Shevuot 46a (מו.) — the Talmud in English

Rav Naḥman bar Yitzḥak said:

There is no proof from here that the ruling is not in accordance with Rav and Shmuel. For it is possible to establish that both

the first clause and

also the

last clause

of this Mishna are speaking of a case in which the wage agreement was made

through testimony,

that is, through witnesses.

And the reason that the Mishna did not mention in the first clause that the laborer must bring witnesses to testify to the wage agreement, just as it mentioned in the last clause that the laborer who brings a claim against the homeowner must bring proof of his claim, is that only

proof for payment is taught

in this Mishna.

That is, the Mishna mentioned only the proof that the laborer must bring in order for the homeowner to pay him his wage.

But

proof for the oath—

the proof that the hired laborer would have to bring in order to establish that he is in fact a laborer, thereby enabling him to swear and collect—

is not taught.

Since this proof does not directly enable him to collect money; it merely enables him to swear and collect by virtue of the enactment stated in the Mishna.

Therefore, the tanna did not mention it. [Although, in order to collect his wage from the homeowner, the hired laborer does require this proof in order to swear and collect].

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

from the home of

Rav, to Shmuel:

Our master, teach us: A craftsman says, “You agreed to pay me two

for my wage

.” And the other

the homeowner

says, “I agreed to pay you only one. Who takes the oath?

Does the craftsman swear and collect the wage he claims, or does the homeowner swear and become exempt from the laborer’s claim?

He said to them

Shmuel:

In this

case, the case about which you asked,

the homeowner takes an oath

the oath of one who partially admits a claim,

and the craftsman loses!

And the reason for this is—

people certainly remember an agreed wage. [The sum that the homeowner agreed upon with the laborer is certainly remembered by the homeowner]. And therefore, the rationale that the homeowner is preoccupied with his laborers and forgets does not apply here.

The Gemara challenges this:

And is that so? But Rabba bar Shmuel taught:

If the homeowner agreed

with the laborer how much he would pay him as his wage, and they disputed the amount they had agreed upon, the law is that

the claimant must bring proof. And if the craftsman does not bring proof, his

right immediately lapses, and the homeowner is exempt even without taking an oath.

And

why,

should this be so? According to Shmuel, the law should be that

the homeowner takes an oath,

and only then is he exempt from the craftsman’s claim. And only if the homeowner actually takes an oath

does the

craftsman

lose?

The Gemara answers:

Rav Naḥman said:

Rabba bar Shmuel’s statement that the craftsman must bring proof does not mean that this is the absolute ruling in this case. Rather,

it is taught with regard to different alternatives.

That is, one possibility or the other.

Either he brings

the craftsman

proof

and the craftsman collects,

or the homeowner takes an oath,

and if he actually takes the oath, then

the

craftsman loses.

The Gemara raises an objection: One who gives his cloak to a craftsman

and agrees upon a wage for his work, and after the work

the craftsman says, “You agreed to pay me two

for my wage,

and the other says, “I agreed to pay you only one.”

The law is:

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

and the homeowner has not yet taken it back,

the homeowner must bring proof

that he owes him only one. Only afterward may he take the cloak from the craftsman.

But if

he gave it to him,

the craftsman gave it to him, and the cloak is now in the homeowner’s possession, the matter depends on when the craftsman makes his claim.

If

on time,

that is, he claims payment from him at the time when payment is due,

the

craftsman

swears and collects,

as he claims.

However, if

his time has passed,

the claimant must bring proof!

The Gemara infers from this: It is explained that if the craftsman claims from him on time,

at least,

he

swears and collects.

And

why?

For we learned that if the homeowner agreed upon the laborer’s wage,

the homeowner takes an oath and the craftsman loses?

Rav Naḥman bar Yitzḥak said: Whose opinion is this?

