as Shav. That source is the second word, "la'Shav," at the end of the verse of "Lo Sisa." The Beraisa is merely citing the beginning of the verse, but its intention is that Beis Din is to mention the verse in its entirety.
2) AGADAH: THE SEVERITY OF TAKING A FALSE OATH
QUESTION: The Beraisa (end of 38b) teaches that before Beis Din administers a Shevu'as Modeh b'Miktzas, Beis Din warns the defendant about the severity of making a false Shevu'ah. Beis Din says, "Know that the entire world trembled when Hash-m said at Sinai, 'You shall not bear the name of Hash-m your G-d in vain' (Shemos 20:7). For all transgressions in the Torah it is said, 'v'Nakeh' -- 'Hashem will cleanse' (Shemos 34:7), but here [for a false oath] it is said, 'Lo Yenakeh' -- 'Hashem will not cleanse' (Shemos 20:7).... For all transgression in the Torah, if one has merit his punishment is suspended for two or three generations, but here [for a false oath] he is punished immediately, as it is said, 'I take it out (the punishment), says Hash-m, and it will come to the house of the thief, and to the house of the one who swears falsely in My name... and it will destroy him, his wood, and his stones' (Zecharyah 5:4)...."
The Gemara infers from the fact that the punishment for a false oath devours wood and stones that a false oath is so severe that it destroys even things which fire and water cannot destroy.
Why is swearing falsely such a serious sin?
ANSWER: The MAHARSHA explains that the reason why swearing falsely is so severe is that the name of Hash-m is the foundation of the world and the very cause for the world's existence, as the verse states, "For in the name of Hash-m is the rock (foundation) of the worlds" (Yeshayah 26:4). Therefore, one who uses the name of Hash-m falsely in an oath weakens the foundation of the world, so to speak. (See also RASHI to Bereishis 2:4.)
Moreover, the Gemara later says that Hash-m will not cleanse the sin of making a false oath even when one does Teshuvah. Accordingly, one who sins in such a way causes the world to be unsure of the continuity of the existence of its very foundation. This explains why "the entire world trembled" when Hash-m gave the commandment not to make a false oath.
The Maharsha's explanation that the world was created through Hash-m's name may be understood further based on a statement of the NEFESH HA'CHAYIM (4:19). The Nefesh ha'Chayim writes that the Torah is comprised entirely of the names of Hash-m. Since the world was created through the Torah, as the Zohar (Terumah 161a) states, "Hash-m looked in the Torah and created the world," the world was created with Hash-m's name. Accordingly, a false Shevu'ah with Hash-m's name poses a threat to the world's very existence.
(See also TOSFOS to Bava Metzia 5b, DH d'Chashid, who writes that a Halachic consequence of the fact that the world trembled when Hash-m gave the commandment against making a false oath is that people are more afraid of making false oaths than they are of stealing. Therefore, even though a person might be suspected of stealing, he is not suspected of making a false Shevu'ah. His Shevu'ah may be accepted by Beis Din, because although he is prepared to steal, he is not prepared to swear falsely.) (D. BLOOM)
3) "EVEN MAKING A TRUTHFUL OATH IS A SIN"
QUESTIONS: The Gemara explains that the words, "the house of the thief" (Zecharyah 5:4), refer to one who falsely claims money from people and forces them to make a Shevu'ah that they do not owe him money. The verse teaches that as punishment for his deeds, the wood and stones of his house will be destroyed, because a false Shevu'ah can devour even things that fire and water cannot destroy.
Why does the person who demands a Shevu'ah from his fellow man receive such a severe punishment? The other person can swear truthfully that he owes nothing, and will not be obligated to pay at all. Although the thief caused the defendant the trouble of making a Shevu'ah, behavior which certainly is reprehensible, why should he receive such a severe punishment? After all, no false Shevu'ah was actually made, and no money was actually stolen.
