שבועות 45 — Soncino English Talmud

¹WHETHER IT BE THE OATH OF TESTIMONY, OR THE OATH OF DEPOSIT, OR EVEN A VAIN OATH; IF ONE [OF THE LITIGANTS] WAS A DICE-PLAYER, OR USURER, OR PIGEON-FLYER, OR DEALER IN THE PRODUCE OF THE SEVENTH YEAR, HIS OPPONENT TAKES THE OATH AND RECEIVES [HIS CLAIM]. IF BOTH ARE SUSPECT, THE OATH RETURNS TO ITS PLACE: THIS IS THE OPINION OF R. JOSE. R. MEIR SAYS: THEY DIVIDE. ‘AND THE SHOPKEEPER WITH HIS ACCOUNT BOOK,’ — HOW? NOT THAT HE [E.G.,] SAYS TO HIM, ‘IT IS WRITTEN IN MY ACCOUNT BOOK THAT YOU OWE ME TWO HUNDRED ZUZ’; BUT HE SAYS TO HIM, ‘GIVE MY SON TWO SEAHS OF WHEAT,’ OR, ‘GIVE MY LABOURER SMALL CHANGE TO THE VALUE OF A SELA;’ I HE SAYS, ‘I HAVE GIVEN,’ AND THEY SAY, ‘WE HAVE NOT RECEIVED’; HE TAKES AN OATH, AND RECEIVES [HIS DUE]. AND THEY TAKE AN OATH, AND RECEIVE [THEIR DUE]. BEN NANNUS SAID: HOW CAN BOTH BE PERMITTED TO COME TO A VAIN OATH? BUT HE TAKES WITHOUT AN OATH, AND THEY TAKE WITHOUT AN OATH. — IF HE SAID TO A SHOPKEEPER, ‘GIVE ME FRUIT FOR A DENAR,’ AND HE GAVE HIM, THEN THE SHOPKEEPER SAID TO HIM, ‘GIVE ME THE DENAR’; AND HE REPLIED TO HIM, ‘I GAVE IT TO YOU, AND YOU PLACED IT IN THE TILL,’ THE HOUSEHOLDER TAKES AN OATH. IF HE GAVE HIM THE DENAR, AND SAID TO HIM, ‘GIVE ME THE FRUIT,’ AND THE SHOPKEEPER SAYS TO HIM, ‘I HAVE GIVEN IT TO YOU, AND YOU TOOK IT TO YOUR HOUSE,’ THE SHOPKEEPER TAKES AN OATH. R. JUDAH SAYS: HE WHO HAS THE FRUIT IN HIS POSSESSION. HIS HAND IS UPPERMOST. IF HE SAID TO A MONEY-CHANGER, ‘GIVE ME CHANGE FOR A DENAR,’ AND HE GAVE HIM; AND SAID TO HIM, ‘GIVE ME THE DENAR,’ AND THE OTHER SAID, ‘I HAVE GIVEN IT TO YOU, AND YOU PLACED IT IN THE TILL,’ THE HOUSEHOLDER TAKES AN OATH. IF HE GAVE HIM THE DENAR, AND SAID TO HIM, ‘GIVE ME THE SMALL CHANGE,’ AND THE OTHER SAID TO HIM, ‘I HAVE GIVEN IT YOU, AND YOU THREW IT IN YOUR PURSE,’ THE MONEY-CHANGER TAKES AN OATH. R. JUDAH SAYS: IT IS NOT USUAL FOR A MONEY-CHANGER TO GIVE [EVEN] AN ISSAR UNTIL HE RECEIVES THE DENAR. — JUST AS THEY HAVE SAID THAT SHE WHO IMPAIRS HER KETHUBAH CANNOT RECEIVE PAYMENT EXCEPT ON OATH; AND THAT IF ONE WITNESS TESTIFIES AGAINST HER THAT IT HAS BEEN PAID [IN FULL], SHE CANNOT RECEIVE PAYMENT EXCEPT ON OATH; AND THAT FROM ASSIGNED PROPERTY OR ORPHANS’ PROPERTY SHE CANNOT EXACT PAYMENT EXCEPT ON OATH; AND THAT IF SHE CLAIMS NOT IN HIS PRESENCE, SHE CANNOT RECEIVE PAYMENT EXCEPT ON OATH; SO, TOO, ORPHANS CANNOT RECEIVE PAYMENT EXCEPT ON OATH [NAMELY]: ‘WE SWEAR THAT OUR FATHER DID NOT ENJOIN IN HIS TESTAMENT UPON US, NEITHER DID OUR FATHER SAY UNTO US, NOR DID WE FIND [WRITTEN] AMONG THE DOCUMENTS OF OUR FATHER THAT THIS DOCUMENT IS PAID.’ R. JOHANAN B. BEROKA SAYS: EVEN IF THE SON WAS BORN AFTER HIS FATHER'S DEATH HE MAY TAKE AN OATH, AND RECEIVE HIS CLAIM. R. SIMEON B. GAMALIEL SAYS: IF THERE ARE WITNESSES THAT THE FATHER SAID AT THE TIME OF HIS DEATH THAT THIS DOCUMENT WAS NOT PAID, HE RECEIVES [HIS CLAIM] WITHOUT AN OATH, — AND THESE TAKE AN OATH THOUGH THERE IS NO [DEFINITE] CLAIM: PARTNERS, TENANTS, ADMINISTRATORS, THE WIFE WHO TRANSACTS THE AFFAIRS IN THE HOUSE, AND THE SON OF THE HOUSE. [IF] HE SAID TO HIM, ‘WHAT DO YOU CLAIM OF ME?’ [AND THE OTHER REPLIED.] ‘I DESIRE THAT YOU SWEAR TO ME’; HE MUST TAKE AN OATH. IF THE PARTNERS OR TENANTS HAD DIVIDED, HE CANNOT IMPOSE AN OATH UPON THEM. IF AN OATH WAS IMPOSED UPON HIM IN ANOTHER CASE, THEY IMPOSE UPON HIM THE WHOLE. AND THE SEVENTH YEAR CANCELS THE OATH. GEMARA. ALL WHO TAKE AN OATH [ENFORCED] IN SCRIPTURE, TAKE AN OATH, AND DO NOT PAY. Whence do we know this? — Because Scripture said: And the owner thereof shall accept it, and he shall not pay — he whose duty it is to pay: upon him devolves the oath. BUT THESE TAKE AN OATH, AND RECEIVE [PAYMENT], etc. In what way is the hired labourer different that the Rabbis have instituted for him [the privilege] that he should take the oath and receive [his wages]? — Rab Judah said that Samuel said: Great halachoth did they teach here. ‘Halachoth!’ Are these then halachoth? But say: Great enactments did they teach here. — ‘Great’! Hence there are also small [enactments]? — But, said R. Nahman that Samuel said: Fixed enactments did they teach here: our Rabbis removed the oath from the householder and imposed it upon the hired labourer for the sake of his livelihood. [But] for the sake of the labourer's livelihood do we fine the householder? — The householder himself is satisfied that the labourer should take the oath and receive [his wages], so that labourers may hire themselves out to him. On the contrary, the hired labourer is satisfied that the householder should take the oath, and be released [from payment], so that the householder should hire him? — The householder must of necessity employ [labourers]. The labourer also must of necessity be employed! — Well, then, the householder is busy with his labourers. — Then, let him give him without an oath! — In order to appease the mind of the householder [an oath is imposed]. — Well, let him pay him in the presence of witnesses? — That would be too troublesome for him. Then let him pay him at the beginning? — Both desire credit.55^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ^ᵃᵇ^ᵃᶜ^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ^ᵃʰ^ᵃⁱ^ᵃʲ^ᵃᵏ^ᵃˡ^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ^ᵃˢ^ᵃᵗ^ᵃᵘ^ᵃᵛ^ᵃʷ^ᵃˣ^ᵃʸ^ᵃᶻ^ᵇᵃ^ᵇᵇ^ᵇᶜ

^ᵃnote:If he is known to have sworn falsely any of these, he can no longer be trusted to take an oath.
^ᵇnote:Though he did not thereby injure anybody.
^ᶜnote:Gambler.
^ᵈnote:Racing his pigeon against a neighbour's pigeon, and betting on the result; or, a fowler, laying snares for pigeons; sometimes a pigeon belonging to somebody may be ensnared, and he is thus guilty of theft; v. Sanh. 25a.
^ᵉnote:The Sabbatical year's produce was free to all to eat, and the owner of the field was not allowed to count himself the sole possessor of the produce, and was not allowed to trade with it; v. Lev. XXV, 6, and Rashi a.l.
^ᶠnote:Because those enumerated are not trusted with an oath.
^ᵍnote:It devolves upon the person who normally would take the oath, i.e., the defendant, who, if he admits a portion of the claim, must take an oath; here, since he is suspect, he cannot take the oath, so he pays the full claim; v. infra 47a.
^ʰnote:The defendant pays half the claim only.
^ⁱnote:This is not sufficient to allow the shopkeeper to take an oath, and exact the money.
