Tuesday, January 15, 2008

Holding a Sacred Object

The Gemora (Nedarim 25a) relates the following incident: There was a person who was owed money by his friend, and the two of them came before Rava. The lender said: Pay me! The borrower said: I already did! Rava said: Swear that you paid him. The borrower then filled his cane with the amount of money he borrowed and leaned on it while walking to Beis Din. Before he took the oath, the borrower asked the lender to hold his cane for him while he took the oath. The borrower then took a Sefer Torah and swore that he had given the lender whatever he had owed him. When the lender heard this he got upset and broke the cane, causing the money to fall out. It was apparent that he had “paid” him all of the money.

Rabbeinu Tam understands this Gemora to mean that the borrower denied the entire claim and was liable only for a Rabbinic oath (called a shevuas hesseis). Nevertheless, he took the Sefer Torah in his hand prior to taking the oath. This would prove that one needs to hold a sacred object even by a Rabbinical oath.

He also presents proof to this from the Gemora in Shavuos (41a) which inquires as to the differences between a Biblical oath and a Rabbinical one. The Gemora does not offer this difference; namely, that a Biblical oath would necessitate the holding of a sacred object and a Rabbinical one would not. This proves that a Rabbinical oath also required the holding of a sacred object.

The Gaonim disagree and maintain that one is not required to hold a sacred object when taking a Rabbinical oath. The Meiri writes that our Gemora cannot serve as a proof against this, for we are discussing a case where the borrower decided himself to hold the Sefer Torah. He did this as a ruse in order to get the lender to hold his cane.

According to the Ran’s explanation of our Gemora, there would be no proof at all. For our Gemora is discussing a case where the borrower admitted to part of the claim made against him. Since he wishes to avoid paying the rest of the claim, he is Biblically obligated to take an oath that he does not owe the remainder of the claim. This oath obviously requires him to hold a sacred object.