(2011/5772)

Considering the fairly common occurrence of oaths in the Tanach, Mishnah and Gemara, it comes as quite a surprise to many that almost all rabbinic courts today do not impose oaths. This is accepted practice in both Israel (Teshuvot Tzitz Eliezer 7:48:6:5 and Piskei Din Batei Din HaRabbaniyim 11:259-274[1]) and the United States (Teshuvot Igrot Moshe Choshen Mishpat 1:32; Rav Gedalia Schwartz told me that he has never seen an oath taken in any Beit Din[2]. Sephardic Jews maintain this practice as well, as noted by Rav Eli Mansour, a prominent rabbi in the Syrian Jewish community in Brooklyn in his Daily Halacha [discussing the obligations of the unpaid watchman] and conversation with Rav David Burganin, a Moroccan Rosh Kollel in Bnei Brak). Similarly, Modern Orthodox and Chareidi Batei Din both follow this practice.

Given that oaths were still administered in Batei Din as late as 1884, as recorded in the Aruch HaShulchan (C.M. 87:17) why did this near universally accepted change[3] in Jewish law occur? The practice is even more surprising in light of the Rambam’s assertion (Sefer HaMitzvot number 7 and Hilchot Shevu’ot 11:1) that it is a Mitzvah to swear in Hashem’s name when one is obligated to do so in Beit Din. At the very least, we must conclude that the Ramban’s dissenting view (Devarim 6:13 and his critique of the Rambam’s Sefer HaMitzvot) has emerged as the accepted opinion[4]. Moreover, even the Rambam (ad. loc. 12:12) writes that “it is a great benefit for an individual never to swear.”

Oaths in the Torah and Mishnah

The Rambam (ad. loc. 11:5) presents the Torah level oaths under the following three categories: (1) Oaths of watchmen or custodians (Shevu’at Hashomrim): “A” leaves certain objects in the care of “B”; “B” admits having received them, but claims that they have been stolen or lost; he takes the oath in support of his assertion, and is excused from responsibility; (2) Part admittance (Modeh BeMiktzat): “A” claims to have lent “B” 100 dollars; “B” admits the claim but that it was only 50 dollars, and, after taking the oath is excused; but if “B” repudiates the claim in its entirety, he is acquitted without oath (a rabbinic level oath, though, is required); (3) But, if “A” has one witness testifying to prove his claim, “B” must take the oath in either case (Shevu’at Eid Echad).

In addition, there are Shevu’ot (oaths) that Chazal have added such as those enumerated in the Mishnah (Shevu’ot 7:1). These which include the case of a laborer claiming wages, a storekeeper claiming settlement for goods ordered, and one who claims compensation for robbery. In these cases (in limited circumstances), one swears in support of his claim and collects the money (Nishba VeNoteil) as opposed to Torah level oaths where one swears to excuse himself from responsibility.

Reservations about Oath Taking in Chazal

Despite the existence of these many categories of oaths, Chazal express hesitation in regard to actually administering oaths. The Gemara (Shevuot 39a) states that the entire world shook when God issued the prohibition of swearing falsely. Indeed, the Mishnah (Bava Metzia 33b) tells of people who were willing to spend considerable sums of money rather than take an oath[5]. The consequence of swearing expresses itself in the Gemara’s (Gittin 35a) recounting the following story:

Once, a man deposited a gold coin with a widow during a famine year. She put it in the flour. It was baked into a loaf (unbeknownst to her), and she gave the loaf to a poor man. When the depositor asked for his coin, she swore that she did not benefit from it, and that one of her children should die if she is lying. Soon afterward, one of her children died. (Rashi explains that she derived a miniscule benefit from the coin, as it saved her from the addition of a tiny bit of flour.)

The Gemara concludes: “If someone who swears truthfully is punished like this, all the more so one who swears falsely!”

Indeed, the Shulchan Aruch (Orach Chaim 156:1) recommends one to avoid swearing even to support truthful claims. The Shulchan Aruch cites the story of King Yanai whose kingdom included one thousand cities and they were all destroyed because they swore (Yerushalmi Shevu’ot 6:5). The Shulchan Aruch clarifies that this happened despite the fact that there was no falsehood involved with these oaths. We see that even if one swears truthfully there is a risk of too much familiarity and lack of proper awe and respect for Hashem, reminiscent of the sin of the people of Beit Shemesh who were punished severely for not showing sufficient and proper respect to the Aron HaKodesh housed in their midst (Shmuel I 6:19).

Warnings Issued to those about to Swear

The Gemara (38b-39a; codified in the Shulchan Aruch C.M. 87:20) describes a lengthy warning administered to one who swears:

We say to him that the entire world shook when Hashem said, ”Thou shalt not take My name in vain” . . . Regarding all other sins only the one who commits the sin is punished; for swearing falsely he and his entire family is punished . . . and the entire world is punished for this sin . . . One is punished immediately for this sin . . .

For a Torah-level oath, one holds a Sefer Torah while swearing to add to the solemnity and seriousness of taking an oath. The Rama (ibid.) cites from the Ran (Shavu’ot Perek 5) that there are additional means employed to further intimidate those who dare swear falsely. The Sema (ad. loc. number 65) cites these means, which include bringing in a bed upon which the dead are placed, having the room darkened, and opening jugs filled with air—all to simulate the Neshama (soul) as it leaves a body upon death. The Rama (ad. loc.) writes that it is left to the discretion of the Beit Din to use these methods if necessary. The Aruch HaShulchan (C.M. 87:17) says that the widespread custom in his locale is to require the one taking an oath to don a Kittel, since it is the garment worn by the dead. The Shulchan Aruch (ad. loc. number 21) instructs rabbinic judges to urge the litigants, both plaintiff and defendant, to relent in order that there should not be a need for the Shevu’ah to be administered.

