Shevuot 45a (מה.) — the Talmud in English

First,

when the defendant became suspected with regard to an oath because he had previously sworn falsely

the oath of testimony.

This is the oath that we learned above, in the fourth chapter. Its case is that when one person demands that another testify on his behalf concerning a monetary matter, while the witness denies it and swears that he does not know testimony that he can give on his behalf, and afterward it becomes clear that he could have testified for him, he has sworn falsely and is therefore suspected with regard to oaths.

And one

who became suspected with regard to an oath because he had previously sworn falsely

the oath concerning a deposit.

This is the oath that we learned above, in the fifth chapter. Its case is that the claimant demanded from him a deposit that he had in his possession, while the latter denied having the deposit and swore that he did not have it in his possession. Afterward, it became clear that the deposit had in fact been in his possession. Thus, he swore falsely and became suspected with regard to oaths.

And even

if the defendant became suspected only because he swore

a vain oath,

which is not like the oath of testimony or the oath concerning a deposit, by which the one who swears causes his fellow a monetary loss through his denial,

and in the case of a vain oath he does not wrong other people, nevertheless he becomes suspected with regard to oaths. Therefore, the claimant opposite him swears in his place and collects.

And likewise, if

one of them

of the defendants who became obligated by Torah law to take an oath was

one who plays with dice

[a game in which one wins money],

or one who lends with interest, or one who was

a

pigeon racer

[a competition involving pigeons],

—

or one of the merchants of the Sabbatical year

who conduct business with produce of the Sabbatical year. This is prohibited by Torah law, as it is stated: “For eating”—for eating, but not for commerce.

All these, the Sages disqualified from testimony and from taking oaths. Therefore, the one opposite him, the claimant, swears and collects!

And if

both of them,

the claimant and the defendant, were

suspected

and neither of them could be made to swear—

the oath returns to its place; this is the statement of Rabbi Yosei.

The Gemara disputes the meaning of “the oath returns to its place”: whether it returns to Sinai, meaning that neither of them swears and the defendant is entirely exempt; or whether it returns to the defendant, who was the first one upon whom the oath devolved, and since he cannot swear, because he is suspected, we say: Since he cannot swear, he must pay!

Rabbi Meir says: They divide!

And the defendant pays half the claim.

And concerning the shopkeeper and his ledger,

whom we learned above swears and collects,

how—

The Mishna begins:

It does not

refer to a case in which

the shopkeeper says to him,

the homeowner who purchases from him:

Write in my ledger that you are owed two hundred zuz.

This is for things that you purchased from me, and the shopkeeper swears and collects even though the defendant denies the debt.

Since in such a case there is no admission at all by the homeowner that any transaction took place between them, there is no reason to believe the shopkeeper and allow him to collect on the basis of an oath.

Rather,

the case is when

the homeowner said

to the shopkeeper:

Give my son two se’a of wheat. Or give my workers wheat

in exchange for

a sela

that I am giving you—give it to them and make change for them in

small coins,

[that is, small-denomination coins], as payment for their work for me, on account of which I am obligated to pay them.

In this manner there is “basis to the matter,” meaning something resembling an admission by the homeowner that he indeed became obligated to the shopkeeper, since he instructed him to give the wheat or the coins. This is the case discussed by the Mishna. Subsequently,

he,

the shopkeeper,

says: I gave

them the wheat or the coins as you instructed. And they, the son or the workers,

say: We did not take from him.

Thus,

he,

the shopkeeper,

swears

that he indeed gave the wheat to the son or gave the coins to the workers,

and collects

their value from the homeowner.

And

also

they,

the workers,

swear

that they did not receive their wages from the shopkeeper

and collect

their wages from the homeowner.

Ben Nannes said: How

can the Sages institute such an oath for one who collects, when through the oaths of the shopkeeper and the workers, which contradict one another,

both these and those,

the workers and the shopkeeper,

certainly come

with certainty

to a vain oath,

since one of them certainly swore falsely? Therefore, Ben Nannes maintains that it is impossible to institute such an enactment.

Rather,

the law is that

he,

the shopkeeper,

collects

from the homeowner

without an oath,

and

likewise

they,

the workers,

collect

their wages from the homeowner

without an oath!

