OATHS TAKEN TO RECEIVE PAYMENT (cont.)
If one claims from a defendant who is disqualified from swearing, he swears and collects. One is disqualified if he ever swore falsely Shevu'as ha'Edus or Shevu'as ha'Pikadon, or even if he once swore in vain;
If one of them plays dice (gambles), lends on usury, is Mafriach (races or sends) birds, or does business with Shemitah Peros, the other swears and collects;
R. Yosi says, if both are disqualified, the Shevu'ah returns to its source (this will be explained later);
R. Meir says, they divide the disputed money.
A grocer swearing about his ledger does not mean that he says 'my ledger says that Levi owes me 200 Zuz';
Rather, Levi told Yehudah 'give two Sa'im of wheat to my son, or a Sela to my workers', and Yehudah claims that he gave, and the workers say that they did not receive;
Yehudah swears that he gave, the workers swear that they did not receive, and Levi pays everyone.
Ben Nanas says, we cannot allow both parties to swear, for one side is lying!
Rather, no one (Ran's text - only Yehudah) swears, and Levi pays everyone.
Reuven asked Shimon (a grocer) for a Dinar's worth of Peros. Shimon gave to him, and asked for the money.
Reuven: I already gave to you. You put it in your pouch!
Reuven swears that he gave to him, and keeps the Peros.
Reuven asked Shimon for Peros for which he already gave a Dinar.
Shimon: I already gave to you, and you took them home!
Shimon swears that he gave to him, and he is exempt.
R. Yehudah says, whoever holds the Peros has the upper hand (i.e. in the prior case, Reuven need not swear).
Reuven asked Shimon (a moneychanger) for a Dinar's worth of smaller coins. Shimon gave to him, and asked for the Dinar.
Reuven: I already gave to you, and you put it in your pouch!
Reuven swears that he gave to him, and keeps the coins.
Reuven asked Shimon for the smaller coins for which he already gave a Dinar.
Shimon: I already gave to you, and you put it in your wallet!
Shimon swears that he gave to him and is exempt.
R. Yehudah says, a moneychanger does not give coins before he receives his money.
We already learned (in other Mishnayos) that the following people must swear in order to collect - a woman who already received part of her Kesuvah, and wants to collect the rest; one who presents a loan document and asks to be paid, and one witness testifies that it was paid; one who wants to collect from property that the borrowed sold, or property of orphans; a woman who wants to collect her Kesuvah in the absence of her ex-husband;
Similarly, orphans must swear to collect (from other orphans) 'father did not instruct us [not to collect this document], our father did not tell us [that this document was paid], nor did we find a document among father's documents saying that this document was paid';
R. Yochanan ben Brokah says, even if the son was born after the father died, he swears (that he did not find a receipt) and collects;
R. Shimon ben Gamliel says, if witnesses testify that just before the father died, he said that the document was not paid, the orphans collect without swearing.
The following people are required to swear (to the people they work for or with), even when there is no (definite) claim against them - a partner, a sharecropper, an overseer, and a woman or member of the household who conducts business in the house;
The partner (or landowner or orphans or husband) can request an oath without a specific claim;
After the partners split up (or the others cease from their positions), they need not swear (if there is no definite claim);
If the former partner (or sharecropper... ) must swear about something else, he can be forced to swear about the partnership through Gilgul.
Shemitah cancels the obligation to swear (about a claim of money owed from before Shemitah).
(Gemara) Question: What is the source that when one must swear mid'Oraisa, it is to avoid paying?
Answer: "V'Lakach Be'alav v'Lo Yeshalem" - the one who was asked to pay, he swears instead.
THE OATH OF A WORKER
(Mishnah): The following take a rabbinical oath and collect...
Question: Why did Chachamim enact that a worker swears and collects?
Answer #1 (Rav Yehudah citing Shmuel): Great Halachos (this connotes a tradition from Moshe from Sinai) were taught here!
Objection: This is not a tradition from Sinai!
Answer #2 (Rav Nachman citing Shmuel): Rather, great enactments were taught here;
Really, the oath should have been imposed on the employer (to swear and be exempt);
Chachamim enacted that the worker swears and collects for the sake of his livelihood.
Question: Is that a proper reason to take money from the employer?!
Answer: The enactment benefits the employer. It encourages people to work for others.
