שבועות 46 — Soncino English Talmud

¹Both the first and second clauses are concerned with proof: the proof which necessitates payment he mentions; the proof which necessitates [merely] an oath he does not mention. R. Jeremiah b. Abba said: The School of Rab sent to Samuel [the request]: Let our Master teach us: If an artisan says [to his employer]: ‘Two [zuz] have you stipulated to pay me,’ and the other says: ‘I stipulated to pay you only one,’ who takes the oath? — He replied to them: In this case the householder takes the oath, and the artisan loses, for the amount stipulated people certainly remember. But this is not so? For did not Rabbah b. Samuel learn: ‘[In the case of dispute about the amount] stipulated, he who desires to exact from his neighbour must bring proof’ — [thus implying that] if he does not bring proof, it is cancelled! But why? Let the householder take an oath, and the artisan lose! — R. Nahman said: Both alternatives are meant: Either [the artisan] brings proof, and receives [his claim], or the householder takes an oath, and the artisan loses. An objection was raised: If one gave his cloak to an artisan [to mend], and the artisan says. ‘You did stipulate to pay me two [zuz],’ and the other says, ‘I stipulated to pay you only one,’ as long as the cloak is in the hands of the artisan, the householder must bring proof; but if he had already given it him, then [if he claims] within his time limit, he takes an oath, and receives [his claim]; but if his time has passed, he who desires to exact from his neighbour must bring proof. [Now it states] after all: ‘[If he claims] within his time limit, he takes an oath and receives [his claim]’! Why? Let the householder take an oath, and the artisan lose! — R. Nahman b. Isaac said: This is in accordance with the view of R. Judah who says whenever the oath inclines towards the householder, the hired person takes the oath and receives [his claim]. Which R. Judah? Shall we say. R. Judah of our Mishnah? [Surely] he is more stringent, for we learnt: R. JUDAH SAYS: [THERE IS NO OATH] UNLESS THERE IS PARTIAL ADMISSION. — But it is R. Judah of the Baraitha; for it was taught: A hired labourer, as long as his time limit has not expired, takes an oath, and receives [his claim]; but if not, he does not take an oath, and receive [his claim]. And R. Judah said: When [does he take an oath]? Only if he says to him, ‘Give me my wages fifty denarii which you owe me, and the other says. ‘You have already received of it a gold denar’, or, if he says to him. ‘Two did you stipulate to pay me,’ and the other says. ‘I stipulated to pay you only one.’ But if he says to him, ‘I never hired you at all,’ or, if he says to him, ‘I hired you, and paid you your wages,’ then he who desires to exact from his neighbour must bring proof. To this R. Shisha the son of R. Idi demurred: Well then, [in the case where the dispute is about the amount] stipulated [is this ruling] the view of R. Judah, and not that of the Rabbis. Now since where R. Judah is more stringent, the Rabbis are more lenient; where R. Judah is more lenient, will the Rabbis be more stringent! — But then, [will] the Rabbis [also agree]? Then, that which Rabbah b. Samuel learnt that [where the amount] stipulated [is in dispute] he who desires to exact from his neighbour must bring proof — whose view would it be? It cannot be the view of R. Judah, nor that of the Rabbis! — But, said Rabbah, in this they disagree: R. Judah holds in [an oath imposed by] the Torah an enactment was instituted in favour of the hired labourer, but in [an oath imposed by] the Rabbis, which is itself an enactment — we do not impose one enactment upon another enactment. And the Rabbis hold even in [an oath imposed by] the Rabbis we also institute an enactment in favour of the hired labourer; but [in the case of a dispute about] the amount stipulated, this the employer remembers. ‘HE WHO WAS ROBBED,’ — HOW? IF THEY TESTIFIED AGAINST HIM THAT HE ENTERED HIS HOUSE TO SEIZE HIS PLEDGE, etc. But perhaps he did not seize his pledge. Did not R. Nahman say: If one held an axe in his hand, and said, ‘I am going to cut down the palm-tree of So-and-so,’ and it was found cut and cast [on the ground], we do not say that he cut it down? Hence, a man often boasts, but does not fulfil; here also [perhaps] he boasted, and did not fulfil! — Read: ‘And seized his pledge.’ — Then let us see what pledge he seized! — Rabbah b. Bar Hanah said that R. Johanan said: He claimed from him vessels which may be taken under his garments. Rab Judah said: If they saw him hiding articles under his garments, and he came out,^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

^ᵃnote:I.e., there must be witnesses that he was hired.