If

the homeowner,

the purchaser,

said to the shopkeeper: Give me for

the price of

a dinar—

produce, and he gave him

the shopkeeper gave him the produce,

he said to him,

the shopkeeper:

Give me

the dinar that you promised as payment for the produce.

He said to him,

the purchaser: I already

gave it to you, and you put it in a wallet.

[In the pouch designated for coins, similar to a purse.]—

The homeowner shall swear

a heset oath instituted by the Sages that he gave him the dinar, and he is exempt.

And if

the homeowner gave him the

dinar before he demanded and received the produce, and

the homeowner said to him,

the shopkeeper:

Give me the produce

for which I have already paid you, and

the shopkeeper said to him:

You already

gave them to me, and

also

I carried them into your house!

The shopkeeper shall swear—

and he is exempt!

Rabbi Yehuda says:

If the shopkeeper gave the produce and afterward demanded the dinar, the homeowner need not swear that he indeed gave it. Rather,

whoever has the produce in his possession—

his hand is uppermost!

Since the produce is now in the homeowner’s possession, he is exempt from taking an oath and from payment.

The reason is that a shopkeeper who sells for cash, rather than on credit, does not ordinarily give produce to a customer until he receives the payment in hand. Since the produce is already in the customer’s possession, it is evident that he already paid for it!

But if the purchaser demands that the seller give him the produce in exchange for the dinar that he paid him, Rabbi Yehuda concedes that the shopkeeper must swear in order to be exempt.

He said,

the homeowner

to the money changer: Give me for a dinar small coins,

copper perutot,

and he gave him

the money changer gave him those perutot.

He said to him,

the money changer:

Give me the dinar

for the perutot that I gave you

. He said to him: I gave you

the dinar,

and you put it in a wallet—

the homeowner shall swear

that he indeed gave him the dinar, and he is exempt.

And if

he gave him

the homeowner

the dinar

to the money changer before the money changer gave him the coins, and

the homeowner said to him,

the money changer:

Give me the coins

in exchange for the dinar,

the money changer said to him:

You

gave them to me, and I threw them into your pocket—

the money changer shall swear

that he indeed gave him the coins, and he is exempt.

Rabbi Yehuda says: A money changer does not give an issar

that is, small coins, to the homeowner

until he takes his dinar.

Therefore, in the first case, when the money changer claims the dinar for the small coins that he gave, the homeowner is exempt without needing to swear, since presumably he already gave it to him.

Just as they said

that a woman

who partially collects her marriage settlement,

who admits to her husband that she has already received part of her marriage settlement [and therefore one can no longer rely on the written marriage document, since the woman admits that she has already received part of what is written there],

while the husband claims that he paid all of it, and she wishes to extract the remainder of the marriage settlement from him—

she may not collect

the remainder of the marriage settlement from her husband

except by taking an oath.

And likewise, a marriage settlement concerning which

one witness testifies that it,

the marriage settlement, has already

been paid, the woman may not collect

the marriage settlement

except by taking an oath.

And likewise, a woman who comes to collect her marriage settlement

from liened property,

such as when her husband sold his property to others, since before the sale the property had already been encumbered for payment of the marriage settlement,

and

likewise a widow who comes to collect her marriage settlement

from the property of orphans,

from the property that her husband left to the orphans—in all these cases

she may not collect except by taking an oath

that she has not yet received payment of her marriage settlement:

And

likewise,

one who collects

the payment of her marriage settlement

not in his presence,

not in the presence of her husband—for example, he went overseas and sent her a bill of divorce from there—

she may not collect except by taking an oath.

And likewise,

meaning, just as each of these women may not collect except by taking an oath, so too:

the orphans

who come to collect their father’s debt from other orphans

may not collect

from them

except by taking an oath.

And what is the oath of orphans who come to collect their father's debt from other orphans?

An oath that we did not know of any instruction from our father

that he did not tell us at the time of his death that this document had been paid.

And

likewise,

that our father did not tell us

earlier, during his lifetime, that this document had been paid. Therefore, we wish to collect the debt recorded in this document.

And

likewise, an oath

that we did not find among our father's documents

a receipt for the document

stating that this document had been paid.

Rabbi Yohanan ben Beroka says: Even if

the

son was born after the father's death,

and consequently he cannot swear that his father did not say that this document had been paid,

he nevertheless takes an oath

that he did not find a receipt for payment among his father's documents,

and collects.

