Mitokh She-eino Yakhol Lehishava - Mishalem

  • Rav Elyakim Krumbein



  1. Tosafot, Bava Metzia 5a, s.v. she-ke-negdo.
  1. Shevu'ot 44b: "She-ke-negdo chashud… yachloku."
  1. Ibid. 47a: "Hayu sheneihem chashudim" … 47b: "chala al sheneihem."
  1. Ibid. 48b: "Ikla Rav Nachman …KeRebbi Elazar avad".
  1. Tosafot, Bava Metzia 97b s.v. h"n.


1. Why don't we apply the rule of "mitokh she'eino yachol lehishava meshalem" to the case of one disqualified from taking an oath (chashud)?

2. Tosafot suggest two answers to this question. Try to discern the basic difference between them?

3. Who argues on the rule of "mitokh?

4. What is the rationale for the rule of mitokh?



1.  Mitokh in the Case of the Chashud

            Tosafot (5a s.v. She-kenegdo) take note of the prescribed procedure when a defendant who is obligated to swear cannot do so because he is chashud - not trustworthy (e.g., has lied in the past). As the gemara here says, the oath is transferred to the plaintiff, who will win his case if he is willing to swear.  Tosafot raise an objection.  There are other instances when the defendant cannot take an obligatory oath, even though he is not a chashud. In these cases we do not make the plaintiff swear, but we say "mitokh she-eino yakhol lehishava - meshalem:" since the defendant cannot take the oath he pays without any further ado.  Why, query Tosafot, does this rule not apply to the chashud as well?  We will use the discussion in Tosafot as a springboard for analyzing the principle of mitokh, one of the more important procedures of halakhic jurisprudence. This subject is quite vast, but hopefully, several chosen sources will serve to acquaint us with some of its basic aspects.

            Before taking a look at the answers offered by Tosafot to their question, let us consolidate our initial grasp of the concept by examining the cases of mitokh which they cite. Tosafot illustrate this rule in the cases of two shevu'ot de-oraita.  For example, mitokh would apply to modeh be-miktzat, in the case of a defendant who concedes fifty out of a lawsuit of a hundred, while professing ignorance of his obligation vis-a-vis the remaining fifty. Although his partial confession qualifies him as a modeh be-miktzat, he cannot fulfill his obligation to swear as to his innocence regarding the remainder, since he professes ignorance.  Here, we apply the rule: since he cannot swear, he must pay. The second instance, which relates to the shevu'a of ed echad, is the famous case of "naskha de-Rabbi Abba." A solitary witness testifies to the snatching of an ingot. The defendant does not contest the testimony, but claims that the ingot is rightfully his. Now a solitary witness, while incapable of obligating payment, ordinarily does obligate an oath. However, the law is that this oath must directly contradict the witness's testimony. In our case, this condition is not met, since the defendant admits that he took the ingot but seeks to exempt himself due to an extraneous consideration. Here again - mitokh she-eino yakhol lehishava meshalem.

            Why, then, does mitokh not apply to the "chashud," as opposed to the above cases? Tosafot give two answers. Firstly, saying mitokh creates an impossible situation for the chashud, whereby he automatically loses any suit against him which is filed in such a way as to obligate him to swear (i.e., the plaintiff could claim more money than is rightfully owed to him, rendering the chashud a modeh be-miktzat). According to this answer, the uniqueness of the case of chashud is based on a mere practical consideration. However, Tosafot suggest a second answer, according to which mitokh is fundamentally irrelevant in the case of chashud.  In the ordinary case of mitokh, the plaintiff argues that "you owe me a shevu'a de-oraita - either swear or pay!"  However, if the defendant is chashud, say Tosafot, "he would gladly swear if we would let him; therefore, he does not have to pay - even when he does not take a shevu'a."

            Let us analyze this second answer of Tosafot. What does it mean?  At first glance, Tosafot seem to be asserting that the chashud is not defined as eino yakhol lehishava. This is a reasonable hypothesis. There is nothing in the facts of the case to prevent him from swearing, and he himself is ready and willing to do so. If the court chooses not to rely on his oath, that is their prerogative, but he cannot be penalized.

            The above makes sense, but is demonstrably untrue.  The gemara in Shevu'ot (47a) talks about the case of chashud, wherein we transfer the oath to the plaintiff, but goes a step further: What if this solution is likewise impossible, because the plaintiff is also a chashud?  In this case, we go back and apply mitokh, and the defendant must pay even without anyone swearing. Clearly then, the case of chashud does indeed fall under the general rubric of "one who cannot swear," the category which generates mitokh. What, then, is the fundamental reason which caused the Rabbis (according to the second answer in Tosafot) to institute a different solution in the case of chashud?

