QUESTION: The Mishnah (44b) begins by teaching that all oaths mandated by the Torah are oaths which a person takes in order to exempt himself from paying money that is demanded from him. There is no case of a Shevu'ah d'Oraisa in which a person makes a Shevu'ah in order to extract money from someone else. This is derived from the verse, "An oath of Hash-m shall be between the two of them... and the owner shall accept it and he shall not pay" (Shemos 22:10). The Rabanan, though, instituted five exceptions, wherein a person makes a Shevu'ah to extract payment from someone. One of these cases of "Nishba'in v'Notlin" is that of a worker who claims that he did not receive payment for his work. Even though the employer says that he did pay the worker, the worker may swear that he was not paid and may then collect his payment.

The Gemara asks why must the worker, who claims that he was not paid, make the Shevu'ah in order to collect his payment. The Gemara answers that the Rabanan enacted that the worker must swear because an employer usually has many employees with whom he must deal. Since he is prone to forget whom he paid and whom he did not pay, he is not able to swear.

The words of the Gemara imply that the question is why the oath is taken by the worker and not by the employer. The Gemara takes for granted that a Shevu'ah is necessary in such a case, in which a worker and employer disagree about whether the worker was paid. However, the Torah mandates no such Shevu'ah! Why is it obvious to the Gemara that such a Shevu'ah even exists in the first place?

(a) The RITVA explains that the Gemara understands that even in the times of the Mishnah, the Rabanan required that a Shevu'ah be made in the case of a worker who claims that he was not paid, in order to protect the rights of workers. It would have been appropriate to make the employer swear, since all other Shevu'os are "Nishba'in v'Lo Meshalmin" (they are made to exempt one from payment). The Gemara is asking why the Rabanan enacted in this case that the worker swears (and collects his money), and not the employer. This is also the explanation of the RAMBAN, RASHBA, and others.

(b) The MEROMEI SADEH suggests a different reason for why it was necessary for the Rabanan to institute a Shevu'ah in the case of a dispute between a worker and his employer. He explains that the Shevu'ah was instituted not to protect the rights of the worker, but rather as a general deterrent to prevent a person from lying in any situation in which a person could lie and not experience shame if caught. In the case of a worker who claims that he was not paid, the employer can lie and say that he paid the worker, and when he is proven to be lying he can claim that he was so busy with his other affairs that he forgot that he had paid that worker. Therefore, the Rabanan instituted a Shevu'ah in such a case. The Meromei Sadeh suggests that this is the intention of the ROSH (7:4).

(c) RASHI later (46a, DH Ela b'Ha) seems to have a different understanding of the purpose of the enactment of this Shevu'ah. The Gemara later (46a) discusses the view of Rebbi Yehudah who maintains that the worker takes such an oath only when the dispute is about how much he is to be paid, and not when the dispute is about whether or not he was paid. The Gemara explains that when the Torah requires a person to take an oath, the Rabanan may transfer that oath to the other party if they deem it appropriate to do so. When the argument is how much the worker is to be paid, according to Torah law the employer must swear that he does not owe the additional sum that the worker claims, since it is a case of "Modeh b'Miktzas" (for which a Shevu'ah d'Oraisa is required). Since that Shevu'ah is a Shevu'ah d'Oraisa, the Rabanan transfer it to the worker. This concept of transferring the oath does not apply when the Shevu'ah itself is only mid'Rabanan, and thus when the dispute involves whether or not the worker was paid at all, the employer must swear and not the worker (according to Rebbi Yehudah). According to the Ritva, as mentioned above, the Shevu'ah d'Rabanan in such a case is the Shevu'ah that the Rabanan instituted in order to protect the worker.

Rashi explains that the Shevu'ah d'Rabanan in such a case is a "Shevu'as Heses," like the Shevu'ah which Rav Nachman instituted, and therefore it cannot be transferred to the worker. Rav Nachman (40b) states that when one person claims money from another person who denies everything, the defendant -- in order to exempt himself from payment -- must take an oath that he does not owe any money (a "Shevu'as Heses").

