IN THE BIBLE
Definition and Form
The truth or inviolability of one's words was commonly attested in ancient Israel by oath – a self-curse made in conditional form that went into effect if the condition was fulfilled; e.g., "May harm befall me if I do so and so" (cf. Eng. "I'll be damned if I will!"). The full form, including the curse, is only rarely found, as, e.g., in the adjuration of the suspected adulteress: "'If no man has lain with you … be immune to harm from this water of bitterness that induces the spell. But if you have gone astray while married to your husband … may YHWH make you a curse and an imprecation among your people as YHWH causes your thigh to sag and your belly to distend'… and the woman shall say, 'Amen, amen'" (Num. 5:19–22). The oath might be accompanied by a gesture expressive of the curse: "Then I called the priests and made them take an oath to act on their word. I also shook out the bosom of my garment and said, 'So may God shake out every man from his house and from the fruit of his labor who does not fulfill his word. So may he be shaken out and emptied!' And all the assembly said, 'Amen'" (Neh. 5:12–13). As a rule, the condition alone appears in oath statements, the self-curse being omitted for superstitious reasons. Thus a negative oath normally is framed as an affirmative conditional statement with aposiopesis: "Swear to me by God, if you will kill me or if you will deliver me to my master […]" (= that you will not kill or deliver me to my master; I Sam. 30:15); "By YHWH's life! if guilt shall come upon you for this […]" (= no guilt shall; ibid. 28:10). Less often the self-curse is couched in vague terms (perhaps accompanied by a meaningful gesture): "May God do thus to me and more so, if before sunset I taste bread or anything else!" (II Sam. 3:35). So essential was the curse that the oath might be cited in the form of a curse: "The Israelites had sworn, 'Cursed be he who provides a wife for the Benjamites'" (Judg. 21:18); "Your father adjured the army, 'Cursed be the man who eats bread today'" (I Sam. 14:28). Moreover, the term "curse" (ʾalah) freely interchanges with "oath" (shevuʿah): cf.
Genesis 24:8 with 24:41; the exchange of the related verbs in I Samuel 14:23 and 14:28; and the pair yoked in Numbers 5:21; Daniel 9:11; and Nehemiah 10:30. That too is the basis of the contrast in Isaiah 65:16, between "one who invokes a blessing on himself" (mitbarekh) and "one who swears" (i.e., one who invokes a curse upon himself). A strong malediction consisted of condemning someone to such exemplary misfortune as would make him citable in an oath: "You shall leave your name for my chosen ones to use in oaths" (Isa. 65:15; cf. Num. 5:21; Ps. 102:9). The close link between oath and curse lends color to the suggested derivation of the terms hishbi'aʿ, "adjure," nishbaʿ, "swear," and shevʿuah, "oath," from shevaʿ, "seven" – based on the use of seven in maledictions: e.g., Leviticus 26:18, 21, 24, etc.; Deuteronomy 28:7; II Samuel 24:13; Job 5: 19; cf. too the repeated sevens in the curses of the Sfire treaty (eighth century B.C.E., Pritchard, Texts3, 659–60). The original sense might have been "to lay [curses in] sevens on someone" or "to take [curses in] sevens on oneself." (Sevens are also associated with oaths and maledictions in Gen. 21:27–31 and Num. 23; but neither these nor the aforementioned texts support the theory that seven animals were slaughtered at oath-taking, the taker accepting their fate for himself if he broke his word (Lehmann). Biblical and extrabiblical evidence of the symbolic killing of animals at treaty ceremonies never shows so many as seven animals: Gen. 15; Jer. 34:18; Pritchard, Texts3, 482 no. c, 532.)
Oaths were associated with an invocation of God, or some sacred and powerful equivalent, as the king (Gen. 42:15; both in II Sam. 15:21), either as witness (I Sam. 20:12 [?], 42, cf. Targ.) or in order to convict the perjurer of sacrilege – desecration of the divine name (Lev. 19:12). The terms for such invocation were nasaʾ shem/nefesh YHWH, "take up, utter the name/life of YHWH" (Ex. 20:7; Ps. 16:4; 24:4; 50:16) or simply hizkir be-[shem] ʾelohim, "mention [the name of] God" (Josh. 23:7; Isa. 48:1). The commonest formula or invocation is ḥai YHWH (Judg. 8:19; I Sam. 14:39), a problematic phrase whose most likely meaning is "[By] the life of YHWH!" (Greenberg). Additions to the repertoire of invocations may be gleaned from oaths ascribed to God. His swearing "by Himself" (Gen. 22:16), "by His great name" (Jer. 44:26), "His life" (Amos 6:8), "His holiness" (Amos 4:2; Ps. 89:36), "the pride of Jacob" (Amos 8:7 [= Himself? cf. Ibn Ezra]) presumably echo man's language. His oath "by His right hand and His mighty arm" (Isa. 62:8) recall later Hebrew formulas where the swearer stakes something precious (e.g., "the life of my head" [Sanh. 3:2]) as a guarantee of his word. The unique adjuration "by gazelles and hinds of the field" (Song 2:7; 3:5) suggests that these animals symbolized love or beauty (cf. Prov. 5:19). "Raising the hand to YHWH" (Gen. 14:22) was an oath-gesture (another time it is "lifting the right and left hands to heaven" [Dan. 12:7]). Of God too it is said that he "lifts His hand [to heaven]" (Ex. 6:8, Num. 14:30; Deut. 32:40; Ezek. 20:5) – meaning that He swears. The origin of the gesture is obscure, as is that of the twice-recorded patriarchal oath-gesture of the swearer's placing his hand under the thigh of his adjurer (Gen. 24:2–3, 9; 47:29). The latter was understood by the rabbis as an oath by circumcision (Gen. R. 59:8).
