Siman 89

In siman 87 it was explained that all those who take an oath according to the Torah take an oath and do not pay, but there are those who take an oath and receive payment by enactment of the sages due to the reasons that will be explained each one in its place. And these are they: the laborer, the victim of theft, the victim of injury, a shopkeeper concerning his ledger, and when the opposing party is suspected regarding an oath. And in this siman the laws of a laborer will be explained:

The hired worker, how so? A hired worker who performs labor for a homeowner and comes and claims his wages, and the homeowner says to him, "I paid you," and the hired worker says, "You did not pay me," whether the homeowner says to him, "I paid you all of it," or whether he says, "I paid you part of it and part of it I still owe you," the sages enacted that the hired worker shall swear an oath while holding a sacred object, similar to a Torah oath, and collect from the homeowner. The reason for the enactment is because sometimes a homeowner has many workers and must pay each one his wages on his day, and because there are many workers, he is preoccupied and confused among them, and it is difficult for him to remember to whom he gave and to whom he did not give. By Torah law, the homeowner is exempt, and even if he admitted to a portion, he would swear a rabbinic oath and be exempt; but the sages, of blessed memory, because of the enactment, enacted thus. And not only because of the reason that was explained—for even so, why were the sages, of blessed memory, more concerned with this than with other matters of commerce where there is great preoccupation? Rather, the essence of the enactment is for the sake of the livelihood of hired workers, for a hired worker "sets his soul upon it" to sustain his soul and the souls of the members of his household from his labor; the sages, of blessed memory, had compassion for him so that the ability would be in his hand to swear and collect against the will of the homeowner. Yet even so, how did the sages enact this, to swear and collect from a homeowner what the homeowner is exempt from by Torah law? Regarding this, the sages, of blessed memory, said that since the homeowner is preoccupied with his workers, it is impossible for him to remember the matter, and it is just that the hired worker should swear and collect, because the hired worker remembers better as he is not preoccupied except with himself. Therefore, even if there was only one hired worker with the homeowner and he was not preoccupied with a multitude of workers, the sages did not differentiate in their enactment, and the hired worker always swears and collects [Sma], since the essence of the enactment is for the sake of the livelihood of the hired worker.

Upon how much must the hired worker swear, and likewise all those who swear and take, upon how much do they swear and take? The Rambam, of blessed memory, wrote in the third chapter of Toen [ve-Nitan] that his teachers instructed that we do not require two silver ma'ah, and even for a perutah one swears. His own opinion inclines toward requiring two silver ma'ah; however, for practical action, he ruled like his teachers in the eleventh chapter of Sekhirut. There are those who wish to distinguish between a hired worker and other instances of those who swear and take, for since the hired worker "sets his life upon it," what shall this poor man do who only hired himself out for a perutah? This is not the case regarding other instances of those who swear and take. And there are those who wish to distinguish that if his wage was a perutah, he swears upon it, but when his wage was greater, a denial of two silver ma'ah is required. And there are those who wish to say that initially, he certainly must deny two silver ma'ah, and if not, the beit din does not attend to this regarding the oath through which he takes; but if the denial was two silver ma'ah and the beit din ruled an oath, then even if one later admitted to the other a certain amount and there did not remain a denial of more than a perutah, he swears and takes. However, one who examines the Rambam there in the eleventh chapter of Sekhirut will see that his intention is not for all that has been explained, and the main point is that for practical action he ruled like his teachers. And so wrote the Ra'avad and the Ramban, and so our teachers, the authors of the Shulchan Arukh, stated without qualification [and so it appears from the Maggid Mishneh and the Kesef Mishneh there]. The primary proof of the Rambam, of blessed memory, is from oaths of doubt, which they did not institute for less than two silver ma'ah. Some say that it is not comparable, for oaths of doubt, such as the oath of partners and the like, where the oath is to swear and be exempt, they rightly instituted it similar to a Torah oath; and as for why they did not institute this for a hesset oath, it is because it is a light oath. But regarding swearing and taking, which we do not find in Torah oaths, they did not institute it similar to a Torah oath. And from the Gemara itself there is proof for this, since they explained at the end of the seventh chapter of Shevuot regarding oaths of doubt that a claim of two silver ma'ah is required, and they did not explain so regarding those who swear and take; hear from this that there they did not institute so [and so it appears explicitly from Rashi there, s.v. she-yesh, see there]. And that which is found in the Yerushalmi there, that they instituted it similar to a Torah oath, this is regarding the matter of a severe oath, see there and in Ketubot, chapter nine, halakhah 7.