Rashi's words are difficult to understand. Rashi himself (48b) and other Rishonim (see RAMBAN to 45a) explain that the practice of a "Shevu'as Heses" was instituted only in the generation of Rav Nachman (others explain that Rav Nachman himself instituted this practice). It is clear that the practice to take such an oath was instituted only in the times of the Amora'im. In the times of the Mishnah, however, a defendant was exempt from payment (when no evidence was brought against him) without having to take any oath at all. Why, then, does Rashi say that in the times of the Mishnah, in a case in which an employer denies owing anything to his worker he must make a "Shevu'as Heses," if such a Shevu'ah was instituted only in the times of the Gemara? (TOSFOS to 46a, DH bid'Rabanan Takanta Hu)

Perhaps Rashi is not referring to the form of Shevu'ah instituted in the times of Rav Nachman when he says "Shevu'as Heses." Rather, Rashi is using those words as a general term to refer to a Shevu'ah instituted by the Rabanan. He calls the Shevu'ah that the employer must make a "Shevu'as Heses" because it is exactly like the oath that was later instituted for all other cases of "Kofer ha'Kol" (cases in which the defendant denies that he owes any money to the claimant).

QUESTION: Rav Nachman in the name of Shmuel, and Rav Menashya bar Zevid in the name of Rav, teach that when the Mishnah (44b) states that a worker may collect his payment by taking an oath that he was never paid, it refers only to a case in which the worker was hired in the presence of witnesses. If he was not hired in the presence of witnesses, he is not entitled to collect any money with a Shevu'ah, and the employer does not need to swear that he does not owe any money. This is because the employer has a "Migu" which gives credibility to his claim: since he could have claimed that he never hired the worker at all, he is believed when he claims that he hired the worker but that he paid him already.

The Rishonim ask that it seems inappropriate to apply a Migu in this case. Normally, a Migu provides a logical basis to assume that the person making the claim is telling the truth. The Migu states that if the person wanted to lie, he would have made a different, better claim that certainly would have won the case for him. However, in the case of an employer arguing with his worker, the suspicion is not that the employer is lying, but that he was very busy and does not remember if he paid, as the Gemara (45a) itself says. Although the Migu establishes the employer's honesty, it does not determine that he was not busy and did not forget. Why, then, does the Migu work in this case?

(a) TOSFOS answers that the Migu here is necessary and does help the employer win the case. The Migu establishes that the employer's claim that he is certain that he paid the worker is not a lie. When the employer is absolutely certain about his claim, Beis Din can be sure that he is not mistaken about whether he paid due to his involvement with his other workers.

Normally, the employer might not remember whether or not he paid, but he says that he is certain that he paid even though he does not know for sure. Beis Din suspects that he is not really certain that he paid, and that he is lying and saying that he is absolutely certain. When there is a Migu, the Migu establishes that he is telling the truth when he says that he is certain, and thus Beis Din believes him.

The KEHILOS YAKOV questions this explanation of Tosfos. The Gemara in Bava Metzia (6a) says that people refrain from taking an oath when they are in doubt, but they do not refrain from taking money when they are in doubt. The reason for this is that once an oath is falsified, it may never be revoked, while money taken unlawfully may always be returned to the rightful owner. According to Tosfos, Beis Din is concerned that the employer is in doubt about his claim, even though he says that he is certain. If there is a concern that the employer is in doubt, why should the employer not be required take an oath because of his preoccupation with his other workers? On the contrary, he should be required to take the oath, because if he is truly in doubt about his claim, he will refrain from swearing!

The Kehilos Yakov answers that the principle of the Gemara in Bava Metzia -- that a person does not take an oath when he is in doubt about his claim -- is not a universal principle that applies in all cases of doubt. Rather, it is not definite that a person will refrain from swearing when he is in doubt, but it is likely enough to administer a Shevu'ah in a case in which there is no particular reason to assume that the person is lying. In such a case, the Chachamim rely on the assumption that the person will take the oath if he is certain about his claim, and he will refrain from taking the oath if he is in doubt. In contrast, in a case in which the person has a strong reason to claim that he is certain even when he is in doubt, the Chachamim suspect that he would not refrain from taking the oath. In the case of the worker and employer, the Chachamim have reason to assume that the employer is lying when he says that he is certain that he paid. His preoccupation with his other workers provides grounds to assume that he is not certain about his claim, even though he says he is. Since he is suspected of lying, Beis Din cannot make him swear, and he loses his trustworthiness with regard to his claim.

(b) The RITVA answers that no employer wants to be involved in a dispute with a worker in which he claims that he paid the worker, because he knows that Beis Din assumes that he is mistaken because of his preoccupation with his other workers. It is embarrassing for him to make such a claim. Therefore, if he wants to lie, he certainly would make a claim that would avoid such embarrassment (he would claim that he never hired this worker). Since he does not make that claim, it must be that he definitely remembers that he paid this worker and that his preoccupation did not cause him to forget.