The Use of Oaths in Ancient Israel
Oath-taking was very common, occasions for oath-taking ranging from the personal and the trivial to the most solemn public undertakings: e.g., Judges 21:1; I Samuel 14:28; 17:55; 20:3; II Samuel 14:19; I Kings 17:1; II Kings 2:2; and Nehemiah 13:25. Personal (Gen. 21:23; I Sam. 20:42) and state or communal (Josh. 9:18; II Sam. 21:2; Ezek. 17 [cf. II Chron. 36:13]) alliances were solemnized by oaths – the parties being termed baʿale shevuʿah, "oath-partners" (Neh. 6:18). Israel's covenant with God involved the people in oath-like sanctions (e.g., Lev. 26; Deut. 27–28); however, the covenant sanction is only seldom expressly called an oath (of allegiance) to God, as in II Chronicles 15:12–15, which in turn evokes Nehemiah 10:30. Eschatological acceptance of God by non-Israelites is also expressed through an oath of allegiance to Him (Isa. 19:18; 45:23). The laws of the Torah reckon with the following kinds of oaths:
(a) The exculpatory oath, exacted by the plaintiff from the defendant to back the latter's plea of innocence when no witness to the facts was available; the oath was taken at the Sanctuary (Ex. 22:7, 10; the procedure is described in I Kings 8:31). If the defendant took the oath, the suit was decided in his favor (Ex. 22:10; cf. the effect of the exculpatory oath in the Old Babylonian lawsuits in Pritchard, Texts3, 218 [E, 1], 545 [no. 10]). On the other hand, if he refused to swear, his plea was automatically rebutted and he lost the suit (cf. Pritchard, Texts3, 545 [no. 11]). Such a self-convicted liar is referred to in Ecclesiastes 9:2 as "he who is afraid of the oath" (note esp. his position as the second, pejorative member of his pair, paralleling "the wicked," "the impure," etc. of the preceding pairs). A perjurer who repents and wishes to clear himself before God and man must follow the prescription of Leviticus 5:20–26. A special case of exculpatory oath is that of the suspected adulteress; its curse is effected through the ordeal of the "bitter waters that induce the spell" (Num. 5). See
*Ordeal of Jealousy
(b) The adjuration to give testimony or information – uttered by the party interested in the testimony and directed to the community at large or against a particular party (Lev. 5:1; Judg. 17:1–3 [an example of its effectiveness]; I Kings 18:10; Prov. 29:24). One who defied the adjuration and withheld information and later wished to expiate his guilt must follow the prescription of Leviticus 5:6–13.
(c) The voluntary obligatory oath, binding the taker to do or not to do something (Lev. 5:4). The standard of righteousness was to fulfill such oaths even when they resulted in harm to the taker (Ps. 15:4). How to expiate unwitting violations of these oaths is the subject of Leviticus 5:6–13. The oath of self-denial (closely related to the vow) discussed in Numbers 30 belongs to this class. The chief concern of the law is to subject such an oath taken by a woman to the approval of her father or husband. The oath is nicely illustrated in Psalms 132:2–5.
Prohibitions against taking false oaths occur in Exodus 20:7 (Deut. 5:11) and Leviticus 19:12.
The Bible provides no external legal sanctions for oaths; punishment for false oaths is in the hands of God "who will not hold guiltless one who swears falsely by His name" (Ex. 20:7). The perjurer "desecrates" the name of God (Lev. 19:12); he may not have access to God's holy place and its blessings (Ps. 24:4). How the divine sanction was thought to operate may be illustrated from the failure of the oracle due to Jonathan's violation of Saul's adjuration (I Sam. 14:36ff.); from the famine ascribed to Saul's violation of the oath made to the Gibeonites (II Sam. 21:1–2); and from the death of Hiel's sons ascribed to his defiance of Joshua's adjuration not to rebuild Jericho (I Kings 16:34; cf. Josh. 6:26). The divine sanctions of the oath were personified almost as demons: upon the man who was disloyal to God the curses of the covenant would "couch" (Deut. 29:19). Zechariah 5:2–4 speaks of a visionary flying scroll bearing a curse that will destroy perjurers (among others); and Daniel 9:11 speaks of the oath-curses of the Torah "pouring down" upon sinful Israel.