^ʲnote:The purchaser
^ᵏnote:‘And I will pay.’
^ˡnote:‘And I will give you a sela.’
^ᵐnote:The son or labourer.
^ⁿnote:The shopkeeper.
^ᵒnote:From the householder.
^ᵖnote:Also from the householder.
^ᵠnote:One of them, either the shopkeeper or the labourer, is bound to be swearing falsely.
^ʳnote:That he paid him; this oath is a consuetudinary oath, for he is a kfv rpuf denying the whole of the claim (Rashi); but v. Tosaf. infra 48a s.v. gcab. [Though the oath serves here to exempt the purchaser from paying, it is nevertheless included among those taken in order to receive payment, as the oath enables the purchaser to retain the produce he bought (Hoffmann). For other interpretations, v. Alfasi on the passage and attendant commentaries.]
^ˢnote:That he gave him the fruit.
^ᵗnote:He disagrees with the first clause which states that the householder takes an oath that he has paid the denar. R. Judah says he does not need to swear, for it is not usual for a shopkeeper who sells for cash to give the fruit before he receives the money, and since the householder already has the fruit, his hand is uppermost, and we assume that he has paid.
^ᵘnote:Therefore, in the first clause, the householder does not need to take an oath.
^ᵛnote:If a wife, producing her kethubah (v. Glos.) admits that she has been paid a part of the money due to her, she ‘impairs her kethubah’ (i.e., weakens its validity, for the amount shown in the document is no longer correct, on her own admission), and if the husband, who is divorcing her, says he has paid her the whole amount, she cannot obtain payment of her claim unless she takes an oath that she has not been paid.
^ʷnote:Mortgaged to another.
^ˣnote:If her husband sent her a divorce from abroad, and is not present now when she claims her kethubah.
^ʸnote:In their claim of a debt due to their father.
^ᶻnote:I.e., ‘our father did nor tell us before his death that the claim in this document which we now produce has been satisfied; nor did we find that he had already written out a receipt ready to be dispatched to the debtor.’
^ᵃᵃnote:That he has found no documentary evidence among his father's papers that this claim has been paid.
^ᵃᵇnote:Though the claimant does not make a definite charge of fraudulence against them, but only suspects them, they must take an oath to refute the charge; v. infra 48b.
^ᵃᶜnote:If one suspects the other, the suspected one takes an oath.
^ᵃᵈnote:One who tills the owner's land, and receives for his work a certain share of the produce.
^ᵃᵉnote:One who is appointed to administer the business affairs of another.
^ᵃᶠnote:The husband handed over his business for her to manage.
^ᵃᵍnote:One of the sons who, after the father's death, administers the affairs.
^ᵃʰnote:The partner, tenant, etc.
^ᵃⁱnote:To his respective claimant.
^ᵃʲnote:‘That you did not fraudulently convert to your own use what is mine.’
^ᵃᵏnote:Had dissolved their partnership or business arrangement, each taking his due.
^ᵃˡnote:On the grounds of a possible fraudulent dealing.
^ᵃᵐnote:If this partner or tenant was concerned in another law-suit with the same claimant, and had to take an oath in that case, then the Court insert in the oath a statement having reference to the present claim, so that he takes the oath for both claims together; v. infra p. 301, n. 9.
^ᵃⁿnote:If the Sabbatical year intervenes, he does not take the oath.
^ᵃᵒnote:Ex. XXII, 10; the verse begins: The oath of the Lord shall be between them both, to see whether he hath not put his hand unto his neighbour's goods. The owner shall accept this oath, and the guardian (in whose care the animal had died) does not need to pay; hence the person whose duty it is to pay has the oath imposed upon him, and exempts himself from payment.
^ᵃᵖnote:The word halachah used here implies a traditional law handed down from the time of Moses.
^ᵃᵠnote:Surely all enactments instituted by the Sages are equally important and great!
^ᵃʳnote:Who, according to the Biblical law, would take the oath and be exempt.
^ᵃˢnote:For if the employer would take the oath, and not pay the labourer, no one would ever want to work for him.
^ᵃᵗnote:On this occasion when there is a dispute as to whether he has paid him his wages or not, the labourer prefers to allow the employer to take the oath (and not pay), so that he may employ him again.
^ᵃᵘnote:So the labourer need not fear; and should take the oath.
^ᵃᵛnote:Hence employer and labourer are equally dependent upon each other; so that we cannot say the reason why the oath is imposed upon the labourer is because the employer prefers it thus, so that labourers may not be afraid of him, and may hire themselves out to him; they would in any case seek employment from him.
