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In the Talmud, Size Matters

This week’s ‘Daf Yomi’ helps Jews swear in disputes of the kind they might encounter in small claims court. Plus: if an oath must be taken in the name of God, can the literal name be spoken? And is Abraham’s penis a sacred object?

Adam Kirsch
January 16, 2018
Screenshot via YouTube
Screenshot via YouTube
Screenshot via YouTube
Screenshot via YouTube

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

The last, short chapters of Tractate Shevuot complete the Talmud’s treatment of different types of oaths that can be imposed by a court. Specifically, these sections deal with the oaths that must be taken in the case of a dispute over property, when a plaintiff claims that a defendant owes him money. In such cases, when there is no conclusive evidence to settle the claim, the defendant must take an oath denying the debt. The basic principle, expressed in Shevuot 44b, is that “all those who take an oath that is legislated by the Torah take an oath and do not pay.”

This makes it sound like taking an oath is an all-or-nothing proposition: either the defendant admits to the claim or he denies it. But Chapter Six explains that an oath can also be taken with regard to just part of a claim. Say that Reuven claims that Simeon owes him 100 dinars, and Simeon says that he owes only 50 dinars. The suspicion naturally arises that Simeon is minimizing the amount of the debt because he can’t pay the full amount. To substantiate his statement, then, Simeon can take an oath before a judge that 50 dinars is all he owes.

This is fairly straightforward when it comes to money, because both parties agree about the nature of what is owed, and disagree only about the amount. But what happens in a case where the defendant admits to a debt involving a different object or substance than the one claimed by the plaintiff? Say, for instance, the plaintiff says, “You have a kor of wheat that belongs to me,” and the defendant replies, “Actually, I have a half-kor of barley that belongs to you.” (A kor is a large measure of weight, the equivalent of some 300 or 400 pounds.) In this case, the mishna explains, the defendant does not need to take an oath because he does not admit the substance of the plaintiff’s claim, which has to do with wheat.

In general, the mishna says, “one takes an oath only concerning an item that is defined by size, by weight, or by number.” That is, the dispute must be about the quantity of a substance, not about the substance itself. But the question of what defines a substance, what makes a thing the thing it is, is one that always creates problems for the rabbis. Thus the Gemara in Shevuot 43a asks about a situation where the plaintiff claims a large candelabrum from the defendant, and the defendant admits only to possessing a small candelabrum.

Is this a matter of a dispute over quantity, or over substance? What about if the size of the candelabrum can be quantified so that the plaintiff claims that it weighs ten litra and the defendant admits to five litra? Are they talking about two different candelabra or the same one? The rabbis suggest that it must be two different items, which means that the defendant is not making a partial admission to the claim, so he does not have to take an oath. But various sages disagree: Rabbi Shmuel bar Rav Yitzhak suggests, ingeniously, that it could be “a candelabrum composed of segments,” which could be detached, while Rabbi Abba bar Memel suggests that a larger candelabrum can be reduced to a small one by “scraping” it.

There are, however, certain exceptions to the rule that it is the defendant who must take an oath to deny a claim. If the plaintiff is a hired worker claiming his wages, or the victim of robbery or injury claiming compensation, then the roles are reversed: in these cases, the plaintiff can take an oath that he is owed money, and the defendant has to pay. In each case, the change serves to help the weaker party in his claim against the stronger, and a good ethical case can be made for them. Still, these changes are rabbinic ordinances that seem to override the general rule established by Torah law: as the Gemara notes in Shevuot 45a, “the sages uprooted the oath from the employer and imposed it upon the hired worker.” Do such rabbinic laws deserve the name of laws, halakhot, as Shmuel suggested when he said, “Great halakhot were taught here”? Ultimately, the Gemara decides that they should be called by a different name: they are takanot, “ordinances,” rather than “laws,” which can only come from God.

There has been much discussion of oaths in this tractate, but it is not until near the end that we learn exactly what form an oath should take. “How does the court administer an oath?” asks the Gemara in Shevuot 38b, and Rav answers by quoting the words Abraham used in Genesis 24:3, when he made his servant swear that he would not allow Isaac to marry a Canaanite woman: “And I will make you swear by the Lord, the God of heaven.” In other words, an oath must be taken in the name of God. To Rabbi Chanina bar Idi, this means the literal name of God—that is, the Tetragrammaton, which Jews traditionally do not pronounce. But the rabbis disagree, saying that God can be named by any of the usual appellations, such as Adonai.

An oath does not involve words alone, however; the person taking the oath must also grasp a sacred object. This requirement, too, is deduced from Abraham’s example, since he told his servant, “Put your hand under my thigh.” The rabbis understand this to refer to Abraham’s circumcised penis, which is a kind of sacred object. By extension, everyone taking an oath must touch something sacred, and if he fails to do so his oath is invalid. The object that should be used is a Torah scroll, which is the most sacred object available, though some rabbis argue that tefillin, which contain Torah verses, are also acceptable.

Because oaths are dispositive in Jewish law—once you take an oath, your claim is held to be true—the punishment for false oaths must be severe. And as we have seen in many places, the most severe punishments, in the Talmud, are not those dealt out by human courts, such as lashing; they are the ones God himself imposes. After all, “You shall not take the name of the Lord your God in vain” is one of the Ten Commandments. A person who violates it, the rabbis say, will never be forgiven by God; even if his life is meritorious in other ways, he will be immediately punished. Furthermore, while most crimes bring punishment only to the criminal, a false oath brings punishment to the entire world: “Because of swearing, the land mourns,” the prophet Jeremiah said. It may seem unfair that other people should be held liable for a false oath. But as the Gemara says, this serves to underscore the principle that “the entire Jewish people are guarantors for one another.” It is a powerful ethical principle, and it is at the core of the Talmudic conception of law: halakha is a communal obligation, and all Jews must help one another to meet its strict demands.


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.