Appreciation of Oaths
The estimate of the biblical period that there was nothing amiss in oaths is manifest in the frequency with which God is represented as swearing. Indeed, the invocation of God in oaths was highly appreciated for its confessional value: "You must revere YHWH your God: Him shall you worship, to Him shall you hold fast, by His name shall you swear" (Deut. 10:20; cf. 6:13). So much was this so that swearing by YHWH could be used as a synonym of adhering to Him: Psalms 63:12; Isaiah 19:18 (cf. Targ. and Radak); 48:1; Jeremiah 44:26; Zephaniah 1:5 (cf. Targ.). Contrariwise, apostasy is expressed through swearing by other gods: Joshua 23:7 (cf. Ex. 23:13); Amos 8:14; Jeremiah 5:7; 12:16. Ibn Ezra's comment to Hosea 4:15 illuminates the sentiment: "Adhering to God carries with it the obligation to make mention of Him in all one's affairs, and to swear by His name, so that all who listen may perceive that he adheres lovingly to God, the name and mention of Him being always on his lips." The only offense recognized in connection with oaths by YHWH was, "Though they may swear, 'By the life of YHWH,' yet they swear falsely" (Jer. 5:2). Ecclesiastes is the only biblical writer who is wary of oaths. In 8:2–3a, he cites a proverb, "Do not rush into uttering an oath by God" (cf. a parallel wariness of vows in 5:1–6). From here it is but a step to Ben Sira's warning against addiction to oaths (23:9ff.), and Philo's recommendation to avoid them entirely (Decal. 84).
(1) The oath, as here understood, is a mode of judicial proof. It is applicable only in civil and not in criminal cases. (For non-judicial oaths, see
(2) The oath is a residuary proof only: it is admitted only where no sufficient evidence is available (Shev. 45a, 48b). Where an oath had been taken and judgment pronounced, and then witnesses came forward and testified that the oath had been false, the judgment is quashed and any money recovered thereon restituted (BK 106a; Yad To'en ve-Nitan 2:11).
(3) The oath is a party oath, originally administered as purgatory oath to the defendant, but later admitted in special cases also as confirmatory oath of the plaintiff (Shevu. 7:1). (For witnesses' oaths, see below under Post-Talmudical Law.)
(4) The oath is admissible to deny, or confirm, a liquidated and valid claim only: where (or insofar as) the claim does not disclose a cause of action and could be dismissed in limine, no oath may be administered (BM 4b–5a; Yad, loc. cit. 1:15). An exception to this rule is made in respect of unliquidated claims for accounts against trustees, partners, and agents (Shevu. 7:8).
(5) The oath need not be confined to one particular cause of action: once the oath is administered to a defendant, he may be required to incorporate in it any number of additional claims in respect of other debts allegedly due from him to the same plaintiff ("Gilgul Shevu'ah"; Shevu. 7:8; Kid. 28a; Yad, loc. cit., 1:13; Sh. Ar., ḤM 94, passim).
(6) No oath is administered to suspected liars, such as gamblers, gamesters, usurers, and the like, or to people who have once perjured themselves (Shevu. 7:4; Yad, loc. cit., 2:1–2; ḤM 92:2–3), or who are otherwise disqualified as
*witnesses for their wickedness
(Yad, loc. cit.; ḤM 92:3).
(7) Not only is no oath administered to minors, or to the deaf and dumb, or insane persons (Yad, loc. cit., 5:12; ḤM 96:5), but originally none would be administered even to rebut the claim of any such person (Shevu. 6:4; Yad, loc. cit., 5:9; ḤM 96:1), until the law was reformed to allow such claims to be presented and require them to be rebutted on oath (Yad, loc. cit., 5:10; ḤM 96:2).
(8) Originally, oaths were admitted to rebut, or confirm, claims in respect of movable property only, excluding lands, slaves, and written deeds (Shevu. 6:5; BM 56b); but the law was later extended to allow, and require, the administration of oaths also in claims for immovables and deeds (Yad, loc. cit., 5:1; ḤM 95:1).
(9) The right to have an oath administered to one's debtor is enforceable in a separate action (BM 17a; Yad, loc. cit., 7:5). The right may, however, be contracted out (Ket. 9:5). Opinions are divided as to whether this right devolves to one's heirs (Shev. 48a; Yad, Sheluhin, 9:3). Like all other enforceable debts, the liability to take an oath lapses in the seventh year of remission (Deut. 15:1; Shevu. 7:8).
