SHEVUOS 46 - Two weeks of study material have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.

1) THE OATH TAKEN BY THE EMPLOYER IN A DISPUTE REGARDING WAGES

QUESTION: The Gemara relates that the students of Rav asked Shmuel about a case in which a worker and employer disagree about how much the employer owes the worker. Shmuel replied that the employer must swear in order to exempt himself from paying the rest.

REBBI AKIVA EIGER (Teshuvos 2:140) asks a strong question from this Gemara on the words of TOSFOS. The Gemara earlier (45b) teaches that when a worker and his employer disagree about whether the worker was paid, the worker may take an oath that he was not paid and then collect his payment. When the dispute involves not whether or not he was paid but rather how much he is supposed to be paid, the employer takes an oath and pays the amount that he claims he owes. The Gemara says that if the reason why the worker swears in the first case is that the employer is busy with his workers and does not remember whether or not he paid one specific worker, then in the second case as well the worker should swear about how much the employer owes him, since the employer is busy with his workers and does not remember how much he owes. The Gemara answers that the difference between the two cases is that although an employer is prone to forget whether or not he paid, he does not forget the amount that he was supposed to pay.

TOSFOS there (45a, DH Afilu Katzatz) wonders why the Gemara asks that since the employer is busy with his other affairs, the worker should swear even when the dispute involves how much is owed. The Gemara in Bava Metzia (97b) says that when a defendant claims that he does not know whether or not he stole from the claimant, he does not have to pay (even when the claimant's claim is one of certainty, "Bari"). Similarly, in this case, when the employer says that he owes only a certain amount, we know that he is in doubt about the remainder (since he is busy with his other affairs), and thus it is as if he is saying that he does not know whether he owes the rest. Accordingly, he should be exempt from paying and there should be no obligation to make a Shevu'ah.

Tosfos answers that in the case in Bava Metzia, when the defendant says that he does not know, he is not admitting to owing anything. Therefore, he is exempt. In contrast, in the case of the Gemara here, if the employer would say that he does not know about the rest of the money that the worker claims, he would be admitting to the first part of the amount claimed. Consequently, it is a case of "Modeh b'Miktzas" in which the defendant agrees that he owes part of the claim and says that he does not know about the other half. In such a case, the employer should have to make a Shevu'ah d'Oraisa (a Shevu'ah Modeh b'Miktzas) that he does not owe any more money, but he cannot make a Shevu'ah because he says that he does not know about the other half. When a person is obligated to swear that he does not owe money, but he cannot swear (such as when he says he does not know), then he must pay ("Mitoch she'Eino Yachol li'Shava, Meshalem").

In this case, when the employer says that he knows that he does not owe the rest, Beis Din does not obligate him to pay outright. However, since Beis Din suspects that he does owe but he forgot due to his preoccupation with his workers, Beis Din allows the worker to swear and collect the rest of the money.

Rebbi Akiva Eiger challenges Tosfos' answer. Rav and Shmuel do not agree with the principle of "Mitoch she'Eino Yachol li'Shava, Meshalem" (see 47a, "l'Heichan Chozer"). They maintain that when a person cannot swear, he is exempt from paying. According to Rav and Shmuel, Tosfos' question that the employer's claim should be treated as though he says he does not know and thus he should be exempt from paying -- remains unanswered. According to Rav and Shmuel, why must the employer swear?

ANSWERS:

(a) REBBI AKIVA EIGER answers his question based on the law in the case of a person who is suspected of lying, who is not allowed to take an oath. According to all opinions, such a person does not have to pay when obligated to take an oath which he cannot take. TOSFOS in Bava Metzia (5a) explains that the rule of "Mitoch" is applied (and the person must pay) only when the person is uncertain about the facts of the case. When the person is certain about the facts and wants to swear, but the Halachah prevents him from swearing because of his character, the law is that he does not have to pay (since he claims that he is certain about the facts of the case). However, the Gemara there adds that another law states that when the defendant cannot swear, the claimant may swear that he is correct and collect the money. Rebbi Akiva Eiger infers from there that even without the rule of "Mitoch," Beis Din can let the other party swear and collect the money.

Based on this, Rebbi Akiva Eiger explains the question of the Gemara here according to Rav and Shmuel. The Gemara initially assumes that the employer was too busy to be sure of the facts (as in the case of denial of wages), and thus his claim of the amount of wages owed is similar to a claim that he does not know how much is owed. Even without the rule of "Mitoch" there is still reason to require the worker to swear. The worker should be given the "Modeh b'Miktzas" oath of the employer, just as in the case of a suspected person, in which the claimant can be given the oath of the suspected person who cannot swear himself. The Gemara answers that an employer's opinion is not considered a doubtful opinion. The employer is therefore allowed to swear to remove any suspicion.

