Shevuot 46a — the Talmud in English

Rav Naḥman bar Yitzḥak said:

There is no proof from here that it is not in accordance with Rav and Shmuel, because it can be established that both

the first clause and

also the

latter clause

of this Mishna speak of a situation in which the hiring was made

by proof.

That is, through witnesses.

And the reason the Mishna did not mention in the first clause that the worker must bring the witnesses to the hiring as proof, just as it mentioned in the latter clause that the worker who brings a claim against the householder must bring proof of his words, is that only

proof for payment is taught

in this Mishna.

That is, the Mishna mentioned only the proof that the worker must bring so that the householder will pay him his wages.

But

proof for an oath—

the proof that the hired worker would have to bring and establish that he is indeed a hired worker, and through this he would be able to swear and collect—

it does not teach.

Since the proof does not benefit him directly in collecting money, but only benefits him in enabling him to swear and collect by force of the enactment of the Mishna.

And therefore the tanna did not mention it. [Although for the actual collection of the wages from the householder, the hired worker needs this proof in order to swear and collect.]

Rabbi Yirmeya bar Abba said: They sent to him from the house of

from the house of

Rav, to Shmuel:

Let our master teach us: An artisan says, “You fixed two [coins] for me”

as my wages

. But the other

the householder

says, “I fixed only one for you.” Who swears?

Does the artisan swear and collect the wages he claims, or does the householder swear and become exempt from the hired worker’s claim?

He said to them

Shmuel

: In this

case, the case about which you asked—

the householder shall swear

an oath for partial admission,

and the artisan will lose!

And the reason for this is—

people certainly remember the fixing of the price. [The sum that the householder fixed with the worker, the householder certainly remembers.] And if so, here there is not the reason that the householder is occupied with his workers and forgets.

And the Gemara objects:

Is that so? But Rabba bar Shmuel taught: He fixed

the householder with the worker how much he would pay him as his wages. And they disputed between themselves over what they had fixed; the law is that

the one who brings a claim against another must bring proof! And if the artisan does not bring proof, his claim is void

immediately, and the householder is exempt, even without swearing.

and the employer is exempt, even without taking an oath.

And why,

for according to Shmuel the law should be that

the householder shall swear,

and only then will he be exempt from the artisan’s claim. And only if the householder actually swore—

will the

artisan

lose

?

And the answer:

Rav Naḥman said:

The words of Rabba bar Shmuel, which state that the artisan brings proof, do not mean that this is the absolute law in this case. Rather,

it teaches the matters as alternatives.

That is, either this or that.

Either he brings

the artisan

proof

and the artisan collects,

or the householder swears

and if he indeed swears, then—

the

artisan loses.

It was objected: One who gives his cloak to an artisan

and fixes wages for him for his work. And after the work,

the artisan says, “You fixed two for me”

as my wages,

and the other says, “I fixed only one for you.”

The law is:

As long as the cloak is in the artisan’s possession,

and the householder has not yet taken it back,

the householder must bring proof

that he owes him only one. And only afterward does he take the cloak from the artisan’s possession.

But if

he gave it to him

the artisan gave it to him, and the cloak is now in the householder’s possession, the matter depends on when the artisan claims against him.

If

in its time,

that is, during the time of payment he claims that he should pay him—

the artisan swears

and

collects,

as he claims.

However,

after its time—

the one who brings a claim against another must bring proof!

And the Gemara infers from this: It is clear that if the artisan claims against him in its time,

at least,

he

swears and collects.

And

why?

For we learned that if the householder fixed the worker’s wages,

the householder swears and the artisan loses?

Rav Naḥman bar Yitzḥak said: Whose view is this?—

This law is according to the method of

Rabbi Yehuda. For

Rabbi Yehuda said:

Whenever an oath tends toward the householder [for according to the basic law the householder is obligated to swear, as, for example, where he fixed the price—for the artisan claims two from him, while he admits to one, and he is therefore considered one who admits to part of the claim and is obligated by an oath from the Torah],

the hired worker swears and collects.