            For the time being, we will set this problem aside, and directly address the gemara in Shevu'ot 47a which is the primary source of mitokh. Our objective is to formulate a precise definition of this principle.

2.  Understanding Mitokh

            Although Tosafot quote the principle of mitokh as a matter of fact, it is actually a matter of controversy among the Amoraim. As usual, examining the difference of opinion will allow us to gain a more meaningful understanding of the concept itself.

            The case where this machloket is first articulated is the aforementioned one - the defendant is chashud, but we cannot transfer the oath to the plaintiff, because he is also a chashud.  The gemara reports that the Babylonian Rabbis - Rav and Shmuel - rule that the oath-obligation goes back to Sinai and disappears, and the defendant is exonerated in the absence of proof against him. R. Abba, however, decides that "the oath-obligation goes back to its original place," namely to the defendant, who will have to pay since he cannot take the oath. In other words, R. Abba subscribes to mitokh whereas Rav and Shmuel do not.

            The gemara also brings the other cases adduced by our Tosafot: "I don't know about the second fifty" and "naskha de-Rabbi Abba."  The definition of mitokh which emerges from all these cases is straightforward: a defendant who is obligated to take an oath, and for some reason cannot, must pay.

            What rivets our attention is an additional case which appears in the sugya - a case wherein the basic oath-obligation rests not with the defendant, but with the plaintiff. (Of course, this shevu'a is de-rabanan; a Torah-ordained shevu'a is always on the defendant.):

            A creditor who wants to collect from the heirs of a deceased debtor is required to swear that the loan has not been paid (even if he produces a shtar). If the creditor dies before collecting, and his heirs now sue the heirs of the debtor, they are likewise required to swear, but they cannot, because their suit is based only on the shtar, and they have no independent personal knowledge that the money is still owed. What would be the implication of mitokh applied to this oath of the plaintiff? The gemara says that Rav and Shmuel, who reject mitokh, hold that the claim is forfeited. In other words, were we to apply mitokh in this case, it would mean that the loan is collected without a shevu'a. This is a rather unexpected conclusion. In the words of Tosafot in Bava Metzia 97b (s.v. Hakha Nami), the definition of mitokh now appears to be "whoever it is that cannot take his oath - whether the plaintiff or the defendant - payment is mandated".  Hence the "mitokh" sometimes works to the detriment of the one who should have taken the oath (i.e., if he is the defendant), and sometimes to his advantage (when he is the plaintiff, as in the above case).

            In order to understand this view of mitokh, I think it would be useful to ask first, what does NOT saying mitokh mean?  It apparently is the converse of the preceding; namely, that regardless of whose oath it is that cannot be taken, the defendant always wins.  This is easy to understand.  When the halakhically dictated decision - swearing - cannot be rendered, we are left with no alternative way of adjudicating the case.  Beit din then "returns the oath to Sinai" and in effect withdraws.  The plaintiff is left with the burden of proof, and since he has none, we say "ha-motzi me-chavero alav ha-ra'aya."

            The meaning of mitokh follows from here.  Returning to the case of the heirs of the creditor, we see that they win even though they cannot take their oath.  This can have only one explanation: Since the basic halakha is that the shtar suffices for collecting the debt, and the oath is only an additional obligation for the protection of the children of the borrower, we revert to the basic ruling, when taking the oath is out of the question. This is what mitokh connotes. The oath "not returning to Sinai" means that bet din does not leave the picture when the shevu'a is impossible. Rather, it examines each case to determine what the halakha should have been if not for the oath-obligation, and decides accordingly. In the case of the shevu'ot de-oraita, we assume (according to this approach) that the oath is intended as a leniency for the defendant, a way of clearing himself from the obligation to pay.  There is a monetary obligation which shadows every oath-obligation placed on the defendant, and this monetary obligation becomes actual if the oath cannot be taken.

            What, accordingly, is the nature of the gemara's controversy over whether to say mitokh?  In light of the above, we may define the question thus: In cases where an oath is the prescribed ruling, is it the only one possible?  Or are there other possibilities, which can be utilized if the shevu'a cannot be carried out?  Mitokh is the second view.  Therefore when a shevu'a cannot be administered, the possibility of collecting the monetary obligation remains due to the alternate criteria.

