(2012/5772)

Last week we began our discussion of the nearly universally accepted practice of rabbinic courts to refrain from administering oaths due to fear of the severe sin of swearing falsely. Last week (in an essay archived at www.koltorah.org) we surveyed the historical development of this practice. This week we discuss some of the criticism of this practice, respond to the criticism and draw some conclusions from this discussion to daily life.

Source in the Tanach

Tanach is replete with instances where its heroes took oaths. The Torah mandates oaths in certain circumstances. Chatam Sofer (Teshuvot Choshen Mishpat 90) was, accordingly, asked where might there be at least a hint in the Tanach for the widespread reluctance to take an oath. He replied that indeed “there is no matter that is not hinted in Tanach.” He cites Kohelet 9:2 as a source for the practice. This Pasuk states:

“All things come alike to all; there is one event to the righteous and to the wicked; to the good and to the clean and to the unclean; to him that sacrifices and to him that sacrifices not; as is the good, so is the sinner, and he that swears, as he that fears an oath”.

The Chatam Sofer notes two oddities in regards to the comparison of “he that swears, as he that fears an oath” in the context of the other opposites in the Pasuk. “The righteous and the wicked” as well as “the clean and the unclean” are examples of the clear opposites in this verse. However, he that fears an oath is not the polar opposite of one who swears. A better formulation would seem to be “One who does not fear an oath and one who fears an oath” or “one that swears and one that does not swear”. Moreover, if “he that swears” refers to one who swears falsely, then there is no need to mention this in the Pasuk since “the sinner” is already mentioned in the Pasuk and swearing falsely is among the most grave sins in the Torah (Shavuot 39a; cited at length in our last essay).

Chatam Sofer concludes that the Peshat (straightforward) meaning of “he that swears” refers to one who swears truthfully. The polar opposite of such an individual is one who fears swearing and will not swear even in an entirely truthful manner. Such an individual is described as “one who fears swearing” since this is the motivation for him to refrain from swearing even a truthful oath. Chatam Sofer concludes by affirming this practice stating “Minhag Yisrael Torah Hi”, the custom of Israel reflects the values of the Torah.

Criticizing the Imposition of a Pesharah to Avoid Taking an Oath

In the Chatam Sofer’s time (early nineteenth century) the practice was for Jews to avoid taking a Shevu’ah. Today, almost all Batei Din take this practice a step further and refuse to administer an oath and, instead, impose a Pesharah (compromise) when the strict Halachah obligates one of the sides to take an oath. They usually permit such a Pesharah to deviate up to one third from the monetary award mandated by strict Halachah (based on Teshuvot Shevut Yaakov 2:145).

However, Rav Shlomo Levy (Techumin 12:327-334) argues forcefully that, the valid reasons to avoid an oath notwithstanding, the policy of imposing a Pesharah instead might be driving many Jews away from litigation in Batei Din. Without the ability to obtain a ruling according to strict Halacha, many Jews might be opting to instead litigate in civil court (in violation of Halacha). He urges Dayanim to strictly curtail the frequency that an oath is replaced by Pesharah.

Response to the Criticism

There are three points that Rav Levy does not cite in his essay that help mitigate his concern. The Aruch Hashulchan (C.M. 15:6) was keenly aware of this issue. He writes:

“‘Reuven’ demands money from ‘Shimon’ and Shimon responds ‘swear to substantiate your claim’ (in a situation where Halacha the defendant can make such a demand). If the Dayan understands that Shimon knows that Reuven’s claim is truthful and the only reason he demands the oath is because he knows that Reuven will not swear even truthfully, the Dayan may substitute the oath with a proclamation of acceptance of excommunication if he is not telling the truth”.

The Aruch Hashulchan explains:

“This is a major principle in our times. And one requires profound understanding in regards to obligatory oaths…[because otherwise] the truth is compromised. However, in these matters one must exercise great caution, fear of Hashem, knowledge, wisdom and a great familiarity with the ways of the world.”

Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 1:32) also places significant limitations upon imposing a Pesharah to avoid a Shevuah. He writes:

“Since there is no major source for this practice from the Gemara and earlier Poskim, the practice [of awarding or reducing a third of the claim to avoid an oath] is not absolute and much is left to the discretion to the Dayan. In cases when it seems that the defendant does not swear because his claim is false, one must award the plaintiff more than a third. In cases where it appears that the plaintiff trusts the defendant but wishes to impose an oath because he knows the defendant will not swear and will choose a Pesharah instead, the award should be less than a third.”

An active Dayan presented another major limitation to this practice (although not all Dayanim agree). He noted that a Pesharah is imposed only if there is an obligation to take one of the three Torah oaths (enumerated in last week’s essay). However, in a case where only a rabbinic oath is required, the case is adjudicated without requiring the oath and without consideration of the obligation to swear. For example, the Torah demands an oath in a case where the defendant admits to part of the claim (Shevu’at Modeh B’Miktzat). In such a case a Pesharah is imposed in place of the oath. However, in a case of complete denial of the claim (Kofeir Bakol) only a rabbinic oath is required of the defendant.

Thus, the concerns of Rav Levy may be significantly mitigated if Batei Din implement these three points.

Oaths in Civil Court

We see the lengths we take to avoid even a truthful oath. Thus, one who testifies in civil court should affirm rather than swear (even if the oath does not invoke God and even if one does not place his hand on a Bible). American courts accept an affirmation instead of an oath. The United States Constitution (Article II, Section 1) states in regards to the oath taken by the president at his inauguration:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Thus, the United States constitution explicitly offers the alternative of affirming rather than swearing.     In Israel, many observant soldiers affirm their loyalty to the army by saying “I proclaim” (Ani Matzhir) during the swearing-in ceremony, rather than reciting “I swear” (Ani Nishba).

Dayan Weisz (Teshuvot Minchat Yitzchak 4:52) was asked by an accountant from Morocco who was presented with an opportunity to serve as a consultant to the court and would be expected to testify on a regular basis in court. He would, however, be expected to swear before each time he testifies (apparently the Moroccan courts did not afford the alternative of an affirmation). Dayan Weisz told him to not accept the appointment under such circumstances, despite the loss of such a fine professional opportunity.

Dayan Weisz argues that since the practice is to avoiding swearing truthfully even if doing so involves a significant loss of money, one certainly should not swear if there is no loss of money involved (the accountant had a secure income independent of the court prospect). Moreover, Dayan Weisz argues that all agree that it is forbidden to place oneself in a situation where one would be obligated to pay. Last week we mentioned that Rambam considers swearing in Hashem’s name to be a Mitzvah. However, Dayan Weisz argues that the Rambam refers only to a situation that is imposed on him. He argues that even the Rambam would forbid one from deliberately placing himself in a situation where he will be required to swear on a regular basis.

Conclusion - Oaths in Daily Life

We have seen the great lengths to which Poskim urge us to avoid taking an oath. In light of these cautionary words and the severe punishments associated even with truthful oaths, we are compelled to call this issue to the attention of those who routinely swear in daily life. Unfortunately, many of us have been desensitized (perhaps due to the influence of popular culture where swearing is, unfortunately, routine) to the severity of swearing. The punishments associated with swearing (enumerated in last week’s essay) serve as a sobering reminder to correct our behavior and to gently persuade others to strenuously avoid oaths in all areas of life.