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חושן משפט

חושן משפט א

פרק כב

א ב ג ד ה ו ז ח ט י יא יב יג יד טו טז יז יח יט כ כא כב כג כד כה כו כז כח כט ל לא לב לג לד לה לו לז לח לט מ מא מב מג מד מה מו מז מח מט נ נא נב נג נד נה נו נז נח נט ס סא סב סג סד סה סו סז סח סט ע עא עב עג עד

Choshen Mishpat

Choshen Mishpat 1

Chapter 22

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א ב ג

22:1 22:2 22:3

Sif

הלכה א

מי שקבל עליו קרוב ופסול ודין שבועה והפוכה ובו ג"ס:
מי שקבל עליו קרוב או פסול בין להיותו דיין בין להיותו עד עליו: הגה ולא מיקרי קבלה אא"כ קבלו לדונו אבל אם השליש בידו מעות שדנין עליו לא מקרי קבלה (ריב"ש סי' שי"א) אפי' קבל א' מהפסולים בעבירה כשני עדים כשרים להעיד עליו או כג' ב"ד מומחים לדון לו: הגה וי"ח וס"ל דדוקא אם קבל קרוב או פסול בדיין אחד או בעד אחד אבל אם קבלו בתרי דאיכא תרתי לריעותא אפי' אחר גמר דין יכול לחזור בו וכן הסכמת רוב הפוסקים אבל אם קנו מידו בכל ענין לא יוכל לחזור: בין שקבל על עצמו לאבד זכיותיו ולמחול מה שהיה טוען על פיהן בין שקבל עליו שיתן כל מה שיטעון עליו חבירו בעדות זה הפסול או בדינו אם קנו מידו על זה אינו יכול לחזור בו ואם לא קנו מידו יכול לחזור בו עד שיגמור הדין: ולעיל סי' י"ב ס"ב נתבאר איזה מקרי גמר דין ולענין עדות מיד שהעידו לא יוכל לחזור בו (ריב"ש סי' ת"צ ומרדכי) נגמר הדין אינו יכול לחזור בו והוא שלא נודע שטעו (מיהו אם הם ממונים בעיר או טובי העיר לא יוכל לחזור כי כן נוהגים דכל מה שאדם מקבל לפני ראשי העיר שלא יוכל לחזור בו) (תשו' מיימוני סוף שופטים) ואם כופר ואומר לא קבלתי עלי לדון ואין עדים בדבר ישבע שלא קבלו עליו אפי' אם הדיין מכחישו ואמר שקבלו עליו: (רבים שהמחו עליהם דיינים דלא גמירי אין בעלי דינים יכולים לעכב) ר' ירוחם נ"ב ח' י"ג:

משנה ברורה

1.