^ᵇnote:In the second clause he requires witnesses as to the amount that was stipulated; this proof (without which payment cannot be exacted) the tanna mentions.
^ᶜnote:In the first clause witnesses are necessary to testify that he was hired; this the tanna does not mention (though the witnesses are necessary), for these witnesses merely give the labourer power to take an oath.
^ᵈnote:And we do not say that because the employer is busy with his labourers he does not remember the amount stipulated, and that therefore the oath should devolve on the labourer; but the employer takes the oath like every one who admits part of the claim.
^ᵉnote:Supra 45b.
^ᶠnote:The extra amount which he claims; and the employer does not need to take an oath, but is automatically exempt.
^ᵍnote:Only if the employer takes an oath, but not otherwise.
^ʰnote:Do not deduce from the teaching of Rabbah b. Samuel that if the artisan does not bring proof, the employer is automatically exempt; if he does not bring proof, the employer must take an oath that he stipulated only one.
^ⁱnote:I.e., witnesses, that be stipulated to pay only one zuz, for he is the one who desires to exact from his neighbour (the cloak for only one zuz).
^ʲnote:On the day that he gave it him.
^ᵏnote:The artisan must bring witnesses that the householder had agreed to pay him two zuz, and if he does not bring witnesses, he loses his claim.
^ˡnote:This question is directed against Samuel who holds that where the dispute is about the amount stipulated, the householder takes an oath, and is exempt.
^ᵐnote:And Samuel does not agree with him, but with the other Sages.
^ⁿnote:Whenever the householder should, according to Scripture, take the oath, i.e., when he admits part of the claim, as here, the oath is transferred from him to the employee, because the employer cannot remember so well (even in a dispute about the amount stipulated), for he is busy with his labourers.
^ᵒnote:Supra 44b. Hence R. Judah restricts the labourer, and does not allow him to take an oath, even where the Sages do allow him. Therefore in the case where the amount stipulated is in dispute, how can you say that it is R. Judah who allows the labourer to take an oath and receive his claim, since others hold that in such a case the labourer is not allowed to take an oath, but the householder takes the oath, and is exempt?
^ᵖnote:In which to claim.
^ᵠnote:If it is after the time limit.
^ʳnote:25 silver denarii.
^ˢnote:Hence, even in a case where the amount stipulated is in dispute. R. Judah states clearly that the labourer takes an oath.
^ᵗnote:The labourer must bring witnesses, and if not, the employer is exempt, for he denies the whole claim.
^ᵘnote:That the labourer takes the oath.
^ᵛnote:In the case of the Mishnah where there is no partial admission on the part of the employer, R. Judah is more stringent, and does not allow the labourer to take an oath.
^ʷnote:They do allow him to take the oath, and receive his claim.
^ˣnote:Where the amount stipulated is in dispute.
^ʸnote:And not allow the labourer to take the oath!
^ᶻnote:That in the case where the amount stipulated is in dispute the labourer takes the oath.
^ᵃᵃnote:The labourer must bring witnesses; but he cannot receive the amount he claims merely by taking an oath.
^ᵃᵇnote:Where the employer admits a portion of the claim.
^ᵃᶜnote:That the oath be removed from the employer and given to the labourer, who takes the oath, and receives his claim.
^ᵃᵈnote:Where the employer denies the whole; and there is only the Rabbinic oath of equity.
^ᵃᵉnote:By removing this oath from the employer and giving it to the labourer.
^ᵃᶠnote:And we do not say, because he is busy with his labourers, he forgets; therefore in this case the oath is not transferred to the labourer. Hence, it is in fact true that R. Judah is sometimes more stringent (even when the Sages are more lenient, as in the case where there is no partial admission), and sometimes the Sages are more stringent (even where R. Judah is more lenient, as in the case where the dispute is about the amount stipulated): the reason is because these cases depend upon different principles. Thus the ruling that the labourer takes the oath in the case of dispute about the amount is R. Judah's view, and not that of the Sages; and Rabbah b. Samuel agrees with the Sages.
