Ever since we began the sixth chapter of our massekhet on daf TB Shavuot 38b, the topic under discussion has been the biblically ordained oath of modeh bemiktzat- מוֹדֶה בְּמִקְצָת הַטַּעֲנָה, when to the defendant admits to a part of the claim, he must swear an oath. According to the Mishna for the judges to administer the oath of modeh bemiktzat, three conditions must be met. First, there must be a claim. Secondly, there must be a counterclaim. Thirdly, the claim and the counterclaim must be concerning the same thing. For example if the claim is “You owe me $50” and the counterclaim is “I only owe you $25” the judges administered the oath of modeh bemiktzat. On the other hand, if the claim is “You owe me $50” and the counterclaim is “What are you talking about? I owe you a jug of oil” the claimant and the defender are not talking about the same thing. Consequently, the defendant doesn’t have to take the oath of modeh bemiktzat. If any of these three conditions are not met, there is no oath of modeh bemiktzat administered. According to the Mishna, if the defendant completely denies the claim the oath of modeh bemiktzat also isn’t administered.

On daf TB Shavuot 40bff, Rabbi Nakhman introduces a rabbinically ordained oath called an oath of inducement [heisset- הֶיסֵּת] for a defendant who denies the entire claim. This new oath had to come shortly after the year 200 CE when the Mishna was finalized by Rabbi Yehuda HaNasi. Shmuel is considered one of the sages in the transition between the Mishnah and the Gemara. He is considered at times as a Tanna. Rabbi Nakhman was one of his student.

Today’s daf TB Shavuot 41 wants to know the practical difference between a biblical oath and a rabbinic old. There are four practical differences.

1.    The Gemara answers: The practical difference between them is with regard to the transfer of an oath to the other party. In a case where the defendant suggests that instead of taking an oath himself, the claimant should take an oath and collect that which he claims, if the oath is administered by Torah law, we do not transfer the oath to the claimant; the defendant must either take an oath himself or pay. If the oath is administered by rabbinic law, we do transfer the oath.

2.    The practical difference between them is with regard to whether or not the court enters the property of the defendant to collect payment if he refuses to take an oath. With regard to an oath administered by Torah law, we enter his property, and with regard to an oath administered by rabbinic law, we do not enter his property.

3.    The practical difference between them is with regard to a case where the one opposing the claimant, the defendant, is suspected with regard to oaths. With regard to an oath administered by Torah law, if the one opposing the claimant is suspected with regard to oaths, we transfer the obligation to take an oath and impose it on the other litigant, i.e., the claimant, who may take an oath and collect that which he claims he is owed. With regard to an oath administered by rabbinic law, the court does not transfer the oath, as transference of an oath is by rabbinic ordinance, and we do not institute one rabbinic ordinance upon another rabbinic ordinance.

4.    We excommunicate him until he takes an oath. Ravina said to Rav Ashi: This sanction is no less severe than entering his property and collecting the debt; it is like grabbing him by his testicles [bekhuveseih] until he surrenders his cloak. Rather, what do we do to him? Rav Ashi said to him: We excommunicate him until the time to flog him comes, i.e., for thirty days, and if he still refuses to take an oath or reach a settlement with the claimant, we flog him and then leave him alone.

By the way there are two more Torah ordained oaths, shevuat hapkadon- שבועת הפקדון, the oath a guardian of an object must take when he cannot produce the objects he was entrusted with and shavuat eid akhad-שבועת עד אחד, an oath is necessary to extract money from the defendant.