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Bava Metzia, 112

1) WITHHOLDING THE WAGES OF A CRAFTSMAN

QUESTION: The Gemara says that according to the opinion which holds that a craftsman ("Uman") does *not* acquire the value of the improvements that he makes to an object given to him to work on, the craftsman is considered a hired worker and the laws of "Bal Talin" apply. Consequently, if the owner of the object does not pay the craftsman on time (when he finishes the work), he transgresses the Isur of "Bal Talin."

The RITVA in Kidushin (48a, DH Hacha) asks that the Isur of "Bal Talin" should *not* apply to withholding the wages of a craftsman. If an employer gives an object as a "Mashkon" (security) to the craftsman, the laws of "Bal Talin" would not take effect (since the Mashkon will serve as the payment, and thus the craftsman will have received his payment on time). Even though the craftsman does not acquire a share in the object when he improves it, the object itself, though is considered to be a Mashkon in the hands of the craftsman, as the Gemara earlier (80b) teaches ("a craftsman holds the object in order to collect his wages")! Since the craftsman is holding a Mashkon, there should be no Isur of "Bal Talin!"

ANSWER: The RITVA and RAN answer that giving the craftsman a Mashkon avoids the problem of "Bal Talin" only when it is given directly from the employer to the craftsman with the express intent that the object be security for the payment that the employer owes. When it is given in this manner, the worker acquires the Mashkon in accordance with the ruling of Rebbi Yitzchak ("Bal Chov Koneh Mashkon"). In the case of our Gemara, though, where the craftsman is holding the object as collateral on his own accord (without the explicit consent of the owner), he does *not* acquire it, and therefore the laws of "Bal Talin" apply.

The KETZOS HA'CHOSHEN (72:23) raises an objection to the question of the Ritva. Our Gemara states that the employer transgresses "Bal Talin" only after the object has already been returned, for it is at the moment that the object is returned that the employer becomes obligated to pay the craftsman. At that moment, though, the worker is no longer holding the Mashkon, and thus "Bal Talin" *does* apply! How, then, does the Ritva prove that a craftsman does not acquire the object as a Mashkon? Perhaps he does acquire it, but the laws of "Bal Talin" still apply because only when the craftsman gives the object back does the employer's obligation to pay the craftsman take effect (at which time there is no longer a Mashkon)!

The Ketzos ha'Choshen answers that if the worker acquires the object as a Mashkon, then even after he rights the object to the owner, the laws of "Bal Talin" would *not* apply. Since he acquired the object as a Mashkon while he was holding it, when he returns it to the owner it is considered a *sale* (and the owner owes him money for the purchase of the object). Since the payment that the owner owes the craftsman is the purchase money, and not the wages of a hired worker, "Bal Talin" does not apply (just as it does not apply according to the opinion which holds that a craftsman acquires a share in the object that he works on). The fact that "Bal Talin" applies after the object is returned shows that the craftsman does not acquire the object as a Mashkon in the manner of "Ba'al Chov Koneh Mashkon," as the Ritva answers. (Y. Marcus)

112b

QUESTION: The Gemara teaches that a creditor who is holding an object as collateral may collect from the debtor without bringing any evidence, since, if he wanted, he could claim that the object of collateral belongs to him. In such a case, though, does he need to make a Shevu'ah before collecting the debt?

Generally, in all cases of "Nishba v'Notel" (where one is entitled to collect money based merely on his word; the Mishnah in Shevuos (7:1) gives a list of such cases), one is obligated to make a Shevu'ah before collecting the money or object. The RAMBAM (Hilchos Malveh v'Loveh 13:3) cites the GE'ONIM who explain that when a creditor is holding an object of collateral and is claiming a debt equivalent to the value of the collateral -- although he is entitled to collect based on a "Migo" that he could have claimed that the object of collateral belongs to him, he must make a Shevu'ah ("Nishba v'Notel") in order to collect. The Ge'onim are teaching that even though the creditor is holding the object of collateral, we do not consider the creditor to be "Muchzak" (in which case he would not have to swear). Rather, since he is claiming *other* money (the money of the debt) and not the collateral itself, he is not considered to be "Muchzak" and thus he must swear before he may collect the money.

The RAMBAN (cited by the Ran in Shevuos, page 27a of the pages of the Rif) questions the ruling of the Ge'onim from the Beraisa quoted in our Gemara. The Beraisa says that when a craftsman claims that his salary was fixed at two Zuz, while the employer claims that it was fixed at one Zuz, if the craftsman is in possession of the object, then his claim prevails." This Beraisa is quoted in greater detail in Bava Basra (45b), where it says, "As long as the object is in the hands of the craftsman, his claim prevails, but once the employer has received the object, his claim prevails, on condition that he swears first." Since the Beraisa states that only when the object has been returned to the employer must he make a Shevu'ah in order to support his claim, this implies that in the Reisha, when the craftsman is holding the object, the craftsman does *not* have to make a Shevu'ah. This seems to contradict the ruling of the Ge'onim who say that a claimant who is collecting must make a Shevu'ah in though he is holding an object of collateral.

ANSWERS:

(a) The RAMBAN points out that according to the opinion which holds that a "craftsman acquires the value of the improvements that he makes to the object" that he works on ("Uman Koneh b'Shevach Kli"), there is no question on the Ge'onim. The Ge'onim were discussing a case in which the creditor is merely holding an object of collateral (and he is thus considered to be the one who is trying to be "Motzi" from the other person). A craftsman, in contrast, owns part of the object, and thus he is considered "Muchzak" and is not obligated to swear to support his claim. This answer, though, does not address the question according to the opinion which holds that a craftsman does *not* acquire the value of the improvements that he makes to the object.

(b) The RAN (loc. cit.) offers a different answer. Whether or not the creditor or craftsman needs to swear depends on what he is claiming. When the creditor is demanding payment, he is considered to be one who is "Motzi" money from the other and in such a case the Ge'onim obligate him to swear. The Beraisa case is referring to a craftsman who is not demanding payment. Rather, he is threatening the employer and saying that if he does not receive the salary upon which they agreed, then he will not return the object. He assumes that the owner will consent and pay him the salary that he claims to deserve. In such a case he is not obligated to swear. (Y. Marcus)