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Sworn Testimony

In this week’s ‘Daf Yomi’ Talmud study, how a flying duck aimed at a judge gets the ancient sages out of a moral and intellectual bind

Adam Kirsch
January 09, 2018
Photo: John Pendygraft-Pool/Getty Images
Photo: John Pendygraft-Pool/Getty Images

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

Chapter Four of Tractrate Shevuot focuses on a type of oath known as the “oath of testimony,” which can be administered to witnesses in a court case. Based on the name, one might think that this is an oath to give truthful testimony, along the lines of the one administered in American courts: “I swear to tell the truth, the whole truth, and nothing but the truth.” In fact, the oath of testimony functions differently: it is taken by potential witnesses who refuse to come to court to testify, on the grounds that they deny knowledge of the matter in question. The mishna that begins the chapter, in Shevuot 30a, lays down the punishment for taking such an oath falsely—that is, swearing one has no knowledge of a legal matter when in fact one does. This punishment is fairly mild: the false oath-taker must bring a sliding-scale offering, which, as we have seen, means that a rich man must sacrifice a sheep or goat, while a poor man can offer up pigeons or meal.

Much of the chapter is devoted to clarifying the rules for this kind of oath. The first basic principle we learn is that a person is only liable for a false oath of testimony if his refusal to testify results in a financial loss for a litigant. This includes cases where a litigant is claiming money damages—for instance, “that so-and-so set my stack of grain on fire.” In such a case, if a witness refuses to testify even though he knows that the defendant is guilty, he is effectively preventing the plaintiff from recovering the value of the grain.

But financial issues can be involved in litigation in other ways as well. Divorce is one example: as we have seen extensively in earlier sections of the Talmud, a Jewish marriage contract ordinarily includes a provision that the husband must return the wife’s property in the case of divorce. If, however, the woman is guilty of adultery, then the husband is not obligated to pay her the value of the marriage contract. What this means is that a witness to a woman’s adultery is not only testifying in a serious criminal matter—one that potentially could cost the woman her life—but also in a monetary matter. If a witness knows that a married woman has committed adultery, but takes an oath denying that he has this knowledge, he has effectively caused a financial injury to the husband, by forcing him to pay out the marriage contract when he shouldn’t have to. Therefore, such a witness is liable to atone for his false oath with a sliding-scale offering.

Similar considerations apply in cases of assault and rape, which involve the payment of compensation by the criminal to the victim. If, on the other hand, a case involves no monetary issues, then a person who takes a false oath of testimony is exempt from liability. This is true even if the case involves a penalty that is more serious than a fine. Incest and Shabbat violation are both capital crimes, but a person who takes a false oath of testimony about these matters does not have to bring an offering because he has not caused anyone financial harm—even though he might have cost someone his life.

Why is it that false oaths of testimony are only punishable in cases involving monetary damage? This restriction does not appear in the Torah, which simply says (in Leviticus 5:1): “And if anyone shall sin and he hears the voice of an oath, and he is a witness or he saw or he knew, if he does not utter it, he shall bear his iniquity.” Read straightforwardly, this seems to mean that anyone who withholds testimony in any kind of case is guilty of a sin. But of course, the rabbis do not usually read the Torah straightforwardly. In Shevuot 33b, Rabbi Eliezer notes that this verse from Leviticus contains multiple uses of the word “or” (“he is a witness or he saw or he knew”); and the same is true of the verse, later in the same chapter, that deals with oaths about deposits. Because both verses contain multiple “ors,” Eliezer argues, the matters they discuss must be analogous. Just as the oath of deposit only applies to cases involving a monetary claim, so the oath of testimony is also restricted to monetary cases.

This is not a very strong argument, one might think, and the Gemara is quick to challenge it, pointing out that there are other verses that also contain multiple “ors” yet would lead to the opposite legal conclusion. This provokes a long discussion of the various ways in which these examples are and are not analogous before the rabbis reach a satisfactory conclusion. Here as often in the Talmud, the Torah serves less as the source of rabbinic law than as a support for conclusions the rabbis reached independently. Of course, the rabbis themselves believed that the Mishnah was the Oral Law, which was revealed to Moses on Sinai at the same time as the Written Law. It stood to reason, therefore, that these two kinds of laws had to harmonize; if they didn’t do so on the surface, then they had to be brought together through other kinds of textual analysis.

In the course of these discussions, the rabbis also offer more general maxims about proper court procedure and the responsibility of judges. Deuteronomy 19:17 says that when a witness testifies in court, the litigants in the case “shall stand before the Lord, before the priests and judges,” whose responsibility it is to determine whether the testimony is truthful or not. The Gemara takes the word “stand” literally here: “It is amitzvaha for the litigants to stand” in the presence of judges, as a sign of respect for them and for the law.

Even so, judges can give litigants permission to sit down, for convenience’s sake—just as, in American courts, the bailiff orders everyone in a courtroom to rise when the judge enters, then instructs them to be seated. What the judges may not do, the Germara makes clear, is allow one litigant to sit while the other remains standing. This would give the impression of favoritism, and judges must both be and appear scrupulously impartial. By the same token, a judge must not allow one litigant to “say everything he needs” but instruct the other, “curtail your statement”: both parties must be allowed equal time in court.

These seem like excellent rules, but as it turns out, they can potentially come into conflict with a principle equally dear to the rabbis’ hearts—that is, their own dignity. Ordinarily, the rules of deference require that when a great sage is seated, people who are his inferiors in learning should remain standing. This would include lesser sages, students, and of course an am ha’aretz, a person ignorant of the law. What happens, then, if a sage is involved in litigation with an am ha’aretz? How can the judge, who is himself a rabbi, treat both litigants with equal respect when they clearly don’t deserve it? Yet how can he show the proper deference to the sage without seeming to compromise his impartiality?

This was the dilemma that faced Rav Nachman when he was the judge in a case that involved the wife of Rav Huna, as we read in Shevuot 30b. Ordinarily, the rule is that the wife of a chaver—a pious man, who is meticulous in observance of the mitzvot—should be treated like a chaver herself. This would require Rav Nachman to rise the presence of Rav Huna’s wife. (Notably, like almost all women mentioned in the Talmud, we never learn her proper name.) However, Nachman reasoned, not everyone was familiar with this rule, and so people might think that he was standing up as a sign of particular favor to her—in which case “the claims of the other litigant would be suppressed.” How to get out of this bind?

Nachman came up with a solution that did credit to his ingenuity. He instructed his attendant to go outside, find a duck, and cause it (but how exactly?) to fly into the courtroom, headed straight for the judge. This would give Nachman an excuse to stand up at the right moment, and no one could say whether he was doing it out of deference to Rav Huna’s wife or to avoid the incoming duck. It’s a slapstick scenario, but the Talmud takes it seriously enough; sometimes, to satisfy every point of Jewish law, you have to think outside the box.


Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.