(10) The duty to take an oath is personal and does not devolve on the debtor's heirs: if the debtor died after the death of the creditor, the creditor's heirs inherit the chose in action and may recover on taking the oath that the claim is still unsatisfied; but where the creditor died after the debtor's death, the claim is extinguished if it cannot be enforced otherwise than by tendering the oath (Sh. Ar., ḤM 108:11).
Classes of Oaths
The Talmud classifies the judicial oaths chronologically, the classes varying in sanctity and gravity in descending order – the earlier, the more severe.
THE PENTATEUCHAL OATH (SHEVU'AT HA-TORAH)
(1) The oath of bailees: where property was entrusted to the defendant for bailment, safekeeping, or other custody, and the defendant claimed that it was lost or stolen, or that it depreciated without his fault, the oath is imposed on him to verify his defense (Shevu. 5 and 8, BK 107b; BM 93a; Yad, Shevu'ot 11:5 and She'elah u Fikkadon, 4:1; Sh. Ar., ḤM 87:7; see also
(2) Where the defendant admits part of the claim, he will be adjudicated to pay the amount admitted and to take an oath that he does not owe more (Shevu. 6:1; BM 3a; Yad, Shevu'ot 11:5, and To'en ve-Nitan, 1:1; Sh. Ar., ḤM 87:1; see also
(3) Where the defendant denies the claim in whole, and the plaintiff could adduce only one witness to prove his claim (for the two-witnesses-rule, see
), the defendant will have to take the oath that he owes nothing (Shevu. 40a; Yad, Shevu'ot 11:5, To'en ve-Nitan, 1:1 and 3:6; Sh. Ar., ḤM 87:1 and 7).
THE MISHNAIC OATH (SHEVU'AH MI-DIVREI SOFERIM)
The following are plaintiff's oaths ("they swear and take"):
(1) The laborer's oath: On a claim for wages, the plaintiff is entitled to judgment on taking the oath as to the amount due to him (Shevu. 7:1), provided the contract of employment is uncontested or has first been duly proved, and provided the claim is made promptly (Shev. 45b; Yad, Sehirut, 11:6; Sh. Ar., ḤM 89:1–3). See also
(2) The shopkeeper's oath: Where the plaintiff claims to have advanced money or goods to a third party upon the defendant's request, and the request is uncontested or has first been duly proved, the plaintiff may recover on taking the oath as to the amount so advanced and due to him (Shevu. 7:5; Yad, Malveh ve-Loveh, 16:5; Sh. Ar., ḤM 91:1). The fact that a debt was entered in the shopkeeper's books was not originally sufficient in itself to entitle him to recover even on taking the oath (Yad, loc. cit., 16:6); later the rule was established that where a merchant kept regular books on account, his oath would be accepted to verify his books (Rosh, Resp. nos. 86:1–2 and 103:2; Sh. Ar., ḤM 91:4–5).
(3) The landlord's oath: Where it was duly proved, or admitted, that the defendant entered the plaintiff's house empty-handed and left it with chattels in his hands, the plaintiff may recover upon his oath as to what it was the defendant had taken away (Shevu. 7:2; Shev. 46a; Yad, Gezelah va-Avedah, 4:1–2; Sh. Ar., ḤM 90:1). In the absence of the landlord himself, his wife or any other person in charge of the premises could take the oath (Shev. 46b; Yad, loc. cit., 4:6; Sh. Ar., ḤM 90:4; Sefer Teshuvot ha-Rashba ha-Meyuhasot le-ha-Ramban, no. 89). The oath was later extended to all cases where it was proved, or admitted, that some monetary damage had been caused by the defendant, for instance where he had been seen to throw the plaintiff's purse into the water or into fire: the plaintiff would be entitled to recover damages on taking the oath as to what had been the contents of the purse, provided the claim did not exceed what would normally be kept in a purse (BK 62a; Yad, Ḥovel u-Mazzik, 7:17; Sh. Ar., ḤM 388:1).
(4) The injured's oath: Where it was duly proved, or admitted, that the plaintiff had been whole and sound when encountering the defendant, and when he left him he was found injured, the plaintiff is entitled to recover damages on taking the oath that it was the defendant who had injured him (Shevu. 7:3; Yad, loc. cit., 5:4; Sh. Ar., ḤM 90:16). Where the injury could have been neither self-inflicted nor caused by a third party, however, the plaintiff was allowed to recover without taking the oath (Shev. 46b; Yad, loc. cit., 5:5; Sh. Ar., ḤM 90: 16; see also
(5) The billholder's oath: While a bill duly proved to have been made by the defendant is normally sufficient evidence of the debt (see
), where the plaintiff "detracts" from the bill by admitting to have received part of the debt evidenced by it, he has to take the oath that the balance is still due to him (Tosef., Shevu. 6:5; Shev. 41a; Yad, Malveh ve-Loveh, 14:1; Sh. Ar., ḤM 84:1). The same rule applies to the widow's claim on her
(Ket. 9:7); but the widow's oath was later required even where she did not expressly admit any part payment, so as to establish that she had not received anything on account of her ketubbah during her husband's lifetime (Git. 4:3; Sh. Ar., EH 96:1).
