Comentario sobre Pirkei Avot 4:7

AND POINTLESS OATHS [Heb. shvuat shav]. Rav writes in his second explanation: the tanna calls a false oath a pointless oath. This is based on the Talmud, Shevuot 20b, where Rav Dimi says in the name of R. Yochanan that a pointless oath is when one swears that he has eaten or not eaten, and the opposite is true. Rashi ad loc. explains: shav here means “nothing”, as in the verses “cords of nothingness [Heb. chavlei shav]” (Isaiah 5:10) and “I have struck your children for nothing [Heb. leshav]” (Jeremiah 2:30); in this instance, as well, the oath has left his mouth for nothing. The souce for the prohibition is “Do not mention the name of Hashem, your G-d, in vain [Heb. leshav]” (Exodus 20:7).
I first wondered at this, because the mishna in Shevuot 3:8 asks “What is an oath of shav?” and does not list the case of one who makes an oath about past events. We can answer this as follows. The Talmud there says that Ravin disagrees with Rav Dimi and calls the oath of “I have eaten/I haven’t eaten” a false oath [*see my comments on Temurah 1:1, s.v. sofeg], while a pointless oath is one that involves an obviously false claim, such as “this is a woman” of a man. He holds that one who makes a false oath receives lashes, and the Talmud traces the source for this to the double use of the word shav in the verse in Exodus 20:7: one shav indicates that a pointless oath incurs lashes; the second shav, which now seems unnecessary, indicates that even a false oath incurs lashes. How, the Talmud asks, does Ravin know that a false oath is about a past event? It answers that, since the Torah clearly compares the false oath to the pointless oath, it is reasonable to assume that just as the pointless oath concerns a past event, a false oath concerns a past event. Rashi ad loc. explains that a pointless oath is about a “past event” because it makes a claim that is obviously false, as opposed to an oath about doing or not doing something in the future.
We can similarly say that Rav Dimi would agree that any oath about a past event would follow logically from the classic case of a pointless oath, which is making an obviously false claim. Because the term “pointless oath” refers most directly to an oath claiming the opposite of what is well-known, the mishna defines a pointless oath as “making an oath claiming the opposite of something well-known,” but indeed, any false oath concerning a past event would be included in this.
[*But there is a simpler approach. The Talmud says there (Shevuot 21b) that one who makes the oath “I have/haven’t eaten” is obligated to bring a sacrifice of atonement, whereas the abovementioned mishna says that one who makes a pointless oath is not obligated to bring a sacrifice. For this reason, the end of that same mishna says “this is the ‘pointless oath’ which one who makes intentionally must receive lashes for, but for which one who makes it unintentionally need not bring a sacrifice,” and the Talmud says that “this” means to exclude the case of “I have/haven’t eaten” which would require a sacrifice, as I wrote on that mishna (Shevuot 3:8, s.v. zo hi). Now even though the Talmud was in the middle of defending Ravin’s position, it is clear that even Rav Dimi agrees to this detail, as the Talmud says in Shevuot at the beginning of page 21a that Rav Dimi holds that swearing “I have/haven’t eaten” falsely would obligate one to bring a sacrifice.¹⁵³This is why that mishna could not include the case of swearing about a past event in the “pointless oath”, even though it actually is—the mishna means to list those pointless oaths that would not obligate one to bring a sacrifice, and a false oath about a past event, even though it is included in the category of pointless oaths, does obligate one to bring a sacrifice.]
Midrash Shmuel writes in the name of R. Yosef ibn Shoshan that our mishna mentions pointless oaths and not false oaths because even when the law requires an oath and the one swearing is telling the truth, such an oath is considered a pointless oath as far as the litigant is concerned because he knows what is true, and making a true oath of something that is already known is called a pointless oath. If so, our mishna would be following the opinion of those who argue with Rav Dimi and hold that “I have/haven’t eaten” goes in the category of false oaths, which are forbidden by “do not swear falsely in My name” (Leviticus 19:12).¹⁵⁴According to Midrash Shmuel, the mishna's warning is not that involvement in court cases will cause one to swear falsely. It is rather that even the legitimate oaths one makes in court have a dimension of pointlessness to them, and so our mishna is discussing piously refraining even from legitimate oaths as opposed to refraining from truly transgressing any prohibitions. If so, shav refers exclusively to these somewhat “pointless” oaths and not to any truly problematic ones, and cannot include false oaths. As such, it cannot be following the opinion of Rav Dimi, according to whom the word shav includes false oaths about past events; it must be following the opinion of those who argue and hold that the word shav simply means “pointless”, and can therefore be borrowed to describe these somewhat pointless oaths. Rambam follows this opinion in Hilchot Shevuot 1:3. Cf. Rav’s commentary on on 5:9.

Rabbi Yishmael, his son, says: One who withholds himself from judging: Even though it is written (Deuteronomy 16:18), "You shall appoint magistrates and officials in all of your gates," and (Deuteronomy 16:20) "Justice, justice shall you pursue," as it is a commandment to judge [legal cases] - that is in a place where there are no other judges. But any time he can withhold himself, it is good for him to send its yoke onto others, since [that way] he will prevent himself from several problems.

He is nonchalant in legal decisions to force his decisions without awe and fear.

"An imbecile, etc.": An imbecile in that he brings enmity upon himself. And wicked as he is not concerned whether [the litigant] will steal or make a vain (false) oath. And on top of that, arrogant in spirit; as it is arrogance of spirit that brought him to this - to give legal decisions and to judge [so as] to acquire [fame] like the [fame] of one of the great ones in the land - Midrash Shmuel.

