Shevuot 45a — the Talmud in English

One,

whether the defendant became suspected concerning an oath because in the past he swore falsely

the oath of testimony.

That oath we learned above, in the fourth chapter. And its subject is that when a person claims from his fellow that he testify for him testimony concerning a monetary matter to his benefit, while the witness denies and swears that he does not know testimony to give him. And afterward it becomes clear that he could have testified for him, and thus he swore falsely—he is suspected concerning an oath .

And one

who became suspected concerning an oath because in the past he swore falsely

the oath concerning a deposit. [ [

That oath we learned above, in the fifth chapter. And it is that the claimant claimed from him concerning a deposit that he had in his possession. And the other denied and swore that he did not have a deposit in his possession, and afterward it became clear that the deposit was found in his possession; therefore, he swore falsely and became suspected concerning an oath] ].

And even

if the defendant was suspected only because he swore

a vain oath.

For it is not like the oath of testimony and the oath concerning a deposit [where the one who swears them causes his fellow monetary loss through his denial].

And with a vain oath, he does no wrong to people; even so, he becomes suspected concerning an oath. Therefore, the claimant opposite him swears in his place and takes.

And likewise if

one of them

of the defendants, who became obligated by an oath from the Torah, was:

one who plays dice [

a game that brings about winning money] ,

and one who lends at interest, or one who was

from

those who make pigeons fly [

a competition game among pigeons],

—

or from those who trade in produce of the Sabbatical year

who conduct commerce with produce of the Sabbatical year; and this matter is forbidden by the Torah, as it is stated, “for eating”—for eating and not for commerce.

All these, the Sages disqualified from testimony and from an oath. And because of this, the one opposite him, the claimant against him, swears and takes!

And if

both of them,

the claimant and the defendant, were

suspected

and it was not possible to administer an oath to either of them—

the oath returned to its place, the words of Rabbi Yosei.

And they disputed in the Gemara whether “the oath returned to its place” means to Sinai—that is, neither of them swears, and the defendant is exempt without receiving anything—or whether “the oath returned to its place” means to the defendant, who was the first upon whom the oath took effect; and since he cannot swear, for he is suspected, we say: Since he cannot swear, he pays!

Rabbi Meir says: They divide!

And the defendant pays half the claim.

And the shopkeeper concerning his ledger,

which we learned above, that he swears and takes,

how—

And the Mishna begins:

not

is the case

that the shopkeeper should say to him

to the homeowner who purchases:

Write in my ledger that you owe me two hundred zuz.

For things that you bought from me, and the shopkeeper should swear and take even though the defendant denies the debt.

Since in this manner there is no admission whatsoever from the homeowner that there was indeed some transaction between them, and there is no reason that we should believe the shopkeeper and allow him to take by means of an oath,

rather

the case is when

he said

to him, the homeowner, to the shopkeeper:

Give my son two seahs of wheat. Or give my workers for

the

sela

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

money. [

That is, small coins], as their wages for their work for me, on account of which I am obligated to pay them.

And in this manner there is “a basis to the matter,” that is, something resembling an admission from the homeowner that he indeed became obligated to the shopkeeper. For he instructed him to give the wheat or the money. And in this manner the Mishna spoke! Afterwards,

he,

the shopkeeper,

says: I gave

them the wheat or the money as you said. And they, the son or the workers,

say: We did not take it from him.

Behold,

he,

the shopkeeper,

swears

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

and takes

their value from the homeowner.

And

also

they,

the workers,

swear

that they did not receive their wages from the shopkeeper

and take

their wages from the homeowner.

Ben Nannas said: How

do the Sages institute such an oath taken by those who take, for 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 swears falsely. And if so, Ben Nannas holds that it is impossible to institute such an enactment.

Rather,

the law is that

he,

the shopkeeper,

takes

from the homeowner

without an oath,

and

likewise

they,

the workers,

take

their wages from the homeowner

without an oath!

If

the homeowner said,

the purchaser,

to the shopkeeper: Give me for a

the

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 purse. [

In the pouch designated for money, resembling a wallet].—

The homeowner shall swear

an oath of inducement instituted by the Sages that he gave him the dinar—and he is exempt.

And if

the homeowner gave him the

dinar before he claimed and received the produce, and

said to him,

the homeowner said to the shopkeeper:

Give me the produce

for which I already paid you, and

the shopkeeper said to him

already

gave it to you, and

also

you carried it into your house!

The shopkeeper shall swear—

and he is exempt!

Rabbi Yehuda says: If the shopkeeper gave the produce and afterward claimed the dinar, the homeowner does not need to swear that he indeed gave it, but—

whoever has the produce in his possession—

his hand is superior!

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

And the reason is that since it is not the way of a shopkeeper who sells for cash, not on credit, to give produce to a customer except after he receives the payment into his hands, and since the produce is already in the customer’s possession, it is proven that he already paid for it!

But if the purchaser claims from the seller that he give him the produce 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 coins, small denominations,

and he gave him

the money changer gave him those small coins.