^ᵃʷnote:He has many labourers to whom he pays wages, and he may genuinely have made a mistake and thought he had paid this one too; but the labourer has only one employer to deal with, and he remembers whether he has received his wages; therefore the oath is imposed upon the labourer.
^ᵃˣnote:Why should the labourer have to take an oath?
^ᵃʸnote:To satisfy him that he was mistaken, and that he had not really paid the labourer yet.
^ᵃᶻnote:Let the Rabbis establish a rule that wages must be paid in the presence of witnesses, to avoid the necessity for an oath.
^ᵇᵃnote:For witnesses are not always available.
^ᵇᵇnote:In the morning before he begins work. If then, at the end of the day, the labourer claims his daily wage, there will be no need for an oath, for we would assume definitely that the wages had been paid in the morning, since the Rabbis had established that rule, and the labourer would not have commenced his work unless he had been paid first.
^ᵇᶜnote:The employer desires credit till the evening, for he frequently has not the money for the wages in the morning; and the labourer desires to grant this credit, and does not want his money in the morning, in case he spends it.

²If so, even in the case where he fixed [the wages], also [let the labourer take the oath]; wherefore has it been taught: [If] the artisan says: ‘Two [zuz] did you stipulate to pay me,’ and the other says: ‘I stipulated to pay you only one;’ he who wishes to exact from his neighbour must bring proof! — The amount fixed [as wages] he certainly remembers. If so, even in the case where his time had expired also [let the labourer take the oath]; wherefore has it been taught: If his time had expired and he had not given him, he does not take an oath to receive [his wages]; [for] it is a presumption that the householder would not transgress [the precept]: the wages of a hired servant shall not abide with thee all night until the morning. Now did you not say that the householder is busy with his labourers? — That is only before the time of liability arrives, but when the time of liability arrives it thrusts itself upon him, and he remembers. Would then the labourer transgress [the precept]: thou shalt not rob? — With the householder there are two presumptions: one, that the householder would not transgress [the precept]: ‘the wages of a hired servant shall not abide with thee’ etc., and another, that the hired servant would not allow his wages to be delayed. R. Nahman said that Samuel said: They did not teach this, except when he hired him in the presence of witnesses, but if he hired him without witnesses, since he may say to him, ‘I never hired you,’ he may say to him, ‘I hired you and paid you your hire.’ R. Isaac said to him: ‘Correct; and so said R. Johanan.’ Are we hence to infer that Resh Lakish disagrees with him? — Some say, that he was drinking and was silent; and some say, that he waited for him, and was silent. It was stated also: R. Menashya b. Zebid said that Rab said: They did not teach this, except when he hired him in the presence of witnesses, but if he hired him without witnesses, since he may say to him, ‘I never hired you,’ he may say to him, ‘I hired you, and paid you your hire.’ Rami b. Hama said: How excellent is this ruling! Said Raba to him: Wherein is its excellence? If such is the case, the oath of guardians, which the Divine Law imposes — how is it possible of fulfillment? Since he may say to him, ‘The thing never happened,’ he may say to him, ‘It was an unpreventable accident.’ — In the case where he deposited it with him before witnesses. But since he may say to him, ‘I returned it to you,’ he may say to him, ‘An accident happened.’ In the case where he deposited it with him by a document. Hence we can infer that both hold that he who deposits [an article] with his neighbour before witnesses need not return it to him before witnesses; but if by document, he must return it to him before witnesses. Rami b. Hama applied to R. Shesheth the verse: And David laid up these words in his heart. For R. Shesheth met Rabbah b. Samuel, and said to him: Have you studied anything about a hired labourer? — He replied to him: Yes, we are taught: A hired labourer [if he claims] within his time limit, takes an oath, and receives [his wages]. How? If he said to him: ‘You hired me, and did not pay me my wages,’ and the other said: ‘I hired you and did pay you your wages.’ But if he said to him: ‘Two did you stipulate to pay me,’ and the other said: ‘I stipulated to pay you only one,’ he who desires to exact from his neighbour must bring proof. Now, since the second clause is concerned with proof, the first clause is not concerned with proof! — R. Nahman b. Isaac said:^ᵇᵈ^ᵇᵉ^ᵇᶠ^ᵇᵍ^ᵇʰ^ᵇⁱ^ᵇʲ^ᵇᵏ^ᵇˡ^ᵇᵐ^ᵇⁿ^ᵇᵒ^ᵇᵖ^ᵇᵠ^ᵇʳ^ᵇˢ^ᵇᵗ^ᵇᵘ^ᵇᵛ^ᵇʷ^ᵇˣ^ᵇʸ^ᵇᶻ^ᶜᵃ^ᶜᵇ^ᶜᶜ^ᶜᵈ

^ᵇᵈnote:If you say that the labourer takes the oath and receives his wages, because the employer is too busy with his workmen to remember whether he had paid or not.
