Bava Metzia 113a (קיג.) — the Talmud in English

But

if

the time of his liability arrives, he focuses his attention,

he gives thought to examining whether he paid him or not,

and remembers.

Therefore, if his time has passed, the laborer is not deemed credible, as we say that there is a presumption that an employer does not violate “You shall not leave it overnight,” and he certainly already paid him.

And we challenge this: Even if his time has passed, why should we not believe the laborer, with an oath, that he did not receive his wages?

Does

the

laborer

seem suspect of swearing falsely and

violating the prohibition against robbery!?

And we answer:

There,

the employer has

two presumptions,

two presumptions indicating that he is not lying. But

here,

the laborer has only

one presumption.

As the Gemara will explain immediately, where there are two presumptions opposed to one presumption, the one who has only one presumption is not made to swear; rather, the one who has two presumptions is believed.

And now he proceeds to explain it:

Concerning the employer, there are two presumptions: One, that an employer does not violate “You shall not leave it overnight,”

and he certainly took care to pay on time.

And one, that a laborer does not

delay his wages,

and he certainly already received his wages.

And

conversely,

here,

the laborer has only

one presumption,

that he is not suspect of robbery. Therefore, the employer is believed, and the laborer is not made to swear.

We learned in the Mishna:

If there are witnesses that he demanded payment from him, he swears and collects:

And we are perplexed: Why are witnesses necessary to permit him to swear and collect?

But he is demanding payment from him below,

he is making his claim before us now. In either case, if he demanded payment during his time, he swears and collects even without witnesses; and if he demanded payment after his time, what benefit do the witnesses provide? The employer has two presumptions in his favor, and the laborer will not be made to swear.

And we answer:

Rabbi Asi said:

Here, the case is one in which witnesses came and testified

that

he had already

demanded payment during his time,

in which case he is made to swear even if his time has subsequently passed.

And we challenge this:

Perhaps after that,

after he demanded payment, the employer

paid

him in order not to violate “You shall not leave it overnight.” What benefit is there from their testimony that he demanded payment during his time?

Abaye said:

Here, the case is one in which they testified

that he demanded payment throughout

the entire day, until

his time

had passed. Since he had already violated “You shall not leave it overnight,” he no longer has the presumption that an employer does not violate “You shall not leave it overnight.” And the laborer is believed with an oath.

But the Gemara is perplexed:

And

since the laborer demanded payment from the employer during the proper time, throughout the entire day,

shall we always

say that he

did not pay him, so that the laborer should be believed to swear and collect!? After all, there is opposed to the laborer the presumption that a laborer does not delay receiving his wages. He certainly did not delay demanding his wages for so long; rather, he already received what was due to him.

Rav Hama bar Ukva said:

The laborer is believed to swear and collect only on the following day,

corresponding to that day on which he made his claim,

but from that point onward, we say that there is a presumption that he does not delay receiving his wages. And if he demands his wages, the law is that the burden of proof rests upon the claimant.

Mishna:

This Mishna concerns the return of a pledge.

It is stated in the Torah: “If you take your neighbor’s garment as a pledge, until sunset you shall return it to him. For it is his only covering; it is his garment for his skin. In what shall he sleep? And it shall be that when he cries out to Me, I will hear, for I am gracious.” [Exodus 22:25]

And it is likewise stated: “When you lend your fellow anything, you shall not enter his house to take his pledge. You shall stand outside, and the man to whom you lend shall bring the pledge outside to you. And if he is a poor man, you shall not sleep with his pledge; you shall surely return the pledge to him when the sun sets, and he shall sleep in his garment and bless you, and it shall be considered charity for you before the Lord your God.” [Deuteronomy 24:10]

1.

One who lends money to another,

when the time for repayment of the loan arrives and the borrower has not repaid his debt, if the lender wishes to take a pledge against the debt,

he may not take the pledge

himself,

rather,

he must bring a claim against him

in

a court,

and they will send their agent to take a pledge from him.

2.

And

a court agent who comes to take a pledge from the borrower

may not enter his house to take his pledge;

rather, he must wait outside, and the borrower brings the pledge out to him.

As it is stated [Deuteronomy 24], “You shall not enter his house to take his pledge,”

“You shall stand outside.”

