Shevuot 41

In specific cases, taking an oath is biblically mandated. In other cases, the rabbis require an oath, even if the Torah doesn’t. On today’s daf, the rabbis tease out the differences between a biblically-mandated oath (shevuah de-oraita) and a rabbinically-mandated oath (shevuah de-rabbanan). As we’ll see, the Talmud identifies a number of differences with practical implications for those who borrow and those who lend. Here is the first:

Between them is the transfer of an oath. By Torah law, we do not transfer the oath; by rabbinic law, we do transfer the oath.

The Talmud imagines a situation where the defendant, who has been accused of failure to repay, is required to take an oath and refuses, insisting that the claimant take an oath instead. We can imagine the defendant saying something like: If you want your money back, swear that you left it with me, and if not, you don’t have the right to take it. 

Biblically-mandated oaths cannot be transferred in this manner; but oaths required by the rabbis can be. That’s a helpful difference between the two, but it turns out that not all rabbis agree that this is the difference between biblical and rabbinic oaths. 

And according to Mar bar Rav Ashi, who says that we transfer an oath by Torah law as well, what is there between by Torah law and by rabbinic law? The difference between them is entering their property: With regard to oaths taken by Torah law, we enter his property, and with regard to oaths taken by rabbinic law, we do not enter his property.

If someone refuses to pay back what they owe, and also refuses to take an oath that it was stolen or lost, can the court go into their home and seize the property (or items of equivalent value)? According to the Talmud, Mar bar Rav Ashi thinks that the court is only authorized to enter private property and seize goods if the oath was biblically-mandated. But not every rabbi agrees with this either: 

And according to Rabbi Yosei, who says that even with regard to an oath by rabbinic law, we enter their property, what is the difference between bibically- and rabbinically-mandated oaths? Between them is where the one opposing is suspected with regard to oaths. With regard to an oath mandated by Torah law, if the one opposing is suspected with regard to oaths, we transfer the oath and impose it on the other. With regard to an oath mandated by rabbinic law, it is by rabbinic ordinance, and we do not institute ordinance upon ordinance.

According to the Talmud, Rabbi Yosei thinks the difference between these oaths is that, in the case of a biblically-mandated oath, if the defendant is known to be dishonest, the court can allow the claimant to take an oath that they left their object with the defendant, and they then have the right to take it back. But since some oaths are themselves rabbinically-mandated, and transferring oaths is a rabbinic innovation, in the case of a rabbinically-mandated oath, we don’t stack rabbinic innovation onto rabbinic innovation — that’s too much of a house of cards for the rabbis.  

The debate over differences between oaths continues for most of the daf. It’s not terribly practically for us — most of whom are never going to take an oath about whether someone deposited goods with us in a rabbinic court. But this discussion reminds us that, for the rabbis as much as for our own lives, what the law says matters. And in some cases, the source of the law matters just as much as the content.

Read all of Shevuot 41 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 11, 2025. If you are interested in receiving the newsletter, sign up here.