Rabban Shimon ben Gamliel said: If there are witnesses

who heard the father say at the time of his death: “This document has not been paid,” he,

the orphan,

collects without an oath.

Until now, we have learned the laws of those for whom the Sages instituted an oath in order that they may collect what they claim.

The Mishna now lists an additional oath instituted by the Sages, for those who make a claim without a definite allegation; that is, their claim is based on uncertainty. For there is no oath מן התורה unless the claimant comes with a definite claim. The Sages instituted that those whom the Mishna will list below must take an oath even in response to a claim based on uncertainty.

And these take an oath without a definite claim.

That is, they were obligated to take an oath even when the claimant's allegation is based on uncertainty—

Partners

who suspect one another that they misappropriated partnership funds and took money unlawfully, and make claims against one another based on uncertainty,

and sharecroppers

who work a landowner's field and receive as payment for their labor one-half, one-third, or one-quarter of the produce. The landowner suspects that the sharecropper took more for himself than they had agreed upon, and makes him swear concerning this suspicion even though it is based on uncertainty.

And guardians

who engaged in the business dealings of other people's assets that had been entrusted to them must swear that they did not misappropriate the others' property.

And a woman who conducts business within the household,

whom her husband installed as a shopkeeper, or whom he appointed as a guardian to manage his property, must swear that she did not misappropriate any of it.

And

likewise,

a member of the household.

This is one of the brothers who managed the inheritance after the father's death; he must swear to the other brothers that he did not misappropriate any of the inheritance.

The Mishna explains the nature of the obligation of those who take an oath without a definite claim. Even if the claimants have no specific allegation, but merely demand an oath that the business was conducted honestly, the other party is obligated to swear.

And even if

the defendant says to him

the claimant,

“What are you claiming against me?”

and the latter replies, “I have no claim against you; rather,

I want you to swear to me!”—

the defendant is obligated

to take an oath and clarify that his actions were lawful.

But if

the partners or the sharecroppers divide the partnership,

and conclude their transaction and the division of the money or wages, then

neither

of them

can make the other take an oath

after the division, on the basis of a claim based on uncertainty.

However, if after the partnership was divided,

there arose for him

the claimant against the defendant

an oath from another place,

for example, the defendant owed him a debt, admitted part of the claim, and thereby became obligated to take an oath—

we impose all of it upon him.

He may make him take an oath as a partner on the basis of a claim based on uncertainty, even though they had already divided the partnership between them.

And the Sabbatical Year releases the

obligation of

the oath

of a borrower who admits part of the claim.

But it does not release the oath of partners, nor the oath of the other persons obligated to take oaths listed in the Mishna. For the Sabbatical Year does not release partnerships, sharecropping arrangements, and the like, but only debts. Therefore, it also releases an oath that arises through a claim for a debt.

Gemara:

We learned in the Mishna:

All who take oaths prescribed in the Torah take an oath and do not collect.

The Gemara asks:

From where do we derive

that an oath prescribed by the Torah is imposed only upon the defendant, so that he may swear and be exempt from his obligation, and was not stated at all with regard to the claimant, that he should swear and collect?

The answer is that this law is derived from that

as the verse says: “

‘The oath of the Lord shall be between them’ [that is, between the homeowner who claims the deposit and the bailee].

‘And its owner shall take it’ [

the owner of the deposit takes the oath from the one who swears, the bailee],

‘and he shall not pay’ [

the bailee does not pay the object claimed by the one who deposited it].”

The Gemara derives from this:

The one who is obligated to pay,

that is, the bailee—

to him

belongs the obligation of the

oath.

Through this oath he is exempt from a monetary obligation. Only he, the defendant, has the obligation to take an oath in order to obtain exemption; this obligation is not imposed upon the claimant, that he should swear in order to collect.

We learned in our Mishna:

And these take an oath and collect, etc.

The Gemara asks:

What is different about a hired laborer

mentioned in the Mishna,

that

specifically for him

the Sages instituted that he swear and collect,

and did not institute this for other claimants seeking money?

Rav Yehuda said that Shmuel said: Great laws are taught here

in the laws newly presented in our Mishna.

The Gemara wonders: How can you say that

laws

are taught here!?

What,

these—

are laws,

that is, are they laws transmitted to Moses at Sinai—

are they? [

For the primary meaning of the term “laws” is laws transmitted to Moses at Sinai.]

Are these not merely enactments instituted by the Mishna?