He said to him,

the money changer

:

Give me the dinar

for the small coins that I gave you

. He said to him: I gave you

the dinar,

and you put it in a purse—

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, even before the money changer gave the small coins, and

said to him

the homeowner

:

Give me the small coins

He said to him,

the money changer:

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

the money changer shall swear

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

Rabbi Yehuda says: It is not the way of a money changer to give an issar

that is, the small coins, to the homeowner, except

until he takes his dinar.

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

Just as they said

that a woman

who diminishes her marriage settlement

who admits to her husband that she has already received part of her marriage settlement [and if so, it is no longer possible to rely upon what is written in the marriage-settlement document, since the woman admits that she has already received part of what is written there].

And the husband claims that he paid all of it, while she wants to take the remaining amount of the marriage settlement from him—

she shall not collect

the remainder of the marriage settlement from her husband

except by an oath.

And likewise, a marriage settlement concerning which

one witness testifies that it,

the marriage settlement, has already been

paid, she shall not collect

the marriage settlement

except by an oath.

And likewise a woman who comes to collect her marriage settlement

from encumbered property,

for example, when her husband sold his property to others. And behold, before the sale the property had already become 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 shall not collect except by an oath

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

and

likewise

the one collecting

the payment of her marriage settlement

not in his presence,

not in the presence of her husband, as, for example, when he went to an overseas country and sent her her writ of divorce from there, she

shall not collect except by an oath.

And likewise,

that is, just as each one of these does not collect except by an oath, so too:

the orphans

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

shall not collect

from them

except by an oath.

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

An oath that our father did not instruct us

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

And

likewise

our father did not say to us

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

And

likewise an oath

that we did not find among our father’s documents

a receipt for the document

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 swears

that he did not find a receipt of payment among his father’s documents

and collects.

Rabban Shimon ben Gamaliel said: If there are witnesses

that the father said 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 law of those for whom the Sages instituted an oath, in order that they should take what they claim.

Below the Mishna enumerates an additional oath that the Sages instituted for those who claim without a definite claim; that is, their claim is a claim of uncertainty. For there is no oath מן התורה except when the claimant comes with a definite claim. And the Sages instituted that those whom the Mishna enumerates below should swear even concerning a claim of uncertainty.

And these swear without a definite claim.

For they obligated them to swear even when the claimant’s claim is a claim of uncertainty—

the partners

who suspect one another that perhaps they misappropriated the partnership’s money and took improperly, and claim against one another with a claim of uncertainty.

and the sharecroppers

who work in the owner’s field and take as payment for their labor one-half, one-third, or one-quarter of the produce. And the owner suspects the sharecropper that he took for himself more than was agreed between them, and makes him swear concerning the suspicion even though it is uncertain.

and the trustees

who engaged in the business dealings of other people’s property that was entrusted to them shall swear that they did not misappropriate the property of the others.

and the woman who conducts business within the household,

whom her husband installed as a shopkeeper, or whom he appointed as a female trustee to deal with his property, shall swear that she did not misappropriate any of it.

And

likewise

the member of the household.

For he is one of the brothers who dealt with the inheritance property after the father’s death, and he is obligated to swear to the other brothers that he did not misappropriate the inheritance money.

And the Mishna explains what the obligation of those who swear without a definite claim is: even if the claimants have no specific claim, but demand an oath that the business is being conducted honestly, the other is obligated to swear.

And even if

the defendant said to him

the claimant,

“What are you claiming against me?”

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

I want you to swear to me!”—

the defendant is obligated

to swear and clarify that his actions were according to law.

But if

the partners and the sharecroppers divided.

And they concluded the transaction between them and the division of the money or the payment—again

no

one of them

can make him swear

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

But if, after the division of the partnership,

there became attached to him

to the claimant against the defendant

an oath from another place,

for example, he owed him a debt and admitted part of it to him, and became liable for an oath—

we attach everything to it.

And he can make him swear according to the law of a partner, on a claim of uncertainty, even though they had already divided the partnership between them.

And the Sabbatical year cancels the

obligation of

the oath

of the borrower who admits part of the claim.

But it does not cancel the oath of the partners, nor the oath of the other persons liable for oaths enumerated in the Mishna. For the Sabbatical year does not cancel a partnership, sharecropping, or the like, but only debts. And therefore it also cancels the oath that comes through a claim of debt.

Gemara:

We learned in the Mishna:

All who swear מן התורה swear and do not collect.

And the Gemara discusses it:

From where do we know

that the oath of the Torah is imposed only upon the defendant, in order to swear and be exempt from his obligation, and was not stated at all concerning the claimant, that he should swear and collect?

And the answer: This law is learned from that

which the verse says: "

“The oath of the Lord shall be between them [that is, between the owner who claims the deposit and the guardian of the deposit].

And its owner shall take [

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

and he shall not pay

the bailee shall not pay the object that the depositor claims] ”.

And the Gemara derives from this:

The one upon whom it is incumbent to pay,

that is, the bailee—

he

has the obligation of the

oath.