(b) The KEHILOS YAKOV (#30) suggests that in order to answer this question it is not necessary to introduce a new principle that would transfer the Shevu'ah to the claimant even without the rule of "Mitoch." He argues that the principle of transferring a Shevu'ah to the claimant without applying "Mitoch" (which applies only in a case of a suspected person who is unable to take an oath) may also apply in this case, because this case may also be a case of a suspected person who is obligated to take an oath. The Gemara initially assumes that because the employer is busy with his workers, if he is required to swear he may mistakenly swear falsely. Once he is considered suspect to swear falsely, it follows that the worker should swear and collect, just like a normal case of a person who is suspected of lying. The Gemara answers that the employer is not suspected since he remembers the amount well. (Y. MONTROSE)

46b----------------------------------------46b

2) ARTICLES WHICH ARE OFTEN LENT OR RENTED OUT

OPINIONS: The Gemara discusses a case in which Reuven claims that a certain object in Shimon's possession belongs to him, and Reuven brings witnesses who testify that they saw that the object once belonged to Reuven. If the object is the type of object that is frequently lent or rented to others ("Devarim he'Asuyin l'Hash'il ul'Haskir"), Shimon is not believed to say that he bought the object from Reuven and that the object belongs to him, because we assume that Reuven lent or rented it to Shimon (unless Shimon can prove otherwise).

What is the definition of things that are "Asuyin l'Hash'il ul'Haskir"?

(a) The RAMBAM (Hilchos To'en v'Nit'an 8:9-10) says that one should not make the mistake of equating things that are made to be lent and rented out with things that are commonly lent and rented out, "as many great people have erred." All items, he says, are fit to be lent out and indeed are often lent out. Rather, he explains that the Gemara refers to objects that the people in that place craft with the intention that those things will be lent and rented out. He cites as examples of such things large cooking pots, bridal adornments, and the objects mentioned in the Gemara here (such as scissors used for cutting wool). The MAGID MISHNEH cites support for the Rambam's view from the fact that the Gemara calls these objects things that are "Asuyin l'Hash'il ul'Haskir"; "Asuyin" literally means "made," which implies that these things were crafted with the intention to be lent and rented out.

(b) Many Rishonim argue with the Rambam (as the Rambam himself mentions). TOSFOS, the RIF, RAMAH, RAMBAN, and others maintain that the Gemara refers to objects which people usually lend or rent out, regardless of whether those objects were specifically made for that purpose. The RITVA explains that the fact that the Gemara calls these objects "Asuyin" ("made") is no proof for the opinion of the Rambam. The Gemara earlier (beginning of 46b) discusses a person who is "Asuy" to sell his vessels, referring to a person who has a tendency to sell his vessels (it obviously does not mean a person who is "made" to sell his vessels). Similarly, with regard to objects that are "Asuyin l'Hash'il ul'Haskir," the Gemara means objects that are usually lent or rented out, and not that they are made specifically for that purpose.

This disagreement about how to define objects that are "Asuyin l'Hash'il ul'Haskir" has practical consequences in other contexts. The Gemara in Kesuvos (50a) states that the verse, "And his righteousness endures forever" (Tehilim 112:3), refers to the person who writes scrolls of Torah, Nevi'im, and Kesuvim and lends them to others. According to most Rishonim, such scrolls certainly qualify as objects that are usually lent out, "Asuyin l'Hash'il." According to the Rambam, however, such scrolls would not constitute "Devarim he'Asuyin l'Hash'il" unless they were made specifically for the purpose of being lent to others.

Tosfos challenges this explanation from another Gemara. The Gemara in Bava Kama (114b) discusses a case in which one person sees his Sefarim and vessels in the possession of another person who claims that he bought the items. There is overwhelming evidence that the original owner was the victim of a theft. The law is that the person holding the items may take an oath attesting to the amount of money that he paid for the items, and the original owner then pays him this amount and receives the items in return. The Gemara requires that there be evidence of a theft in order to eliminate the possibility that the original owner sold the items to the second person and now unlawfully demands them back.

