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Shevuos, 45

1) THE OATH OF A WORKER

QUESTION: The Mishnah (44b) begins by teaching that all Shevu'os d'Oraisa, oaths mandated by the Torah, involve making a Shevu'ah to *exempt* oneself from payment or from liability, and do not involve making a Shevu'ah to *extract* payment from someone. This is derived from the verse, "An oath of Hashem shall be between the two of them... and the owner shall accept it and *he shall not pay*" (Shemos 22:10). The Rabanan, though, instituted five exceptions, wherein a person makes a Shevu'ah to extract payment from someone. One of these cases of "Nishba'in v'Notlin" is that of a worker who claims that he did not receive payment for his work. Even though the employer says that he did pay the worker, the worker may swear that he was not paid and may then collect his payment.

The Gemara asks why it is that the worker, who claims that he was not paid, must make the Shevu'ah in order to collect his payment. The Gemara answers that the Rabanan enacted that the worker must swear because an employer usually has many employees with whom he must deal, and he is thus prone to forget whom he paid and whom he did not pay, and he would not be able to swear.

The Gemara implies that the question was why the oath is taken by the worker and not by the employer. The Gemara has no question, though, that it is appropriate for there to be a Shevu'ah in a case where a worker and an employer dispute whether the worker was paid. However, there is no such Shevu'ah in the Torah. Why should it be so obvious to the Gemara that such a Shevu'ah exists? Why is such an oath necessary in the first place!

ANSWERS:

(a) The RITVA explains that the Gemara maintains that even in the times of the Mishnah, in a case of a worker who claims that he did not get paid, the Rabanan required that a Shevu'ah be made, in order to protect the rights of workers. It would have been appropriate to make the employer take the oath, since all other Shevu'os are "Nishba'in v'Lo Meshalmin" (they are made to exempt from payment). The Gemara is asking why the Rabanan enacted that the *worker* take the oath and not the employer. This is also the explanation of the RAMBAN, RASHA, and others.

(b) The MEROMEI SADEH suggests a different reason for why it was necessary for the Rabanan to institute a Shevu'ah in a case of such a dispute between a worker and his employer. He says that the Shevu'ah was not instituted in order to protect the rights of the worker. Rather, the Rabanan instituted a Shevu'ah in any situation in which a person is able to lie, and, if caught lying, not experience embarrassment. In the case of a worker who claims that he did not get paid, the employer can lie and say that he paid the worker, and when he is proven to be lying he can claim that he was so busy with his other affairs that he forgot that he had paid that worker. Therefore, the Rabanan instituted a Shevu'ah in such a case. The Meromei Sadeh suggests that this is the intention of the ROSH (7:4).

(c) RASHI later (46a, DH Ela b'Ha) seems to have a different understanding of the purpose for the enactment of this Shevu'ah. The Gemara later (46a) discusses the view of Rebbi Yehudah, who maintains that the worker takes such an oath only when the dispute is about *how much* he is to be paid, and not when the dispute is about whether or not he was paid. The Gemara explains that when the Torah requires a person to take an oath, the Rabanan may transfer that oath to the other party if they deem it appropriate to do so. When the argument is how much the worker is to be paid, according to Torah law the employer must swear that he does not owe the additional sum that the worker claims, since it is a case of "Modeh b'Miktzas" (for which a Shevu'ah d'Oraisa is required). Since that Shevu'ah is a Shevu'ah d'Oraisa, the Rabanan transfer it to the worker. This concept of transferring the oath does *not* apply when the Shevu'ah itself is only mid'Rabanan, and thus when the dispute involves whether or not the worker was paid at all, the *employer* must swear and not the worker (according to Rebbi Yehudah), because the Shevu'ah is only mid'Rabanan. According to the Ritva, as mentioned above, the Shevu'ah d'Rabanan in such a case is the Shevu'ah that the Rabanan instituted in order to protect the worker.

Rashi explains that the Shevu'ah d'Rabanan in such a case is a "Shevu'as Heses," like the Shevu'ah that Rav Nachman instituted, and therefore it cannot be transferred to the worker. Rav Nachman (40b) states that when one person claims money from another person who denies owing any money, the defendant -- in order to exempt himself from payment -- must take an oath that he does not owe money (a "Shevu'as Heses").

