Responsum: On a Dispute over a Shipment of Wax

Question: The following incident occurred in Rhodes: Reuben purchased 530 okes¹ of wax from Simeon via a third party. Reuben did not take this wax into his possession; rather, as soon as he bought it, he found a boat heading to Chios, and immediately took the wax from Simeon the seller and loaded it onto the boat, which took it to a certain Jew, a close friend of his, in Chios. Later, Reuben’s brother came to Chios and took the wax from that Jew in whose possession it was deposited and sold it to one of the merchants in Chios. He then went to empty out the wax, in accordance with the local custom, and discovered that it was adulterated with dirt and bean flour. When Reuben’s brother saw that the wax was tainted, he brought two witnesses and emptied out all the wax in their presence—of the whole 530 okes of wax, only 402 okes of clean wax remained, while the rest was dirt and bean flour, as stated. Before he emptied out all the wax, he set aside four pieces which he did not pour out, to keep as evidence.

He received a signed written statement from the witnesses, attesting that they had watched the 530 okes of wax emptied out in their presence, and that it was all like the four pieces that Reuben’s brother had in his possession, and that the wax was deficient by the amount specified above. Were it not for the local officials, who helped Reuben’s brother, the aforementioned purchaser, he would have suffered damages, loss, and great distress on account of the adulterated wax. Now Reuben is suing Simeon for the payment of the 530 okes of wax he bought from him, in the form of good-quality wax, or that he should give him an equivalent sum of money, as the wax never came into his possession in Rhodes, as described above. It is also clear that the captain of the ship did not switch it, as they knew for a fact that the captain did not have any other wax. Let our teacher instruct us on the law in this case—is Simeon obligated to pay Reuben the 128 okes that was missing from the amount he sold to him, in accordance with the aforementioned testimony, since he deceived him, or can he exempt himself from payment merely by taking an oath? Righteousness and kindness is yours, our master!

Response: You did not write what Simeon claims in his defense. Nor did you state whether or not he is willing to take an oath. For if he wishes to swear that he gave him good, unadulterated wax—you certainly did not inquire about such a case, as he is undoubtedly believed were he to take this oath. Rather, it is implied that he wants to exempt himself from an oath with the following argument: I gave you good wax, and now you cannot claim that this was definitely the wax that left my possession, as perhaps the captain of the ship switched it. The statement of the witnesses does not clarify this matter, as he might have had other wax which he placed elsewhere. Alternatively, perhaps the Jew who accepted the deposit adulterated it. Even if that man were to take an oath himself, such an oath would serve only to exempt him from paying Reuben; it would not render Simeon liable. Consequently, Reuben can issue only an uncertain claim against Simeon, as he cannot contend for certain that the adulterated wax left Simeon’s possession, and we have a general rule that one does not take an oath with regard to an uncertain claim [see m. Shevu‘ot 7:8]. This must certainly be Simeon’s argument as to why he should be exempt from an oath. In his opinion, we must likewise state that it is an uncertain claim, for which one does not take an oath. But the geonim, of blessed memory, have already written that we impose an non-specific ban upon anyone who owes another and does not admit to his debt; thus, in this case too, even accepting his opinion, we would impose a non-specific ban in the presence of Simeon and the members of his household, referring to anybody who knows that the wax was adulterated and fails to admit it.

Now, all of the above is in accordance with the opinion that one does not take an oath for such a claim. However, the truth of the matter is that one must indeed take an oath for this claim, and this for several reasons: first, the reason why partners can force each other to take an oath for an uncertain claim [see m. Shevu‘ot 7:8] is because they make allowances for themselves. Here too, he makes allowances for himself, as he reasons that Reuben will likewise sell the wax to others in its current state, as Reuben is not planning on smoothing it out in his own house. Consequently, we impose an oath upon him, so that he will admit to him. Furthermore, R. Barukh, of blessed memory, wrote in a responsum that regarding any substance about which there is often doubt, and which is likely to be found in such a state, we impose an oath even for an uncertain claim. He cited a proof for this from chapter five [of b. Shevu‘ot], as it is taught there:

But if that is so, why does the baraita specify that it is because “he is like someone who returns a lost item”? It should have stated that it is because one does not take an oath for an uncertain claim (other than those listed by the sages). Rather, it can be inferred from that passage that one does in fact take an oath in any case of uncertainty where it is likely to occur, just as people will typically have doubts about their fathers’ business affairs. This concludes his proof. In the case at hand as well, since adulterated wax is not an uncommon occurrence, whether it was done by Simeon or by whomever sold it to Simeon, we impose an oath upon him even for an uncertain claim.

In addition, some of the commentaries have written that if someone says to another, “I know that you owed me a maneh but I do not know whether you repaid it,” and the other replies, “I am certain that I repaid it,” we make him take an oath. This case is no different, as Reuben claims: “it is clear to me that you took from me payment for good-quality wax, and I do not know whether you gave me good or bad wax,” and therefore we certainly impose an oath upon him.

Another reason can be derived from the statement of R. Naḥman that we make a bailee take three oaths, one of which is in case he coveted the item. The sages raised the following difficulty against this: but one does not take an oath for an uncertain claim. They answered that this case is different, as the deposit has already come into his possession, whereas we do not impose an oath that “perhaps the money has come into your possession.” In our case too, the wax was once in Simeon’s possession, and therefore he must take an oath even for an uncertain claim, and this is clear. [ . . . ]

Consequently, we should not create a new dispute between the ruling authorities in a case where it does not expressly appear. Here too, since he claims, “you definitely owed me, but I do not know whether you repaid me,” and he is not in a position where he should know this, as he thought that the wax was good, the rabbi would agree that we impose an oath. Another relevant point here is that when the rabbi ruled that we do not impose an oath for a claim of this kind, the only reason must be because the other party replies that he does not owe him anything, i.e., that he did not borrow anything. However, if he admits that he borrowed but claims that he definitely repaid it, then we do make him swear, since he concedes that the other person’s money had come into his possession. It is thus similar to the situation regarding which R. Naḥman said that we make him take an oath, lest he coveted the item, as we wrote above, and this stands to reason. Accordingly, in the case at hand, since all these reasons apply, they should either come to a settlement between them or Simeon should swear that he gave him good-quality, unadulterated wax, and thereby exempt himself. I have written what appears correct to me.