15)DOES BEIS DIN FORCE MARRIED WOMEN TO SWEAR? [Shevu'ah: women]
1.(Mishnah): If witnesses testify that Levi entered David's house without permission to take a security, and David says that Levi took his vessels and Levi denies this, David swears how much was taken, and collects.
2.46b (Rava): Even a Shomer (who guards David's house), or the Shomer's wife may swear.
3.Bava Kama 15a (Rav Yehudah): "A man or woman that will do any sin" equates men and women for all punishments;
4.(D'vei R. Elazar): "These are the judgments that you will put in front of them" equates men and women for all (monetary) judgments;
5.Bava Metzia 10b: If one told a (married) woman to steal (and she did), she is liable; just she cannot pay now;
i.Bava Kama 87a (Mishnah): One loses from encounters with a woman. One who damages her is liable. If she damaged, she is exempt now, but pays later if she is (widowed or) divorced.
6.Kesuvos 104b (Mishnah - Chanan): If a man went overseas and his wife demands food, she swears only at the end when she collects the Kesuvah;
7.Bnei Kohanim Gedolim said that she swears also at the beginning.
8.Gitin 46a: R. Meir holds that a man does not mind if his wife is disgraced in Beis Din. (He would not divorce her due to a vow if he knew that Beis Din can permit it. R. Elazar holds that he prefers to divorce her than for her to be disgraced in Beis Din.
1.The Rif and Rosh (Bava Kama 6a and 1:19) bring Rav Yehudah's teaching equating women to men for all punishments.
2.Rambam (Hilchos Hilchos Chovel 4:21): If a woman damaged, she is exempt now, but pays later if she is divorced.
i.Hagahos Maimoniyos (3, citing Ba'al ha'Itur): Rav Shrirah Gaon says that this is only for damage, but if she owes for a loan, deposit or theft, if it is in her Reshus, she must return it. We summons her to Beis Din with her husband. If she admits but she does not have it, we make both of them swear, lest they scheme about another's money. If she denies, she must swear like anyone else. The Rif says that only regarding debts and damages she is exempt while married, but if one claims from her deposits or things that could be in her Reshus, if she denies she must swear. Presumably, damages, theft, deposits and debts are the same, like it says in Bava Metzia (we proved about theft from a Mishnah about damage).
ii.Hagahos Maimoniyos and Mordechai (Bava Kama 87), citing Ra'avan: Nowadays that women normally do business, it is as if their husbands made them Sheluchim. If there are witnesses (that a woman owes), her husband must pay, due to Takanas ha'Shuk, i.e. lest people be loathe to do business with her. If there are no witnesses, she swears. We learned in Gitin that a man does not want that his wife will be disgraced in Beis Din. That refers to going to Beis Din to permit a vow; she must detail the vow. Here, it is possible through an Apotropos. Also, it is better that she be disgraced and not steal! Avi ha'Ezri says that if a wife does business, her husband claims for her, and if she must swear, she swears. R. Baruch says that there is no difference between a single woman and a married woman. She is exempt only from damages, but not for deposits and theft. We learned that she is exempt only regarding damages. If she denies, surely she swears. She swears even to take food from her husband's property (Kesuvos 104b), and all the more so regarding others. Their colleagues argue with them, like I wrote in Hilchos To'en.
iii.Hagahos Maimoniyos (To'en 5:9): Rav Hai Gaon and others say that we do not make a married woman swear even regarding a deposit, and all the more so regarding a loan. We write the ruling for the claimant, and after she is divorced or widowed she will swear. One may impose a Cherem Stam.
3.Rosh (Teshuvah 13:11): Raboseinu argue about a wife who does business in the house, and she vowed to give Tzedakah, or hired a teacher, and her husband protested. Some say that her business dealings and gifts take effect, for Takanas ha'Shuk. Rabbeinu Meir disagreed. I say that we take a small amount of Tzedakah from her, for we assume that her husband does not mind, but if he explicitly protests, clearly she cannot give anything without his Reshus. If one takes from her, this is theft. Even though he lets her do business, she is like a mere Apotropos, and he can stop whenever he wants. If she hired a teacher and he knew and was silent, he surely approved. If he immediately protested, her action is void.