Question: The worker would prefer that the employer swears and is exempt, to encourage him to hire workers!
Answer: No. An employer must hire people in any case.
Objection: Also workers must work for others in any case!
Answer #3: Rather, an employer is busy overseeing his workers, so presumably he forgot that he did not pay.
Question #1: If so, the worker should collect without swearing!
Answer: The oath is to appease the employer (so he will not suspect that the worker is lying).
Question: Chachamim should have enacted that he must pay the worker in front of witnesses!
Answer: That is too tedious.
Question: Chachamim should have enacted that workers are paid before they work (so they will not be believed later).
Answer: Everyone prefers that workers are paid after working. (Sometimes the employer does not have money to pay them beforehand. The workers fear lest they spend the money.)
Question #2: If so (the enactment is because an employer is busy), the same should apply even if they argue about the (amount of the) wages!
(Beraisa): If the worker says 'you hired me for two', and the employer says 'I hired you for one', (for the worker) to take money from another (the employer), he must bring proof.
Answer: People (even the employer) surely remember the agreed wages.
Question #3: The enactment should apply even after the time to be paid!
(Mishnah): After the deadline by which he must be paid (e.g. for one who works during the day, it is the next morning), he does not swear and collect.
Answer: There is a Chazakah that an employer will not transgress "Lo Salin" (keeping a worker's wages overnight).
Question: We said that an employer is busy, he forgets!
Answer: That is before the deadline comes. When it comes, he motivates himself and remembers.
Question: Do we suspect that a worker (who claims payment after the due time) is trying to steal?
Answer: Two Chazakos support the employer, but only one supports the worker.
There is a Chazakah that an employer will not transgress "Lo Salin", and that a worker does not delay claiming his wages;
The only Chazakah supporting the worker is that we do not suspect him of stealing.
A WORKER WHO CANNOT PROVE THAT HE WAS HIRED
(Shmuel): A worker swears and collects only if witnesses know that he was hired. If not, the employer is believed, Migo he could say that he never hired him.
R. Yitzchak: Correct! Also R. Yochanan taught this way.
Inference: Reish Lakish (who often argues with R. Yochanan) disagrees!
Rejection: This cannot be inferred, for R. Yitzchak left before Reish Lakish had a chance to argue.
Version #1: Reish Lakish was drinking when R. Yochanan said this law.
Version #2: Reish Lakish never disagrees with R. Yochanan until R. Yochanan finishes speaking.
Also Rav taught like Shmuel.
(Rami bar Chama): This is a great teaching!
Objection (Rava): No. If such a Migo exempts from swearing, when did the Torah obligate Shomrim to swear?!
Since a Shomer is believed (without swearing) to say that he never received the deposit, he is believed to say that it was lost through Ones!
Answer #1 (Rami bar Chama): The case is, witnesses saw the Shomer receive the deposit.
Objection (Rava): Migo that the Shomer is believed (without swearing) to say that he returned the deposit, he is believed to say that it was lost through Ones!
Answer #2 (Rami bar Chama): The case is, the depositor has a document that the Shomer received the deposit. (Therefore, the Shomer would not be believed to say that he returned the deposit. He has no Migo).
Inference: Rami bar Chama and Rava both agree that if witnesses saw a Shomer receive a deposit, the Shomer is believed to say that he returned it without witnesses;
If a document was written that the Shomer received the deposit, he must return it with witnesses (or take back the document).
Question (Rav Sheshes of Rabah bar Shmuel): Does the Halachah follow Shmuel?
Answer: (Rabah bar Shmuel - Beraisa): If a worker claims (on the day he worked) that he was not paid, he swears and collects;
This is only if the employer agrees that he hired him, and they argue about whether he was paid;
If a worker claims that he was hired for two (Zuz), and the employer says that he hired him for one, (for the worker) to take money (from the employer), he must bring proof.
Since the Seifa discusses bringing a proof (i.e. witnesses who saw when he was hired), the Reisha is without witnesses (and the worker swears and collects. This refutes Shmuel).
Rejection (Rav Nachman bar Yitzchak): No, in both clauses there are witnesses;
The Seifa mentions them because they suffice to collect, i.e. the worker need not swear;
The Reisha omits them because they are not sufficient. Also, the worker must swear.