Siman 91

It was an enactment of the sages that a shopkeeper regarding his ledger takes an oath and collects. This does not mean that if the shopkeeper finds written in his ledger that Reuven owes him a maneh, he may collect with an oath; rather, the meaning is specifically in a case where there is proof for his claim and there are grounds for the matter. How so? A homeowner who said to a shopkeeper, "Give my workers a sela," and the homeowner admits that he said so to him, or there are witnesses to this, and the shopkeeper says, "I gave it to them," while the workers say, "We received nothing from you." Now, by the letter of the law, he would not have to pay the shopkeeper since the workers say they did not receive it, and it is somewhat similar to one who says, "I do not know if I became obligated to you." However, it was an enactment of the sages that both of them take an oath and collect from the homeowner. And even though one of them will be swearing falsely, nevertheless, the sages did not want to cause a loss to the homeowner until both of them swear. And why did they enact thus? Because the shopkeeper can say to him, "What do I have to do with the oath of your workers? For you did not tell me that I should give to them in the presence of witnesses, so why am I liable in the matter?" And regarding the workers, it is obvious that he is obligated to pay, for their obligation is clear, and he does not know if he paid them since they say the shopkeeper did not give to them, and they do not believe him on his oath; thus it is like one who says, "I do not know if I paid you." Therefore, both of them take an oath and collect from the homeowner. And he can compel them to swear in each other's presence so that the liar will be ashamed before the one who knows his lie, and perhaps he will admit the truth. And post facto, if they swore not in each other's presence, they do not need to swear again [Bach]. And the oath is with the holding of a sacred object, similar to a Torah oath, for all those who take an oath and collect, their oath is like a Torah oath. And that which we said, that he can compel them to swear in each other's presence, this is specifically when they are together in the city; but if they are not together in the city, each one of them can compel the homeowner to accept his oath and pay him. And when one of them went to a distant place and said nothing against the other party, the second one collects without an oath at all [Shach], since there is no contradiction here. And when both of them swear, the shopkeeper swears first because the worker's obligation is more clear, for it is certainly coming to them for the work, and as long as the shopkeeper has not sworn, there is no obligation of an oath upon the workers at all [ibid.]. And they shall not swear together, for the false oath would be clearly apparent; rather, first the shopkeeper shall swear and afterwards the workers. And more will be explained regarding this at the beginning of siman 92. And if the homeowner denies that he commanded him to give to the workers, or that he only commanded him to give half a sela, and the workers also say so—that he did not give to them at all, or that he only gave them half a sela—the homeowner is exempt even from a shevuat hesset, since the workers also contradict him [ibid.]. And there is no oath here even in a case of admitting to a part, since the workers support him. And furthermore, since the shopkeeper is unable to take from the homeowner without an oath, this is not a denial of money such that the homeowner would be obligated in an oath when he denies it to him, for even if he were to admit to him, he would not collect without an oath [Sma subsection 21; and regarding the law, we have written according to the Shach who equates the opinions of the poskim, see there in subsection 2 and subsection 26].

This enactment that they established is not specifically regarding a worker, but even if he said to a shopkeeper to give a sela to his son or to another whom he promised to give a gift, and even if the shopkeeper had not given it to him he would not have been obligated to give it to him, for he only promised him with mere words, and this recipient says that the shopkeeper did not give it to him and the shopkeeper says that he gave it to him, the shopkeeper does not take without an oath with a sacred object, even though the homeowner only pays one payment. And the reason is because in any event he loses by this, for if the shopkeeper had not given, there would have been no obligation upon him at all; therefore he does not take without an oath [Sma, Shach, and Urim VeTumim, see there]. And so too regarding a worker and a shopkeeper, one does not take without an oath even if it is impossible to administer an oath to the second, such as if one of them is a Cuthean. And even though the Israelite can say to the homeowner, "Why should I swear because of the word of a Cuthean?" nevertheless, since the homeowner loses in that he is forced [Netivot HaMishpat] to pay both of them, the Israelite does not take without an oath [Shach]. And some say that certainly if the worker is a Cuthean, the shopkeeper does not take without an oath, but if the shopkeeper is a Cuthean, the worker takes without an oath, for the obligation to the worker is certain and he does not know if he paid him, as was written in section 1 [Urim VeTumim], and such is the primary ruling in law.