The Gemara continues that if the person who was required to swear accepts to make the Shevu'ah, the people standing in Beis Din say, "Turn away from the tents of theses wicked people" (Bamidbar 16:26). This implies that both the claimant who demands the Shevu'ah and the defendant who makes the Shevu'ah are considered evildoers.
The Gemara (39b) asks that although it is clear why a person who makes a false Shevu'ah is considered an evil person from whom one must turn away, why is the person who demands the oath from him considered an evil person as well? He merely is trying to recover money that rightfully belongs to him!
The Gemara quotes Rebbi Shimon ben Tarfon who explains that the verse, "An oath of Hash-m shall be between the two of them" (Shemos 22:10), means that the Shevu'ah applies to both the claimant and the defendant. RASHI (DH Chalah) explains that both are punished for the false Shevu'ah, even the one who demanded the Shevu'ah, because he was not careful to entrust his money to a trustworthy person, and he thereby caused a Chilul Hash-m.
However, the S'MA (CM 87:21) explains the Gemara differently from Rashi. The SHULCHAN ARUCH (CM 87:20) writes, "If he says, 'I will swear,' and the other person demands the Shevu'ah, the people standing there say to each other, 'Turn away from the tents of these wicked people.'" The S'ma points out that the Shulchan Aruch specifically writes that the claimant demands the Shevu'ah, because otherwise both parties would not be considered evil. The S'ma writes that since the claimant who demands the Shevu'ah sees that his opponent is prepared to make a Shevu'ah, he should have come to an agreement with his opponent and not require that a Shevu'ah be made as a result of his claim. His refusal to come to such an agreement earns him the title "Rasha." (If he knows that his opponent will swear falsely, he should accept the same settlement that he would get after a Shevu'ah, without having his opponent make a false Shevu'ah.)
Why does the Gemara call the two parties involved "Resha'im"? It is possible that the one who makes the Shevu'ah in fact is making a valid, honest oath. It is understandable that the claimant is called a "Rasha," as he demands from the defendant a Shevu'ah for no valid reason. However, the person who makes the Shevu'ah is not to blame at all. Why is he called a "Rasha"?
ANSWER: The CHASAM SOFER (TESHUVOS CM #90) answers by citing a common saying: "Even making a true Shevu'ah is a sin" (see Nedarim 22a). The Chasam Sofer explains that people are careful not to make a Shevu'ah even when they know they are right, and they do everything possible to come to a compromise. Therefore, although the claimant who deceitfully makes his opponent swear does not cause a false oath to be made, "even a true Shevu'ah is a sin," and thus everyone should avoid making a Shevu'ah, even a true one.
The Chasam Sofer similarly says that one should avoid making a Shevu'ah even if it means losing his own money; he should compromise with the claimant who falsely accuses him of owing money so that he should not have to make a Shevu'ah. For example, if a lender falsely claims that he lent the borrower twice as much money as he actually lent him, and the borrower tells the court the truth, that he borrowed only half of what the claimant says, the borrower is obligated to make a Shevu'ah d'Oraisa of Modeh b'Miktzas. The Chasam Sofer says that instead of making the oath, the borrower should try to come to some compromise with the lender in order to avoid a Shevu'ah.
The Chasam Sofer cites proof from the Gemara earlier that "even making a true Shevu'ah is a sin." The Gemara (32b) discusses the case of a witness who refrains from testifying and thereby causes the lender to be unable to collect from the borrower, whom the lender suspected would make a false Shevu'ah. The Gemara suggests that the lender may claim his loss from the witness who refused to testify. He may say that had the witness testified for him, he would have been able to make an oath (since the borrower could not swear, since he was suspected of lying) and collect the money. However, the Gemara rejects this suggestion by saying that even if the witness would testify, perhaps the lender would not actual make a Shevu'ah. This implies that it is normal for a person to forgo his legal right to collect money in order to avoid making a Shevu'ah, even a true one.