One [of the litigants] who accepted a relative1Yad, Sanhedrin VII, 2. Derived from Mishna San. 24a: ‘If one (of the litigants) said to the other, I accept my father as trustworthy,’ or ‘I accept your father as trustworthy,’ or ‘I accept three oxherds as trustworthy.’ R. Meir says, He may (subsequently) retract; but the Sages maintain, He cannot retract.’ By stating ‘father’ we derive that accepting a relative is valid. or an [otherwise] ineligible person2Mishna ibid.: ‘I accept three oxherds as trustworthy,’ whence we derive the law of accepting an ineligible person. For an oxherd is ineligible to judge or to testify — v. San. 25b: ‘Raba stated: The oxherds to whom (the Sages) have made reference include the oxherds of both large and small cattle.’ Therefore, we are informed that if they were accepted by the litigants, it is valid. , also ibid. 24b: ‘Raba stated: If one accepted a relative or an (otherwise) ineligible person (to act as Judge or witness), he may retract before the conclusion of the trial, but not afterwards.’ Gemara concludes that Raba’s statement agrees with R. Joḥanan according to the view of the Sages in the Mishna. to act as a Judge3San. 25b: ‘For we learnt: (If one says), I accept three oxherds as trustworthy (they are acceptable [which means that otherwise they are ineligible]). Does this not (mean that ordinarily they are ineligible) for witnesses? — No, for Judges. This is also apparent from the expression three oxherds; for if it means eligible as witnesses, why three?’ Hence, if they were accepted, it is valid and according to the Sages, he may not retract. or a witness4San. 23b whence it is derived that acceptance of an otherwise ineligible person to act as witness is on the same par as accepting him to judge. The entire Mishna in San. 24a deals with a case where the acceptance took place before a Court of three eligible Judges (v. Y. San. III, 5(21a)). For if outside of the Court and there was no formal agreement made by Kinyan, the law is that even after the conclusion of the trial, he may retract according to all the authorities — Hag. Asheri on the authority of O.Z. N.Yos. and R. Yeruḥam (to B.B. VIII) on the other hand, maintain that the relatives or otherwise ineligible persons were not accepted before a Court; but if their acceptance was before a Court, then even before the conclusion of the trial, he may not retract — ShaK. Tummim writes that actually there is no difference whether they were accepted before a Court of Law or not. For once the pleas are presented before them they enjoy the status of a Court and it is regarded as if the acceptance took place before a Court of Law. The acceptance of a relative is valid only where the litigant knew that this was his relative, but if he pleads that he was unaware that he was his relative, the law is that he must take an equitable oath (v. supra § 1, n. 2) and may retract (BaḤ). However, if the litigant used to visit him and now he states that he was unaware that he is his relative, he is not regarded trustworthy (v. infra § 36, 2). Where the litigant claims that he was unaware that the accepted person was ineligible, the following distinction should be borne in mind: If the person is Rabbinically ineligible, in which case a public announcement is usually made in Court proclaiming him as such — then the litigant is not believed (v. ShaK infra § 71, n. 31) because all judicial matters are publicized; whereas in the case of an ineligible person who does not require a public announcement proclaiming him as such — the litigant is regarded trustworthy — P.Tesh. If the relative reveals that he is obliged to help and support the litigant, the latter’s acceptance of him is invalid (Keneseth ha-Gedolah). Shebuth Ya‘akob reports a case concerning a woman who left instructions prior to her death that if any dissension will arise between her sons, a certain relative of hers should adjudicate their case, and the sons obligated themselves by means of ‘striking hands’ (תקיעת כף) to follow the decision of that relative, and now one of the sons refuses to be tried before him, claiming a) that the latter is an illiterate person who is incompetent to adjudicate such matters, or at least others should be co-opted forming a Beth Din; b) that this person is more favourably disposed to one of the other brothers. Resp.: The law is that regarding the Talmudic principle ‘It is a religious duty to carry out the instructions of a dying person’ (Ket. 68b-70a; Git. 14b, 15a, 40a), it would not be applicable in this case (v. infra § 252, 2; Y.D. § 232, 17, Gloss); but as far as the obligation effected through ‘striking hands,’ the instructions must be carried out, and as to a) he knew about this at the outset and yet accepted him; b) every vow, the release of which, brings in its wake the ‘least suspicion of sin’ (נדנוד עבירה), should not be annulled (v. Y.D. § 230, Gloss). Hence, in the present case there is still a ‘suspicion of sin’ against his mother because he should carry out the instructions of his mother, albeit in the category of ‘fulfilling his duty beyond the requirements of the law,’ although strictly speaking this is not applicable in the present case — P.Tesh. — Gloss: the acceptance is regarded [valid] only when [the litigant] accepted him to act as Judge; but if he deposited money with him regarding which they were in dispute, it is not designated [valid] acceptance5RIBaSh s. 311 — G. This refers to a case where one took an oath to pay his fellow on a certain date, and when the time for payment arrived, he deposited the money with the town Judge in order to fulfil his obligation effected through the oath, and instructed the Judge not to deliver the money to the other party because he had a claim against him and the Judge was related to him. Consequently, since the litigant did not accept the Judge explicitly, the acceptance is not valid and the judgment has no legal consequences — M.E. — even if he accepted one of those ineligible on account of sin as [equivalent to] two eligible witnesses to testify on his behalf or [he accepted him] as three of a Court of Law [of] authoritative [Judges] to adjudicate [the case] for him.6Yad, Sanhedrin VII, 2. Derived from San. 24a (ref. to Mishna ibid.): ‘R. Dimi b. R. Naḥman b. R. Joseph stated: (The Mishna has reference to a case) e.g., where he (the litigant) accepted him (i.e., one of those mentioned) as one (of the three Judges).’ According to Rashi this refers to R. Meir’s viewpoint and it means that even if there are two other eligible Judges, R. Meir maintains that he may retract, whence it follows that according to the Sages, both if he accepted him as one of the Judges or as three, he cannot retract. ‘An ineligible person’ is mentioned here in order to introduce a remarkable feature, viz., that even one who is disqualified to offer testimony in any other case. Much more so in the case of a ‘father,’ who is eligible to offer testimony in other cases, is the acceptance considered valid where the latter was accepted as two witnesses or three Judges — M.E. Gloss:7This Gloss should come after ‘he can … legal proceedings are closed’ anon — M.E. Some differ [with this ruling] and are of the opinion that [this is applicable] only if he accepted a relative or an [otherwise] ineligible person as one Judge or as one witness; but if he accepted him as two [witnesses or as three authoritative Judges] in which case there are two irregularities — [the law is that] even after the legal proceedings are closed, he may retract.8Thus Alfasi to San. III contra Gaon who maintains that even if a formal Kinyan was made before a Beth Din, he may retract, since it was a Kinyan made in error. Cf. Sheb. 42a: ‘A certain (man) said to his fellow: You are believed by me like two whenever you claim that I have not paid you. He went and paid him before three. Said R. Papa: He believed him like two but like three he did not believe him. To this R. Huna b. R. Joshua objected: Two are like a hundred and a hundred are like two! But if he said to him: Like three, and he went and paid him before four (witnesses, the lender is not believed), for since he cares to mention a certain number of opinions (that he believes him like three people) he means (exclusively) that number of opinions (for otherwise he would have mentioned only two who are equivalent to any number).’ There must have been a formal Kinyan made, for if the statement of credence was made at the time the loan was transacted it is equivalent to Kinyan; otherwise formal Kinyan is required. We thus see that as far as two are concerned the lender is believed according to all opinions, although there were two irregularities (תרתי לריעותא), a) he believed the lender himself; b) he considered him as two witnesses. Likewise in the present ruling there are two irregularities, a) one Judge was accepted like three; b) even he was Biblically ineligible. Hence even in the case of two irregularities, once a Kinyan was made he may not retract on the principle ‘nothing else is required after Kinyan is effected’ (אין לאחר קנין כלום). Should he, however, appoint another Court to deal with the case, the latter must adjudicate the case in accordance with the pleas and admissions presented before the first Court (provided there was a formal Kinyan made. Thus Nethiboth) — M.E. on the authority of RaShBA Resp. If he accepted one eligible Judge like three experts (Mumḥin) or one eligible witness like two and the trial was concluded he may not retract (since there is only one irregularity) — M.E. and later authorities contra ShaK. , P.Tesh. Likewise, if he accepted three ineligible persons (simultaneously. , P.Tesh) like three eligible ones, he may not retract, since there is only one irregularity — Tummim. , however, K.H. Thus is the common consent of the majority of the Codifiers.9In accord with San. 23b, Tosaf. s.v. ואמר who point out that R. Dimi’s statement (v. supra n. 6) refers to the view held by the Sages, viz., that he may not retract; but if he accepted one as the equivalent of a complete Court, even the Sages will agree that he may subsequently retract on account of two irregularities involved. ShaK, however, cites many authorities who accept the first opinion. However, if they made a formal agreement with him by means of a Kinyan, in nowise may he retract.10e., even if they accepted one witness as two — M.E. Thus Alfasi. Derived from Sheb. 42a. , supra n. 8. Whether he accepted to forfeit his rights and to remit whatever he claimed in accordance with their verdict or he accepted to pay whatever claim his fellow [-litigant] will make against him according to the evidence of this ineligible person or according to his legal decision11San. 24b: ‘R. Naḥman b. R. Ḥisda sent a query to R. Naḥman b. Jacob: Will our Master kindly teach us, Is the difference of opinion (between R. Meir and the Sages) before or after the verdict (is given), and with whom does the law accord? — He sent back word: The difference of opinion has reference to the close of legal proceedings (i.e., after the verdict is given) and the law rests with the Sages. R. Ashi stated: This was the query he sent: Do they differ in a case where (the defendant says) I will pay your claim, (if such is the verdict), or with regards to (a case where the plaintiff says) Let my claim against you be remitted (should this be the final verdict. The point is this: In the former case money will be transferred from one party to another, and consequently more power must be exercised; in the latter case, less authority is required, since the possessor has a presumption of ownership) and with whom does the law accord? — He replied: The controversy is with reference to I will pay you and the law accords with the Sages.’ — [the law is that] if they made a formal agreement with him by means of a Kinyan relative to this [matter], he cannot retract; but if they did not make a formal agreement with him by means of a Kinyan, he can retract before the legal proceedings are closed.12San. 24b: ‘A message was dispatched from the School of Rab to Samuel as follows: Will our Master kindly teach us, (If one of the parties) made a formal agreement by Kinyan (not to retract), what (if he desires to retract) before the verdict is given? — He sent back word: After a formal agreement is made by means of Kinyan, nothing (can be done to retract from the pledge).’ Although this (i.e., not to retract) appears to be ‘a mere verbal agreement’ (קנין דברים), i.e., that of which ownership is acquired by means of the Kinyan is only a verbal promise, and does not involve any concrete article, — yet, we do find that the Kinyan binds him in his undertaking (v. B.M. 67b; B.B. 3a; supra § 12, n. 31). Thus N.Yos. RaBaN maintains that the Kinyan is binding only when the litigant pledges himself to follow the verdict of the Court or to accept the evidence of the witnesses — ShaK. Supra § 12, 2 it has been explained what is considered the close of legal proceedings.13e., when the pronouncement is made: ‘So-and-so, you are guilty’ or ‘So-and-so, you are not guilty,’ and much more so when they say to him ‘Go and pay him’ which indicates that a definitive decision has been reached. Not so, however, when they say to him, ‘You are obliged to pay him,’ for such a statement is indicative that they are still in doubt — M.E. ShaK adds that the legal proceedings are also considered closed when the litigants leave Court. And as to the matter of evidence, — [the law is that] as soon as [the witnesses] have testified, he cannot retract.14RIBaSh s. 490 and Mord. — G. Thus also majority of Codifiers. , Sheb. 30b. [As soon as] the legal proceedings are closed, he cannot retract15San. 24b. , supra n. 1 Yad, Sanhedrin VII, 2 has ‘Once the legal proceedings are closed and money was exacted through the verdict of this ineligible person or through his testimony, he may not retract.’ Kes. Mishneh explains that it does not necessarily mean that money had been exacted, but that since the legal proceedings are closed it is as though money had been exacted. The litigants are not permitted to retract even if they both agree, the reason being that out of deference to the Judge, the verdict must stand unless the litigants wish to make a complete remission to each other — B.Yos. provided it did not become known that [the Judges] erred [in their decision].16San. 6a: ‘R. Abbahu stated: All concur that a decision given by two (Judges) in civil cases is not valid. R. Abba raised an objection (from the following): If one adjudicated a case by himself and pronounced the guilty, not guilty, and the not guilty, guilty, or the unclean, clean, his act cannot be upset, but he (the Judge) has to pay from his own pocket (This clearly shows that the decision of one Judge also stands)? — We deal here with a case where the litigants accepted the Judge. If so, why should the Judge) pay indemnity? — Because they (the litigants) said to him: Adjudicate the case for us in accordance with the law of the Torah.’ The Talmud (ibid.) concludes that if the Judge erred in his decision by overlooking a law stated in the Mishna, he may revoke his decision; but if he made a mistake in deciding against common pratice, his act cannot be undone and he must pay from his own pocket. It is thus evident that whenever the litigants accept the Judge, even if he is ineligible, then even if a Kinyan was effected, it is only on condition that no error should be made. Otherwise they may retract. Cf. Git. 14a: ‘R. Naḥman said, If a formal agreement by means of Kinyan was effected in error, the money must be returned.’ In a case where the Judges erred in their decision and the litigant is then permitted to retract, he is allowed to present his case anew and even alter his original pleas. Furthermore, the second Court of Law gives the litigant a new extension of time to produce his proofs or other required evidence. If the litigants accepted the Judges to adjudicate their case in accordance with strict law, and they (the Judges) made a settlement through arbitration, this too, is considered an error in judgment and even if the litigants bound themselves by a Kinyan, they may retract — M.E., ShaK. However, if they are [the] duly appointed [Judges] in the city or the representatives of the town, he cannot retract,17For in such a case it was known that the Judges are incompetent, and consequently, when they were accepted by the litigants, it meant that their decision would be followed even if it were erroneous since they are the representatives of the town. , infra § 25. In this case even if the litigants accepted them to Judge in accordance with the law of the Torah and the latter instead made a settlement by arbitration, their decision is still binding — M.E. If the Judges were accepted before the representatives of the town (even three of the representatives. Not necessarily the entire seven) even Kinyan is not required (v. infra § 163 end) — M.E., ShaK. Hence, even before the conclusion of the trial, one may not retract. Not so, however, if the acceptance took place before three Judges who are not the town representatives. In this case one may retract only before the conclusion of the trial — ShaK. for thus is the adopted practice [viz.,] that whatever a person accepts before the heads of the town, he cannot retract.18Tesh. Maim. to Shofetim end — G. If [the litigant] denies [this] and states, 'I did not accept [him] to act as Judge,' and there are no witnesses [to confirm this] statement, he must take an oath that he did not accept him [as Judge] even if the Judge contradicts him and stated that he [the litigant] did accept him.19Tur and Asheri in Resp. e., he takes an equitable oath (שבועת היסת), because the Judge is not regarded as a witness in order to obligate the litigant to take a Biblical oath (שבועה דאורײתא) for the following reasons: a) Since we deal here with a relative or one otherwise ineligible; b) The litigant does not deny any monetary claim save that he did not accept him as Judge in which case a Biblical oath is not imposed — M.E. ShaK (followed by W.G.) rejects the latter reason and maintains that this is certainly regarded as a denial of a monetary claim. Hence, where the Judge is eligible, the litigant would have to take a Biblical oath. Nethiboth writes that we consider the litigant’s statement a denial of a monetary claim only after he was pronounced guilty by the Judge; but if he was not yet pronounced guilty save that the Judge claims that the litigant accepted him by means of a Kinyan to act as Judge, it is not considered a denial of a monetary claim. If two of the Judges are eligible persons all agree that they are believed when they state that they were accepted as Judges. [In the case of] a public that has recognized unlearned Judges as authorities over them, the litigants cannot prevent [them from trying their case].20R. Yeruḥam Path II, Pt. 13 — G. , supra § 8, 1 and notes. Cf. supra n. 17.

