Normally, when evidence is lacking, it is the defendant in a case that takes an oath. But there are exceptions. We learned on Shevuot 41 that, in the case where the defendant is known to be unethical and therefore not trustworthy, the court can allow the claimant to take the oath and then collect what is owed. But what if both defendant and claimant were known to be unethical? The mishnah on Shevuot 45 offers us two opinions on this case.
If both were suspect, the oath returned to its place. This is the statement of Rabbi Yosei. Rabbi Meir says: They divide it.
Rabbi Meir’s position is relatively straightforward: If one unscrupulous person claims to have deposited an item with another unscrupulous person, and the second person doesn’t have it, the court assesses the value of the item, and requires the defendant to pay half that value to the claimant.
Rabbi Yosei’s position, however, is a lot more obscure. What does it mean that an oath returns to its place? Where is an oath’s place? Rabbi Ami offers two answers.
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To where did it return? Rabbi Ami said that our sages in Babylonia say: The oath returned to Sinai. Our sages in the land of Israel said: The oath returned to the one who was liable to take it.
Rav Pappa said: Our sages in Babylonia are Rav and Shmuel; our sages in the land of Israel refers to Rabbi Abba.
Let’s look at these two opinions in reverse order. The authority from the land of Israel (whom Rav Pappa identifies as Rabbi Abba) reason as follows: The oath was originally meant to be imposed on the defendant. If the court doesn’t think the defendant is trustworthy, they can transfer the responsibility to the claimant. But if both are untrustworthy, then the oath defaults back to the defendant. I picture oaths traveling like a boomerang or an elastic band — if there is nothing to catch them as they extend out, they snap back to the one originally obligated.
The Babylonian sages (whom Rav Pappa identifies as Rav and Shmuel) insist that an oath’s original home is not with any claimant. In fact, if there is no party to the suit able to take the oath, it “snaps” all the way back to Sinai. Rashi explains that Sinai here is a reference to the biblical commandment not to steal. The rabbinic court cannot trust an oath when both parties are known to be dishonest, but God knows the truth. According to Rashi, we therefore trust heaven to engineer a situation in which the guilty party suffers a financial loss and the innocent party is repaid. In this case, our boomerang snaps back to its original home, the experience of God’s self-revelation at Sinai. It is God’s imposition of law and ethics that ultimately shapes how we should live in the world.
This is not the first time we’ve seen the rabbis hold that what human courts cannot solve is ultimately set right by heaven. But it’s an uncomfortable notion, especially since even a casual glance at the world (or a cursory reading of the Book of Job) shows that not everyone gets their just deserts — at least not in this lifetime. So perhaps it’s not surprising that the debate continues among both medieval and early modern commentators, with different Jewish thinkers concluding that, in the case where both parties are unethical, the defendant pays, no one pays or the two scoundrels split the difference. Who is right? Perhaps this too must revert to Sinai, the ultimate home of Jewish law. Only God knows.
Read all of Shevuot 47 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 17, 2025. If you are interested in receiving the newsletter, sign up here.