4.Rosh (Teshuvah 39:7): A case occurred in which Reuven's wife (Leah) borrowed from Shimon's wife gold and silver Kelim to go to a Chupah, and there are rumors that they were stolen. Leah says that she has nothing to pay, for everything belongs to Reuven. Reuven says 'I will not pay, for you did not give to me anything.' They suspect that Reuven knows about them; perhaps they are in his Reshus. He admits that they entered his Reshus, but says that he does not know about them. Surely, Reuven need not pay for what his wife borrowed. However, since he admits that they entered his Reshus, he must swear that they are not in his Reshus and he did not use them and they were not stolen due to his negligence. Also Leah must swear that they are not in her Reshus, and we write a ruling that she must pay when she gets money, when she is widowed or divorced.
5.Mordechai (ibid., 89): The Mishnah says that one loses from encounters with a woman only regarding hitting. If she took a deposit or stole, surely she must swear. She swears when she denies, e.g. if a man went overseas and his wife demands food, she swears when she collects the Kesuvah in the end. All the more so she must swear when one claims from her! However, Bava Metzi'a connotes that she is exempt even regarding theft. A Teshuvah of Rav Matisyahu Gaon, R. Gershom and Sha'arei Shevuos say that we do not make a married woman swear about a deposit or pay unless she has property in which her husband has no rights. However, we write a ruling for her opponent that she must pay him when she will be widowed or divorced. Sefer ha'Mitzvos says that the reason she does not swear is not because a man does not want his wife to be disgraced in Beis Din. This applies only to matters between the two of them, but not to matters involving others. Rather, it is because all her property belongs to her husband, even her Nichsei Melug, and a creditor cannot collect from them. Tosfos says so even about a Milveh Al Peh before she married.
6.Question (Mordechai Sof 208 DH Aval): Rava taught that the Shomer's wife can swear (Shevuos 46b)!
7.Answer (Mordechai): There, her husband needed to pay for what was taken or swear that the creditor took it. Her Shevu'ah saves her husband from paying, and increases wealth in the house.
1.Shulchan Aruch (CM 96:6): If a married woman is obligated to swear, we make her swear. If she refuses, we force her like we force a man.
2.Rema: Her husband need not pay for her even if she does business in his house. This is unlike those who argue about this (see EH 91). If Levi claims Kelim and her husband agrees that they came to his house, he must swear that they are not in his Reshus and that he was not Shole'ach Yad or negligent, causing their theft. Some say that we do not make a pregnant woman swear, for we expel pregnant women from the Beis ha'Keneses when we impose a Cherem.
i.Rebuttal (SMA 20): We are concerned about a pregnant woman only if the Cherem is directed at her. Then we wait until she gives birth, even if she is not in the Beis ha'Keneses at the time. Binyamin Zev (385) learned Cherem from Shevu'ah. The Rema learns oppositely! (Perhaps Cherem is more severe, and we cannot learn from it to avoid making a pregnant woman swear.)
ii.Tur: The custom is that when a man summonses a married woman to Din, we check with her neighbors if she normally has dealings with men. If so, we summons her covertly, so she will not be disgraced. If she does not normally deal with men, and modestly stays inside her house, we ask Levi how he came to give money to a married woman. If circumstantial evidence supports him, we summons her. If it looks like he makes false accusations, we do not summons her. The same applies to a virgin who sits in her father's house and rarely leaves.
iii.Darchei Moshe (3): We do not make a woman swear about a Safek claim unless she engaged in a partnership or took a deposit.
WHEN DOES BEIS DIN FORCE MARRIED WOMEN TO SWEAR? (Shevuos 30)
Other Halachos relevant to this Daf:
APPLICATIONS OF PERUTAH D'RAV YOSEF (Bava Metzia 28)
THE CHIYUV OF A SHOMER AVEIDAH (Bava Metzia 81)