This halakha is in accordance with the opinion of

Rabbi Yehuda. For

Rabbi Yehuda said:

Whenever the oath is directed to the homeowner [since, according to the fundamental law, the homeowner is obligated to take an oath, as in a case where they agreed upon a wage: The craftsman claims two, and the homeowner admits to one, and he is therefore considered one who partially admits a claim and is obligated by Torah law to take an oath],

because according to the basic law the employer is obligated to take an oath—for example, where they agreed on a wage, the worker claims two and the employer admits to one, making him one who partially admits and therefore obligated by Torah law to take an oath—

the hired laborer swears and collects.

Accordingly, this beraita as well follows the opinion of Rabbi Yehuda, and the hired laborer swears and collects. But the Sages maintain that since homeowners ordinarily remember the wage they agreed upon, the homeowner takes an oath and the craftsman loses! 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 a hired laborer does not swear and collect unless there is a partial admission, then there

he is being stringent:

Rabbi Yehuda is more stringent with the laborer than the Sages, restricting his ability to swear and collect only to a case where there is a Torah-level oath.

As we learned: Rabbi Yehuda says,

a hired laborer does not swear and collect unless

there is a partial admission.

If so, how can it be said that the beraita, which allows the hired laborer to swear and collect even in a case where the wage was agreed upon, follows the opinion of the stringent Rabbi Yehuda and not that of the more lenient Sages?

Rather,

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

rather, it is Rabbi Yehuda of the beraita

who stated it.

As it is taught: A hired laborer, as long as his payment deadline has not passed,

and he is still within the period when payment is due,

he swears and collects. But if not,

rather, his payment deadline has already passed,

he does not swear and collect.

And Rabbi Yehuda said: When

does the hired laborer swear and collect?

When he says to him, “Give me the fifty dinars of my wage that I have with you,” and he says to him, “You received one gold dinar of them.” Or when he says to him

the laborer

“You agreed to pay me two,” and the other says, “I agreed to pay you only one”—

the laborer 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 wage”—

the claimant must bring proof.

It is evident here that Rabbi Yehuda does not distinguish between whether he agreed upon a wage with him or did not agree upon one. In both cases the hired laborer swears and collects [provided that he made his claim on time].

If so, it is evident that the beraita of “one who gives his cloak to a craftsman,” in which they dispute the amount of the agreed wage and the law is that the craftsman swears and collects, follows the opinion of Rabbi Yehuda of the beraita.

Rav Sheisha, son of Rav Idi, objected to this: Rather,

according to your explanation, that the beraita of one who gives his cloak to a craftsman and

agrees

upon his wage, and they dispute the amount agreed upon, states that the hired laborer swears and collects—and you explained that this beraita

follows Rabbi Yehuda and not the Sages, -

this is impossible!

For

now, if Rabbi Yehuda is stringent

with the laborer [where they did not agree upon the wage, and their dispute is whether he paid him his wage or did not pay him anything, in which case, according to Rabbi Yehuda, he does not swear and collect at all], while

the Sages are lenient

and allow the laborer to swear and collect, is it conceivable to say that

where Rabbi Yehuda is lenient,

in a case where there is already an oath of one who partially admits a claim—for example, where they agreed upon a wage and dispute the amount, and it has been explained that according to Rabbi Yehuda the laborer swears and collects—

the Sages are stringent

and do not allow the laborer to swear and collect?

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

And concerning this the Gemara adds a further challenge:

Rather, what

will you say? Is the statement of the above beraita in accordance with

the Sages?

If so,

then this statement taught by Rabba bar Shmuel: If they agreed upon a wage—

the claimant must bring proof. Whose opinion is it?

According to whose opinion is this law? It is

not

in accordance with

Rabbi Yehuda

and not in accordance with

the Sages! [For according to Rabbi Yehuda, in this case he swears and collects. And according to the Sages, did you not wish to prove that the Sages are the authors of the above beraita, and that they maintain that if they agreed upon a wage, the laborer swears and collects?]

For according to Rabbi Yehuda, in this case the worker takes an oath and collects. And according to the Sages, did you not wish to prove that the Sages are the authors of the beraita cited above, and that they hold that when the wage was agreed, the worker takes an oath and collects?