And therefore this beraita too is according to Rabbi Yehuda, and the hired worker swears and collects. But the Sages hold that since householders normally remember the fixing of the price, the householder swears and the artisan loses! And the Gemara discusses this:

Which Rabbi Yehuda?

Where did Rabbi Yehuda state this law?

If you say it is Rabbi Yehuda of the Mishna,

for Rabbi Yehuda said in our Mishna that the hired worker does not swear and collect except where there is an admission to part of the claim, it follows that there

he is being stringent,

Rabbi Yehuda is more stringent with the hired worker than the Sages and limits his power to swear and collect only in a case where there is an oath from the Torah

.

As we learned: Rabbi Yehuda says,

the hired worker does not swear and collect except

until there is there an admission to part of the claim.

And if so, how can one say that the beraita, which allows the hired worker to swear and collect even where the price was fixed, comes according to Rabbi Yehuda, who is stringent, and not according to the Sages, who are lenient?

Rather,

this law does not follow the words of Rabbi Yehuda in our Mishna;

rather, it is Rabbi Yehuda of the beraita

.

As it was taught: A hired worker, as long as his due time has not passed,

and he is still within the time of payment,

he swears and collects. But if not,

but his due time has already passed,

he does not swear and collect.

And Rabbi Yehuda said: When

does the hired worker swear and collect?

When he says to him, “Give me my wages, fifty dinars, which I have with you.” And he says to him, “You received one gold dinar from them.” Or when he says to him

the hired worker

: “You fixed two.” And the other says, “I fixed only one for you”—

the hired worker swears and collects.

But

if he says to him

: “I never hired you.” Or he says to him: “I hired you and gave you your wages”—

the one who brings a claim against another must bring proof.

And it is explained here that Rabbi Yehuda does not distinguish between whether he fixed the price with him or did not fix the price. In both cases the hired worker swears and collects [provided that he claimed in its time].

And if so, it is clear that the beraita of “one who gives his cloak to an artisan,” where they dispute between themselves over the amount of the price and the law is that the artisan swears and collects, is according to Rabbi Yehuda of the beraita.

Rav Shisha, son of Rav Idi, strongly objected: Rather,

according to your words, that you explained that the beraita of one who gives his cloak to an artisan and

fixes

his wages, and they dispute between themselves over the fixing of the price, and the law is that the hired worker swears and collects—and you explained that this beraita

is Rabbi Yehuda’s and not the Sages’, \-

this matter is impossible!

For

now, where Rabbi Yehuda is stringent

with the hired worker [where they did not fix the wages, and their dispute is whether he paid him his wages or did not pay him anything at all, and according to Rabbi Yehuda he does not swear and collect at all],

the Sages are lenient

and allowed the hired worker to swear and collect—is it possible to say that

where Rabbi Yehuda is lenient,

where there is already an oath of one who admits to part of the claim, such as where they fixed the price and disputed how much was fixed, and it was explained that according to Rabbi Yehuda the hired worker swears and collects,

the Sages are stringent

and do not allow the hired worker to swear and collect?

But all the more so the Sages should have allowed him to swear and collect!?

And concerning this the Gemara further asks:

But rather, what [will you say]?

Will you say that the words of the above beraita are according to

the Sages?

If so,

but this that Rabba bar Shmuel taught: “He fixed”——

“the one who brings a claim against another must bring proof.” Whose view is it?

According to whose view is this law? It is

not

according to

Rabbi Yehuda

and not according to

the Sages!

[For according to Rabbi Yehuda, in this case he swears and collects. Whereas according to the Sages, did you not wish to prove that the Sages are the authors of the above beraita, and that they hold that if he fixed the price, he swears and collects?]

Rather, Rava said:

Actually, this that it teaches that where he fixed the price the hired worker swears and collects is Rabbi Yehuda’s view. And this that Rabba bar Shmuel taught that where he fixed the price the one who brings a claim against another must bring proof is the view of the Sages.

