“Today we will continue learning about oaths,” Rabbi Dayan began his shiur. “Does anyone remember what we learned last lesson? How many cases are there in which the Torah imposes an oath in beis din?”
Sruli raised his hand. “You taught us that there are three cases,” he answered, “but we only discussed one.”
“Very good,” said Rabbi Dayan. “The first case we discussed was an oath to contradict the testimony of a single witness. Can anybody tell me another case in which the Torah imposes an oath?”
Dani raised his hand. “There’s also something called modeh b’miktzas,” he replied, “but I’m not exactly sure what that case is.”
“That’s correct; let’s explain,” said Rabbi Dayan. “Modeh b’miktzas is a case in which there is a partial admission.”
“What do you mean by a partial admission?” asked Sruli. “Either you admit or you don’t!”
“There’s also a possibility of a partial admission,” explained Rabbi Dayan. “Let’s say that someone claims he loaned you $500. You admit he loaned you $200, but deny the remaining $300, and there are no witnesses. This is called a partial admission, since you admit $200 out of the $500. What is the ruling here? Can you help us, Dani?”
“Since you admit the claim partially,” answered Dani, “you require an oath to exonerate yourself from the remaining $300.”
“Beautiful,” said Rabbi Dayan. “We suspect that you might have borrowed the full amount, but can only pay part and are trying to buy time to pay the remainder. The oath will force you to admit the full truth or confirm your claim.” (B.M. 3b)
“And if I don’t want to take the oath?” asked Sruli.
“Then you have to come to a compromise agreement with the plaintiff or pay the $300,” said Rabbi Dayan.
Sruli sank into thought for a moment. He recalled something that just happened. Before Purim, a seforim store had given him some boxes of Megillas Esther with commentaries to sell in his shul and yeshiva. He had picked up the seforim and taken then home in friend’s car. He then moved them to a room in the yeshiva, and from there to the shul. The seforim store owner said there were ten boxes, 200 seforim in all, but Sruli could only account for nine boxes.
“It seems one box is missing,” he told the storeowner. “Are you sure that you gave me all 200 copies?”
“Absolutely,” said the storeowner. “Why do you ask?”
“One box is missing. I’m not sure whether you made a mistake or I lost it somewhere along the way,” said Sruli. He tried to remember whether he had taken the right number of boxes, but couldn’t.
The storeowner wanted him to pay for all 200 copies, but Sruli had refused to pay for more than the nine boxes. “Prove to me that you gave me all 200 copies,” he had insisted. “You have no evidence at all; it’s your word alone. You can’t make me pay just based on your word.”
Sruli now wondered whether he was correct. After all, he acknowledged having received nine out the ten boxes.
“What happens if the borrower can’t swear because he doesn’t remember whether he borrowed $500 or $200?” Sruli finally asked Rabbi Dayan. “Can he swear that he remembers only $200?”
“That touches on a fascinating concept: mitoch she’aino yachol lishava – meshalem (since he is unable to swear, he must pay),” replied Rabbi Dayan. “The partial admission gives credence to the plaintiff’s claim, if not countered with an oath, so the defendant must pay. The same applies when there is a single witness; if the defendant cannot swear to contradict his testimony, he must pay.” (C.M. 75:12-13)
“I guess I’m going to have to pay for all the boxes,” Sruli said to himself.
“What if the defendant doesn’t remember whether he borrowed at all?” asked Dani. “I know the sages imposed an oath (shevuas heses) even if the person denies having received the loan entirely. Would we also say here that since I don’t remember I have to pay?”
“No, this is one of the differences between a Torah-imposed oath and one imposed by the sages,” answered Rabbi Dayan. “The rule of mitoch she’aino yachol lishava meshalem is applied only to a Torah-imposed oath. Thus, a person who admits partially but does not remember clearly enough to swear about the remainder must pay, whereas a person who does remember whether he borrowed does not have to pay. The sages allowed him to swear that he does not remember.” (C.M. 75:13-14)