Even if one hired himself out to a minor, the hired worker takes an oath and collects if he sues the minor and the minor denies it. And even though it will be explained in siman 96 that we never extract payment from the hand of a minor, nevertheless, regarding the enactment of a hired worker, they enacted it even regarding a minor for the benefit of the minor, for if not so, he would not find workers when he needs them for his labor. However, when the hired worker is a minor, they did not enact this, for a minor is not trusted in his oath; rather, the employer takes an oath and is exempt. And so too if he was a slave or suspected regarding an oath, the employer takes an oath and is exempt, and his oath is hesat [Shach] according to the law of other defendants who deny everything; and if he admits to a portion, he takes an oath of the Torah. And a deaf-mute is similar to a minor. But if one of them is an imbecile, it appears to me that we do not attend to the matter at all even regarding a hired worker, as with all claims, and as I wrote there. And if the hired worker died, his heirs do not take an oath and collect even when they claim with certainty, for they enacted this enactment for him and not for his heirs, and the employer takes an oath of hesat and is exempt [Netivot HaMishpat]. But if the employer died, if he sued the employer before the time expired, the hired worker takes an oath while holding a sacred object and collects from the heirs of the employer; but if he did not sue him within his time, he does not collect with an oath, as will be explained.

This enactment is only when there are witnesses that he hired him and there are witnesses that he performed the work and he claimed it within its time, and the denial between them is regarding payment and not regarding the fixed price of the transaction. If one of these is missing, the employer swears a shevuat hesset and is exempt. The reason is because the primary enactment was for the sake of the livelihood of the worker, as has been explained. Nevertheless, without logic they would not have enacted this, and they attributed the reason to the fact that the employer is preoccupied with his workers and forgot whether he gave money or not, as written in section 2. And behold, even if the employer stands and screams that he did not forget, nevertheless we do not pay attention to him. However, when the employer has a migo, it is impossible for us to reject him when he claims with certainty. Similarly, if the claim of the worker is weak, it is also impossible for us to rely on the forgetfulness of the employer; on the contrary, there is an indication that he did not forget from the fact that a weakness is found in the claim of the worker. Therefore, if there are no witnesses that he hired him and that he performed the work, since the employer has a migo that he did not hire him or that he did not perform the work, we establish it according to Torah law. And even though it would be a migo of audacity, nevertheless we say as is written in the rules of migo; and even according to the one who holds that we do not say [this], nevertheless in this enactment, with any migo whatsoever we establish it according to the law [Shach]. Similarly, when there is a weakness in the claim of the worker, such as when he claimed it after its time and did not claim it within its time, for there is a presumption that a worker does not delay his wages after its time unless he claimed it within its time and they did not give it to him [Sma]. Since there is a weakness in his claim, the claim of the employer is strengthened and he swears a hesset and is exempt. And even if he says that he paid him within the time, he is believed because of the weakness of the worker [ibid.]. Similarly, if the denial is regarding the fixed price of the transaction, it is impossible to fulfill this enactment, since the reason for the enactment is that we attribute it to the forgetfulness of the employer, and a fixed price people remember. Therefore, if one of all the conditions that have been explained is missing, the burden of proof is on the claimant, and the employer swears a hesset and is exempt. And if he admitted to a part, he shall swear a Torah oath. Only regarding the fixed price, if there is a denial between them even though he denies everything—such as where the employer says "I fixed two sela'im for you for the work and I paid you" and the worker says "you fixed three for me and I am still owed one or two," or where the employer admits that he has not yet paid him the two but that he is giving them to him in beit din—where by law he would swear only a hesset, nevertheless they enacted that he should swear a severe oath while holding a sacred object. The reason is that since the worker lifts his soul to it, they were stringent upon the employer regarding his oath when the denial is regarding the fixed price. But when he has a migo or the claim of the worker is weak, a hesset is sufficient because the claim of the employer appears more decent. And there are those who disagree, that even regarding the fixed price he only needs a hesset [Shach]. And if there is one witness that he hired him and that he performed the work, and the employer denies everything regarding its discharge by saying that he paid him, the employer swears and is exempt just as if there were no witnesses at all, for behold, even with one witness he has a migo that he could have denied him. And since the reason is because of this, he is not exempt with a hesset, but rather he shall swear a severe oath while holding a sacred object, for behold, if he had denied the witness [by saying] that he did not hire him or that he did not perform the work, he would have been obligated in a Torah oath to deny the witness; therefore the sages were stringent upon him even now that he should swear while holding a sacred object, similar to a Torah oath. And although there are those who disagree on this, nevertheless such is the primary law, and so our teacher, the Rema, decided [see Shach subsection 5]. And if the denial between the employer and the worker is regarding the work itself—such as where the employer says "you did not do the work as much as was necessary" or "you spoiled it" or "I stipulated with you to do thus and you did not fulfill your stipulation" and the worker denies him—this is not within the enactment of the worker that the rabbis enacted, and they are like all claims and demands between a man and his fellow, and the one in possession swears a hesset and is exempt [it appears to me].