Rashi's words, though, are difficult to understand. Rashi himself (48b) and other Rishonim (see RAMBAN to 45a) explain that this practice of a "Shevu'as Heses" was instituted only in the generation of Rav Nachman (others explain that Rav Nachman himself instituted this practice). It is clear that the practice of taking such an oath was instituted only in the times of the Amora'im. In the times of the Mishnah, though, a defendant was exempt from payment (when no evidence was brought against him) without having to take any oath at all! How, then, can Rashi say that in the times of the Mishnah, in a case in which an employer denies owing anything to his worker he must make a "Shevu'as Heses," if such a Shevu'ah was instituted only in the times of the Gemara! (TOSFOS 46a, DH b'd'Rabanan Takanta Hu)

Perhaps Rashi is not referring to the form of Shevu'ah instituted in the times of Rav Nachman when he says "Shevu'as Heses." Rather, Rashi is using those words as a general term to refer to a Shevu'ah instituted by the Rabanan. He calls the Shevu'ah that the employer must make a "Shevu'as Heses" because it is exactly like the oath that was later instituted for all other cases of "Kofer ba'Kol" (cases in which the defendant denies owing any money to the claimant).

45b

QUESTION: Rav Nachman teaches in the name of Shmuel, and Rav Menashya bar Zevid teaches in the name of Rav, that when the Mishnah (44b) states that a worker may collect his payment by taking an oath that he was never paid, it is referring only to a case in which the worker was hired in front of witnesses. If he was not hired in front of witnesses, then he is not entitled to collect any money with a Shevu'ah, and nor does the employer need to swear that he does not owe any money. The reason for this is because the employer has a "Migu" which gives credibility to his claim -- since he could have claimed that he never hired the worker at all, he is believed when he claims that he hired the worker but that he paid him already.

The Rishonim ask that it seems inappropriate to apply a Migu in this case. Normally, a Migu tells us that the person making the claim is honest. The Migu tells us that if the person wanted to lie, then he would have made a different, better claim that would have certainly won the case for him. However, in the case of an employer arguing with his worker, the suspicion is not that the employer is lying, but that he was very busy and does not remember if he paid, as the Gemara (45a) itself says earlier. Even though the Migu establishes the employer's honesty, it does *not* tell us that he was not busy and did not forget! Why, then, does the Migu work in this case?

ANSWERS:

(a) TOSFOS answers that the Migu here *is* necessary and does help the employer win the case. The Migu tells us that the employer's claim that he is *certain* that he paid the worker is not a lie. When the employer is absolutely certain about his claim, we can be sure that he is not mistaken about whether he paid due to his involvement with his other workers.

Normally, the employer might actually not remember for certain whether or not he paid, but he *says* that he is certain that he paid, even though he does not know for sure. We suspect that he is not really certain that he paid, and that he is lying and saying that he is absolutely certain. When there is a Migu, it tells us that he is telling the truth when he says that he is certain. (Once we know that he is telling the truth about being absolutely certain about his claim, we believe him.)

The KEHILOS YAKOV questions this explanation of Tosfos. The Gemara in Bava Metzia (6a) says that people will refrain from taking an oath when they are in doubt, but they will not refrain from taking money when they are in doubt. The reason for this is that once an oath is falsified, it can never be revoked, while money taken unlawfully can always be returned to the rightful owner. According to Tosfos here, we are concerned that the employer is in doubt about his claim, even though he says that he is certain. If there is a concern that the employer is in doubt, then why should the employer not be required take an oath because of his preoccupation with his other workers? On the contrary, we should require him to take the oath, because if he is truly in doubt about his claim then he will refrain from swearing!

The Kehilas Yakov answers that the principle of the Gemara in Bava Metzia -- that a person would not take an oath when he is in doubt about his claim -- is not an ironclad principle that applies in all cases of doubt. Rather, it is not definite that a person will refrain from swearing when he is in doubt, but it is enough of an assumption to administer a Shevu'ah in a case in which we have no particular reason to assume that the person is lying. In such a case, we rely on the assumption that the person will take the oath if he is certain about his claim, and he will refrain from taking the oath if he is in doubt. In contrast, in a case in which the person has a strong reason to claim that he is certain even when he is in doubt, we must suspect that he would *not* refrain from taking the oath. In our case, we have reason to assume that the employer is lying when he says that he is certain that he paid. We know that he was preoccupied with his other workers, and thus we have reason to assume that he is *not* certain about his claim, even though he says that he is. Since he is suspected of lying, we cannot give him a Shevu'ah, since he loses his trustworthiness with regard to his claim.

