Photo courtesy of Steve Petteway, Collection of the Supreme Court of the United States
Photo courtesy of Steve Petteway, Collection of the Supreme Court of the United States
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I Swear

A simple dispute over ownership leads the Talmudic sages into a debate, in this week’s ‘Daf Yomi,’ about the value of a spiritual oath versus secular claims of honesty

Adam Kirsch
October 11, 2016
Photo courtesy of Steve Petteway, Collection of the Supreme Court of the United States
Photo courtesy of Steve Petteway, Collection of the Supreme Court of the United States

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

The first three tractates of Seder Nezikin were once a single long tractate, whose title was also Nezikin, that is, “damages.” At some point, however, this was divided into three sections, each of which is referred to as a Bava, or “gate.” Last week, Daf Yomi readers finished Bava Kamma, “the first gate,” and began Bava Metzia, “the middle gate.” (Still to come is Bava Batra, “the last gate.”) The subject continues to be the laws of damages, but in this new tractate, the emphasis has shifted. Bava Kamma dealt primarily with various kinds of injuries—inflicted deliberately or accidentally, by people or animals, taking the form of bodily harm or theft.

In the first pages of Bava Metzia, by contrast, the focus is on disputes over ownership. What happens when two litigants lay claim to the same item—in the mishna’s example, a garment? “If two people come to court holding a garment, and this one says: I found it, and that one says: I found it,” how is the court to decide between their claims? Because the item was found, not purchased or loaned or given, none of the usual kinds of evidence used in property disputes is available here. It’s not possible for either party to produce a receipt or a witness proving that he is the true owner. The court has nothing to go on but the fact that both parties are physically holding on to the garment.

This physical contact might seem unimportant—after all, people can own things they are not touching, so the fact that a man has his hand on a garment might not appear to be dispositive. But as the discussion goes on, it turns out to be a quite important detail, because it means that neither party can claim to be in possession of the garment. This changes the burden of proof in the case, since under Jewish law, it is ordinarily up to a claimant to present proof for his claim. In other words, if Reuben is wearing a cloak and Shimon says it belongs to him, the presumption is that the cloak is Reuben’s, unless Shimon can bring proof otherwise. This is similar to the maxim in English common law that “possession is nine points of the law.”

In the mishna’s example, however, both parties have a hand on the garment, which means that possession does not apply. So how can the judges make a ruling? The answer, we read in Bava Metzia 2a, is that each party takes an oath that he has a right to at least half of the garment, and then they divide it between them. The same applies in a dispute about an animal. If one man is leading a donkey and another man is riding on it, so that each can claim to be in control of the animal, then they swear oaths and divide it between them.

This solution is clearly more concerned with fairness than with absolute justice. After all, presumably one of the claimants is telling the truth about having found the garment first, and the other one is lying. Ideally, the judges would find out which is which, and award the truthful party complete ownership. It is for this reason that the judgment involves requiring each party to swear an oath: the oath, a solemn promise to God to speak the truth, is presumably so grave a matter that no Jew would take it lightly or dishonestly. If both parties are willing to take an oath, than each must have some justice on his side.

Indeed, as the discussion goes on—and this is one of those cases where a few lines of mishna gives rise to many pages of Gemara—the role of the oath turns out to be the rabbis’ major focus. Here we see one of the distinctive features of Talmudic law, which is at the same time a civil code and a religious one. Once a litigant takes an oath, he is no longer simply accountable to the judges to tell the truth; now his soul is at stake, and God has become a party to the case. In American courtrooms, witnesses still swear to tell the truth “so help me God,” but in our secular age, this vow does not carry much real religious force.

In the Talmud, however, oaths and vows are very serious affairs—as we saw earlier when we read Tractate Nedarim, the section dealing with vows. There, the rabbis strongly discouraged the practice of taking oaths, precisely because they are so potent. The vows discussed in Nedarim, however, mostly took the form of forswearing certain items or behaviors as a sign of special sincerity or devotion. Such vows are usually unnecessary, and the rabbis recognized that they were often made in moments of passion or anger. It was better to avoid unnecessarily risking your soul simply to make a point.

In Bava Metzia, however, there is something concrete at stake—winning a lawsuit, claiming a piece of property. This means that a litigant’s worldly and spiritual incentives can be at odds. There is a temptation to swear a false oath in order to prevail in the case, thus sacrificing your soul’s welfare for material gain. And as we have seen in numerous ways throughout the Talmud, the rabbis are very careful about thrusting Jews into such temptations, knowing that not everyone will be able to resist them. That is why Ben Nannas, a Tanna quoted in Bava Metzia 2b, lays down a rule that “an oath is not administered to two parties in court when one of them is certainly lying.” This is a striking difference from a secular American court, stemming from the much greater seriousness of false oaths in a religious context. If one party to a dispute is lying, Ben Nannas believes, it is better not to compound his sin by making him guilty before God as well as men.

At the same time, the rabbis recognize that there has to be some deterrent to making a false claim in court. As Rabbi Yochanan says, “This oath is an ordinance instituted by the Sages so that everyone will not go and seize the garment of another and say: It is mine.” If anyone could lay claim to any piece of property and walk away with half of it simply by stating that he found it, there would be no secure possession at all. Taking an oath is meant to exact a price—an immaterial but important price—for making a claim in court.

Yet this raises a paradox. If a man is suspected of making a false claim in court, then he must be a liar; and he is a liar, why should his oath have any value? “Let us say that since he is suspect with regard to financial dishonesty, he is also suspect with regard to taking an oath,” the Gemara reasons. But this principle, if accepted, would make any kind of litigation impossible, because each party in a dispute is implicitly denying the honesty of the other. The rabbis resolve the issue by saying that even someone who might lie in court about a property claim would hesitate to lie to God in an oath: “We do not say that since one is suspect with regard to financial dishonesty he is suspect with regard to taking an oath.”

A different kind of problem arises from the initial example of two men holding on to a garment. The mishna orders them to divide it between them; but does this mean that they are to physically cut the garment in two? Surely this would result in both parties being dissatisfied, because half a cloak or half a pair of pants is useless. The Gemara proposes that what the mishna really means is that they divide the monetary value of the item—presumably, one party would pay the other party half the value of the garment in cash. At first the rabbis aren’t sure about this; after all, you could divide an adult garment in half and use the material to make children’s clothing. But if you apply this logic to an animal, it is clearly impossible—half a donkey is no good to anyone—and so the Gemara concludes that it is money, not the item itself, that is to be divided. This is one of many cases in which Talmud’s habit of using concrete examples to illustrate abstract concepts can create a good deal of unnecessary confusion.


To read Tablet’s complete archive of Daf Yomi Talmud study, click here.

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

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