3. Mitokh According to Rabbenu Tam

            The foregoing discussion is based on the prima facie reading of the gemara in Shevu'ot.  This is the reading which is followed by the Ri in Tosafot Bava Metzia 97b (s.v. Hakha Nami). Rabbenu Tam disagrees despite the textual problems his approach entails (which we will not deal with). Going back to the case of the heirs of the creditor, where the plaintiff is supposed to swear, R. Tam holds that "mitokh" DEFEATS the plaintiff.  In his view, the definition of mitokh is that whoever should swear but cannot - be the plaintiff or defendant - loses. Conversely, to reject mitokh means to allow the heirs to collect their debt.  How is this to be understood, and what does it mean about mitokh?

            I believe that the pivotal point is the one made above: The only way to explain the victory of the heirs of the creditor, is that in the absence of shevu'a, we decide the case as we would have if shevu'a were not an option. According to R. Tam (as opposed to Ri), this is the approach of those who reject mitokh. This is because the essence of mitokh is that the oath-obligation does not disappear entirely in any event.  If the oath cannot be actualized, it becomes transformed into a monetary category.  Therefore the heirs who cannot take their shevu'a forfeit their claim.

            This is what happens according to R. Tam in the shevu'ot de-oraita as well, where the defendant is the one obligated to swear; when he cannot do so, the oath is translated into a monetary obligation.  On the other hand, if we reject mitokh, we exonerate the defendant. This is because the oath disappears and rather than transforming the oath into payment, we decide the way we would have if not for the shevu'a.  R. Tam apparently holds that if the Torah hadn't obligated the defendant to swear, he would be altogether exempt; the shevu'a is an independent chiyuv, and not a means of exempting from payment (as we concluded above according to the Ri).

            What is the point of argument between the Babylonian Rabbis and R. Abba, according to R. Tam?  The question is what happens when the shevu'a becomes impossible.  Does the oath-obligation disappear, making way for a different decision which ignores it?  Or does the oath-obligation persist, translated into a monetary obligation?  Mitokh is the second view.

            We can summarize that Ri and R. Tam have different views of mitokh.  Ri interprets the word mitokh as "since:" since the oath is impossible, beit din is authorized to rule based on alternate criteria.  R. Tam interprets the word mitokh more literally: "coming from" or "as an outgrowth of."  Where the oath is impossible, mitokh creates a monetary obligation which is an outgrowth of the chiyuv shevu'a. Since it stems from the chiyuv shevu'a, mitokh is always to the detriment of the side that should have sworn.  No such generalization exists, according to the Ri, who considers mitokh not a result of the oath, but an alternative to it.

4.  "Unable to swear" vs. "Not wanting to swear"

            Although we have seen that there is an opinion which negates mitokh, we must remember that this is true only in a case when the litigant is not ABLE to swear.  When he merely says that he does not WANT to swear, everyone agrees that he must pay.  Which of our two alternatives is at work here - transformation of the chiyuv shevu'a into a monetary obligation, or an alternative arrived at independently of the now non-existent chiyuv shevu'a?

            The second option appears difficult.  If such a thing were feasible why not extend it to "not able" as opposed to limiting it to "not wanting" to take the oath?  Also, it isn't likely that simply "not wanting" to swear makes the very obligation to swear "disappear."  It would appear, then, that those who negate mitokh stukk concede the possibility that a chiyuv shevu'a which is not executed, is transformed into a chiyuv mammon, in the case of the litigant refusing to take the oath.

            Based on this assumption, we are in a position to explain why this transformation does not occur (in the case of mitokh) when the litigant would like to swear but is unable to - in one of two ways:

a) The transformation may be based on the common-sense argument that refusal to fulfill the oath-obligation indicates guilt.  This argument, if true, is obviously irrelevant when objective obstacles prevent the shevu'a.  The problem with the common-sense argument is that the indication is questionable, even when the litigant is able to swear but refuses.  People are wont to avoid oath-taking for reasons other than guilt, foremostly for considerations of yir'at shamayim.  As is well-known, Chazal discouraged people from swearing even truthfully.

b) Those who deny mitokh think that where the shevu'a cannot be implemented for objective reasons, it cannot be imposed to begin with, and there is therefore no basis for the transformation to a chiyuv mammon.  Either we withdraw from the case and say "ha-motzi me-chavero etc.," or we are entitled to employ the decision which would have existed if the oath-obligation had never been legislated, which may very well favor the side which would have sworn had the circumstances been amenable (see above).