^ᵇᵉnote:Where the dispute is as to the amount that had been agreed upon, let us also say that the labourer should swear and receive what he claims.
^ᵇᶠnote:The artisan who claims an extra one (zuz, denar, or any coin) must bring witnesses to testify that his claim is correct. Why should he not take an oath and receive his money, without witnesses?
^ᵇᵍnote:The employer may possibly not remember whether he paid the labourer, but he remembers the amount he stipulated to pay; therefore the labourer is not in this case more reliable than the employer, and must bring witnesses.
^ᵇʰnote:A day labourer has time to claim his wages during the whole of the succeeding night; and a night labourer, during the whole of the succeeding day (B.M. 110b).
^ᵇⁱnote:I.e., the labourer claims that the employer has not yet paid him.
^ᵇʲnote:Why should not the labourer take an oath and receive his wages? Since we say the employer is busy with his labourers, he may have forgotten that he has not yet paid him.
^ᵇᵏnote:Lev. XIX, 23; since he does not wish to transgress this prohibition, he is careful to remember to pay in time.
^ᵇˡnote:So that in spite of himself he may really have forgotten. Let the labourer then take the oath!
^ᵇᵐnote:Lev. XIX, 13; he would not rob his employer by claiming his wages twice; therefore let him take the oath.
^ᵇⁿnote:There are two presumptions in favour of the householder; i.e., which incline us to the belief that he paid the wages in the proper time.
^ᵇᵒnote:That the labourer takes an oath that he has not received his wages and obtains his due.
^ᵇᵖnote:If there were no witnesses that the employer hired this labourer, the employer, if he wished to evade payment, could have said that he did not hire him at all; therefore, if he admits he hired him, but says he has paid him, he is believed.
^ᵇᵠnote:V. supra 40a.
^ᵇʳnote:Ex. XXII, 10; deals with a paid guardian who claims that the loss was unpreventably accidental; he must take an oath to this effect (i.e., that it was hurt, or forcibly removed by robbers, or died), and is exempt.
^ᵇˢnote:Since the guardian may say that he never had the other's animal to guard, and he would have been exempt, he should be believed when he says that an accident happened to it. Why, then, does Scripture impose an oath on him?
^ᵇᵗnote:Then the oath is imposed; for the guardian could not have evaded payment by saying he never took the animal, for there are witnesses that it was deposited with him.
^ᵇᵘnote:He should still be believed without an oath, for he could have said that he had already returned the animal to its owner.
^ᵇᵛnote:The guardian signed a document that he received the animal from him. He cannot say that he returned the animal to the owner, because he would have claimed the return of the document. He is therefore not believed (without an oath) if he says an unpreventable accident happened to it.
^ᵇʷnote:Raba and Rami b. Hama.
^ᵇˣnote:For Rami b. Hama replies at first that he deposited it with the guardian in the presence of witnesses; and Raba asks, since the guardian may say to him, ‘I returned it to you,’ etc. Hence, Raba holds that he does not require to have witnesses that he returned it. And Rami b. Hama agrees, for he does not dispute this statement, but gives another answer — that he deposited it by document.
^ᵇʸnote:For both agree that the guardian cannot say, ‘I have already returned the article to you’; hence, he must return it in the presence of witnesses.
^ᵇᶻnote:I Sam. XXI, 13; he applied this verse to him, because he also ‘laid up these words in his heart,’ i.e., he took pains to ascertain if the ruling of Rab and Samuel (that the labourer takes an oath and receives his wages only if he was hired in the presence of witnesses) had any support.
^ᶜᵃnote:V. B.M. 110b, where the different time limits for claiming are enumerated, in the case of labourers hired for the day, night, week, month, etc.
^ᶜᵇnote:In this case, where the dispute is whether he paid him or not, the labourer takes an oath that he has not been paid, and receives his wages.
^ᶜᶜnote:The labourer must bring witnesses, and if he has no witnesses, he cannot take an oath and receive what he claims.
^ᶜᵈnote:For the first clause does not mention it; hence, in the first clause, the labourer takes an oath, and receives his wages, even if he does not bring witnesses that he was hired by the employer. Thus, this is opposed to the ruling of Rab and Samuel that only if there were witnesses that he was hired is he believed with an oath.