Saif 15, Mechaber: Some are of the opinion that the rule “one who cannot swear must pay” does not apply to “devolved oaths.”
This is relevant in the following situation. The defendant is sued for a maneh, which is equivalent to 100 dinarim. He admits he owes fifty dinarim but does not know whether he owes the other fifty dinarim. In the same claim for the return of the maneh he lent him, the plaintiff also sues the defendant for the return of land. The defendant denies that he has any land belonging to the plaintiff.
The defendant cannot swear the Modeh Bemikzat oath of partial admission with respect to the fifty dinarim he does not know about. He must therefore pay one hundred dinarim in accordance with the rule one who cannot swear must pay. He does not, however, have to pay anything with respect to the land claim that he totally denies. Rather, he can take a devolved Shevuat Heiset oath and deny the land claim. He will then be exempt from returning the land or paying for it. Alternatively, he can request that the plaintiff take the devolved Shevuat Heiset oath in his place.
The opinion that the rule “one who cannot swear must pay” does not apply to devolved oaths also has relevance in the following converse situation. The defendant is sued for a maneh. He admits he owes fifty dinarim but denies that he owes the other fifty dinarim. The defendant swears the Modeh Bemiktzat oath of partial admission and is exempt from paying the 100 dinarim. In the same claim for the return of the maneh he lent him, the plaintiff also sues the defendant for the return of land.
The defendant says he does not know if he owes the plaintiff land. The rule “one who cannot swear must pay” does not apply to land. In this situation, the defendant may take a devolved Shevuat Heiset oath of denial with respect to the land and be exempt, or he may request that the plaintiff swear the devolved Shevuat Heiset oath in his place. Others are of the opinion that the rule “one who cannot swear must pay” does apply to devolved oaths.
Ner Eyal: A brief overview of the concept of the devolved oath would be helpful in understanding this Sai’f.
The Torah requires a person who denies part of a claim for money or for movable property to take the Modeh Bemiktzat oath of partial admission that he does not owe the part of the claim he denies. The Torah does not impose an oath on a defendant in a dispute involving land, servants, or promissory notes. However, if the matter in dispute involves both money and land, then since the defendant is obliged to take the Modeh Bemiktzat oath of partial admission with respect to the money, the rabbis, so to speak, tack on an oath for the land too. This is referred to as a devolved oath – Gilgul Shevuah. Although it is the rabbis who imposed the Gilgul Shevuah, its source is in the Torah.
When the kohen obliges the sotah to swear that she did not cohabit with the man her husband warned her not to be alone with, she is also made to take an oath that she did not cohabit with any other man. The rationale behind the Gigul Shevuah is that if the Torah already obliges a litigant to take an oath, it is not too much of an imposition if the rabbis make the litigant take another oath. However, because the Gilgul Shevuah is not a Torah oath, the rule one who cannot swear must pay, does not apply.
Accordingly, if, in response to a claim for both 100 dinarim and an acre of land, the defendant admits he owes fifty dinarim but denies he owes the other fifty and is therefore obliged to take the Modeh Bemiktzat oath of partial admission in respect of the money, he must also take a Gilgul Shevuah in respect of the land. If he cannot take the Gigul Shevuah, because he does not know whether or not he owes land, we do not apply the rule that one who cannot swear must pay, to the land claim.
Similarly, in response to a claim for 100 dinarim and an acre of land, the defendant admits that he owes fifty dinarim but does not know whether he owes the other fifty. He cannot, therefore, take the Modeh Bemiktzat oath of partial admission. However, he denies the claim for land in its entirety. In this situation, even though the court will make him pay the fifty dinarim he cannot swear about, it will not make him give back the land. Rather, the defendant will be allowed to take the devolved Shevuat Heiset oath that he owes no land and be exempt from the land claim. Alternatively, if he refuses to take the devolved Shevuat Heiset oath with respect to the land, the defendant can insist that the plaintiff take the devolved Shevuat Heiset oath as to the truth of his claim, in which case defendant must return or pay the value of the land in dispute.
Others are of the opinion that since the concept of Gilgul Shevuah has its source in the Torah, the rule that “one who cannot swear must pay” applies equally to the Gilgul Shevuah – and in the circumstances described above, the defendant who does not know whether he owes the land and therefore cannot swear must pay.