            These considerations coupled with our previous discussion suggest a new perspective on the controversy surrounding mitokh.  Everyone agrees that a litigant who refuses to swear, loses, because his chiyuv shevu'a has not disappeared, but has metamorphosed into payment.  According to R. Tam, the "chiddush" of mitokh extends this theory to cases where the oath is impossible.  In either event the oath-obligation exists and is transformed.  Only the opinion that denies mitokh maintains that where the oath is impossible, it is never imposed in the first place.  According to the Ri, there is no doubt that the theoretical underpinning of the chiyuv of he who refuses to swear is totally inapplicable to the case of the impossible oath where the chiyuv shevu'a cannot begin.  "Mitokh" is tenable, in his view, only if conceived as an alternative psak.

5.  Mitokh When Both Litigants Are Chashud

            Now we will go back and consider the question which we left open at the beginning of the shiur.  Tosafot says that our reluctance to apply mitokh to make the chashud pay, stems from his argument that he would like to swear if we allowed him.  How is this to be understood?  I believe that the crux of the argument of the chashud is based on the approach of Rabbenu Tam, that mitokh assumes the existence of the basic oath-obligation which afterwards is translated into monetary obligation. This means that mitokh transpires in clear stages 1. a chiyuv shevu'a is created, 2. circumstances prevent the oath, and only then 3. monetary obligation appears.  In the normal case of mitokh, say Tosafot, this is indeed what happens.  The plaintiff says "you owe me a shevu'a de-oraita - either swear or pay!"  This means that the chiyuv shevu'a has definitely occurred first, but under the circumstances, the plaintiff may collect money instead.  But the chashud claims that in his case beit din is in effect "skipping" the stage of the shevu'a-obligation.  For the obstacle here is caused not by circumstances, but by the court itself; it is they who first obligate him to swear, then refuse to let him swear, and then make him pay.  In effect, they have directly created a financial obligation, not a chiyuv shevu'a.  This would have been acceptable according to the Ri, who sees mitokh as a monetary alternative to the oath.  Tosafot here are following R. Tam who sees the payment as an outgrowth of the shevu'a.  Therefore, we cannot arrive at a monetary obligation while omitting that critical first stage (shevu'a) which alone can generate it.

            I think we can now understand why mitokh is possible when the plaintiff is also a chashud.  The psak of beit din does not directly create a chiyuv mammon on the chashud defendant, but a chiyuv shevu'a, because in general he will only have to pay if the oath that was originally intended for him is taken by the plaintiff.  If the special circumstances are such that the plaintiff happens also to be a chashud who can't swear, and the oath goes back to the defendant, this is not viewed as the direct "fault" of the beit din.  He pays as a result of a situation which is peculiar to this particular case.  We then consider their psak as an oath-obligation which due to circumstance cannot be implemented, and thus can be translated into a chiyuv mammon on the basis of mitokh.

For Further Iyun:

            An important machloket Rishonim about mitokh can be found in the Rambam and Ra'avad Hilkhot Sho'el u-Pikadon 5:6.  How does the Ra'avad limit the application of mitokh?  At first glance, one might explain his shita by saying that "chamshin lo yadana" is not believed because it is an unreasonable claim.  But it is not as simple as that, because this "unreasonable" claim would have been believed if not for the fact that modeh be-miktzat has to swear.  It may be possible to explain the Ra'avad using the assumption that mitokh must begin with a chiyuv shevu'a (that later becomes a chiyuv mammon as in Rabbenu Tam, see parts 3-4 of the shiur); the Ra'avad thinks this condition is met only in a case like "chamshin lo yadana."  How so?


Sources for next week's shiur:

  1.  5a "Hahu raya" until 6a "bechazaka".
  2.  Shavuot 44b "Chashud ... yachloku".
  3.  Tosafot Bava Metzia 5b S.V. "De-chashud"; Tosafot Bava Kama 108a s.v. "U-Trei".
  4.  Tosafot B.M. 5a s.v. "She-kenegdo".
  5.  Ketzot 92:2


1. What is the reason that a "chashud al ha-shevua" may not take an oath?

2. Are there situations in which he may take an oath?

3. Does this question impact our understanding of other halakhot, such as "mitoch she-eino yakhol lishava meshalem" and "shekenegdo nishba v-notel"?