The Split
“…If There Are Witnesses They Divide Without an Oath”
(Bava Metzia 2a)
Biblically, a defendant who denies the plaintiff’s entire claim does not have to swear to substantiate his denial. Rather, we apply the rule that the burden of proof is on the party who seeks to extract money from his fellow.
In two cases, the Torah obligates the defendant to swear to substantiate his denial. The first is that if the defendant admits in part to the plaintiff’s claim, he is compelled to swear denial of the other part of the claim. The second is if the defendant produces a single witness to substantiate his claim. Although as a rule a claimant must produce at least two witnesses in order to extract money from his fellow, a single witness is sufficient to force the defendant to swear. If the defendant refuses to swear in these two cases, he is obligated to pay the plaintiff’s claim.
Tosafos (s.v. ‘v’lechzi zuzi…’ 2b) indicate that if the defendant produces a supporting single witness who testifies on his behalf that he does not owe the plaintiff anything, he is exempt from swearing.
A Rabbinical Oath
The Mishna says that if two people appear in Beis Din clutching a garment, each claiming that he found it first, Beis Din requires each litigant to swear [that he is entitled to at least half of the garment]. And then they are each awarded half the garment [actually half its value]. The Gemara (ibid., 2b-3a) explains that this oath is only rabbinical to discourage unscrupulous individuals from indiscriminately seizing objects found by others.
The Mishna adds that if there are witnesses who say the two parties found the garment at the same time, then the garment is divided [each receiving half its value] and no oath is imposed.
The Mishna’s use of the plural form – “If there are witnesses” – indicates that the litigants are not exempt from swearing unless at least two witnesses testify that they found the garment together. Rabbi Akiva Eiger (Tosafos Rabbi Akiva Eiger, Os 5) asks why this is so. According to the opinion of Tosafos and the Rosh that a single supporting witness exempts a witness from swearing, even if only one witness testifies that the litigants found the garment together, there should be no oath imposed. Each litigant should be entitled to half the garment without having to swear that he deserves at least half, since they each have a supporting witness attesting that they are entitled to half the garment.
A Matter of Honesty and Integrity
In answer, the Beis Halevi (Vol. 3, 35:3) suggests that such a witness cannot serve as a supporting witness, since his account of the incident differs from that of the litigants. The witness attests that the two litigants found the garment at the same time, whereas each litigant submits that he is the exclusive owner because he found the garment first. Thus, by the litigants’ own admission, the single witness is not honest and trustworthy, and therefore they cannot use his testimony to their benefit as a basis to exempt them from taking an oath.