Rather,

certainly

say

that the explanation is:

Great enactments

that the Sages instituted

are taught here.

But it must still be understood: If these enactments are called

“great,”

then

by inference, there are

also

small enactments?

And in what way is this enactment greater than the other enactments?

Rather, Rav Naḥman said that Shmuel said: Established enactments are taught here.

And what are they?

The Sages uprooted the oath from the homeowner and cast it

and imposed and fixed it

upon the hired laborer,

for the sake of his livelihood.

That is, because the wage that the hired laborer claims from the homeowner is necessary for the laborer's sustenance and livelihood, they instituted that he should swear concerning it and collect his wage from the homeowner.

The Gemara challenges this:

Would we, because of the hired laborer's livelihood, penalize the homeowner

by requiring him to pay even though he is exempt according to Torah law? After all, we have no proof that he actually owes the hired laborer anything.

The answer is:

The homeowner himself

personally

would prefer

it

that the hired laborer swear and collect,

and take his wage from him, even though according to Torah law he is exempt from giving it to him. And why?

So that laborers will agree to work for him.

That is, so that the homeowner will easily find laborers to work for him.

For now he is denying payment of the laborer's wage, and other laborers will be wary of him, fearing that he will also deny their wages, since they do not know with whom the truth lies.

Therefore, the homeowner is comfortable with this enactment, that the hired laborer swear and collect, so that the laborers will not fear that he might deny the debt and they will lose their wages.

However, conversely, there is a difficulty:

On the contrary, the hired laborer would prefer it.

It would be preferable for the hired laborer

that the homeowner swear and be exempt

from the obligation to pay him his wage

, so that the homeowner would hire him,

in order that it would be easier for him to find work with other homeowners.

For now, after the employer denies the claim and the hired worker takes his wages by means of an oath, employers will be wary of hiring him for their work. Perhaps he will also sue them after having received his wages and take his wages from them twice

? If so, we are again left without an explanation: why should the hired worker specifically take an oath, and not the employer

? The answer is:

The employer is compelled to hire him.

The employer must hire the workers against his will, even if he is concerned about their oaths, since he needs them to perform his work. Therefore, the hired worker should be required to take an oath, and we need not be concerned that employers will be unwilling to hire him.

However,

the hired worker, too, is compelled to seek employment,

since he likewise needs a livelihood. Therefore, he will not refrain from hiring himself out because of the concern that the employer might deny owing him his wages. If so, he should refrain from taking an oath and collecting his wages

?

Rather,

the Sages instituted that the hired worker should take an oath and collect his wages because

the employer is preoccupied with his workers.

Since he is accustomed to paying wages to many workers, he may err and think that he already paid this worker, when in fact he has not yet paid him. Therefore, the Sages believed the worker and instituted that he may collect his wages by means of an oath.

Unless,

let him give it to him without an oath?

Let the worker be given his wages even without an oath, since the Sages believed his claim against the employer? The answer is: Indeed, so it is. The entire purpose of instituting this oath is

to appease the employer,

so that he will not suspect the worker of taking his wages twice. Since he sees that the worker is prepared to take an oath about this, he will believe him that he is indeed making a truthful claim.

Yet there is still a difficulty: Why did the Sages institute an obligation to take an oath

and let him give it to him in the presence of witnesses,

instituting that he should pay him his wages only in the presence of witnesses? Then there would no longer be any need for an oath; rather, the witnesses would testify whether or not he paid him

?

The Gemara resolves this:

It is burdensome for him.

It is burdensome for the employer to seek out witnesses every time he wishes to pay his workers their wages.

But if so,

let him give it to him from the outset,

so that the employer should pay them their wages at the outset, at the beginning of the work, and not at its conclusion.

And in that case, the worker would not be able to claim his wages twice. For if he claimed that he had not received his wages, the employer could say to him: If you had not received your wages, you would not have worked. Since you worked, you must have received your wages. Consequently, there would be no need for an oath.

Rather, this is not a solution, because

both of them want

deferred payment.

Both the employer and the worker want the payment to be deferred—that is, to be made at the conclusion of the work.

The employer wants this because it is possible that at the beginning of the day he still does not have the money with which to pay the workers.

The worker, for his part, wants this because he is concerned that if he receives his wages at the beginning of the day, he will have already spent them on various expenses by nightfall.