The Ritva, however, questions this approach. The Migu (had he wanted to lie, he would have made a better claim) cannot establish the employer's believability in this case because there is another, obvious reason why he did not make such a claim (and it is not because he must be telling the truth): he does not have the audacity to blatantly deny -- in the face of the worker himself -- that he ever hired this worker. The employer is much more comfortable saying that he paid a worker, even though it is not true, because he knows that everyone understands that employers tend to forget such matters and no one will assume that he is lying intentionally. How, then, does this Migu apply to give him believability?

(c) The Ritva quotes the RE'AH who gives an entirely different explanation for the Gemara. The Re'ah understands that the Gemara does not exempt the employer from an oath. Rav Nachman means that when the Mishnah says that the worker takes an oath, it is referring to when the worker was hired in the presence of witnesses, but when there were no witnesses present the employer has a weak Migu and the employer himself must take the oath.

The Re'ah cites proof for this explanation from the Gemara earlier (42b). The Gemara there discusses two possible claims that a defendant might make when a claimant demands money from him. If the defendant denies that he owes any money, then according to Torah law he neither swears nor pays the claimant. If he admits to half and denies half, he must pay the half that he admits and he must swear that he does not owe the other half. Why, though, in the latter case, does he not have a Migu that he could have said that he does not owe any money at all (in which case he would have been exempt from payment and from swearing)? The Re'ah says that it must be that there is no Migu in such a case, because the defendant would not have the audacity to lie and say that he owes nothing. Denying half and admitting to half, in contrast, does not take as much audacity. Since the Migu does not apply there, the defendant must take an oath. Similarly, in the case of the Gemara here, the employer's Migu is weak, and therefore he must take an oath.

The Ritva questions this approach from the continuation of the Gemara here, in which Rami bar Chama praises this ruling (that the employer is believed with a Migu when the worker was hired without witnesses), and Rava questions what is so praiseworthy about it. Rava asks that according to this ruling, there should never be a case in which a Shevu'as ha'Shomrim can be made. The person with whom the owner entrusted his object can always claim that the object was lost or destroyed through an Ones (circumstances beyond his control), and he should be believed based on a Migu that he could have said that he never received such an object to guard in the first place. According to the Re'ah's approach, however, the Gemara earlier is not saying that the employer who claims that he paid his worker is exempt from a Shevu'ah. Why, then, does Rava ask that if that ruling is correct, then a Shomer should always be exempt from a Shevu'ah?

The Re'ah answers that when Rami bar Chama praises the Gemara's ruling, his praise is based on a misunderstanding. Rami bar Chama assumes that the Gemara means that no Shevu'ah needs to be made, because the Migu is valid even when the alternate claim of the Migu would have embarrassed the defendant more than his actual claim. Rava, therefore, questions Rami bar Chama's understanding.

The Ritva says that this answer is forced, and that all of the Ge'onim rule that the employer does not have to take an oath (other than the normal Shevu'as Heses, which was instituted after the times of the Mishnah and is not the topic of the Gemara). Why, though, is the Migu valid if, as the Re'ah asks, the employer would have been embarrassed to make the claim of the Migu?

RABEINU YONAH answers that although the employer's complete denial that he ever hired the worker would indeed be an audacious claim, it is also audacious for him to claim that he definitely paid the worker. A Migu cannot be rejected in such a situation. A Migu is rejected only when making the claim of the Migu would embarrass the defendant, while the actual claim that he makes causes him no embarrassment. When the actual claim also is embarrassing and requires him to be brazen, the Migu is acceptable even though the claim of the Migu would require significantly more brazenness.

The Ritva is not satisfied with this answer. Instead, the Ritva favors the answer of RAV HAI GA'ON. Rav Hai Ga'on explains that the reason why a Shevu'ah must be made in the first place is that the Rabanan were concerned about the welfare of the worker. They established that a Shevu'ah be made even though the Torah does not require it. This decree of the Rabanan was enacted only in a case in which the employer has no other evidence to support his claim. In a case in which the employer has the slightest evidence in his favor, such as a Migu -- and even a weak one -- the Rabanan did not enact that a Shevu'ah be made. The Torah law applies, and no oath is required (other than the normal "Shevu'as Heses"). (Y. MONTROSE)