Mishnah Berurah

הלכה ב

אם קבל עליו עדות עכו"ם כמי שקבל עליו עדות אחד מהפסולים אבל אם קבל עליו עכו"ם לדיין אפי' קנו מיניה אין הקנין כלום ואסור לדון לפניו (אבל אם כבר דן לפניו לא יוכל לחזור בו) (מרדכי ר"פ זה בורר):

משנה ברורה

2.

If he accepted the testimony of a heathen it is as though he accepted the testimony of one of the ineligible persons.21Mord. to San. III citing a case that came up before R. Meir of Rothenberg. However, if he accepted the heathen as a Judge, [then] even if they made an agreement with him [the litigant] by means of a Kinyan, the agreement has no legal consequences, and it is forbidden to be tried before him.22Thus Asheri in Resp. , Git. 88b: ‘R. Tarfon used to say, Wherever you find heathen Courts (Heb. אגוריאות Gr. ἀγορά a market-place), although their law is similar to the Israelite law, you should not resort to them, for it is said, These are the judgments which thou shalt set before them (Ex. XXI, 1), which means before them but not before heathens.’ Resorting to heathen Courts would be regarded as ‘making an agreement contrary to what is written in the Torah’ (מתנה על מה שכתוב בתורה). , Keth. XI, 1 a.e. If, however, the litigants have stronger legal rights in the heathen Courts than in the Israelite Courts, the agreement made by means of Kinyan is effective, and as to the principle that this would be considered ‘an agreement made contrary to what is written in the Torah,’ it is applicable to an agreement made in a general way, and where one does not enjoy special rights in a heathen Court it would be regarded as a sheer verbal agreement (v. infra § 26) — M.E. But if he had already been tried before him, he cannot retract.23Mord. to San. III beg. — G. Cf. B.M. 66b whence it is derived that renunciation made in error is valid ex post facto. Likewise in the present case, although in the first instance the Kinyan is not binding, ex post facto it is. , Be’er Eliyahu. If the litigant accepted the heathen Judge merely to rely upon his individual legal opinion but not to act as Judge in accordance with the established laws of the heathen Courts, it is valid as in the case of one who accepts a relative or otherwise ineligible person — A.H. explaining ShaK contra Nethiboth.

