Sanhedrin 060

8:
In all cases there must be at least two witnesses to the fact and their testimony must agree on all essential points. After they have been "warned" (or "threatened") as we learned in our last shiur, the court proceeds to examine the first witness. As we shall see in a later chapter, in other matters the examination is in two parts; but in order not to make it too difficult for creditors to recover their debts, the sages relaxed the examination of the witnesses in such matters and made do with a less rigorous examination.

9:
The provisions of our mishnah must seem very strange to modern usage. We ask ourselves why anyone who had lent someone else a sum of money would not secure the loan with the debtor's signature on an IOU at the very least. And, indeed, from the halakhic point of view such a "receipt" is stronger testimony than that of ten thousand witnesses. It is possible that there were cultural considerations at play here that we cannot appreciate today. At any rate, our mishnah is concerned with a case in which the loan was secured by the presence of witnesses and not by signature. Both witnesses – remember that one is as good as none – must hear the debtor admit his liability to the creditor.

10:
Our mishnah describes the kind of evidence that is inadmissible. Some we find surprising. For instance, if Re'uven admits to Shim'on and Judah that he owes 1000 dinars to Yosef, Shim'on and Judah do not have the status of witnesses to the fact. Re'uven's admission is not sufficient evidence that a loan was made. The Gemara [Sanhedrin 29a] describes circumstances in which Re'uven might have confessed to receiving a loan that he did not, in fact, receive. Rabbi Yoĥanan will even accept the possibility that Re'uven will later say that he "was just kidding".

11:
According to later Poskim [decisors], under such circumstances the claimant may elect to require the defendant to swear an oath that he did not receive from him any money. As we saw in our last shiur, it is permissible for the court to administer such an oath on the insistence of one of the litigants. The assumption is that the defendant will be very uneasy at taking God's name in vain, for such an oath, Shevu'at Heset, is tantamount to calling upon God as witness in the absence of other witnesses. This unease is even further demonstrated by the fact that the defendant in turn has the right to hit the ball back into the claimant's court by requiring him to state on oath that the loan was actually made. [See, for example, Shulĥan Arukh, Ĥoshen Mishpat, 81:1]

12:
Let us return to our discussion of the statement of Rabbi Yoĥanan in the Gemara. He even goes a stage further. Let us assume that Re'uven was foolish enough to loan Shim'on money without retaining an IOU or securing the presence of two reliable witnesses. Later, realizing his folly, he hides two witnesses behind a fence and engages Shim'on in a conversation in which Shim'on admits to his debt. If Shim'on tells Re'uven that his admission is for his ears alone and that he would not be prepared to repeat it before witnesses – according to Rabbi Yoĥanan these witnesses have no testimony to offer: Shim'on may be prepared to make repayment but not to be involved in a legal battle. Furthermore, there is nothing to prevent Shim'on later on saying that he was "just kidding" as before. Rambam [Mishneh Torah, Sanhedrin 11:5] points out a limitation that is imposed on the court in this matter: in Dinei Nefashot [in which the defendant might be condemned to death] the court has the right – even the duty – to instruct the accused how he might legitimately exculpate himself; however, in Dinei Mamonot the court may not do so: thus, if Shim'on does not volunteer that he was "just kidding" the court may not point out that he could solve his difficulty by such a claim. (After all, in the absence of reliable testimony, there is no greater reason to credit the claimant than the defendant.)

13:
It should now be very clear that the creditor must secure his loan in one of two ways. He must either get the debtor to sign an IOU or he must make the loan in the presence of two witnesses who have been warned "You are my witnesses" to this loan.

To be continued.

In our last shiur I pointed out that the hesitancy that religious people have about swearing an oath in God's Name is recognized by Israeli law that permits one to "promise on one's word of honour" to tell the truth, or instead of saying "I do so swear" to say "I do most solemnly affirm".

Sherry Fyman writes:

I am a bit unclear about the contemporary issues involved in swearing an oath. I can understand how the Bet Din would have been reluctant to ask a witness to swear an oath, but I'm not sure how that has evolved into "the right … to refrain from swearing an oath." Doesn't that suggest that the person joining the armed services, etc., is not making a good-faith commitment? When I was first called for jury duty here in New York, my rabbi told me that Jewish law required that I ask to "affirm" rather than swear my juror's oath – I gather it is the same issue. Secular courts here clearly have no concern whether I violate Jewish law. By declining to swear, aren't I as good as hinting that I may not feel myself bound by the obligation to be truthful?

I respond:

What Sherry's rabbi told her is absolutely correct. The only difference between "I swear by Almighty God" and "I do most solemnly affirm on my honour" [be-Hen Tzedek] is that the latter formulation avoids using the Divine Name, which is required by one of the Ten Commandments. "Thou shalt not take the Name of the Lord thy God in vain" [Exodus 20:7] is a weak translation. What the verse means is that you shall not invoke God's Name unnecessarily. Since a solemn affirmation that you undertake whatever is the subject of the "oath" has the same meaning and intention as swearing in God's Name there is no practical difference, but there is a religious difference. Thus, your comment that "secular courts here [in the USA – SR] clearly have no concern whether I violate Jewish law" is misleading. If the secular courts afford you the right to affirm rather than to swear, then it is you who should be concerned, for religious reasons, to avoid taking God's Name "in vain", unnecessarily.