And regarding what we asked: How is it possible that Rabbi Yehuda, who is stringent in our Mishna and allows one to swear and collect only where there is an oath from the Torah, is the one who allows him to swear and collect where the price was fixed, and not the Sages, who are lenient and allow him to swear and collect even where there is no oath from the Torah— \-

the answer is:

In this they disagree

Rabbi Yehuda and the Sages!

Rabbi Yehuda holds:

Only

in

a place where there is an oath

from the Torah did they make for him

the Sages

an enactment for the hired worker,

and they enacted that the oath be transferred from the householder to the hired worker, so that he would swear and collect.

And

in a place where there is no oath from the Torah, but only an oath

of rabbinic authority, this oath was

an

enactment, and we do not make an enactment for an enactment!

That is, an additional rabbinic enactment was not made to transfer to the hired worker the oath to which the householder became obligated by a rabbinic enactment.

And therefore, where the price was fixed, when there is an oath from the Torah, they enacted that the hired worker should swear a rabbinic oath in place of the householder’s oath from the Torah, and collect.

And the Sages hold—

in

an oath

of rabbinic authority as well, we make an enactment for the hired worker.

And therefore, when they dispute whether he paid him or not, we make an enactment to transfer the rabbinic oath of the householder to the hired worker, so that he can swear and collect.

But if their dispute is over the fixing of the price, although the oath is from the Torah, the Sages did not enact that it be transferred to the hired worker, because

the fixing of the price is certainly remembered,

Whereas the enactment to transfer [the oath] from the householder to the hired worker is because the householder is occupied with his workers and does not remember whether he paid or did not pay.

We learned in our Mishna:

How is the robbed person [oath administered]?—

They were testifying concerning him that he entered his house to take a pledge.

But the witnesses did not see whether he took a pledge from him. Rather, they saw only that he entered him with the intention of taking a pledge. And if so, it is difficult:

Perhaps he did not take a pledge from him?

Even if it is known to us that he intended to take a pledge from him, there is surely no proof from this that in the end he did take a pledge from him. And because of what will the claimant be able to swear and collect?

Did Rav Naḥman not say: One who holds an axe in his hand [one who took an axe in his hand]

one who took an ax in his hand

, and said, “I will go and cut down so-and-so’s palm tree,” [I will go and cut down so-and-so’s palm tree],

“I will go and cut down so-and-so’s palm tree,”

and it was found cut down and lying [and indeed afterward the palm tree was found cut down and lying on the ground],

and afterward the palm tree was indeed found cut down and lying on the ground,

then in this case,

we do not say that he cut it down.

And as long as there are no witnesses that he indeed cut down the tree, we do not presume that he was the one who cut it down.

And if so, since we do not assume that he indeed cut down the palm tree, why did he say this? Rather,

it follows that a person may exaggerate and not act.

A person is liable to exaggerate and not carry out his words.

Here too,

let us say here as well that although the robber announced his intention to take a pledge from his fellow, it is possible

that he exaggerated,

that he exaggerated in his words

, and did not act.

And because of what will the claimant swear and collect?

And the Gemara explains:

Say—

and he took a pledge from him!

Indeed, the witnesses testify that he took a pledge from him, and not merely that he intended to take a pledge.

But if so, why should the robbed person swear and collect?

Let us see what he took as a pledge!

The witnesses should testify what he took as a pledge, and he should collect.

And the answer:

Rabba bar bar Ḥana said, Rabbi

Yoḥanan said:

It is speaking

of a case where he claims to him

the householder, the robbed person, that he took from him

objects

that can be taken and concealed

under his wings,

under the wings of his garment. And the witnesses cannot see which objects he took.

And since it is proven from the words of the witnesses that he took objects from him, but they do not know how many objects or which objects he took, for this reason the householder swears and takes [them back].

Rav Yehuda said [this statement is not connected to the law of the oath of our Mishna, but stands on its own. ]:

This statement is not connected with the law of the oath in our Mishna; it stands on its own.

They saw him

the witnesses

hide objects under his wings and leave

from his fellow’s house, with the objects hidden under his wings.