If the disputed items are not items that are usually lent out, then indeed it is necessary to have evidence of a theft, because without such evidence the defendant may claim that he bought them and he would be believed. If, on the other hand, these items are considered items that are commonly lent out (as the Gemara in Kesuvos says), then there should be no need for evidence of a theft, and there should be no need for a Shevu'ah. The original owner should win the case merely by saying that they were stolen from him, since he has a Migu that he could have claimed that he lent them. The MIRKEVES HA'MISHNEH indeed says that this question is the reason why the Rambam does not agree with the explanation of the other Rishonim.

1. Tosfos answers in the name of RABEINU TAM that the Gemara in Bava Kama refers to a case in which the person holding the items obviously would not have borrowed them from the original owner, such as a person who has never dealt with the original owner. In such a case, we do not assume that the items were lent out. (Accordingly, Rabeinu Tam explains that when Rava here rules that certain orphans should give back Sefarim of Agadeta to the original owner, it must be that Rava knew that the owner had lent his Sefarim to the father of the orphans.)

2. The RITVA answers that there is a difference between Sefarim of a more esoteric subject matter -- to which the Gemara in Bava Kama refers -- and Sefarim of Agadeta, which are relatively easy to learn. Although it certainly is a Mitzvah to lend out all types of Sefarim, it is not the normal manner for a person to lend out the more difficult Sefarim. Since Sefarim tend to get damaged due to the amount of intense study that is necessary to understand them, people do not usually lend out such Sefarim. Moreover, only very learned people borrow these types of Sefarim. If an ordinary layman who is not a scholar claims possession of these Sefarim, they certainly would not be considered something that is made to be lent out. In contrast, Sefarim of Agadeta are always lent out to everyone, since they are not difficult to understand. For this reason, the Gemara here makes a point of saying that the Sefarim in Rava's case were Sefarim of Agadeta. (Y. MONTROSE)

3) IS MONEY CONSIDERED AN ARTICLE WHICH IS OFTEN LENT OR RENTED OUT?

QUESTION: The Gemara discusses a case in which Reuven claims that a certain object in Shimon's possession belongs to him, and Reuven brings witnesses who testify that they saw that the object once belonged to Reuven. If the object is the type of object that is frequently lent or rented to others ("Devarim he'Asuyin l'Hash'il ul'Haskir"), Shimon is not believed to say that he bought the object from Reuven and that the object belongs to him, because we assume that Reuven lent or rented it to Shimon (unless Shimon can prove otherwise).

This principle -- that a person cannot make a Chazakah on objects that are normally lent or rented out -- seems to contradict the Gemara earlier in Shevuos (34a). The Gemara there teaches that when Levi hands over money to Yehudah in the presence of two witnesses, Yehudah is believed to claim later that he indeed received money from Levi, but that money was the repayment of a loan from Levi. According to the principle of the Gemara here, in a case in which the witnesses do not know whether Yehudah was borrowing money from Levi or whether he was receiving a repayment for a loan that he gave to Levi, we should assume that Yehudah was receiving a loan from Levi, since money is something that is normally lent to others! Why does the Gemara there say that Yehudah is believed to say that the money he received was a repayment of a loan due to him?

ANSWERS:

(a) The KETZOS HA'CHOSHEN (79:2) distinguishes between money and objects. In the case of a monetary loan, the principle of "Milveh l'Hotza'ah Nitnah" applies. This means that when the lender lends money, the borrower is allowed (and expected) to spend that money and to return different money (of the same value) to the lender. In contrast, when a person lends an object, the borrower is obligated to return the same object. The reason why objects which are frequently lent or rented out are not assumed to belong to the person holding them is that they are considered to be in the ownership of the original owner (Mara Kama) unless there is proof that they have left his ownership. Money, however, always leaves the possession of the Mara Kama, because the borrower returns different money. Accordingly, in the case of the Gemara earlier (34a) the one who is holding the money is believed to say that it is his money because there is no Chezkas Mara Kama opposing his claim.

(b) RAV YITZCHAK ELCHANAN SPECTOR (cited by the MILU'EI CHOSHEN to the Ketzos ha'Choshen) gives another answer to this question. The SHULCHAN ARUCH (CM 72:19) cites the RIF and RABEINU TAM who rule that any object which the owner does not usually lend out because of its importance is not included in the category of "objects which are normally lent out." Money is not considered something that is normally lent out, because the owner is apprehensive about lending it lest the borrower not return it.

The Shulchan Aruch there also quotes the RAMBAM (see previous Insight) who rules that only objects which are made for the purpose of being lent or rented out fall into this category. According to the Rambam's as well, money is not considered an object that is made to be lent out. (See Insights to Bava Basra 52:2.) (Y. MARCUS)

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