If both of them died, the worker and the shopkeeper, and they did not contradict one another during their lifetimes, and it is not known if he gave or if he did not give, the heirs shall divide it between them. For since the doubt is before us not because of a claim of deceit but because the beit din has a doubt without the claims of the parties such that we could say one of them is a deceiver, the law is that they shall divide. But if during their lifetimes they contradicted one another and had not yet sworn and they died, the homeowner shall place the money in the hand of the beit din and it shall be placed until Eliyahu comes, or until the heirs reach a compromise between themselves. And if one swore and the other did not swear, they give to the heirs of the one who swore, for his obligation is certain and that of the second is a doubt, for perhaps he did not desire to swear. And if one of them died, if they did not contradict one another and the living one claims what is due to him, he takes without an oath, and the heirs of the second cannot contradict him when they do not know that their testator contradicted him. And if the heirs and the living one contradict one another, the law of the heirs is like their testator, that both of them swear and take from the homeowner. And if one of them died and they contradicted one another in life and he had not yet sworn, if the worker died, he must pay his heirs, since his obligation is clear and the shopkeeper swears and takes. And if the shopkeeper died and the worker swears and takes, because they contradicted one another, he does not pay the heirs of the shopkeeper since his obligation is not clear. And according to this, there is one who says that the worker does not need to swear at all since he only pays one payment. And there are those who say that even if they did not contradict one another while they were alive and the worker died, the shopkeeper does not take without an oath since his obligation is not clear. Thus it appears to me, and the words of our teachers, the authors of the Shulchan Aruch, in section 2, deal with where they did not contradict one another, and so it appears from the Ran in the second chapter of Kiddushin, and all is well.

If the homeowner did not set a limit for the shopkeeper as to how much he should give to his workers, but rather said to him, "Give them what they need," if the workers are present and the shopkeeper says that he gave them such and such, and this is more than the wages they are owed from the homeowner, and the workers contradict him, saying that he did not give them as much as he says and that the homeowner did not owe them that much—since the homeowner did not set a limit for the shopkeeper as to how much he should give, the shopkeeper takes an oath and receives as much as he says. And even if they contradict one another regarding the entire giving, where the workers say that he gave them nothing at all, nevertheless the shopkeeper takes an oath and receives as much as he says, and the workers take an oath and receive their wages from the homeowner. And if the workers are not present or if they died, the shopkeeper is believed to say, "I gave them such and such," and he receives it from the homeowner without an oath. And even according to the opinion of "there are those who say" in the previous section that the shopkeeper never receives without an oath, nevertheless, since the homeowner knows that he gave to them and does not know how much, he receives without an oath, and he does not even need a shevuat hesset [Shach], since he did not set a limit as to how much he should give. Therefore, if the homeowner does not know at all whether he gave to them or did not give, the shopkeeper must take an oath according to the "there are those who say."

The shopkeeper said, "You told me to give your worker a maneh or what is needed," and the employer denies it and says, "I did not say anything to you," the employer swears a shevuat hesset and is exempt. And if he admits to a portion, he swears a shevua de'oraita on the remainder. And if he says, "A portion I know that I commanded you to give, and the rest I do not know and I do not remember," since he is unable to swear, he pays. And according to what we explained at the end of section 1, this law applies only when the worker admits that he took from the shopkeeper and the employer says that he did not command him, for he is not liable at all to the worker; and in this case, if the employer were to admit, the shopkeeper would take without an oath, and therefore when he denies, it is a denial of money and the employer swears as has been explained. But if the workers contradict the shopkeeper and say that they took nothing, then even if the employer were to admit to the shopkeeper, the shopkeeper would not take without an oath. It follows that there is no clear denial of money here, for any claim where the plaintiff cannot take without an oath when the defendant admits, this is not a denial of money such that the denier would be obligated to swear. And also, one does not judge in this case the law of "since he is unable to swear, he pays," as written in siman 75 [Shach].

