Our Gemara on this daf discusses a fundamental dispute regarding the oath required of the watchman. In the verses which we soon shall see, a watchman is Biblically mandated to swear and affirm his claim of not having neglected his duties. This is known as the Watchman’s Oath. Another Biblically mandated oath that is derived from these verses is the Oath of Partial Admission, which is triggered when a defendant partially admits that true, he owes something, such a lesser amount than the plaintiff claims, but agrees that he owes an amount.

The verses that these laws are derived from are ambiguous and challenging exegetically, but I believe hint at deeper truths of the Torah. Let’s take a closer look at the syntax, structure and meaning of the verses from Shemos (22:6-14):

כִּֽי־יִתֵּן֩ אִ֨ישׁ אֶל־רֵעֵ֜הוּ כֶּ֤סֶף אֽוֹ־כֵלִים֙ לִשְׁמֹ֔ר וְגֻנַּ֖ב מִבֵּ֣ית הָאִ֑ישׁ אִם־יִמָּצֵ֥א הַגַּנָּ֖ב יְשַׁלֵּ֥ם שְׁנָֽיִם׃

When any party gives money or goods to another for safekeeping, and they are stolen from that other party’s house: if caught, the thief shall pay double; 

אִם־לֹ֤א יִמָּצֵא֙ הַגַּנָּ֔ב וְנִקְרַ֥ב בַּֽעַל־הַבַּ֖יִת אֶל־הָֽאֱלֹהִ֑ים אִם־לֹ֥א שָׁלַ֛ח יָד֖וֹ בִּמְלֶ֥אכֶת רֵעֵֽהוּ׃ 

If the thief is not caught, the owner of the house shall depose before God (the Court of Law) and deny laying hands on the other’s property. 

עַֽל־כׇּל־דְּבַר־פֶּ֡שַׁע עַל־שׁ֡וֹר עַל־חֲ֠מ֠וֹר עַל־שֶׂ֨ה עַל־שַׂלְמָ֜ה עַל־כׇּל־אֲבֵדָ֗ה אֲשֶׁ֤ר יֹאמַר֙ כִּי־ה֣וּא זֶ֔ה עַ֚ד הָֽאֱלֹהִ֔ים יָבֹ֖א דְּבַר־שְׁנֵיהֶ֑ם אֲשֶׁ֤ר יַרְשִׁיעֻן֙ אֱלֹהִ֔ים יְשַׁלֵּ֥ם שְׁנַ֖יִם לְרֵעֵֽהוּ׃ {ס}   

In all charges of transgression pertaining to an ox, a donkey, a sheep, a garment, or any other loss, whereof one party alleges, “But, this is my claim”—the case of both parties shall come before God: the one whom God declares guilty shall pay double to the other.

The ambiguous statement, “But, this is my claim” (“kiy hu zeh“) conveys a degree of adjustment in the argument. As if to say, “I do not agree with your claim exactly, but here is what it is.” This is why the rabbis derived the Oath of Partial Admission from this phrase, as it sounds like the defendant is responding to, and partially agreeing with, the plaintiff. Since these same verses also are the derivation for the Watchman’s Oath, there is one opinion that the watchman only makes an oath when he partially admits. However, the other opinion holds that every watchman makes an oath, and we have what is called “Eiruv Parshiyos”, a mixture of two sections of the Torah. That is, the same verses have double meaning and overlap, teaching different laws; both the Watchman’s Oath and the Oath of Partial Admission, in distinct legal zones.

From a textual perspective, this is an exegetical nightmare, with these interpretations feeling forced beyond a reasonable context. It is hard enough to interpret the words, “but this is my claim” to mean an Oath of Partial Admission. It is even harder to insert two separate laws within the same verses. However, as I shall soon demonstrate, the understanding of these derashos speak of a fundamental idea regarding Torah.