"One who withholds himself from judging": in a place that there is someone greater than he. And also (another explanation is) [that] he tells the litigants that they should compromise.

Introduction Rabbi Ishmael was the oldest of Rabbi Yose’s five sons. Most of his statements in the Talmud were stated in the name of his father. He lived in Tzippori (in the Galilee). In this mishnah and in the next, Rabbi Ishmael discusses judgement. We should note that in the time of the Mishnah, being a judge was not a profession. Jewish courts were not fixed institutions, such as an independent state might have. While there may have been rabbis to whom people knew they could turn, this is not the same as an established court system. Furthermore, in some cases, anyone could act as a judge, even those without any special qualifications. A person could potentially gather three people and ask them to render a decision. (See Sanhedrin, chapter three). In such a system (or lack of system) it becomes especially important to give instructions to people when they should or should not judge. This is the subject of the next two mishnayoth.

A FOOL, WICKED, AND ARROGANT. A fool, because he causes others to hate him. Wicked, because it bothers him little if he causes the innocent party to pay or make needless oaths. He is also arrogant, because it is out of arrogance that he wishes to judge and issue rulings, that he may become famous and have the kind of reputation the great men of the land have—Midrash Shmuel.

removes from himself enmity: As one who leaves the court guilty will hate the judges.

"removes from himself enmity": Since one who leaves a court guilty hates the judge, as he says in his heart, "He did not [properly] look for my innocence."

Rabbi Ishmael his son said: he who refrains himself from judgment, rids himself of enmity, robbery and false swearing; But he whose heart is presumptuous in giving a judicial decision, is foolish, wicked and arrogant. Seemingly, Rabbi Ishmael is asking all people to avoid acting as judges, saying that those who don’t judge avoid many pitfalls. They don’t make enemies out of those whom they find guilty, they don’t misjudge, thereby in essence robbing from the falsely convicted, and they don’t make people swear when they shouldn’t have to. However, the second half of Rabbi Ishmael’s statement seems to imply that the first half is not referring to normal, qualified judges. A good judge is not “presumptuous”, in other words he carefully weighs his decisions, and makes sure he knows all of the facts and all of the laws before he renders his decision. One who does not do so is foolish, for he thinks that he is smarter than he really is, wicked, for he recklessly renders decisions, and arrogant, for he assumes that he will not make a mistake. According to Rabbi Ishmael it is the presumptuous, untrained judge that is problematic. Rabbi Ishmael’s statement should be considered a warning not to judge when one is not qualified. It is not a warning that even the qualified should refrain from judgement. Counterbalancing this tradition, there is an assumption that those who are trained have a duty to judge others, for if they did not, society would not be able to enforce its laws. Other commentators point out that this mishnah only applies in a case where there are other, more qualified judges. But if there is no one else more qualified, each person has an obligation to judge as best as he can. Nevertheless, he must render his decision with fear and with the proper respect for the seriousness of his job.

theft: Lest he obligate one who is not guilty to pay; and the matter is considered for him as if he had stolen from him.

"theft": Lest he declared the innocent guilty, and it comes out that theft came about through him.

and the false oath: Lest they obligate one an oath that is not according to the law; and it comes out that he makes him stumble in a vain oath.

"and a false (literally, vain) oath": Lest he obligate someone who is not obligated to take an oath [to do so, such] that it comes out that he brings him to a vain oath. And also (another explanation is) that the teacher [of the mishnah] is calling a false oath, a vain oath; for example, one who says, "I did not borrow," and he borrowed, as at the time of the oath, it came out of his mouth in vain.

One who is nonchalant about giving legal decisions: He put this thing adjacent to the one who withholds himself from judging because [the latter] needs to decide upon it with deliberation and much analysis and [so] the matter is a burden to him; but [in contrast] the one who is nonchalant about giving legal decisions that thinks about himself that he knows to give the correct legal decisions and he will not err:

"One who is nonchalant:" without research and without deliberation.

is an imbecile: He is called an imbecile because he is wise in his [own] eyes, and there is no greater imbecility than this - as 'there is more hope for a fool than for him.' Since when the fool does sins, he himself knows and recognizes that he is not walking on the good path, and he does not think that he is not erring. And [so] there is hope for his betterment, as maybe he will repent to God. But with the wise one in his [own] eyes who is nonchalant about giving legal decisions, what hope is there? Since he thinks that he is wise, how will he [change] - as it would appear to him like leaving wisdom and intelligence.

wicked: Even though he [already] said that he is an imbecile, that expression does not include his not being a fearer of sin. Because of this, he needed to say that he is [also] wicked. As if he had fear of Heaven, he would not have been so quick with his words - since he knows (that comprehension) [that error] is found among people and it is easy for any person to sin - and even for the greatest and most analytical sage.

and arrogant in spirit: Even though he [already] said that he is imbecile and does not fear sin, now he adds and says that it is from haughtiness and arrogance of spirit and from wanting to lord [it over others] that he is nonchalant about giving legal decisions - [it is] in order that the world see that he decides legal cases quickly and to show them that he is wise, so they will appoint him to be a judge and master over them. And that is his evil thought. Behold, these three traits are in the one who is nonchalant about giving legal decisions and who renders [these] decisions without trepidation and fear - may the Omnipresent, in His mercy, save us from them.