The Chasam Sofer cites another proof from the words of the RAN later (45a). The Mishnah (44b) lists the cases in which a person may *extract* money from another person by making a Shevu'ah. One of those cases is that of a worker who receives wages. The Gemara there explains that since the employer has many employees, he is prone to forget whether or not he paid a particular employee. The Gemara asks that according to this reasoning, the employer should have to give the worker his wages even without the worker's Shevu'ah. The Gemara answers that the reason the worker must make a Shevu'ah is to appease the employer.
The Ran (25b of the pages of the RIF) explains that according to the letter of the law, the worker should not be able to collect his wages even if he makes a Shevu'ah, because he has no concrete proof that he was not paid, and his employer insists that he was paid. The Chachamim instituted that the worker may collect his wage by swearing that he was not paid. However, it would have been more logical for the Chachamim to institute that the worker may collect his wage *without* having to make a Shevu'ah; since there are people who refrain from making even a true Shevu'ah, the worker might refrain from making a Shevu'ah and not collect his wages, and as a result he will not have enough money to survive. This is the meaning of the Gemara's question that the worker should be given his wages even without a Shevu'ah.
It is evident from the Ran's explanation that there are people who refrain from making even a true Shevu'ah because "even making a true Shevu'ah is a sin." (See also TESHUVOS SHEVET HA'LEVI 6:141, and YOSEF DA'AS here.) (D. BLOOM)
4) ACCEPTANCE OF FUTURE MITZVOS
QUESTIONS: The Beraisa discusses the way in which Beis Din administers to witnesses a Shevu'as ha'Edus, and, tangentially, it explains the verse that describes the covenant that was made with the people to reinforce their acceptance of the Torah at Sinai (Devarim 29:13-14; see TORAS CHAIM). The Beraisa says that the covenant was made not only to reinforce their acceptance of the Mitzvos that they received at Sinai, but also to reinforce their acceptance of the Mitzvos that would be given at a later time. This is derived from the verse, "Kiyemu v'Kiblu" (Esther 9:27), which teaches that at the time of the Purim miracle the Jewish people "fulfilled that which they had already accepted" at Sinai.
It seems that the Gemara interprets the letter "Vav" in the word "v'Kiblu" as if it were a "Shin" ("she'Kiblu"), and the verse means that they fulfilled *that which* they had accepted (see Beitzah 7b). A similar Gemara in Megilah (19b) teaches that in the Luchos, Hash-m alluded to all of the Mitzvos of the Torah, even the Mitzvos that the Nevi'im would later institute, such as the reading of the Megilah.
There are a number of questions on this Gemara.
(a) What does the Gemara mean when it says that the Jewish people in the Midbar accepted to keep the Mitzvah of reading the Megilah? If this Mitzvah was given to them by Hash-m in the Midbar, then it should be considered a Mitzvah d'Oraisa!
(b) The Gemara in Shabbos (88a) seems to give an entirely different interpretation for the verse "Kiyemu v'Kiblu." The Gemara there says that at Sinai the Jewish people were forced to accept the Torah; they accepted it willingly only at the time of Purim. "Kiyemu v'Kiblu" means, "They fulfilled willingly that which they were forced to accept earlier."
The Gemara in Shabbos implies that the verse is discussing not only the Mitzvos that were given in later generations, but *all* of the Mitzvos, even those that the Jewish people accepted at Sinai. All of the Mitzvos needed to be re-accepted willingly.
How are these two Gemaras to be reconciled? (TOSFOS (DH Kiyemu) cites the Gemara in Shabbos but does not seem to be bothered by the inconsistency.)
(a) The MAHARATZ CHAYOS suggests that since the Chachamim derived -- by using the Torah's Thirteen Midos sheha'Torah Nidreshes ba'Hen -- the thirteen exegetical principles of expounding Torah law -- that committing the Megilah to writing is permitted (as described in Megilah 7a), it is considered as though this Mitzvah was accepted at Sinai along with all of the other Mitzvos of the Torah.