How long is his time such that when he claims it after this the hired worker does not swear and take will be explained in siman 339, for the time of payment for work so that the employer does not transgress "the wages of a hired worker shall not remain with you" is twelve hours after the completion of the work. For example, if he was a day worker, his time is the entire night that follows it, and if he was a night worker, his time is the entire day that follows it. Even if he was hired for several days, he has twelve hours from the completion of the work. And regarding this time the sages, of blessed memory, said that there is a presumption that a hired worker does not delay his wages and the employer will not transgress "do not delay." Therefore, the enactment they enacted that the hired worker shall swear and take was also for this time. But after this time, they established it upon the Torah law, for his claim is weakened because of the presumption we wrote, unless he brought witnesses that he claimed it from him during that time and he did not give it to him, for then the enactment applies even after this time. Nevertheless, it is impossible to say that when he claimed it during this time and he did not give it to him, the hired worker should be believed forever to swear and take; for would the hired worker, when he claimed it from the employer in its time and he did not give it to him, not claim it from him until a long time had passed [Rashi Bava Metzia 113a]? And this is not a good enactment that he should be believed forever to say "I have not been paid" [Tosafot ibid.], for even though the employer already transgressed "do not delay," nevertheless, is he presumed not to pay until a long time has passed? Therefore, the sages, of blessed memory, said that even after the time, he does not swear and take except corresponding to that time of the claim. How so? If he was working with him on Monday until evening, and the hired worker brought proof that he claimed it during the night that followed and he did not give it to him, and the end of the night was under the presumption that he did not pay him, he collects all of Tuesday with an oath. But from the night that follows, the burden of proof is on the claimant, and he does not swear and take. And if he brought proof that he claimed it on Tuesday, he collects during the night that follows with an oath, and on Wednesday the burden of proof is on the claimant. If he brought proof that he claimed it on Wednesday, he collects during the night that follows it, and so on forever. The general rule of the matter: for that day or night that he brings proof that he did not pay him, he has thereafter a time to swear and take, a day or a night, even if it extends for many days. And there is one who says that if he claimed it on Monday evening and on Tuesday and he did not give it to him, he has time all the night and all the day that follows it to swear and take [Sma], and they do not give him more than twenty-four hours even if the claim extended many days [and so it appears is the opinion of Rashi there, who wrote "one day" etc.]. But most of the poskim agreed to the first opinion, and so the later authorities ruled [Taz and Urim VeTumim and Netivot HaMishpat]. And if they disagree regarding the time, where the employer says that its time has already passed and he paid him in its time, and therefore now he must swear a shevuat hesset and be exempt, and the hired worker says that it is within its time and he must swear and take, the employer is believed, for the enactment was only if it was clarified that it is within its time. And if the employer admits that it is within its time but claims "I paid you," and there are no witnesses regarding the time, it is a matter of doubt if he is believed to say "I paid you" with a migo that he could have said that its time had already passed [Netivot HaMishpat]. And logic inclines that the employer is believed, for in this law, with any migo whatsoever we establish it on the original law, as I wrote in the previous section, and even if it were a legal doubt, one does not extract money from the hand of the employer, and he swears a shevuat hesset and is exempt. And if he claimed it in its time before witnesses and he said "I paid you" and it was clarified that he did not pay him, he is established as a liar. And if he claimed it from him afterward in beit din and he said "I paid you," he is not believed, and the hired worker shall swear and take even if it extends several days after the time [it appears to me]. And if the hired worker claimed the employer in beit din in its time and they ruled that the hired worker shall swear and take, and he swore, the employer is believed to say that he paid him afterward [Netivot HaMishpat]. However, the hired worker has the power to say, "When I swear, you shall not pay me except before witnesses," and then he will not be believed to say "I paid you" [it appears to me]. But to force him to deposit the money before the oath, he does not have the power, for the employer can say to him, "Since you are claiming me and you must swear and take, swear and then take, for I did not impose the oath upon you, but rather the sages enacted it for your benefit." However, if the beit din fears that he will not pay him afterward or will delay a long time, they can force him to deposit the money before the oath [it appears to me]. And if the hired worker has the power to reverse the oath upon the employer, it was explained in siman 87, section 11 and 13; see there. And if he was a worker by the hour, how long is his time will be explained in siman 339, for if he left during the day he collects all that day, and if he left during the night he collects all that night and no more. And it will further be explained there that a craftsman who makes a vessel by contract and is not a day worker, as long as the vessel is in the hand of the craftsman, the employer does not transgress "do not delay," and from the time he gives it to him he transgresses "do not delay"; for example, if he gave it during the day, from when the sun sets he transgresses. And automatically, this enactment of "swears and takes" that the sages enacted for a day worker also exists for a contractor according to the laws that have been explained.