A minor who hired workers and told a shopkeeper to pay them, and the shopkeeper says "I gave" and the workers say "we did not receive," there is one who says that his law is equal to the law of an adult, for the workers take with their oath since the minor has benefit from them, and the shopkeeper also can say to the minor, "According to what you told me to give to your workers for your benefit, I gave." And according to the Rambam, of blessed memory, the workers swear and take from him, for behold, he is obligated to pay them because of their labor from which he benefited, and the shopkeeper loses out himself for giving his money based on the word of a minor; and so is the primary ruling [see Sma and Shach].

And one must ask a great question on this according to what I wrote in section 1, that from the ledger there is no proof except in a case where there are grounds for the matter, that he commanded the shopkeeper to give to the laborers, and he says "I gave" and they say "we did not receive"; if so, what is this that the sages taught, that a shopkeeper on his ledger swears and takes? And because of this, the Rosh, of blessed memory, wrote in a responsum, and the Tur brought it in section 6, that even if the shopkeeper does not claim with certainty that he gave, but rather says that he found in his ledger that he gave to his laborers such and such, we rely on this as if he claims with certainty, and he swears and takes and they swear and take, since there are grounds for the matter as everyone admits that he commanded him to give. But without grounds for the matter, the ledger is not proof except for an oath, as will be explained in section 8. And based on this, the Rosh, of blessed memory, ruled that one may judge according to a person's ledger that he is accustomed to keep in his house to write his affairs in it, and even to extract from orphans where there are grounds for the matter that what is written in the ledger is the truth. And there was an incident with Reuven who gave Shimon a thousand zuz as an iska without a contract, and within four months Shimon died and left a minor son, and he died without a will, and there remained from him a ledger in his handwriting, and there was written in it a record of the pledges from the thousand zuz of Reuven, and the pledges were found in that ledger, and on every slip Reuven's name was written; and the Rosh, of blessed memory, returned to Reuven his money. And he further ruled that one who is accustomed to write immediately every transaction he does in a ledger, and there was one transaction for which they sued him and it was not found written in his ledger and was not mentioned at all, that he can swear upon it as upon a certain claim. And specifically with a person who writes immediately every transaction he does in his ledger that lies before him; but if it is his way sometimes to delay until his writing, it is possible that he forgot and did not write it in the ledger [Shach], and it is not in his power to swear based on this as with a certain claim. And there was another incident where one pledged an object with his fellow, and the lender forgot for how much he took the pledge, and he found in his precise ledger that it was pledged for fifteen gold pieces, and the borrower says that he pledged it for only ten gold pieces; and the Rosh, of blessed memory, ruled that the lender may swear based on his ledger and take, since it is a precise ledger.

And specifically in a precise ledger, but from a ledger that is not precise there is no proof. Nevertheless, the great Acharonim wrote that specifically when one comes to collect based on his ledger, the ledger must be precise; but to administer an oath based on the ledger, the owner of the ledger may do so even if the ledger is not so precise. Therefore, if he found written in his ledger that so-and-so owes him a maneh, he can administer an oath to him just as based on a certain claim. And so rule all the poskim [Urim VeTummim and Netivot HaMishpat] and similarly regarding other claims.