Mishnah Berurah

הלכה ג

מי שנתחייב לחבירו שבועה בב"ד ואמר לו השבע לי בחיי ראשך והפטר או השבע לי בחיי ראשך ואתן לך כל מה שתטעון אם קנו מידו אינו יכול לחזור בו ואם לא קנו מידו יכול לחזור בו עד שיגמר הדין נגמר הדין ונשבע כמו שאמר ליה א"י לחזור בו וחייב לשלם וה"ה למי שנתחייב שבועת היסת והפכה אם קנו מידו או אם נשבע זה שנהפכה עליו א"י לחזור בו וה"ה במי שלא היה חייב שבועה ואמר אשבע לך שבועה אם קנו מידו א"י לחזור בו ואם לא קנו מידו אע"פ שקבל בב"ד חוזר עד שיגמור הדין וישבע: הגה מי שמחוייב לישבע ואמר לפני ב"ד איני רוצה לישבע אלא הריני משלם ויצא חוץ לב"ד אינו יכול לחזור בו דזה הוה גמר דין דידיה ויש חולקין (ע' בטור) מי שנתחייב לחבירו שבועה דאורייתא ואמר לחבירו השבע וטול ונשבע בלא נטילת חפץ לא יוכל לחזור בו (ב"י):

משנה ברורה

3.