3. And if the lender transgressed and went himself to take a pledge from the borrower,

then if

he had

the borrower

two utensils,

and the debt was equal in value to both utensils, and the borrower used both of them alternately, and the lender took both of them as pledges,

he takes,

the lender keeps

one

of the two utensils he took as a pledge—the utensil that the borrower does not currently need—

and leaves one,

the utensil that the borrower now needs, he returns to him, and it is as though he leaves it in the borrower’s possession.

And

for example, the lender took from the borrower a pillow and a plow.

At night, the borrower needs the pillow in order to sleep on it, whereas he needs the plow, with which work is done, during the daytime. Therefore,

he returns the pillow,

which the borrower needs to sleep on

at night.

And the plow

he returns to him

during the day,

when the borrower needs it.

4.

And if

the lender received the pledge, and afterward

the borrower died,

he does not return

the pillow and the plow

to his heirs,

because it is stated, “You shall surely return the pledge to him,” and the Sages expounded: Only “to him”—you are obligated to return it to the borrower himself, but not to his heirs.

Rabban Shimon ben Gamliel says: Even to

the

borrower himself

there are times when

he does not return it.

Rather,

this is the law: From the time the repayment becomes due

until

after

thirty days [which is the period set by the court], he returns the pillow and the plow to him.

And from thirty days onward,

he is not obligated to return them; rather, he may

sell them through the court,

and collect his debt from their proceeds.

Gemara:

Shmuel said: A court agent

who comes to take a pledge from the borrower, if he encounters the borrower in the street,

may seize items,

snatching them from the borrower against his will,

no,

he may not do so. The same law applies: He may come to the borrower’s house and wait outside until the borrower brings the pledge out to him.

But

to enter his house and

take a pledge from him—no!

And we challenge this:

But we learned: One who lends money to another may not take a pledge from him,

so that he does not take the pledge from him himself,

rather

he must bring a claim against him

in court,

and they will send their agent to take a pledge from him.

By inference

you learn

that

if he brings a claim against him

in court, the court takes a pledge

from the borrower even from within his house; there is no need to wait until the borrower brings it outside.

Shmuel could have said to you: Say

that the law of the Mishna should be stated as follows: One who lends money to another

may not seize an item from him,

he may not snatch the pledge from his hand,

rather

he must bring a claim against him

in court,

and they will send their agent to snatch a pledge from his hand. But even a court agent may not enter his house and take a pledge from him inside his house.

This is also logically compelling

to interpret the Mishna in this manner:

For it teaches in the latter clause: He may not enter his house to take his pledge.

And we must consider:

Who is it?

Who is prohibited from entering the borrower’s house?

If you say it is the creditor,

the lender himself, this law was already

learned from the first clause,

which prohibits him from entering his house, as it teaches: He may not take a pledge from him; rather, he must bring a claim against him in court.

Rather, is it not

what the tanna is saying in the latter clause:

A court agent

who comes to take a pledge from the borrower may not enter his house to take a pledge from him. This is as Shmuel explained.

And we reject this:

That is no proof.

This is not a proof for Shmuel’s words, for perhaps the tanna in our Mishna

is saying this: One who lends money to another may not take a pledge

himself,

rather

he must bring a claim against him

in court,

and they will take a pledge from him.

And

by inference

you learn

that

if he brings a claim against him

in court, the court takes a pledge

through its agent from the borrower, even in his house.

And

if

a creditor

who wishes to take a pledge from the borrower

may not even seize an item, either.

This is a decree

lest

he come to

enter his house to take his pledge

But a court agent may enter the borrower’s house to take a pledge from him. And this is contrary to Shmuel!

Rav Yosef challenged

this: It is stated concerning one who lends money to another [Deuteronomy 24]:

“No one shall take the handmill or the upper millstone as a pledge.”

And this implies:

This

is prohibited only if he wishes to take these items as a pledge; but if he wishes to take

other things, he may take them as a pledge,

he is permitted to take them as pledges.

And it is likewise stated there:

“You shall not take a widow’s garment as a pledge.”

And this implies:

This

garment

of

other borrowers,

you may take as a pledge