(6) The shifted oath: Where the defendant is a suspected liar and cannot therefore be sworn (see above), the oath is shifted to the plaintiff to verify his claim (Shev. 7:4; Yad, To'en ve-Nitan, 2:4; Sh. Ar, ḤM 92:7). If the plaintiff is a suspected liar, too, the liability to take the oath reverts to the defendant, but as he will not be allowed to take it, judgment will anyhow be entered against him (ibid.). This highly unsatisfactory result was sought to be avoided by applying the general rule that the burden of proving his claim always rested on the plaintiff (see
), and as the plaintiff would not be allowed to take the shifted oath, his claim ought to be dismissed (cf. Rema Sh. Ar., ḤM 92:7), the more so where the plaintiff had known that the defendant was a suspected liar and ought therefore to have abstained from doing business with him (Rosh, Resp. no. 11:1).
The following is a defendant's oath ("they swear and do not pay"):
(7) The Pentateuchal oath of the bailees was in the Mishnah extended to partners, tenant farmers, guardians, married women (in their capacity as agents of their husbands), and self-appointed administrators of estates (Shevu. 7:8; Yad, Sheluhin ve-Shuttafin, 9:1; ḤM 93:1). The same oath is imposed by the husband on his wife in respect of any business carried on by her (Ket. 9:4).
THE POST-MISHNAIC OATH (SHEVU'AT HESSET)
The presumption has been raised that plaintiffs will not put forward
unfounded and vexatious claims; and the rule evolved (in the third century) that a plaintiff who could not otherwise prove his claim, was entitled to have an oath administered to the defendant that he did not owe anything (Shevu. 40b; Yad. To'en ve-Nitan, 1:3; Sh. Ar., ḤM 87:1). A defendant unwilling to take this oath, but still persisting in his denial of indebtedness, had the right to shift the oath to the plaintiff who, upon taking it, would be entitled to recover (Shevu. 41a; Yad, loc. cit., 1:6; Sh. Ar., ḤM 87:11); but the Pentateuchal and mishnaic oaths could not be so shifted except as set out above (see the shifted oath). In the event of the plaintiff's refusing to take the shifted oath, the claim will be dismissed (Sh. Ar., ḤM 87:12).
Administration of Oaths
The Pentateuchal and mishnaic oaths are taken by holding the Scroll of the Torah in one's hand and swearing by God (Shevu. 38b; Yad, Shevu'ot, 11:8; ḤM 87:15). God need not be mentioned by name but may be described by one of His attributes. The oath is taken standing up (Shevu. 4:13; Sh. Ar., ḤM 87:16, 17). The post-mishnaic oath is taken without holding the Scroll and without mentioning God (Sh. Ar., ḤM 87:18; a contrary rule is given by Yad, Shevu'ot, 11:13, to the effect that the Scroll should at least be held out to the deponent so as to instill fear into him). The oath is pronounced either by the person taking it or by the court administering it; in the latter case, the deponent responds with "Amen" (Shevu 9:11; Yad, Shevu'ot 11:10). There was a rule to the effect that oaths must always be taken in Hebrew (Yad, Shevu'ot 11:8), but it was later mitigated so as to allow the oath to be taken in the language best understood by the deponent (ibid., 11:14; Sh. Ar., ḤM 87:20).
Before administering the oath, the court warns the deponent of the gravity of the oath and the inescapability of divine punishment for any false oath. This warning is not required for the post-mishnaic oath (Shevu. 39a; Yad, Shevu'ot 11:16; Sh. Ar., ḤM 87:20–21). The court also warns the party at whose instance the oath is administered that he should abstain if his case was wrong, so as not to have the oath administered unnecessarily, whereupon that party has to say "Amen" to confirm his own good faith (Yad, To'en ve-Nitan, 1:11; Sh. Ar., ḤM 87:22).
(1) Where a defendant was by law required to take the Pentateuchal oath and refused, judgment would be entered against him and execution be levied against his property forthwith (Shevu. 41a; Yad, loc. cit., 1:4; Sh. Ar., ḤM 87:9).
(2) Where a plaintiff was by law allowed to take the mishnaic oath and obtain judgment, he could forego his privilege and have the post-mishnaic oath administered to the defendant (Yad, loc. cit., 1:4; Sh. Ar., ḤM 87:12). However, the defendant would then shift the post-mishnaic oath back to the plaintiff (see above), and if the plaintiff still refused to take the oath, his claim would be dismissed (Sh. Ar., ḤM 87:12); but it must be borne in mind that the refusal or reticence to take the much severer mishnaic oath did not necessarily entail such refusal or reticence in respect of the much lighter post-mishnaic oath.
