The Shevua for Those Who “Hurry” Their Confessions (Ma’arim)

  • Rav Moshe Taragin

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in honor of the yahrtzeits of our esteemed grandparents:
Neil Fredman (Shmuel Nachamu ben Shlomo Moshe HaKohen, 10 Tevet),
Clara Fredman (Chaya bat Yitzchak Dovid, 15 Tevet),
and Walter Rosenthal (Shimon ben Moshe, 16 Tevet).

An interesting gemara in Massekhet Shavuot describes a litigation that, although resembling modeh be-miktzat, does not yield a shevu’a. Typical modeh be-miktzat entails a partially confessed-to claim. The confessed part is paid, whereas the denied part must be defended with an oath. The mishna (38b) discusses a situation in which the tovei’a demands a monetary value and specifies that he is owed wheat. The nitva responds that he owes part of the monetary value, but he owes barley. Since the original claim was for wheat and the partial confession is for barley, this is not considered a case of modeh be-miktzat; the confession is not in response to the claim. It is as if two different litigations have unfolded – a claim for wheat was flatly denied, while an independent confession of barley was offered. The mishna cites Rabban Gamliel, who obligates an oath in this case, but the generally held opinion of the Chakhamim is to exempt an oath.

The gemara issues an interesting caveat: if the defendant appears to be misleading or deceptive (ke-ma’arim), he is still obligated to pay. For example, if the defendant hurries to make his confession about barley before the tovei’a has an opportunity to claim that as well, the defendant is obligated to take a shevu’a. This is an odd halakha, as the structure of modeh be-miktzat does not exist at all.

The Ramban comments that a hurried confession of barley implies an intended claim of barley. The primary reason that the nitva hurried his confession was to preempt the tovei’a and thereby avoid a shevu’a. In effect, the tovei’a claimed BOTH wheat and barley and the nitva confessed to part (barley) of the claim, thereby establishing a classic case of modeh be-miktzat. Even though the claim for barley was never actually voiced by the tovei’a, the accelerated response of the nitva renders the original claim as inclusive of barley.

A different approach would suggest that by hurrying his claim, the nitva raises suspicion and generates a chiyuv of shevu’a. The entire basis of the oath in cases of modeh be-miktzat is the suspicion that a partially confessed-to claim generates. Absolute rejection -or kofer bakot of a claim typically raises no undue suspicion, and the nitva is therefore acquitted without a shevu’a obligation. Partial confession, in contrast, arouses suspicion about the denied part of the claim, mandating a shevu’a about this denial. Even if the classic modeh be-miktzat structure does not emerge, a shevu’a can be mandated if the response of the nitva similarly raises suspicion. By hurrying his defense before the tovei’a could complete his claim, the nitva raises suspicion, thereby mimicking the situation of modeh be-miktzat even though the classic structure of modeh be-miktzat does not exist. The modeh be-miktzat structure creates suspicion and obligates a shevu’a; if suspicion exists independent of modeh be-miktzat, an oath can be obligated.

One interesting nafka mina would surround the scope of this “imposed shevu’a” upon the defendant who hurries his oath. The Rif claims that the honesty of the defendant must be gauged in determining if a shevu’a is necessary. If we sense an honest reply, the defendant is excused from a shevu’a, even if he preempts the tovei’a. Essentially, in an instance without a classic modeh be-miktzat setup, the necessity of a shevu’a will be entirely dependent upon the level of suspicion that the defendant generates. This may reflect the fact that the shevu’a is a byproduct of suspicious counterclaims. When suspicion exists even without the modeh be-miktzat structure, an oath is mandated. If, however, the defendant seems honest no oath is imposed.

By contrast, the Ritva asserts that any interjected defensive claim will yield a shevu’a, presumably even if the interjection does not appear to be suspicious. Perhaps the Ritva agrees with the Ramban that the basis of this oath is not merely suspicious litigation, but an actual modeh be-miktzat structure. Since the nitva interjected, we assume that he anticipated being charged for the barley as well, and the original claim is therefore considered to have included both barley and wheat. Since the nitva confessed to the barley and denied the wheat, a classic modeh be-miktzat case emerges. The determining factor is therefore not our assessment of the nitva’s honesty as much as the timing of his response. An interjected confession of barley suggests an intended claim of barley, rendering a classic modeh be-miktzat structure. Any interjection would render a situation of a claim for barley, even if the interjection were natural and “honest.”

What about a situation in which absolutely no classic modeh be-miktzat can be structured by the nitva’s hasty response, but suspicions are aroused? Would Halakha mandate a shevu’a simply because hasty responses appear suspicious? The Tur cites a scenario in which the nitva offers a partial barley confession ($50.-) BEFORE the tovei’a even began his litigation, and subsequently the tovei’a demanded ($100.-) wheat. Since the modeh be-miktzat structure has not evolved, no shevu’a is obligated. The Sema claims that even if the partial barley confession of the nitva is hurried, no shevu’a evolves, presumably because this scenario exhibits no modeh be-miktzat structure. The mishna’s case concerned a tovei’a who BEGAN his wheat claim and was preempted by a partial barley confession, and the Ramban instructs us to envision the case as if barley were demanded as well. In the Tur’s case, however, the tovei’a has not even commenced a claim, and it is less possible to imagine “as if” the tovei’a has rendered a barley claim as well.

By contrast, the Shach claims that even in this instance, a hurried confession would yield a shevu’a. Perhaps he viewed the shevu’a of a hurried confession as purely based on suspicious behavior. Even if the litigation bears little resemblance to modeh be-miktzat, a shevu’a is obligated.

A second instance in which the structure of modeh be-miktzat does not exist but hurried confessions may trigger a shevu’a is the situation of helakh. As discussed in a previous shiur, a confession followed by IMMEDIATE payment wrecks the modeh be-miktzat setup and no shevu’a is yielded. Since immediate payment is rendered, the litigation is split into two separate proceedings. It is as if the tovei’a claimed $50.-, which was completely confessed to, and a separate litigation of $50.- was completely rejected. The Sefer Ha-Terumot (7:2:6) claims that if beit din detects that the defendant is choreographing helakh to circumvent a shevu’a, he is obligated to swear. The Bach disputes this point, claiming that helakh completely deconstructs modeh be-miktzat and no shev’ua can be mandated. Perhaps the Terumot (and the Tur and Shulchan Arukh, who cite his opinion) maintains that ANY suspicious response generates an oath. Modeh be-mikzat is merely the Torah’s device for establishing the paradigm of suspicious defensive claims.

Of course, the larger issue implied by this discussion is the nature of the modeh be-miktzat obligation. If indeed the obligation stems from suspicious claims, it is possible to impose the shevu’a even without the classic modeh be-miktzat structure. If, however, the modeh be-miktzat shevu’a is based on the formal confession partially reinforcing the legal strength of the tovei’as demand, it would be less likely to impose a shevu’a without this classic structure. Instead, the presence of a shevu’a for ma’arim (hurried confessions) would be attributed to the Ramban’s reasoning: a hurried defense creates a virtual modeh be-miktzat structure. Even though the tovei’a never actually requested barley, the hurried confession suggests that this claim was also intended, and legally we consider it as though wheat and barley were demanded. Since barley was partially confessed to, a classic modeh be-miktzat case emerges.