Precedent for the Current Practice

Rashi to Shevu’ot 38b (s.v. BeSefer Torah) and Ra’avad (gloss to the Rambam’s Hilchot Shevu’ot 11:13) record that swearing by the name of Hashem was abolished during the Ge’onic era due to the severity of the punishment regarding oaths and “the increased number of sinners.” The Shulchan Aruch (C.M. 87:19) codifies this practice. Indeed, even when a husband swears not to nullify a Get or his agent to deliver a Get (see footnote 3), he does not mention the name of Hashem.

Furthermore, Teshuvot Chatam Sofer (C.M. 90; composed in the early nineteenth century) records the widespread custom to make every effort to avoid taking oaths. The Aruch Hashulchan (C.M. 15:6; late nineteenth century) records that “it is known that most Jews do not swear even oaths that are entirely truthful.” Thus, the new practice simply took the existing custom one step further. Before the change, most did not swear and after the change all do not swear.

Reason for the Practice

What might be the reason for the nearly universal change in Halachic practice? One may suggest that the diminished sense of Yir’at Shamayim (fear and awe of Hashem) in the modern age has led Dayanim to conclude that we no longer are capable of having the proper attitude necessary to take an oath. Rav Dr. Haym Soloveitchik in his classic essay (Tradition 28:4) describing the transformation of contemporary Orthodoxy, captures the dramatic change in attitude towards Hashem during the modern age:

In 1959, I came to Israel before the High Holidays. Having grown up in Boston and never having had an opportunity to pray in a Haredi Yeshivah, I spent the entire High Holiday period—from Rosh HaShanah to Yom Kippur—at a famous Yeshivah in Bnei Brak. The prayer there was long, intense, and uplifting, certainly far more powerful than anything I had previously experienced. And yet, there was something missing, something that I had experienced before, something, perhaps, I had taken for granted. Upon reflection, I realized that there was introspection, self-ascent, even moments of self-transcendence, but there was no fear in the thronged student body, most of whom were Israeli-born. Nor was that experience a solitary one. Over the subsequent thirty-five years, I have passed the High holidays generally in the United States or Israel, and occasionally in England, attending services in Haredi and non-Haredi communities alike. I have yet to find that fear present, to any significant degree, among the native born in either circle. The ten-day period between Rosh Hashanah and Yom Kippur are now Holy Days, but they are not Yamim Noraim—Days of Awe or, more accurately Days of Dread—as they have been traditionally called.

I grew up in a Jewishly non-observant community, and prayed in a synagogue where most of the older congregants neither observed the Sabbath nor even ate Kosher. They all hailed from Eastern Europe, largely from Shtetlach, like Shepetovka and Shnipishok. Most of their religious observance, however, had been washed away in the sea-change, and the little left had further eroded in the “new country.” Indeed, the only time the synagogue was ever full was during the High Holidays. Even then the service was hardly edifying. Most didn’t know what they were saying, and bored, wandered in and out. Yet, at the closing service of Yom Kippur, the Ne’ilah, the synagogue filled and a hush set in upon the crowd. The tension was palpable and tears were shed.

What had been instilled in these people in their earliest childhood, and which they never quite shook off, was that every person was judged on Yom Kippur, and, as the sun was setting, the final decision was being rendered (in the words of the famous prayer) “who for life, who for death, / who for tranquility, who for unrest.” These people did not cry from religiosity but from self-interest, from an instinctive fear for their lives. Their tears were courtroom tears, with whatever degree of sincerity such tears have. What was absent among the thronged students in Bnei Brak and in their contemporary services and, lest I be thought to be exempting myself from this assessment, absent in my own religious life too—was that primal fear of Divine judgment, simple and direct.

Sefer Devarim  states, “Fear Hashem, worship Him and swear in His name” (6:13). Rashi (ad. loc.) explains that only those who truly fear Him and properly worship Him are suited to swear since they will exercise appropriate caution. The nearly universal feeling among Dayanim is that in modern times our fear of Hashem is insufficient (as reflected in Dr. Soloveitchik’s description) to justify taking an oath.

Next week we shall IY”H and B”N discuss potential problems and challenges to this new practice. We will also discuss its implications for oath-taking in contemporary civil courts and in daily life.

[1] However, Rav Itamar Warhaftig told me that he has heard of Batei Din in Israel who administer oaths.

[2] Rav Schwartz serves as the Av Beth Din (chief justice) of the Beth Din of America and the Chicago Rabbinical Council and has over six decades of vast and wide-ranging experience in the active American rabbinate.

[3] There is one exception, where even nowadays Batei Din continue to administer oaths. When a husband sends a Get (bill of divorce) with an agent, the Beit Din requires him to swear that he will not nullify the Get (Shulchan Aruch, E.H. 154 Seder HaGet 76).

[4] Rav Chaim David Halevi states this explicitly in his Aseih Lecha Rav 5:42.

[5] Rav Itamar Warhaftig recounted that Rav Shlomo Min HaHar (a prominent Jerusalem rabbi) once paid a considerable amount of money in order to avoid an oath. Rav Chaim David HaLevi (see previous footnote) advises one who is obligated to take an oath to pay even a large sum of money to avoid taking an oath. He blesses the person that Hashem will restore his loss