(3) Where a defendant refused to take the mishnaic or post-mishnaic oath, a
(ban) lasting 30 days would be pronounced against him (Yad, loc. cit., 1:5; Sh. Ar., ḤM 87:9); for refusal to take the oath, he would also be liable to
(Yad, loc. cit., 1:5); but judgment would not be entered against him so as to authorize execution upon his goods or lands (Shevu. 41a; Yad, loc. cit.; Sh. Ar., ḤM 87:9).
To the classes another class was added at a much later period (as from the 14th century), namely, the testimonial oath. Originally, potential witnesses could be sworn only to the effect that they were, or were not, able to testify on a given matter (Shevu. 4:3) – the purpose of such "oath of the witnesses" was solely to avoid suppression of testimony. It was an innovation to have witnesses, who were prepared and about to give evidence, swear first that they would testify to the truth; but the swearing in of witnesses became a widespread practice (Ribash, Resp. no. 170; Tashbeẓ 3:15; Resp. Joseph ibn Lev 4:1), though not a binding rule of law (Ḥatam Sofer, Resp. ḤM no. 207). It is not practiced in the rabbinical courts of today. The rule appears to be that it is in the free discretion of each particular court to administer the testimonial oath whenever in its opinion circumstances so require (cf. Beit Yosef ḤM 28:1; Rema Sh. Ar., ḤM 28:2; Urim ve-Tummim ḤM 28:2; and Sma, Sh. Ar., ḤM 28 n. 16); but it has been said justifiably that a witness who cannot be believed without being first sworn, cannot be believed at all (Tos. to Kid. 43b S.V. Hashta).
JURAMENTUM JUDAEORUM, MORE JUDAICO (THE JEWRY OATH)
As from the fifth century and throughout the Middle Ages, Jews testifying in non-Jewish (Christian) courts were required to take an oath which was invariably so formulated as to be binding upon them under Jewish law. Its essential elements were the solemn invocation of God; the enumeration of certain miraculous events from biblical history in which God's omnipotence was especially manifest; and curses to discourage perjury (Kisch, Germany, 275). Most medieval lawbooks and statutes contain elaborate provisions and formulae for the Jewry Oath. Many provided for concomitant degradations and insults, such as having Jews take their oaths while standing on a pigskin (ibid., 278 et al.).
[Haim Hermann Cohn]
Oath in Market Overt
The Sages also enacted an oath in the framework of market overt rules (Mish., BK 10:3; see
*Theft and Robbery
). If a person identifies an article belonging to him in the possession of another person, who bought the article on the open market, and the former brings evidence that the article is his, claiming it was stolen from him – according to Jewish law the buyer must return the article to the owner without compensation, even if
he bought it in good faith. This law proved very onerous for commercial life: every buyer had to be concerned that a person might turn up and prove his ownership of the article he had bought, and he would thus lose his money. Therefore, a regulation was enacted that, if the word had spread in town that an article belonging to a person had been stolen, the buyer – who was in possession of the article – must swear to the owner as to the amount he had paid for it, and receive that amount from the owner; he is then obliged to return the article to the owner. Even though the buyer is in possession of the article, and apparently the burden of proof should be on the owner, the buyer is considered trustworthy with respect of the amount he paid only after taking an oath. The rationale for this practice is to cause buyers to take care not to buy from thieves, for a buyer will receive his money back from the owner only against the taking of an oath (TJ, BK 10:3; Penei Moshe, ibid.)
IN POST-TALMUDIC LAW
Oath of Insolvency. The basic approach of Jewish civil execution law is characterized by rigorous protection of the debtor's liberty and dignity (see
, Civil). The Torah commands the lender: "Thou shalt not be to him as a creditor" (Ex. 22, 24). Therefore, according to the original law, when the debtor is not able to repay his debt, the creditor is precluded from imprisoning him (see
*Imprisonment for Debt
), or from demanding that he should show evidence that he is insolvent, and he is not even entitled to require the debtor to swear to that effect (Yad, Malveh ve-Loveh 2:1). However, during the period of the geonim, with the development of economic and commercial life and the concomitant rise in the phenomenon of swindlers – who used to claim falsely that they were insolvent – it became necessary to ensure the continued provision of loans by lenders, and to devise an efficient way of collecting debts. One means enacted for facilitating this process was the "oath of insolvency," or "oath of suspicion." The debtor was compelled to take a solemn oath, similar to the oath on the Torah, in which he holds an object, stating that he is in fact insolvent, and that he has not acted deceitfully by transferring his property to others, in order to avoid the obligation to pay his debt. This oath also included a future commitment to the effect that everything he earns in the future, beyond the minimum required for himself and his family for their livelihood, will be given to the creditor, until the entire debt is repaid. (Yad, ibid. 2:2). However, this measure was qualified by Maimonides (Yad, 2:4), who ruled that the court must prevent the creditor from imposing such an oath upon a debtor who claims insolvency, when it is clear and obvious to the court and to the public that in fact that debtor is poor and has no means of payment, and the purpose of the creditor in imposing the oath on the debtor is only to inflict pain and humiliation on him, or to make him "go and borrow from the Gentiles, or to take his wife's property (which is not mortgaged to the creditor) and give it to him (the creditor) in order to be saved from this oath": that is forbidden and constitutes a transgression of the biblical admonition, "Thou shalt not be to him as a creditor." On this issue, see the decision of the Israeli Supreme Court (HC 5304/92 Perach v. Minister of Justice, PD 47(4) 715, 736ff. per Justice Menachem Elon).