One who was under obligation to his fellow to take an oath in Court and [the latter] said, 'Swear to me by the life of your head and be exempt,' or 'Swear to me by the life of your head and I will pay you whatever you claim,'24Yad, Sanhedrin VII, Derived from Mishna San. 24a: ‘If a man was under obligation to take an oath before his fellow, and the latter said to him, Vow to me by the life of your head (which is not the formula of a legal oath since ‘swearing’ and the ‘Divine Name’ are not included), R. Meir says, He may retract; but the Sages say, He cannot retract.’ The law here is on the same footing as supra par. 1 in the case of a relative or otherwise ineligible person. , notes ibid. which are also applicable in the present case. , B.B. 127b-128a: ‘R. Abba sent to R. Joseph b. Ḥama: If one says to his fellow, You stole my slave, and the other replies, I did not steal (him), (and when the former asks further), On what grounds did he (come) into your possession, (the latter replies), You sold him to me, you gave him to me as a gift, (but) if you wish, Take an oath (that he was neither sold nor presented) and you will get him back (although legally the possessor cannot be compelled to accept the oath of the plaintiff), and (the plaintiff) took the oath, (then the latter) is not permitted to retract. What does he inform us? We have already learnt (this elsewhere. Cf. Mishna and Gemara San. 24a): If one (of the litigants) said to the other party, I accept my father as trustworthy or I accept your father as trustworthy, or I accept three oxherds as trustworthy, R. Meir says, He may (subsequently) retract; but the Sages say, He may not retract! — (R. Abba) teaches us this: That the controversy (between R. Meir and the Sages) is where (a litigant stated), I will pay you, and the law accords with the Sages (v. supra n. 11).’ We thus see that the case of accepting an oath which legally is not binding is equated to the case of accepting a relative or an otherwise ineligible person to act as Judge. In both cases the law is that after the close of legal proceedings, even in a case of ‘I will pay you’ and before the close of legal proceedings where an agreement was made by Kinyan, one may not retract. — [then] if they made a formal agreement with him by means of a Kinyan, he cannot retract; and if they did not make a formal agreement with him by means of a Kinyan, he can retract until the legal proceedings are closed.25, supra n. 12. Once the legal proceedings are closed and he took the oath26In the case where an oath is taken the proceedings are considered closed after the oath is taken. Note the expression ‘Once the legal proceedings are closed and he took the oath.’ According to Rashi and Asheri the proceedings are likewise considered closed when the litigant leaves the Court. , Isserles anon — M.E. , B.B. 128a, Tosaf. s.v. הכי גרסינן ונשבע; Sheb. 39a, Tosaf. s.v. אם; San. 24b, Tosaf. s.v. שלח. Other Codifiers read נשבע i.e., even if he had not yet taken the oath, as long as the trial was concluded, he may not retract — ShaK. , Gloss infra and notes. as stated to him [by his fellow-litigant], he cannot retract and is obliged to make payment. Likewise one who was under obligation to take an equitable oath27, supra § 1, n. 2. and transferred it [the oath] to his opponent,28This excludes a Biblical oath (שבועה דאורײתא) which is not transferred (v. infra § 87) — M.E. In B.B. ibid. (v. supra n. 24) even if there were a single witness to substantiate the plaintiff’s claim, no Biblical oath would be imposed in a claim that concerns slaves (v. Sheb. VI, 5) save that an equitable oath (שבועת היסת) would have to be taken; but since in the latter case where the possessor makes a complete denial and there is not even a single witness to contradict him, the latter would have to take an equitable oath only, consequently, he may transfer the oath to the plaintiff. — [then] if they made a formal agreement with him by means of a Kinyan or if the party to whom it was transferred took the oath, he cannot retract. So too, one who was not obliged to take an oath and stated, 'I will take an oath,' — [then] if they made a formal agreement with him by means of a Kinyan, he cannot retract; and if they did not make a formal agreement with him by means of a Kinyan, although he accepted in [the presence of] the Court [to take the oath], he may retract until the legal proceedings are closed and [only thereafter] he must take the oath. Gloss: One who is under obligation to take an oath and stated before the Court of Law, 'I desire not to take an oath, I am prepared to make payment,' and [then] left the Court of Law, — [the law is that] he cannot retract for this is regarded the close of his legal proceedings.29Sheb. 39a: ‘If he stated, I shall not take an oath (realizing the seriousness of swearing falsely), he is dismissed (from Court) forthwith (so as not to give him a chance to change his mind, and he pays the claim. Thus Rashi). According to Tosaf. (v. sources supra n. 26) the question whether we consider the legal proceedings closed after the litigant makes his statement before the Court and then leaves or whether the oath must be taken before the litigant leaves the Court, is applicable both in the case where one was under obligation to take an oath and stated ‘I desire not to take an oath etc.,’ or where the defendant transfers the oath to the claimant, or where one states ‘Vow by the life of your head.’ According to those authorities who maintain that if he said ‘I desire not to take an oath etc.,’ and then left Court, he may not retract, the same principle applies equally in the other cases. Those who differ with this opinion and hold that in the case of one under obligation to take an oath, the legal proceedings are considered closed only after the oath is taken, the same principle is also applicable in the other cases. Consequently, Isserles Gloss presents a difficulty. For according to the present Gloss, the difference of opinion between the above-mentioned authorities is only with respect to one who states ‘I will not swear,’ but not regarding the other cases (v. M.E., ShaK and W.G.). This difficulty may be removed if we bear in mind that the law of one who was under obligation to take an oath and stated ‘I desire not … he cannot retract etc.,’ was stated only in accordance with Rashi’s interpretation followed by Asheri (v. supra n. 29). One who was under obligation to take an equitable oath in Court and did not state that he wishes to transfer the oath to his adversary and then left Court and subsequently stated that he desires to transfer the oath, is permitted to do so — Tur. Even if he stated ‘I will not swear’ and then left Court, he may subsequently transfer the oath, because we assume that what he meant is this: ‘I will not swear but I will transfer the oath,’ provided he did not say, ‘I will not swear but I will make payment’ — M.E. If the defendant was under obligation to take an equitable oath and he stated in Court ‘I will swear’ and before taking the oath, he left, the law is that he subsequently cannot transfer the oath — M.E. ShaK rejects the latter ruling of M.E. For only where he stated ‘I will not swear but I will make payment’ he may not retract if he left the Court, because as soon as he says ‘I will not swear etc.,’ it is regarded as an admission of guilt; but where he stated ‘I will swear’ it is as though he said ‘I am prepared to carry out the verdict,’ but it does not mean that he actually accepted to take the oath. Hence, he may subsequently transfer the oath. And this is the adopted custom in many Holy communities (v. P.Tesh conflicting views regarding this custom). This holds good only with respect to an equitable oath, but in the case of a Biblical oath where legally one may not transfer it (v. infra § 87; Sheb. 41a), if one said to his fellow ‘Swear and collect’ and the latter stated ‘I will swear’ and then left the Court or even where he did not leave the Court but the Judges had already commenced the discussion of another case, he may not retract — Nethiboth. Some [authorities], however, differ [with this view].30, Tur — G. Cf. previous note. One who was under obligation to his fellow to take a Biblical oath and he said to the latter, 'Take an oath and collect,' and [then the latter hurriedly] took an oath without holding a [sacred] object, — [the law is that] he [the defendant] cannot retract.31And say ‘I will swear and be exempt,’ but the plaintiff must take another oath while holding a sacred object. Other authoorities differ with this view and maintain that since he took the oath without holding a sacred object (e.g., a Scroll of the Law or Phylacteries) we do not consider the legal proceedings as closed and consequently, he may retract unless the litigants left the Court or the Judges commenced the discussion of another case — ShaK. However, according to the former view, even if he took the oath outside of the Court, it is still regarded as the close of legal proceedings — A.H.

Mishnah Berurah

חושן משפט חושן משפט א פרק כב

Choshen Mishpat Choshen Mishpat 1 Chapter 22