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Shevuos, 46

1) THE OATH TAKEN BY THE EMPLOYER IN A DISPUTE REGARDING WAGES

QUESTION: The Gemara here (46a) relates that the students of Rav asked Shmuel about a case in which the worker and employer dispute how much the employer owes the worker. Shmuel replied that the employer must swear in order to be exempt from paying the rest.

REBBI AKIVA EIGER (Teshuvos 2:140) poses a strong question from this Gemara on the words of TOSFOS. The Gemara earlier (45b) teaches that when a worker and his employer dispute whether or not the worker was paid, the worker may take an oath that he was not paid and then collect his payment. When the dispute involves not whether or not he was paid, but rather how much he is supposed to be paid, the *employer* takes an oath and pays the amount that he claims that he owes. The Gemara says that if the reason why the worker swears in the first case is because the employer is busy with his workers and does not remember whether or not he paid, then in the second case, too, the worker should swear about how much the employer owes him, since the employer is busy with his workers and does not remember how much he owes. The Gemara answers that the difference between the two cases is that although an employer is prone to forget whether or not he paid, he does *not* forget the amount that he was supposed to pay.

TOSFOS there (45a, DH Afilu Katzatz) questions why the Gemara asks that since the employer is busy with his other affairs, the worker should swear even when the dispute involves how much is owed. The Gemara in Bava Metzia (97b) says that when a defendant claims that he does not know whether or not he stole from the claimant, he does not have to pay (even when the claimant is making a claim of certainty, "Bari"). Similarly, in our case, when the employer says that he owes only a certain amount, we know that he is in doubt about the remainder (since he is busy with his other affairs), and thus it is as if he is saying that he does not know whether he owes the rest. Accordingly, he should be exempt from paying and there should be no obligation of a Shevu'ah!

Tosfos answers that in the case in Bava Metzia, when the defendant says that he does not know, he is not admitting to owing anything. Therefore, he is exempt. In contrast, in the case of our Gemara, if the employer would say that he does not know about the rest of the money being claimed, he would be *admitting* to the first part of the claimed amount. Consequently, it is a case of "Modeh b'Miktzas" in which the defendant agrees to owing half of the claim and says that he does not know about the other half. For being "Modeh b'Miktzas," the employer should have to make a Shevu'ah d'Oraisa (a Shevu'ah Modeh b'Miktzas) that he does not owe any more money. However, he cannot make a Shevu'ah because he says he does not know about the other half. There is a rule that when a person is obligated to take an oath that he does not owe money, but he cannot swear (such as when he says he does not know), then he must pay ("Mitoch she'Eino Yachol li'Shava, Meshalem").

In this case, when the employer says that he knows that he does not owe the rest, we do not obligate the employer to pay outright. However, since we suspect that he does owe but that he forgot due to his involvement with his workers, we allow the worker to swear and collect the rest of the money.

REBBI AKIVA EIGER (Teshuvos 2:140) poses a strong question from our Gemara on the words of Tosfos there. The Gemara here (46a) relates that the students of Rav asked Shmuel about a case in which the worker and employer dispute how much the employer owes the worker. Shmuel replied that the employer must swear in order to be exempt from paying the rest. We know that Rav and Shmuel do not agree to the principle that "Mitoch she'Eino Yachol li'Shava, Meshalem" (see 47a, "l'Heichan Chozer"). Rather, they hold that if a person cannot swear, then he does *not* have to pay. According to Rav and Shmuel, Tosfos' question -- that the employer's claim should be treated as though he says he does not know, and thus he should *not* have to pay -- remains unanswered. According to Rav and Shmuel, why must the employer swear?

ANSWERS:

(a) REBBI AKIVA EIGER answers based on the Halachah in the case of a person who is suspected of lying, who is not allowed to take an oath. According to all opinions, such a person does *not* have to pay when obligated to take an oath. TOSFOS in Bava Metzia (5a) explains that we only invoke the rule of "Mitoch" (and make the person pay) when the person is uncertain about the facts of the case. When the person is certain about the facts and wants to swear, but the Halachah prevents him from swearing because of his character, we do *not* rule that he must pay (since he claims that he is certain about the facts of the case). However, the Gemara there adds that there is another Halachah that the disputing party may then swear that he is correct and collect the money. Rebbi Akiva Eiger deduces from there that even without applying the rule of "Mitoch," we can still have the other party swear and collect the money.