^ᵃᵍnote:The witnesses merely say that he entered the house to seize the pledge, but they did not see him take it. Why, then, should the householder he permitted to take an oath, and claim the vessels?
^ᵃʰnote:Though the evidence against him is strong; but we must have definite evidence before we can make him pay for the damage.
^ᵃⁱnote:In the Mishnah.
^ᵃʲnote:If the witnesses testify that they actually saw him seize the pledge, they can give evidence and state what the pledge was. What need, then, is there for the householder to take an oath?
^ᵃᵏnote:The householder claims that he took from him small articles which could easily be hidden under his coat; and though the witnesses saw that he took something, they could not see exactly what it was; therefore the householder takes an oath.
^ᵃˡnote:If witnesses saw a man entering another man's house, and hide some articles under his coat, and come out.

²and said, ‘I bought them,’ he is not believed. And we do not say this, except in the case of a householder who does not usually sell his [household] articles; but in the case of a householder who sometimes sells his articles, he is believed. And [in the case of a householder] who does not usually sell his household articles we also do not say [that the intruder is not believed] except [with regard to] articles it is not usual to hide, but [with regard to] articles which it is usual to hide, he is believed. And [with regard to articles] which it is not usual to hide we also do not say [that he is not believed] except if he is a man who is not decorous, but [in the case of] a decorous man, that is his way. And we do not say [that he is not believed] except when the householder says he lent them, and the other says he bought them, but [if the householder says the other] stole them, it is not at all in the householder's power [to say so], for we do not assuredly presume a man to be a robber. And we do not say [that the intruder is not believed] except in the case of articles which it is customary to lend or hire out, but in the case of articles which it is not customary to lend or hire out, he is believed; for R. Huna b. Abin sent [his decision that] in the case of articles which it is customary to lend or hire out, and [the intruder] said, ‘I bought them,’ he is not believed; as in the case where Raba removed a pair of scissors for [cutting] cloth and a book of Aggada from orphans — things which it is customary to lend and hire out. Raba said: Even the caretaker may take the oath; and even the caretaker's wife may take the oath. R. Papa inquired: In the case of his hired labourer or retainer, what is the ruling? — Let it stand. R. Yemar said to R. Ashi: if he claimed from him a silver goblet, what is the ruling? — [He replied:] We see, if he is a man reputed to be wealthy, or a man who is trustworthy so that people deposit [articles] with him, he takes an oath and recovers [the goblet], but if not, he does not. ‘HE WHO WAS WOUNDED,’ — HOW? Rab Judah said that Samuel said: They did not teach it, except [if the wound were] in a spot where he could have inflicted it himself, but if it is in a spot where he could not have inflicted it himself, he receives [compensation] without an oath. But let us take into consideration that perhaps he rubbed himself against a wall! — R. Hiyya taught [that the Mishnah deals with a case] where a bite appeared on his back or between his arm-pits. But perhaps someone else did it to him? — There was no other. ‘AND HE WHOSE OPPONENT IS SUSPECTED OF SWEARING FALSELY. . . AND EVEN A VAIN OATH.’ What is meant by EVEN A VAIN OATH?’ — He states a case of ‘not only’: not only [if he is guilty] in these where there is a denial of money, but even in this also which is merely a denial of words, he is no longer believed [on oath]. Let him mention also the oath of utterance. — He mentions only such an oath that at the time of swearing he swears falsely; but the oath of utterance, where it is possible to say that he is swearing the truth, he does not mention. Granted, in the case of ‘I shall eat,’ or, ‘I shall not eat’; but in the case of ‘I have eaten,’ or, ‘I have not eaten,’ what shall we say? — He mentions vain oath^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ^ᵃˢ^ᵃᵗ^ᵃᵘ^ᵃᵛ^ᵃʷ^ᵃˣ^ᵃʸ^ᵃᶻ^ᵇᵃ^ᵇᵇ^ᵇᶜ^ᵇᵈ^ᵇᵉ^ᵇᶠ^ᵇᵍ^ᵇʰ^ᵇⁱ^ᵇʲ^ᵇᵏ^ᵇˡ^ᵇᵐ^ᵇⁿ^ᵇᵒ^ᵇᵖ^ᵇᵠ^ᵇʳ^ᵇˢ

^ᵃᵐnote:And the householder said he lent them to him.