However, the Gemara here implies that even *reading* the Megilah (and not just writing it) is alluded to in the Torah.
The RAMBAM and RAMBAN (Sefer ha'Mitzvos, Shoresh Rishon) quote these Gemaras to show that when the Jewish people accepted the Torah, they also accepted to follow all of the institutions of the Chachamim of every generation. This is what the Gemara means when it says that the Jewish people accepted at Har Sinai even to fulfill the Mitzvos that would be given to them later by the Chachamim.
(According to the Rambam in Sefer ha'Mitzvos (Shoresh Rishon; Lo Sa'aseh #312; Mitzvas Aseh #174), the prohibition of "Lo Sasur" -- "Do not turn away from what they (the Chachamim) instruct you" (Devarim 17:11) -- obligates a person to keep the Mitzvos d'Rabanan. Nevertheless, the Jewish people also accepted upon themselves the yoke of Mitzvos d'Rabanan, just as they accepted upon themselves the Mitzvos of the Torah. According to the Ramban there, there is no Mitzvah d'Oraisa to follow the Mitzvos d'Rabanan. Rather, what obligates the Jewish people to follow the Mitzvos d'Rabanan is the Kabalah, the acceptance, which is the subject of the Gemara here.)
(b) HA'GA'ON RAV YOSEF SHALOM ELYASHIV shlit'a (in HE'OROS B'MASECHES SHEVUOS) suggests that the Chachamim can derive multiple Derashos from a single verse (as the Gemara implies in Sanhedrin 34a). He seems to understand that the two Gemaras indeed differ about what is learned from the verse, "Kiyemu v'Kiblu."
Perhaps the two Gemaras may be reconciled based on the words of the TORAS CHAIM here. The Toras Chaim explains that the source for the Gemara's Derashah from the verse is the order of the words in the verse. It is the normal manner to first accept a Mitzvah and then to fulfill it. Accordingly, the verse should say, "Kiblu v'Kiyemu" (and not "Kiyemu v'Kiblu"), in order to show that the Jewish people accepted the Mitzvah of Megilah and then observed it. Instead, however, the verse first writes "Kiyemu," which implies that the Mitzvah was given earlier, and it was necessary only to accept it later. According to this understanding, both the Derashah of the Gemara here and the Derashah of the Gemara in Shabbos may be learned from the same verse.
The Gemara here infers from the fact that "Kiblu" is written after "Kiyemu" that it was not necessary to accept the Mitzvah of reading the Megilah in the times of Purim, because it was already accepted at the time of Kabalas ha'Torah. The Gemara in Shabbos derives from the fact that the verse adds the word "v'Kiblu" after it says that they fulfilled the Mitzvah of Megilah that the Jewish people made a second acceptance once they began to observe the Mitzvah of Mikra Megilah. That second acceptance was a willing acceptance of the entire Torah which they had received originally under duress.
5) THE SOURCE FOR THE MINIMUM REQUIREMENTS FOR A "SHEVU'AS MODEH B'MIKTZAS"
QUESTIONS: Rav and Shmuel disagree about the minimum requirements for the obligation to make a Shevu'ah of Modeh b'Miktzas. According to Shmuel, the Shevu'ah is applied whenever the claimant demands at least two Ma'os, and the defendant admits that he owes a Perutah or more and denies a Perutah or more. According to Rav, the Shevu'ah is applied only when the defendant admits to a Perutah or more of the total sum that is claimed, and denies at least two Ma'os of the claim.
In other words, Shmuel maintains that the two Ma'os are the minimum amount that the claimant must claim, while Rav maintains that the two Ma'os are the minimum amount that the defendant must deny.