This enactment that the sages instituted regarding a shopkeeper is only regarding a shopkeeper who provides credit to the homeowner, and the homeowner establishes with him what he needs and afterwards the homeowner pays him. However, a homeowner who advanced money to the shopkeeper and said to him, "Give this money to my workers," and afterwards a denial arose between the workers and the shopkeeper—where they say, "He did not give to us," and he says, "I gave"—if the homeowner established the workers with the shopkeeper and it was in the presence of the three of them, where he said to the shopkeeper in the presence of the workers, "The money that I have in your hand, give to the workers," and they were silent and consented, the workers no longer have anything against the homeowner. The shopkeeper takes a shevuat hesset against the workers and is exempt. And if he established them not in the presence of the three of them, where he said to the workers not in the presence of the shopkeeper, "You shall receive money from the shopkeeper," the shopkeeper takes a shevuat hesset to the homeowner that he performed his agency and is exempt, and the workers swear to the homeowner a type of Torah oath that they did not take anything from the shopkeeper and they take from the homeowner. And the workers swear first, for as long as the workers have not sworn, the homeowner has no claim against the shopkeeper. It is not similar to the oath of the shopkeeper in section 1 which precedes the oath of the workers, for there he swears and takes, and by law he should not take; it is only because of the enactment that it is the law that he should swear first because his claim is inferior to the claim of the workers. But here, where he already advanced him money and the shopkeeper swears and is exempt since the homeowner claims from him, he cannot claim except with a clear argument, and that is after the oath of the workers. And some say that in this case even the workers only take a shevuat hesset, for that which the sages instituted—that they swear a severe oath—is when the shopkeeper also needs to take and swears a severe oath; but in such a case the sages did not institute it, for behold the obligation to the workers is certain and the payment is in doubt, and a hesset is sufficient. For even though the shopkeeper says "certainly" that he paid them, nevertheless his "certainly" is not considered against the certain obligation of the workers because he is an interested party. And that which we said, that if he established them in the presence of the three of them the workers have nothing against the homeowner, even though they have the power to retract according to one opinion that will be explained in siman 126, nevertheless when he says that he already gave to them, retraction is not relevant. And there it will be explained that there are those who disagree on this. And know that from what has been explained in this section, one may learn regarding a wealthy man who has an agent over his business affairs and pays all the workers through the agent, and afterwards a denial fell between the agent and the workers; one must judge this like a shopkeeper to whom the homeowner advanced money to give to the workers, as has been explained in this section.

As has been explained, that workers always collect from the employer, except when he stationed them by a shopkeeper via ma'amad sheloshtan, because the debt is certain and the payment is uncertain for the employer; so too in other matters similar to this. For example, Reuven who commanded Shimon to incur expenses for his business, and Shimon claims the expenses while Reuven does not know how much he expended, Shimon shall swear and collect according to what he claimed. And he must swear while holding a sacred object, according to the law of one who comes to swear and collect, because he might permit it to himself like a member of the household, as will be explained in siman 93 [Netivot HaMishpat]. And that which was explained in siman 14 regarding one who incurred expenses for a recalcitrant person, that he must provide proof and is not believed with his oath, there it is different, for the expenditure was against his will; but here, where he expended according to his command and for his benefit, he collects with an oath [Sma]. And even if it was not for his benefit, since he expended by his command, it is as if he gave him trust with an oath [Shach]. And if he gave him trust, he does not require an oath at all, as with a document in section 71 [it appears to me]. And if he incurred expenses without the permission of his fellow for his benefit, it will be explained in siman 264 and in siman 375, but with permission, he shall swear and collect. And the same applies to any matter where this one knows and that one does not know and it was with permission, the one who knows swears and collects. And this requirement for an oath is specifically when the commander could not have known, but when he should have known and did not know, he was negligent regarding himself, and the expender collects without an oath [Netivot HaMishpat]. And even when he could not have known, the collector does not require an oath except when he comes to collect, but to exempt himself he does not require an oath when the other does not know, for one does not swear regarding a claim of uncertainty [it appears to me].

