Responsum: On Swearing Oaths

Question: Reuben gave Simeon money for their partnership, and the money remained in Simeon’s possession. When the time came for them to dissolve the partnership, Simeon was obliged by Reuben to take an oath, in accordance with the law of partners. Now, Reuben wants Simeon to take an oath on behalf of his wife and children, that they did not touch the partnership money, etc.

Answer: It seems to me that if Simeon’s wife and children regularly engaged in transactions with the partnership money and would bring in merchants and purchase from them and sell to them, then Reuben can rightfully ask for an assurance that they did not take any of his money. But it should not be Simeon who swears on their behalf. Rather, they should take an oath themselves. For we learned [in m. Shevu‘ot 7:8, that among a list of people who sometimes must swear that they do not owe anything, even when there is no explicit claim against them, is] “a woman who does business from home [and the member of the household]” [see also b. Shevu‘ot 45a], and the Tosefta [t. Ketubot 9:3] states that “the member of the household” referred to here is not one who merely goes in and out freely, but someone who gathers the owner’s produce for him and sends it out for him [see also b. Shevu‘ot 48b].

Now it can be argued that this mishnah [m. Shevu‘ot 7:8] is speaking specifically of an unmarried woman and thus would not contradict the teaching that “slaves and [married] women, an encounter with them is disadvantageous”¹ [m. Bava Kamma 8:4, which was read by the geonim as meaning that married women cannot take oaths]. However, we learned regarding one who was robbed that R. Papa said: Even a watchman can take his oath, and even the wife of the watchman can take the oath [b. Shevu‘ot 46b] and regarding the apparent contradiction between this and the aforementioned mishnah that “slaves and [married] women, an encounter with them is disadvantageous” [m. Bava Kamma 8:4], the following answer has been written: When does that mishnah’s² ruling [suggesting that married women cannot take oaths] apply? When the husband himself does not have to take an oath, as in such cases he feels that his wife would be demeaned if she were compelled to take an oath. However, in a case where the husband is obligated to take an oath, then if it becomes necessary to make his wife take an oath, she is indeed compelled to swear.

Consequently, if it is known that Simeon’s wife engaged in commercial transactions with that money, both in and out of her husband’s presence, the court will demand that she declare whether she lied regarding the money, so she will admit to any deception and return the money to its owner.

Simeon further claims that he does not want his wife and children to have to swear, as “whoever deposits something with a person does so with the knowledge that he has a wife and children” [see b. Bava Meẓi‘a 42b].³ But the import of this statement is not as he claims. [ . . . ] Rather, the phrase “with the knowledge that he has a wife and children” means that they have the same legal status as him in this regard, meaning, if a man places the money of another in his house, with his wife or children guarding it, and the money is lost due to unavoidable circumstances, the owner of the money cannot claim, “I gave you the money to place in your house, and you gave it to a different guard, and therefore you are liable.” Rather, the husband takes an oath that he gave those same coins to his wife or children, and they swear that they placed it in a place where it was safe, and it was subsequently lost due to unavoidable circumstances, and they are exempt. [ . . . ]

However, it is certainly correct that if Simeon’s wife and children did not use the money for commercial transactions, and they used it for payments only in Simeon’s presence, and nothing has been found missing from the money, and Reuben’s claim against them is only that they might have tampered with the money since it was guarded by them, in such a case Reuben cannot make Simeon take an oath to this effect. Likewise, Simeon only takes an oath on their behalf that he did not take the money held in partnership, neither himself nor his wife, his children, nor the members of his household, with his knowledge and consent. The reason is that they did not use that money for transactions at all, and they did not involve themselves in the partnership. The fact that the money was guarded by them does not obligate Simeon in any way, as Reuben knew that Simeon had a wife and children, and everyone is aware that a person cannot sit and guard something all by himself day and night. Reuben should have instructed Simeon that he should have left the money under lock and key so that his wife and children could not access it. Since he failed to issue such an instruction, and Simeon did not actively give it to them, they do not have to take an oath and he does not have to swear on their behalf either. Rather, it is as we wrote above, that if Reuben wants to warn them under threat of a ban of his own accord, not in accordance with the instruction of the court, we do not prevent him from doing so.