^ᵃⁿnote:The intruder is not believed, even if he desires to take an oath; but the householder takes a consuetudinary oath that he did not sell them or give them to him, and recovers the articles; v. Maim., Yad, To'en we-Nite'am, IX, 4.
^ᵃᵒnote:The intruder is believed (with a consuetudinary oath) that he bought them.
^ᵃᵖnote:Articles which one is not ashamed to carry openly in the street. This person hid them, apparently because he was ashamed to have to borrow them; if he had really bought them, as he states, he would not have been ashamed to carry them openly.
^ᵃᵠnote:That he bought them; and though this householder does not usually sell his household goods, he may have been in need of money on this occasion.
^ᵃʳnote:And he is believed that he bought them, though he carries them hidden under his cloak (and they are articles which other men would carry openly).
^ᵃˢnote:And the intruder is believed that he bought them, even if he is not a decorous man who always carries articles hidden under his cloak.
^ᵃᵗnote:When he says he bought them.
^ᵃᵘnote:From Palestine, v. B.B. 52b.
^ᵃᵛnote:Containing legendary matter and homiletic literature.
^ᵃʷnote:The claimant brought witnesses who testified that the articles were his; and he maintained that he had lent them to the orphans’ father. Raba decided in favour of the claimant (who, naturally, must take an oath that he did not give them or sell them to their father). Since Raba decided thus, it is obvious that he holds that if the father had been alive and said he had bought them, he would not have been believed (for these are articles which it is customary to lend), for had the father been believed, it would have been the duty of the Court, in his absence, to put forward the same plea on behalf of the orphans. The book, which the claimant said he had lent the father, happened to be Aggada, but the same rule applies to all books (v. Tosaf. ad loc.; but Rashi differs).
^ᵃˣnote:This refers to the Mishnah that if witnesses testify that an intruder entered another man's house and seized a pledge which he hid under his cloak (so that they could not distinguish what it was) the householder takes an oath that the article is his, and recovers it. Raba says that if the householder was absent when the intruder entered, but the caretaker was there, he takes the oath.
^ᵃʸnote:Upon whom the duty of minding the house does not devolve.
^ᵃᶻnote:Do they take the oath in the householder's absence?
^ᵇᵃnote:It remains unsolved.
^ᵇᵇnote:If the householder claimed from the intruder a valuable object, is he also believed on oath?
^ᵇᶜnote:Who is known to have in his home similar objects of value.
^ᵇᵈnote:And he states that the silver goblet had been deposited with him by another person.
^ᵇᵉnote:In the Mishnah that the injured person takes an oath that the other had inflicted upon him the wound which he exhibits.
^ᵇᶠnote:Therefore an oath is necessary that the other did it.
^ᵇᵍnote:For witnesses testified that he entered the other's premises whole, and came out injured.
^ᵇʰnote:And injured himself; why should he receive compensation from the other without an oath?
^ᵇⁱnote:Or in the elbow joint, which could not have been caused by rubbing against a wall.
^ᵇʲnote:Why should he obtain compensation, without an oath, from the householder? Perhaps another person in the house injured him.
^ᵇᵏnote:Why ‘EVEN’?
^ᵇˡnote:The Tanna of our Mishnah.
^ᵇᵐnote:Having sworn falsely in a case involving an oath of testimony or of deposit.
^ᵇⁿnote:Taking a vain oath, e.g., swearing that a pillar of stone is gold.
^ᵇᵒnote:Denial (i.e., false statement) involving words only.
^ᵇᵖnote:E.g., he swears ‘I shall not eat this loaf’; at the moment of swearing he may intend to fulfil it; even if later he is overcome by temptation, and eats it, he should not thereby be accounted untrustworthy and debarred from taking an oath in a money claim.
^ᵇᵠnote:It is possible that at the moment of swearing he intends to fulfil them.
^ᵇʳnote:Where, at the moment of swearing, he knew he was swearing falsely.
^ᵇˢnote:Why should not the Mishnah mention that in such a case, too, he is no longer believed on oath, and his opponent is given the oath.