ḤEREM SETAM

ḤEREM SETAM (roughly translated as "anonymous ban" or "imprecation"), a geonic innovation that gained wide acceptance in later rabbinic literature, particularly in Spain and North Africa, although it was more sparsely used in Franco-Germany as well. It served primarily as an instrument of judicial proof in situations where there was no obligation to impose an oath. Ḥerem setam could be utilized to reveal assets in a variety of situations (lost, stolen, or hidden assets), to locate witnesses concealing their testimony or trying to withhold it, or to reveal informers – this last application seems to have predated the use of ḥerem setam in an evidentiary capacity.

Historically speaking, ḥerem setam was apparently applied in two different ways at different times: Common to both was their style and their imposition where there was no legal obligation to administer an oath; they differed, however, as to context and purpose. In the early stage, ḥerem setam was used during the course of judicial proceedings to expose false or deceptive arguments and to reach a final decision. In the later stage, it was also used to force the exposure of assets or to locate witnesses, in which cases it did not necessarily close the proceedings.

Ḥerem setam, invoked as part of the judicial proceedings in a wide range of situations, was generally used in civil cases. These may be divided into five categories: (1) Situations in which the plaintiff presented a claim that was positive (ta'anat bari) but otherwise unsupported, for if the claim had some concrete basis (derara de-mamona) an oath would have been mandatory. Such cases are discussed in several responsa of Rav Hai Gaon (see, e.g., Sha'arei Ẓedek 59a, §30), although at an earlier stage he held that an oath should be administered even in the absence of concrete basis (see his Mishpetei Shevu'ot 7b–8a); (2) Where the plaintiff presented a doubtful claim – it was in such cases that the ḥerem setam was most commonly applied (e.g., in the commercial field, in claims contested by husband and wife, etc.); (3) Where, for various reasons, the court would not impose an oath – for example, if one of the litigants had perjured himself on a previous occasion, if one of the litigants refused to take the oath, if the litigant was a married woman (this restriction was not universally accepted), and in a few other cases. This category also included the imposition of ḥerem setam when a clause in a contract exempted one of the litigants from the obligation to take an oath, his word alone being accepted; (4) A defendant contesting a claim could demand that ḥerem setam be imposed on the plaintiff to ensure that the claim was genuine. As a further development of this category, ḥerem setam could be imposed upon the plaintiff to ensure that he was not forcing the defendant to take an unnecessary oath. Maimonides refers to this as "a minor enactment enacted by the last geonim" (Yad, Sheluḥim ve-Shutfin 3.11); (5) Ḥerem setam could also be imposed upon witnesses to force them to testify and warn them not to withhold their evidence – this case is somewhat related to the oath of testimony.

The term ḥerem setam also referred to an imprecation pronounced "upon whosoever…" without specifying a particular name (this being the meaning of the Hebrew word setam); the imprecation itself was abbreviated and only the gist of the suspicion included. This generalized formula seems to have paved the way for the later medieval invocation of a ban to reinforce a special enactment, in order to deter "whosoever should act" in violation of the enactment.

The institution of ḥerem setam is attributed in post-geonic literature (R. Judah of Barcelona, R. Solomon b. Adret, R. Isaac b. Sheshet Perfet, R. Simeon b. Ẓemaḥ Duran, and others) to a geonic enactment. Solomon b. Adret writes: "Whosoever is in doubt about a matter may invoke ḥerem setam, according to the enactment of the geonim, of blessed memory" (Resp. Rashbaii, §79; and elsewhere quite frequently). But while ḥerem setam was undoubtedly a geonic innovation, as implied by a responsum of R. Sherira Gaon (Groner, Resp. Rav Sherira, p. 16), the statement that it was instituted by a special enactment (takkanah) is inconsistent with its historical development. The evidence emerging from geonic responsa is that the anonymous ban evolved gradually in the geonic academies, as the geonim themselves note in some of their responsa. For example: "The courts were accustomed in cases of doubt to impose a ḥerem without specification [of the deponent's name]" (Teshuvot ha-Geonim, ed. Assaf, 1927, §16); "In general, wherever there is no concrete basis for the claim (derara de-mamona), the matter depends on custom" (Groner, Resp. Rav Sherira, p. 18).

As stated, the innovation of ḥerem setam was a gradual process. Early geonim substituted an imprecation (alah) for a mandatory oath. Subsequently, some early geonim (Rav Natronai and Rav Hilai) began to use the imprecation even where an oath was not required; however, the deponent's name was still specified, as it normally was in an oath, and at this stage the borderline between imprecations invoked in cases where an oath was mandatory and those where it was not was still unclear. Only later, especially in the writings of R. Paltoi and R. Nahshon, do we find the imprecation applied even when an oath was not mandatory, but without specifying the deponent's name. These geonim used the term shamta setam or shamuta setam ("anonymous ban") for what was later known as ḥerem setam. Another term sometimes used was pitka delutata ("letter of curse").