If one said to a shopkeeper, "Give me a dinar's worth of fruit," and he gave it to him, and the shopkeeper claims the dinar while the buyer says, "I gave it to you and you threw it into your pouch"—if the fruit is still in the possession of the shopkeeper, he swears a shevuat hesset and is exempt. For since the fruit is still in his possession, he is called the "muhzak" and the buyer comes to extract [it], and the burden of proof is upon him; therefore the shopkeeper swears a shevuat hesset and is exempt from giving him the fruit unless he pays him the dinar. And if the fruit has already come into the possession of the buyer, the buyer swears a shevuat hesset and is exempt, for behold, he is now the muhzak. And if they are not in the possession of either of them, such as if he took them out of the shop and they are placed in a public domain, the buyer swears an oath while holding a sacred object and takes the fruit. And why do we consider him more of a muhzak? Because the shopkeeper admits to him that the fruit was removed from his possession for the sake of this buyer, but he claims that he has not yet received the dinar from him; behold, it is as if the shopkeeper comes to extract from the hand of the buyer. Nevertheless, the buyer is not exempt with a shevuat hesset because he is not a literal muhzak, and therefore his law is like all those who "swear and take," who swear while holding a sacred object. And if the buyer gave the dinar to the shopkeeper and comes to take fruit placed in a public domain because he claims that the shopkeeper brought out this fruit for him in exchange for the dinar, and the shopkeeper says that the fruit for the dinar "I already gave to you and you took it to your house, and this fruit I did not bring out for you," the shopkeeper swears while holding a sacred object that it is so and takes his fruit, for he did not admit that he sold it to him and the fruit is in the hazakah of the shopkeeper. Therefore he swears and takes, and because it is placed in a public domain and he is not a literal muhzak, therefore he must swear while holding a sacred object. And such is the law regarding one who gives a dinar to a moneychanger to exchange for small coins, and they are piled in a public domain, having been brought out from his table and placed in a public domain: if the moneychanger admitted that he sold them but that he has not yet received the dinar, this one swears while holding a sacred object that he gave the dinar and takes the coins. And if he did not admit that he brought out these coins for him, even though he admits that he received the dinar from him but claims that the exchange for the dinar he already took and brought to his house, the moneychanger swears while holding a sacred object. And if one of them is a literal muhzak, he swears a shevuat hesset and is exempt, as with the fruit. And that which we said, that when the buyer brought the fruit or the money to his house he is called a muhzak, it is not specifically to his house, but rather to his domain; for example, if he placed them in his pouch or in his vessel and the vessel is standing outside the shop, he is also called a muhzak and swears a shevuat hesset and is exempt. And there is no difference in all this whether they performed a kinyan sudar or not, for in a case where the buyer swears and takes, it is even if they did not perform a kinyan, and in a case where the shopkeeper or the moneychanger swears and is exempt, it is even when they performed a kinyan, for the primary matter depends on who is the muhzak, as the oath is upon him. And when he brought them out to a public domain, we see what they are divided over: for if they are divided over the payment for the fruit or the coins—whether he gave or did not give—but the shopkeeper and the moneychanger admit that they brought out the fruit or the coins for this buyer, the buyer is like a muhzak and swears while holding a sacred object and takes. And if regarding the payment both admit that it came to the hand of the shopkeeper and the moneychanger, but they are divided over the fruit and the coins—the buyer saying that they were brought out for him and the shopkeeper or the moneychanger saying that his were already taken to his house and these are others—the shopkeeper or the moneychanger is considered like a muhzak and swears while holding a sacred object and is exempt from giving them to him. And all this is in claims of certainty and certainty, but when one of them claims "perhaps," the law is like all cases of "certainty and perhaps" that were explained in siman 75. And one of our teacher the later authorities wanted to say that when the shopkeeper claims even "perhaps," if he received the dinar, nevertheless since the fruit has not yet left his possession, we establish them in the hazakah of the original owner. And he further innovated many laws in this according to his approach, and his words were rejected by all the great later authorities.