One who gives his garment to a craftsman, and the craftsman says, "You contracted two sela to me," and the other says, "I only contracted one to you and I have already given it to you"—and it has already been explained that regarding the contracting of the price, the enactment was not made that he should swear and take. Therefore, if the garment is in the hand of the craftsman and he is in a situation where he could claim "it is purchased in my hand," such as where witnesses did not see it in his hand at the time of the claim, since he has a migo of "I returned it to you," behold the craftsman swears with a Torah oath and takes. And he can claim that he contracted for his wage up to the value of the garment through a migo that if he claimed "it is purchased in my hand," he would have been believed because there were no eyewitnesses. And even though if he had claimed "it is purchased in my hand" he would not have needed to swear a Torah oath but only a hesset oath, why must he now swear a Torah oath? However, since he admits that it is not his and he holds it only as a mashkon for the money owed to him, his law is like other instances of those who swear and take, who swear a Torah oath [Sma], and as I wrote in siman 72. And there are those who disagree and hold that here too he only needs to swear a hesset oath since he is holding the object [Shach]. And similarly, if they disagree regarding payment, where this one says "I paid" and this one says "I was not paid," he shall swear a hesset oath while the object is in his hand. And if the employer admits to a part, the craftsman has the ability to cast upon the employer a Torah oath, and it is in his power that he himself should swear and take [Taz]. And if the garment is not in his hand, or he cannot claim "it is purchased in my hand," such as where witnesses saw the garment in his hand at the time of the claim—and even though he did not hand it over to him with witnesses, as will be explained in siman 134—the burden of proof is upon the claimant. And if he did not bring proof, the employer swears a Torah oath and is exempt. And that which they required him to swear a Torah oath is because the craftsman "lifts his soul" to it, for the law of a laborer and a craftsman are the same. And that which the sages found necessary to enact for a laborer that he should swear and take, this is when he is not holding the object or when he has no migo; but when he is holding it and has a migo, even without the enactment he swears and takes like a craftsman. And some say that the employer only swears a hesset oath [Shach].

Our Sages, of blessed memory, said that regarding a hired worker who comes to take an oath, we do not treat him stringently with intimidations and we do not impose upon him additional claims through gilgul. And thus our Sages, of blessed memory, said: for all those who take an oath, we do not treat them leniently except for a hired worker, for whom we are lenient, and the beit din opens the way for him and says to him: "Do not distress yourself; take the oath and collect." And even if the employer wishes to impose upon him another claim through gilgul, we do not listen to him. And the reason for these matters is that since the enactment was for the sake of his livelihood, it is impossible to be stringent with him, lest he abstain from the oath because of this.