R. Saadiah Gaon seems to have been the earliest authority to distinguish explicitly between an imprecation substituted for a mandatory oath and one applied even when an oath was not mandatory. He also noted the distinguishing features in the application of these two measures. Where the imprecation took the place of a mandatory oath, the name of the deponent would be included in the imprecation. This imprecation was referred to as ḥerem or as ḥerem ba-shem. However, where the imprecation was not substituting for a mandatory oath, the name of the deponent was not included, and in such cases the term used was ḥerem setam, apparently coined by R. Saadiah himself in recognition of the fact that no name was specified – hence setam, meaning roughly "anonymous." Other distinguishing features in the case of an imprecation replacing a mandatory oath were the necessary presence of the deponent, the requirement that he respond "Amen," and the holding of a Torah scroll during the ceremony. These features were common when the imprecation was first introduced, but gradually disappeared with the expanding use of ḥerem setam.

The indications that R. Saadiah's school should apparently be credited with the above distinction are the following: (1) Only in R. Saadiah's time was a credibility clause inserted in deeds in order to exempt one of the parties from ḥerem setam; presumably, had the ḥerem setam been practiced before his time, the exemption clause would surely have appeared in various deeds. (2) R. Saadiah was the first gaon who, through interpretation of a talmudic passage dealing with a debtor who denies the claim against him (b. Shevu'ot 40b), ruled that ḥerem setam should be imposed even where derara demamona is absent (Sha'arei Ẓedek 39b, §17). Such a ruling is unprecedented.

The introduction of ḥerem setam was not simply a matter of internal halakhic development. The general environment was the prime catalyst that induced the geonim to endow it with a halakhic framework. The reality was shaped by three factors: (1) a first factor was the moral laxity of the times, as indicated by the ease with which people would take false oaths (see  Gezerta). (2) Related to this was the prevalence of oaths in Muslim society, characterized by the almost indiscriminate use of oaths in Muslim courts, with no procedural constraints or rigid rules to limit the applicability of oaths. Indeed, Muslim courts imposed oaths even during the intermediate stage of the judicial procedure, in order to establish the truth of a litigant's arguments or to substantiate a factual argument. The geonim introduced the ḥerem setam to help counter this laxity. (3) The geonic period witnessed a gradual economic transformation, from a society engaged in agriculture or local commerce to one whose international trade contacts extended over large areas. The new realities placed obstacles in the way of normal judicial procedures and induced the geonim to seek solutions for situations where real proof or evidence was lacking. ḥerem setam was an effective instrument to that end. R. Joseph ibn Migash, in a famous responsum (§75), refers to the evolving use of ḥerem setam in cases where the defendant could demand imposition of ḥerem setam on the plaintiff before taking the oath himself: "Since the imposition of the said ḥerem is not legally required, it seems to us that it is a corrective measure and a question of social conduct, once we have understood that most people intend to make false accusations. We therefore see fit to invoke the said ḥerem before the oath, in the hope that the plaintiff will withdraw a false claim… And we instituted this [practice] many years ago, when we were in one of the lands of Andalusia, for the reason that we were obliged to do so because of what we saw there of this practice, not in our own abode. And when we were staying with you in Fez we were reminded there that this [practice] is mentioned in a responsum of R. Isaac [Alfasi], our great rabbi of blessed memory, or of one of the geonim of blessed memory, and we rejoiced at this. Now this is a corrective measure and a question of social conduct instituted by the court, not a legally required measure."

After R. Saadiah's time, the geonim limited the free use of ḥerem setam, so that we find Rav Hai Gaon stating, in the name of his ancestors as well, that it should be used only in certain cases: "Know that neither we nor our ancestors are accustomed to permit anyone who comes and says, 'Write me a pitka de-lutata and give me permission to ban and to curse people without specifying names.'… But in the case of orphans who bring a plea… they will immediately receive a pitka delutata" (Teshuvot ha-Geonim, Ḥemdah Genuzah, §165). At the same time, they did not generally prevent its imposition by litigants if they so desired; it was this rather ambivalent attitude to ḥerem setam that gave the measure its force.

bibliography:

V. Aptowitzer, "Formularies of Decrees and Documents from a Gaonic Court," in: jqr, (n.s.) 4 (1913–14), 23–51; T. Groner, "A Fragment of Responsa from the Genizah, Some of Them by the Geonim R. Sherira and R. Hai," in: Asufot – Annual for Jewish Studies, 2 (1988), 71–82 (Heb.); G. Libson, "The Origin and Development of the Anonymous Ban (Herem Setam) During the Geonic Period," in: Shenaton ha-Mishpat ha-Ivri, 22 (2001–03), 107–232 (Heb.); B. Lifshitz, "Evolution of the Court-Oath with Imprecation," in: Shenaton ha-Mishpat ha-Ivri, 11–12 (1984–86), 393–406 (Heb.); H. Tykocinski H., The Geonic Ordinances (Heb., 1959).

[Gideon Libson (2^nd ed.)]