To begin with, it is important to shed our cultural biases and anachronistic projections regarding literature and literacy in the time of the Gemara. In the modern era, especially post the invention of the printing press, our relationship with the written word is profoundly different than the ancients. Walter Ong, a linguistic and anthropological scholar who studied the differences between cultures that use  writing versus cultures that use stories and oral histories as their primary form of storing knowledge. Even when a culture has writing, it can have what’s known as an Oral Residue culture, meaning that writing is still not primary in the mental process. For example, you might remember seeing in a museum stone tablets with Greek inscriptions. Did you notice that it is, Scriptio continua (Latin for "continuous script"), a style of writing without spaces or other marks between the words or sentences? Keep in mind, Greek is a language with sophisticated grammar that has many more tenses to convey mood and object of expression than in English. Were they so foolish as not to understand the utility and value of putting in spaces and punctuation? Obviously not. But their relationship with the written word was very different than ours. Writing was not used as a perfect data storage device, but rather as prompts for ideas that remain oral.

Understanding this allows one to better appreciate the function of what we call the Oral Torah versus the written Torah, (which does have spaces between words unlike Greek, but doesn’t have punctuation, similar to Greek.) The stories and or legal prescriptions in the text are meant as indices and are incomplete accounts.

Another fundamental idea to consider is how the Torah and Moshe’s prophecy was able to transmit the eternal will of God in a particular temporal frame. Imagine trying to dip your hands into a running stream; you gather vital parts of a continuous flow, but never its totality. Ralbag (Shemos 4:10) cleverly explains Moshe’s speech impediment as a by-product of his deep attachment to the ethereal. Moshe’s unique ability to tap into and be a direct agent of God’s will, necessitated a certain disassociation and disconnection with the physical time-bound world. Moshe’s thoughts may have been in simultaneous dimensions, as God’s will is vast, but then he struggled to organize them back into physical terms. For example, we have a tradition that the discrepancy between the words “Zachor and Shamor, Guard and Remember the Shabbos” used in the two versions of the Ten Commandments were stated by God simultaneously (Shavuos 20b). What does that really mean, and how did Moshe hear it? Moshe’s depth of connection to God’s will allowed him to experience all aspects of the Torah simultaneously, which has been given over to us in the form of the written and oral Torah. Due to Moshe literally having his head in the clouds, he could not casually communicate without either Aaron serving as his spokesperson, or God miraculously speaking through him. 

This helps us understand exegetical ideas such as אין מוקדם ומאוחר בתורה the Torah does not follow chronological order (Pesachim 6b), and our Gemara’s assertion that there is Eiruv Parshiyos”, a mixture of two sections of the Torah by the Watchman’s Oath and the Oath of Partial admission. 

If we take that approach, the words of the verses may at times be specific, but also at times impressionistic, conveying a number of ideas blended together. As another example, the famously perplexing stress in the written Torah on harsh punishments such as an eye for an eye, stated literally, while the Oral Law says precisely the opposite (Bava Kamma 83b), and only payment can be extracted. It’s not just a word trick and rabbinic legal wizardry. Rather somehow the mood of the verses are indeed conveying a strict and cruel legal punishment, with the oral law merciful and tempered. We can understand this from the fact that the verse explicitly states “Forty lashes, no more” (Devarim 25:3), but the oral tradition is specifically no more than 39 lashes (Makkos 22a). The Torah seems to be conveying a broader idea, that practical law must always be more compassionate and override the technical letter of the law.

Returning back to the verse about the watchmen, when you think about it, every time a watchman makes a claim that he was not negligent he is also making a partial admission. Essentially, he is saying, “True I took responsibility to watch your object, and true I can no longer return it to you. But, it’s not my fault! I was not negligent.” Now we can see that conceptually, the Watchman’s Oath and the Oath of Admission are one in the same, in terms of basic legal principles, even though they might have technical legal differences. This is how a collection of verses can legitimately be discussing and informing us about multiple legal matters. God’s will, the ultimate morality, is too big to be written down in specific rules alone. Think of a couple that has an inside joke, perhaps a catchphrase that hints at a key piece of family history and lore. The Torah is this, times 10,000. The Torah is God’s way of stopping in time to give us humans the best comprehension of His will. Yet, it still must hint and imply much more, not because it is deliberately mysterious but rather because it must be essentially mysterious. 

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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