Shmuel proves his view from the verse (Shemos 22:8) that states that if the claimant gave the defendant two Ma'os of money to watch, and the defendant admitted to owing part of it, then he must make a Shevu'as Modeh b'Miktzas. Rav replies that the verse does not mean that the claim was only two Ma'os. Rather, the verse means that the claim was enough such that the defendant was able to deny two Ma'os (besides what he admitted to owing).
At this point in the Gemara, one would expect Shmuel to retort that the implication of the verse is that the claim was only a total of two Ma'os. This indeed is the way Shmuel proves his view in the conclusion of the discussion. However, Shmuel does not immediately mention this point. Instead, he says that the verse says two words, "Hu" and "Zeh," which imply that only when the defendant denies part and admits to part is he obligated to swear. It seems that Shmuel is asserting that the extra word "Zeh" in the verse is intended to teach that the claim does not have to be more than two Ma'os. Rav replies that the extra word teaches a different Halachah; it teaches that the defendant's partial admission must be of the same type of object that was claimed in order for him to be obligated to swear.
Finally, Shmuel responds that in any case the verse clearly implies that the total claim was only two Ma'os, thereby refuting Rav's view.
(a) Why does Shmuel not use this argument immediately after the first time that Rav responds to his proof? (KOS HA'YESHU'OS)
(b) When Shmuel answers Rav's first response by saying that there is an extra verse, why does he present this in such an unusual way? He should say simply that there is an extra verse to teach an extra Halachah. Instead, he says that the verse says the word "Hu" and it says the word "Zeh" to teach that he is obligated to make a Shevu'ah for denying half of the claim. From the words of Shmuel, one would not have understood that he is trying to learn a Halachah based on an extra verse! (PARDES YITZCHAK)
(a) The CHASAM SOFER explains that Shmuel is not able to infer from the verse that the defendant must swear even when he denies less than two Ma'os (in contrast to the view of Rav) until *after* he proves that the admission must be from the same type of object that the claimant demanded from the defendant. If the defendant is obligated to make a Shevu'ah even when he admits to owing a type of object other than the type that was claimed from him, then the case in the Torah might be one in which the claimant demanded money or an object that was worth two Ma'os, and the defendant admitted to owing a different object (worth at least a Perutah) which was not mentioned in the claim. In such a case, the claim was only two Ma'os, and yet the defendant admitted to owing a Perutah's worth and denied two Ma'os. That is why Shmuel first needs to prove from the verse that the admission must involve the same type of object as the claim.
(b) Shmuel's response with the words "Hu" and "Zeh" may be understood based on the words of the VILNA GA'ON (in KOL ELIYAHU). The Vilna Ga'on explains that the words "[Ki] Hu Zeh" in the verse imply Modeh b'Miktzas because the word "Hu" refers to an object that is *not* in our presence, while the word "Zeh" refers to something that *is* in our presence. When the Torah says "Hu Zeh," it means that the defendant is saying that part of the money is *not* present (this is the denial) and that part of the money *is* present (this is the admission). Since the verse juxtaposes the money that is admitted with the money that is denied, it implies that these monies are comparable in that both were included in the original claim. This necessarily implies that the denial may be less than the original claim of two Ma'os. (This might be the intention of the KOS HA'YESHU'OS.)
Rav responds that the admission is compared to the denial only insofar as they must involve the same type of object. However, the amounts of the claim and of the admission are not both included in the claim. For example, the claimant demands two chairs, and the defendant admits to owing a third chair which was not included in the claim.
Shmuel replies that this cannot be the case that the verse is discussing. Since Rav agrees that the admission must be to the same type of object as the claim, it is obvious that the Torah requires a Shevu'ah only when the Hoda'ah was an admission to something that was claimed in the claim. Accordingly, it will not suffice for the admission to be to something that was the same type of object of the claim; the admission must be to one of the objects that was actually claimed. An admission to owing an object of the same type but which was not claimed is equivalent to an admission to an object of a different type. Therefore, Shmuel asserts, it can be proven from the verse that the denial may be less than two Ma'os.