(b) The RITVA answers that no employer wants to be involved in a dispute with a worker in which he claims that he paid the worker, because he knows that we assume that he is mistaken because of his preoccupation with his other workers. It is embarrassing for him to make such a claim. Therefore, if he wanted to lie, he certainly would make a claim that would avoid such embarrassment (i.e. he would claim that he never hired this worker). Since he does not make that claim, it must be that he definitely remembers that he paid this worker and that his preoccupation did not cause him to forget.

The Ritva, however, questions this answer. The Migu should not tell us that had the employer been lying, he would have made a better claim (that he did not hire the worker in the first place), because there is another obvious reason why he did not say such a claim (and not the reason that he must be telling the truth). He would not have the audacity to blatantly deny, in the face of the worker himself, ever hiring this worker! In contrast, an employer is much more comfortable saying that he paid a worker even if it is not true, since he knows that everyone understands that employers tend to forget such things and no one will assume that he is intentionally lying. How, then, can we apply this Migu?

(c) The Ritva quotes the RE'AH who gives an entirely different explanation of the Gemara. The Re'ah learns that the Gemara *is not* exempting the employer from an oath. Rav Nachman is saying that when the Mishnah says that the worker takes an oath, it is referring to when the worker was hired in front of witnesses, but if there were no witnesses, then the employer has a *weak* Migu and the employer himself must take the oath.

The Re'ah cites proof to this explanation from the Gemara earlier (42b). The Gemara there discusses two possible claims that the defendant might make when a claimant demands money from him. If the defendant denies owing any money, then, according to Torah law, he does not have to swear at all nor pay the claimant. If he admits to half and denies half, he must pay the half that he admits, and he must swear that he does not owe the other half. Why, though, in the latter case, does he not have a Migu that he could have said that he did not owe any money at all (in which case he would have been exempt from payment and exempt from swearing)? The Re'ah says that it must be that there is no Migu in such a case, because the defendant would not have the audacity to lie and say that he owes nothing. Denying half and admitting to half, though, does not take as much audacity. Since the Migu does not apply there, the defendant must take an oath. In our case, too, the employer's Migu is weak, and therefore he must take an oath.

The Ritva questions this answer from the continuation of our Gemara. Rami bar Chama praised this ruling (that the employer is believed with a Migu when the worker was hired without witnesses), and Rava questions what is so praiseworthy about it. According to this ruling, asks Rava, there should never be a case in which a Shevu'as ha'Shomrim should be made. The person with whom the owner entrusted his object could always claim that the object was lost or destroyed through an Ones (circumstances beyond his control), and we should believe him based on a Migu that he could have said that he never received such an object to guard in the first place! According to the Re'ah, though, the ruling of the Gemara earlier is *not* saying that the employer who claims that he paid his worker is *exempt* from a Shevu'ah! Why, then, does Rava ask that if that ruling is correct, then a Shomer should always be exempt from a Shevu'ah?

The Re'ah answers that when Rami bar Chama praised the Gemara's ruling, he misunderstood it and thought that it meant that *no* Shevu'ah needs to be made, because the Migu is valid even when the alternate claim of the Migu would have embarrassed the defendant more than his actual claim. Rava, therefore, asked questions on Rami bar Chama's understanding.

The Ritva says that this answer is forced, and that all of the Ge'onim rule that the employer does *not* have to take an oath (other than the normal Shevu'as Heses, which was instituted after the times of the Mishnah and is not the topic of our Gemara). Why, though, is the Migu valid, if, as the Re'ah asks, the employer would have been embarrassed to make the claim of the Migu?

RABEINU YONAH answers that although the employer's complete denial of hiring the worker would indeed be audacious, it is also audacious for him to claim that he definitely paid the worker. A Migu cannot be rejected in such a situation. A Migu is rejected only when making the claim of the Migu would embarrass the defendant, while the actual claim that he makes causes him no embarrassment. When the actual claim also is embarrassing and requires him to be brazen, the Migu is acceptable even though the claim of the Migu would require much more brazenness.

The Ritva is not satisfied with this answer. Instead, the Ritva favors the answer of RAV HAI GA'ON. Rav Hai Ga'on explains that the reason why there is an oath here in the first place is because the Rabanan were concerned about the welfare of the worker. They established that an oath be taken even though the Torah does not require it. This decree of the Rabanan was enacted only in a case in which the employer has no other evidence favoring his claim. In a case in which the employer has the slightest evidence in his favor, such as a Migu -- even a weak one -- the Rabanan did not enact that an oath be taken. The Torah law then applies, and thus no oath is required (other than the normal "Shevu'as Heses"). (Y. Montrose)