The "oath of insolvency" is also invoked in the field of public law, in tax laws, and with respect to the option of taking an oath and avoiding payment of a tax that a person owes the community (Resp. Or Zaru'a, 222).
OATH OF THE WITNESSES
In principle, Jewish law does not exact an oath from a witness with respect to the truthfulness of his testimony, since perjury was one of the prohibitions in the Ten Commandments: "Thou shalt not bear false witness against thy neighbor" (Ex. 20:14), and therefore every witness "is sworn since Mount Sinai" to testify only truthfully. Originally, Jewish law required only that witnesses be warned, before testifying, of their obligation to testify truthfully, of the strict prohibition on perjury and of the punishment prescribed for perjury (Yad, Edut, 17:2; Sanh., 12:3), without swearing them in. However, the popular prevalent assumption was that the prohibition on testifying falsely was less severe than taking a false oath. At the beginning of the 15th century, the halakhic sages in Spain and North Africa, aware of the common conception, and recognizing that "the generation makes light of false testimony" (Resp. Tashbeẓ 3:15), introduced into their courts the possibility of imposing an oath upon those witnesses who were suspected of having transgressed (Resp. Ribash 170), or at the court's discretion. This practice was enacted as halakhah by Rabbi Moses Isserles (in his gloss on the Sh. Ar., ḤM. 28:2): "Should the court perceive a need to impose an oath on them so that they shall say the truth – it may do so."
The approach of Jewish law to the issue of imposing an oath on witnesses formed the basis of the law in the State of Israel, and we shall briefly follow the stages of its development: this provides an instructive example of a case in which Israeli legislation has adopted Jewish law. The Civil Procedure Regulations, 5723 – 1963, state that prior to hearing testimony, the Court must warn the witness that he must state the truth, and the witness must swear to testify the truth. However, the witness is entitled not to swear, and, instead, to make a declaration, for reasons of religion or conscience. A similar route was adopted by the legislator with respect to testimony on criminal issues, in the Criminal Procedure Law, 5725 – 1965. In the discussions prior to passage of the Law, it was emphasized that the Law adopts the requirement of an oath as a compromise with the prevailing reality, on the basis of the assumption that the population needs a deterrent factor, in the form of an oath, to prevent false testimony.
In 1978 the Supreme Court considered this issue in the context of the Becker affair (HC 172/78 Becker v. Judge Eilat, PD 32(3) 370, as per Menachem Elon). In that case, a witness refused to swear when testifying in the Magistrates' Court, as he said, for reasons of religion and conscience, and consequently the Judge did not allow him to testify. The Supreme Court pointed out that the roots of the existing law lie in the principles of Jewish law, and it discussed the aforementioned
sources as well as others extensively. It ruled that the appropriate policy is to allow whoever refuses to swear to simply make a declaration, for a number of reasons: the desire to protect freedom of religion and conscience, which requires that a non-religious person not be compelled to take an oath; the serious doubts with respect to the advantages of the oath over a person's declaring upon his honor, as a means of facilitating truthfulness; and the rampant flippancy and affront, "as we see on a daily basis how the act of taking an oath, which has a deep significance specifically for religious persons, becomes a mere insignificant muttering and an object of scorn due to its routine use" (p. 386 of the decision). Because of this, the appropriate policy is to allow the person who refuses to swear to suffice with declaration.
Following this decision, in 1980 the Knesset approved an amendment to the Rules of Evidence Amendment (Warning of Witnesses and Abolition of Oath) Law, 5740 – 1980, canceling the mandatory oath that had prevailed in the legal procedure in the State of Israel, and determining that in every legal proceeding the witness must be warned that he is obliged to tell the truth, but without taking an oath. Section 5 of the Law further states that "should the Court have basis to assume that administering an oath could assist the witness in revealing the truth, then the Court is entitled, at its own initiative or in response to a request by one of the litigants, to make him swear. However, the witness is entitled, having stated that he does so on account of religious or conscientious reasons, not to swear, but rather to affirm upon his honor…." This law complies with the position of Jewish law, and in the explanatory notes to the Bill, the position of Jewish law with respect to the warning and oaths of witnesses, as it developed over the generations and as presented in the aforesaid, was elucidated (HH 5740, 327).