And through this oath he is exempt from a monetary obligation. And only upon him, the defendant, is there the obligation of the oath in order to be exempt; this obligation is not imposed upon the claimant, that he should swear in order to collect.

We learned in our Mishna:

And these swear and collect, etc.

And the Gemara asks:

What is different about a hired worker

mentioned in the Mishna,

that

specifically for him

the Sages instituted that he swear and collect,

but they did not institute this for the other claimants of money?

Rav Yehuda said in the name of Shmuel: Great laws were taught here

in the laws innovated in our Mishna.

And the Gemara is astonished: How can you say

laws

were taught here!?

Is it that

these—

laws—

are they a law given to Moses at Sinai—

are they? [ [לפי שהמושג 'הלכות', עיקרו הלכה למשה מסיני]]For the concept “laws” primarily denotes a law given to Moses at Sinai].

Because the term “laws” generally refers to laws given to Moses at Sinai.]

But surely these are merely enactments that the Mishna enacted?

Rather

certainly

say

the explanation is:

great enactments

that the Sages enacted

were taught here.

However, it must again be understood: If these enactments are called

“great,”

then

by implication there are

also enactments

“small”?

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

Rather, Rav Nahman said in the name of Shmuel: Established enactments were taught here.

And what are they?

The Sages uprooted the oath from the owner and cast it

and imposed and fixed it

upon the hired worker,

because of his livelihood.

That is, because this payment which he claims from the owner is necessary for the hired worker’s sustenance and life, they instituted that he swear concerning it and extract his payment from the owner.

And the Gemara objects:

Is it that because of the hired worker’s livelihood, we penalize the owner

that he should pay, even though according to Torah law he is exempt? After all, we have no proof that he actually owes the hired worker?

And the answer:

The owner himself

himself,

is pleased

it is preferable for him

that the hired worker swear and collect

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

So that workers will be hired for him.

So that the owner will easily find workers for his work.

For now he is denying payment of the worker’s wages, and other workers will be apprehensive of him, that he might also deny their wages, since they do not know with whom the truth lies.

And therefore this enactment is convenient for the owner: that the hired worker should swear and collect, so that the workers will not fear that he may deny the payment and they will lose their wages.

However, on the other hand, it is difficult:

On the contrary, the hired worker is pleased.

It is preferable for the hired worker

that the owner swear, and be released

from his obligation to pay him his wages

, so that the owner will hire him,

so that it will be easier for him to find work with householders.

For now, after the employer denies [the claim] and the hired worker takes his wage by oath, the employers will be afraid to hire him for their work. Perhaps he will also claim against them after he has received his wage, and take his wage from them twice?

And if so, we again do not have the reason: why should the hired worker specifically swear, and not the employer?

And the answer:

The employer hires against his will.

The employer will hire the workers against his will, even if he is afraid of their oaths, since he needs them to perform his work. And for that reason the hired worker should be made to swear, and we need not be concerned that they will not want him for work.

However,

the hired worker, too, hires himself out against his will,

since he, too, needs a livelihood. And therefore he will not refrain from hiring himself out because he fears that the employer will deny his wage. And if so, he should refrain from swearing and taking [the wage]?

And the Gemara answers:

Rather,

the Sages’ enactment that the hired worker should swear and take [his wage] is because

the employer is preoccupied with his workers.

And since he is accustomed to paying wages to many workers, he is liable to err and think that he has already paid this worker, when he has not yet paid him. And for that reason the Sages believed the worker and enacted for him that he should take his wage by means of an oath.

But if so,

let him give it to him without an oath?

Let him give the worker his wage even without an oath, since the Sages believed him in his claim against the employer? And the answer: Indeed, so it is. And the entire enactment of this oath is

in order to appease the mind of the employer,

so that he will not suspect the worker of taking his wage twice. And when he sees that he is prepared to swear about this, he will believe him that he is indeed making a true claim.

But it is still difficult: why did the Sages enact an obligation of an oath,

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

so that they should enact that he give him his wage only in the presence of witnesses, and there would again be no need for an oath; rather, the witnesses would testify whether he paid him or not?

And the Gemara resolves:

It is troublesome for him.

It is troublesome for the employer to seek witnesses every time he wants 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 from the outset, at the beginning of the work and not at its end.

And since this is so, the worker will not be able to claim his wage twice. For if he claims that he did not receive his wage, the employer will say to him: If you did not receive your wage, you should not have worked. And since you worked, necessarily you received your wage. And it follows that there is no need for an oath.

Rather, this is not a solution, because

both of them want

[payment] on credit.

Both the employer and the worker each want the payment to be on credit; that is, that it should be given at the completion of the work.

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

Whereas the worker is interested in this because he fears that if he receives his wage at the beginning of the day, then by nightfall he will already spend it on all kinds of expenses.

And again it follows that the worker must swear in order to claim and collect his wage from the employer. And we do not require the employer to pay in the presence of witnesses, and likewise not to pay him at the beginning of the day.