At the de-oraita level, if a defendant (nitva) completely denies a monetary claim, he is not obligated to payment or to take an oath. If he partially confesses, he pays the confessed sum and swears about the sum he denies. However, a late takana attributed to R. Nachman instituted a Rabbinic shevua known as shevuat heset for any denied claim. This shiur will explore the nature of this oath.
Many opinions view this oath as purely extrinsic. In pure legal terms, the defendant is completely exonerated and does not owe money or an oath. However, to appease the tovei’a (claimant), an oath was levied upon the defendant. This oath is purely psychological; to placate the tovei’a it does not reflect any legal weakening of the defendant’s/nitva’s position. This approach is adopted by the Ra’avan (beginning of his comments to Bava Metzia) and the Sefer Ha-Terumot (7:1:2).
The manner in which the gemara records the source of shevuat heset may provide a different perspective. The gemara (Shevuot 40b) describes the unlikelihood of a plaintiff lodging completely fabricated claims. Since he launched a legal proceeding, it is highly likely that he is owed at least some money. Although this probability is not sufficient to generate a monetary obligation, it does generate an oath. This description of shevua heset implies that a heset shevua is not taken merely to placate the tovei’a, but is instead based on the variance between the claim of the tovei’a and the defense of the nitva. Since the claim of the tovei’a appears more convincing, it obligates an oath that is a Rabbinic equivalent of de-oraita legal oaths; it is not merely a “tack-on” concession to the tovei’a.
An obvious distinction would emerge regarding the application of heset shevua to situations in which the tovei’a’s claim cannot be viewed as more legally formidable. For example, the Rambam (Hilkhot Nachalot 4:2) discusses a scenario in which a father disqualifies a presumed son from being his biological son. A father enjoys unique halakhic ability to testify about his offspring based upon the halakha of “yakir.” (For a fuller exposition of this halakha, see shiur “The authority of a father to testify about the identity of his child”). Can the disqualified child subsequently prosecute the father for the inheritance he lost based upon the father’s testimony, and can he elicit a shevuat heset? The Mishna Le-Melech claims that the disqualified child cannot, since the defendant (in this instance the father) enjoys sturdier halakhic position based upon his yakir augmentation. This view clearly implies that the shevuat heset is based on the superior halakhic status of the plaintiff’s/toveia’s claim under typical circumstances. In a situation in which halakha favors the position of the defendant, no shevua can be generated.
In a parallel case, the Shach (87:9) questions the applicability of shevuat heset to a situation in which each party has summoned contradictory witnesses (“trei u-trei”). Neither legal position can rightfully be viewed as “superior” since each position contradicts witnesses. If shevuat heset is a product of a stronger claim of a tovei’a, it would fail under conditions of trei u’trei. However, if a shevuat heset is applied in trei u’trei cases, the oath may not be based upon relative strengths of claims; rather, it may be an oath imposed merely to placate the tovei’a.
A second question surrounds applying a shevua in a vacuum. The gemara in Shevuot (40b) cites two opinions about whether an oath can only be applied in a situation of derara de-mamona. Loosely translated, this refers to a scenario in which the claim of the tovei’a has some basis. The example cited is a case in which the original claim of the prosecution about the loan was accepted by the defendant. Subsequently, however, the defendant claimed that he already paid his debt. Although he denies all continuing obligations, the defendant did admit to the existence of prior debt. If shevuat heset is indeed limited to these situations, it is likely that it emerges from the superior legal position of the tovei’a, whose claim is reinforced by the admission of the nitva that a debt once existed. If, however, shevuat heset can be applied universally and even in a vacuum of information, it may be an extrinsic shevua meant to placate the tovei’a.
Perhaps the most transparent halakhic question surrounds the mechanics of the oath. Must a shevuat heset be taken while holding a sefer Torah? De-oraita oaths must be executed while holding a sefer Torah, in part to convey the gravity of the situation and to assure solemnity. Rabbenu Tam (cited in Tosafot, Shevuot 41a) claimed that a shevuat heset must mimic a Biblical shevua and include the sefer Torah, while the Ri Migash claims that a shevuat heset does not require this protocol. This issue clearly highlights the possible discrepancy between a classic shevua of to’en ve-nit’an and a shevuat heset. The Ri Migash’s position is consistent with the view that this shevua does not have roots in the actual strength of the claims, but is rather a manner of mollifying the tovei’a.
A different question may surround the type of claim necessary to trigger a shevuat heset. The Rambam (Hilkhot To’en Ve-Nit’an 1:6) claims that only a claim of bari – a definitive claim on the part of the tovei’a – is capable of generating a heset shevua. This position indicates that the shevua emerges from the strength of the claim, and this claim must therefore be decisive. The Ritva (Shevuot 41) records this position and clearly attributes it to the necessary strength of claim, which can only be established through a claim of bari. However, several Rishonim (Ra’avad, Temim De’im 63; Terumot Ha-Deshen 308) disagree with the Rambam and obligate an oath even for uncertain claims of shema. Presumably, these Rishonim would agree with the Ra’avan that the entire oath was only instituted to appease the tovei’a and therefore does not require a legally forceful claim of bari to launch the shevua.
A related question concerns the ability of a minor to launch a shevuat heset with his claim. Theoretically, those who do not allow a “shema” claim to obligate heset should equally disqualify a katan’s claim from doing so. Interestingly, both the Rambam and Ri Migash mandate a heset shevua in response to the claim of a katan. Evidently, they regard a katan’s claim as a legal petition, which is strong enough to establish a shevuat heset, even though it may not be capable of generating a shevuah de-oraita. If the entire shevua is merely extrinsic and unrelated to the strength of claims, it would obviously apply even in the instance of a katan plaintiff.
Would the heset shevua be affected by additional legal forces that support the claim of the nitva? These forces can range from migu to a lone eid to an ambiguous contract. (A clear contract would possess the status of two eidim and would clearly acquit the shevua.) These forces clearly acquit a de-oraita shevua, since they reinforce the claim of the nitva against the prosecution of the tovei’a. If shevuat heset is a derivative of a shevua de-oraita and based upon the strength of claims, it may similarly be eliminated if the claim of the nitva is strengthened by these forces. If, however, the oath is purely extrinsic and unrelated to the relative strength of claims, it should not be affected by these various forces.
The Nimukei Yosef in his comments to Bava Metzia 4b cites two opinions about whether an ambiguous contract can acquit a shevuat heset. The ability of migu or eid echad to exonerate a shevua is debated by many Acharonim.