Based on this, Rebbi Akiva Eiger explains the question of our Gemara according to Rav and Shmuel. Our Gemara originally assumed that the employer was too busy to be sure of the facts (as in the case of denial of wages), and thus his claim of the amount of wages owed is similar to making a claim that he does not know how much is owed. Even without the rule of "Mitoch" there is still grounds to require the worker to swear. The worker should be given the "Modeh b'Miktzas" oath of the employer, just as in the case of a suspected person, where the disputing party can be given the oath of the suspected person who cannot swear himself. The Gemara answers that an employer's opinion is not considered a doubtful opinion. The employer is therefore allowed to swear to remove any suspicion.

(b) The KEHILOS YAKOV (ch. 30) suggests that in order to answer this question it is not necessary to introduce a new principle that would transfer the Shevu'ah to the disputing even without the rule of "Mitoch." He argues that the principle of transferring a Shevu'ah to the disputant without applying "Mitoch" which applies only in a case of a suspected person who is unable to take an oath can also apply in our case. We can say that our case, too, is a case of a suspected person who is obligated to take an oath. The Gemara originally thought that because the employer is busy with his workers, if required to swear he will mistakenly swear falsely. Once we consider him as suspect to swear falsely, it follows that the worker should swear and collect, just as in a normal case of a person who is suspected of lying. The Gemara answers that the employer is not suspected, since he remembers the amount well. (Y. Montrose)

46b

OPINIONS: The Gemara discusses a case in which Reuven claims that a certain object in Shimon's possession belongs to him, and Reuven brings witnesses who testify that they saw that the object once belonged to Reuven. If the object is the type of object that is frequently lent or rented to others ("Devarim he'Asuyin l'Hash'il ul'Haskir"), Shimon is *not* believed to say that he bought the object from Reuven and that the object belongs to him, because we assume that Reuven lent or rented it to Shimon (unless Shimon can prove otherwise).

What is the definition of things that are "Asuyin l'Hash'il ul'Haskir?"

(a) The RAMBAM (Hilchos To'en v'Nit'an 8:9-10) says that one should not make the mistake of thinking that there is no difference between things that are *made* to be lent and rented out, and things that are *commonly* lent and rented out, "as many great people have erred." All items, he says, are fit to be lent out and indeed are often lent out. Rather, he explains that the Gemara is referring to objects that the people in that place craft with the intention that those things will be lent and rented out. He cites as examples of such things large cooking pots, bridal adornments, and the objects mentioned in our Gemara (such as scissors used for cutting wool). The MAGID MISHNEH (ibid.) cites support for the Rambam's view from the fact that the Gemara calls these objects things that are "*Asuyin* l'Hash'il ul'Haskir" -- "Asuyin" literally means "made," which implies that these things were crafted with the intention to be lent and rented out.

(b) Many Rishonim argue with the Rambam (as the Rambam himself mentions). TOSFOS, the RIF, RAMAH, RAMBAN, and others maintain that the Gemara is referring to any objects which people *usually* lend or rent out (and it has nothing to do with whether these objects were *made* for that purpose or not). The RITVA explains that the fact that the Gemara calls these things "Asuyin" ("made") is not a proof to the opinion of the Rambam. The Gemara earlier (at the beginning of 46b) discusses a person who is "Asuy" to sell his vessels, referring to a person who has a *tendency* to sell his vessels (it obviously does not mean a person who is "made" to sell his vessels!). Here, too, regarding objects that are "Asuyin l'Hash'il ul'Haskir," the Gemara means objects that are usually lent or rented out, and not that they are made specifically for that purpose.

This difference in opinion concerning how to define objects that are "Asuyin l'Hash'il ul'Haskir" has practical consequences in other contexts. The Gemara in Kesuvos (50a) states that the verse, "And his righteousness endures forever" (Tehilim 112:3), refers to the person who writes scrolls of Torah, Nevi'im, and Kesuvim and lends them to others. According to the explanation of most Rishonim, such scrolls would certainly qualify as objects that are usually lent out, "Asuyin l'Hash'il." According to the Rambam, though, such scrolls would not constitute "Devarim he'Asuyin l'Hash'il" unless they were made specifically for the purpose of being lent out to others.

Based on this, Tosfos challenges this explanation from another Gemara. The Gemara in Bava Kama (114b) discusses a case in which one person sees his Sefarim and vessels in the possession of another person, who claims that he bought the items, and there is overwhelming evidence that the original owner was the victim of a theft. The law is that the holder of the items may take an oath attesting to the amount of money that he paid for the items, and the original owner then pays him this amount and receives the items in return. The Gemara requires that there be evidence of a theft in order to eliminate the possibility that the original owner sold these items to the second person and is now unlawfully demanding them back.