Regarding the mode according to which an oath was administered during the era of the geonim, and alternative modes adopted by the geonim, see the entries "Gezirta," Herem Setam; and bibliography there.
[Menachem Elon (2nd ed.)]
IN THE BIBLE: J. Pedersen, Der Eid bei den Semiten (1914); M.H. Segal, in: Leshonenu, 1 (1929), 215–27; S. Blank, in: HUCA, 23 (1950/51), 73–95; N.H. Tur-Sinai, Ha-Lashon ve-ha-Sefer, 3 (1957), 177–86; M. Greenberg, in: JBL, 76 (1957), 34–39; H. Silving, in: Yale Law Journal, 68 (1959), 1329–48; M.R. Lehman, in: ZAW, 81 (1969), 74–91. POST-BIBLICAL: J. Seldenus, Dissertatio de Juramentis (Excerptio ex eius libro secundo de Synedriis) (1618); K.F. Goeschel, Der Eid… (1837); Z. Frankel, Die Eidesleistung der Juden in theologischer und historischer Beziehung (18472); L. Zunz, Die Vorschriften ueber Eidesleistung der Juden (1859); L. Loew, in: Ben Chananja, 9 (1866), suppl., 17–25, reprinted in his Gesammelte Schriften, 3 (1893), 335–45; T. Tonelis Handl, Die Zulaessigkeit zur Zeugenaussage und zur Eidesablegung nach mosaisch-rabbinischem Rechte (1866; Ger., and Heb. Edut le-Yisrael); J. Blumenstein, Die verschiedenen Eides arten nach mosaisch-talmudischem Rechte und die Faelle ihrer Anwendung (1883); R. Hirzel, Der Eid (1902); F. Thudichum, Geschichte des Eides (1911); D. Hoffmann, in: Jeschurun, 1 (1914), 186–97 (Ger.); J. Pedersen, Der Eid bei den Semiten (1914); Gulak, Yesodei, 4 (1922), 129–49; H. Tykocinsky, Die gaonaeischen Verordnungen (1929), 67–99; T. Bernfeld, Eid und Geluebde nach Talmud und Schulchan Aruch (19303); S. Rosenblatt, in: PAAJR, 7 (1935/36), 229–3; Herzog, Instit, 1 (1936), 11–13; Kisch, Germany, 275–87, 506–15; idem, in: HUCA, 14 (1939), 431–56 (Ger.); Z. Warhaftig, in: Yavneh, 3 (1949), 147–51; ET, 1 (19513), 267f.; 5 (1953), 522–4, 528; 6 (1954), 37–61; 8 (1957), 741–3; B. Cohen, in: HJ, 7 (1945), 51–74, reprinted in his Jewish and Roman Law, 2 (1966), 710–33, and addenda 797–800; idem, in: Goldziher Memorial Volume, 2 (1958), 50–70, reprinted op. cit., 734–54 and addenda 801; Elon, Mafte'ah, 310–26; idem, in: ILR, 4 (1969), 106–8. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:106, 112, 132, 193, 276, 348, 364, 366, 371, 376, 380, 436, 490f, 497, 504ff., 535f., 564, 568f., 570f., 574, 579, 583, 591f., 594f., 604f., 617f., 638, 646, 655, 659, 743, 817, 821; 2:842, 991, 1001f., 1069, 1106, 1285; 3:1340, 1424ff., 1452, 1628; idem, Jewish Law (1994), 1:120, 126, 149, 217, 325, 419, 440, 443, 449, 455, 461; 2:533, 596, 606, 614ff., 651f., 685, 698f., 701f., 707, 713, 718, 731f., 734f., 748f., 763f., 790, 800, 811, 815, 916, 1001, 1006; 3:1030, 1199, 210f., 1289, 1330, 1533; 4:1600f., 1697ff., 1726, 1939; idem, Jewish Law (Cases and Materials) (1999), 189–200; idem, Kevod ha-Adam ve-Ḥeruto be-Darkehi ha-Ḥoza'ah le-Poal (2000), 38–43; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 2:474–83; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 316–26; Z. Shteinfeld, Modeh be-Mikẓat – Meḥkar be-Sugyot min ha-Mispat ha-Talmudi (1978), 79–154; G.Libson, "The Use of the 'Gezerta' during the Geonic Period and the Early Middle Ages," in: Shenaton ha-Mishpat ha-Ivri, 5 (1978) 154–79; idem, "'Ḥerem Setam' during the Geonic Period and the Early Middle Ages," in: Shenaton ha-Mishpat ha-Ivri, 22 (2004) 107–232; B. Lifshitz, "Gilgulah shel Shevu'at Bet Din be-Ala," in: Mishpetei Erez, 2 (collection) (2005); ibid. (in general), 381–511.
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