Rather, Rava said:

Actually, the ruling taught that when they agreed upon a wage, the hired laborer swears and collects follows the opinion of Rabbi Yehuda. And the statement taught by Rabba bar Shmuel that when they agreed upon a wage the claimant must bring proof follows the opinion of the Sages.

And as for our challenge: How can it be that Rabbi Yehuda, who is stringent in our Mishna and allows the laborer to swear and collect only where there is a Torah-level oath, is the one who allows him to swear and collect in a case where they agreed upon a wage, and not the Sages, who are lenient and allow him to swear and collect even where there is no Torah-level oath? -

The answer is:

They disagree about this matter,

Rabbi Yehuda and the Sages!

Rabbi Yehuda maintains:

Only

where

there is a Torah-level oath

the Sages instituted

for the benefit of the laborer

an enactment for the hired laborer,

and they instituted that the oath be transferred from the homeowner to the laborer, so that he would swear and collect.

And

where there is no Torah-level oath, but only a rabbinic oath,

that oath is

itself an

enactment, and we do not make one enactment for the sake of another enactment!

That is, the Sages did not make an additional rabbinic enactment to transfer to the laborer the oath to which the homeowner became obligated by virtue of a rabbinic enactment.

Therefore, where they agreed upon a wage, when there is a Torah-level oath, they instituted that the laborer take a rabbinic oath in place of the Torah-level oath of the one who hired him, and collect.

And the Sages maintain—

with

a

rabbinic oath as well, we institute an enactment for the hired laborer.

Therefore, when they dispute whether he paid him or did not pay him, we institute an enactment transferring the homeowner’s rabbinic oath to the laborer, so that he can swear and collect.

But if their dispute concerns the agreed wage, even though the oath is Torah-level, the Sages did not institute that it be transferred to the one who was hired, because

an agreed wage is certainly remembered,

Whereas the enactment to transfer the oath from the homeowner to the hired laborer is based on the fact that the homeowner is preoccupied with his laborers and does not remember whether he paid or did not pay.

We learned in our Mishna:

With regard to one who was robbed, how does the case proceed?—

Witnesses testified concerning him that he entered the victim’s house to take collateral.

The witnesses did not see whether he actually took collateral; they saw only that he entered with the intention of taking collateral. If so, this is difficult:

Perhaps he did not take collateral?

Even if we know that he intended to take collateral, there is no proof that he actually took it in the end. And on what basis can the claimant swear and collect?

Did Rav Naḥman not say: If one takes an ax in his hand [one who took an ax in his hand]

one who took an ax in his hand

and says, “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 is found cut down and lying

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

in this case,

we do not say that he cut it down.

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

If so, since we do not presume that he actually cut down the palm tree, why did he say that he would do so? Rather,

apparently, a person may exaggerate and not act.

A person may exaggerate, without carrying out his words.

Here too,

we can say that although the robber announced his intention to take his fellow’s property as collateral, it is possible

that he exaggerated,

that he was exaggerating in his words,

and did not act.

On what basis, then, can the claimant swear and collect?

The Gemara explains:

Say—

“and he took collateral!”

Indeed, the witnesses testify that he took collateral, and not merely that he intended to take collateral.

If so, why does the robbed person swear and collect?

Let them see what he took as collateral!

Let the witnesses testify what he took as collateral, and let him collect?

The answer is:

Rabba bar bar Ḥana said that Rabbi

Yoḥanan said:

This is referring

to a case where he claims

the homeowner, the robbed person, that the robber took from him

small utensils

that can be taken and concealed

under his cloak,

beneath the folds of his garment. The witnesses cannot see which utensils he took.

And since the witnesses’ testimony establishes that he took utensils from him, but they do not know how many utensils he took or which ones, for this reason the homeowner swears and takes them out.

Rav Yehuda said [this statement is unrelated to the law of the oath in our Mishna; rather, it 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

conceal utensils under his cloak and leave

from his fellow’s house with the utensils concealed beneath his cloak.