If these items are not items that are usually lent out, then indeed it is necessary to have evidence of a theft, because, otherwise, the defendant could claim that he bought them and he would be believed. If, on the other hand, these items are considered items that are commonly lent out (as the Gemara in Kesuvos says), then there should be no need for evidence of a theft, and there should be no need for a Shevu'ah! The original owner should win the case merely by saying that they were stolen from him, since he has a Migu that he could have claimed that he lent them! The MIRKEVES HA'MISHNEH (Hilchos To'en v'Nit'an ibid.) indeed says that this question is the reason why the Rambam does not agree to the explanation of the other Rishonim.

1. Tosfos answers in the name of RABEINU TAM that the Gemara in Bava Kama is referring to a case in which the person holding the items obviously would not have borrowed them from the original owner, such as a person who has never dealt with the original owner. In such a case, we do not assume that the items were lent out. (Accordingly, Rabeinu Tam explains that when Rava, in our Gemara, rules that certain orphans should give back Sefarim of Agadita to the original owner, it must be that Rava knew that the person lent his Sefarim to the father of these orphans.)

2. The RITVA answers that there is a difference between more difficult Sefarim -- to which the Gemara in Bava Kama refers -- and Sefarim of Agadita, which are more easy to learn. Although it certainly is a Mitzvah to lend out all types of Sefarim, it is not the normal manner for people to lend out the more difficult Sefarim, because they tend to get ruined easily due to the intense amount of learning that is necessary to understand them. Thus, people do not always lend out these Sefarim. In addition, only very learned people borrow these types of Sefarim. If a person who is a normal layman and not a scholar claims possession of these Sefarim, they certainly would not be considered something that is made to be lent out. On the other hand, Sefarim of Agadita are always lent out to everyone, as they are not difficult to understand. For this reason, our Gemara makes a point of saying that the Sefarim in Rava's case were Sefarim of Agadita. (Y. Montrose)

QUESTION: The Gemara discusses a case in which Reuven claims that a certain object in Shimon's possession belongs to him, and Reuven brings witnesses who testify that they saw that the object once belonged to Reuven. If the object is the type of object that is frequently lent or rented to others, Shimon is *not* believed to say that he bought the object from Reuven and the object belongs to him, because we assume that Reuven lent or rented it to Shimon (unless Shimon can prove otherwise).

This principle -- that a person cannot make a Chazakah on objects that are normally lent or rented out -- seems to contradict the Gemara earlier in Shevuos (34a). The Gemara there teaches that when Levi hands over money to Yehudah in the presence of two witnesses, Yehudah is believed to claim later that he indeed received money from Levi, but that money was the repayment of a loan from Levi. According to the principle presented in our Gemara, in a case in which the witnesses do not know whether Yehudah was borrowing money from Levi or whether he was receiving a repayment for a loan that he gave to Levi, we should assume that Yehudah was receiving a loan from Levi, since money is something that is normally lent to others! Why does the Gemara there say that Yehudah is believed to say that the money he received was a repayment of a loan due to him?

ANSWERS:

(a) The KETZOS HA'CHOSHEN (79:2) distinguishes between money and objects. With regard to the lending of money, the principle of "Milveh l'Hotza'ah Nitnah" applies. This means that when the lender lends money, the borrower is allowed (and expected) to spend that money and to return different money, of the same value, to the lender. In contrast, when a person lends an *object*, the borrower is obligated to return the same object. The reason why objects that are frequently lent or rented out are not assumed to belong to the person holding them is because we do not consider them to have left the possession of the original owner (Mara Kama) unless there is proof otherwise. Money, though, always leaves the possession of the Mara Kama, and afterwards the borrower must return different money. Hence, Yehudah, who is holding the money, is believed to say that it is his money, because there is no Chezkas Mara Kama opposing him.

(b) RAV YITZCHAK ELCHANAN SPECTOR (cited by the MILU'EI CHOSHEN to the Ketzos ha'Choshen) gives another answer to this question. The SHULCHAN ARUCH (CM 72:19) cites the RIF and RABEINU TAM who rule that any object which the owner does not usually lend out because of its importance is not considered to be in the category of "objects which are normally lent out." Accordingly, money is not considered to be something that is normally lent out, because the owner is apprehensive about lending it because the borrower might not return it.

The Shulchan Aruch there also quotes the RAMBAM (see previous Insight) who rules that only objects which are made for the purpose of being lent or rented out fall into this category. According to this definition as well, money is not considered an object that is normally lent. (See Insights to Bava Basra 52:2.) (Y. Marcus)