All of those who are besworn by Torah mandate swear and do not pay. [The Torah did not mandate that the claimant swear and take, but that the claimee swear and not pay, it being written (Exodus 22:10): "And its master shall take it, and he shall not pay" — He who is being asked to pay takes the oath.] And these swear and take [The sages ordained that they swear and take. They are all explained later in the Mishnah:] a hired laborer, one who has been robbed, one who has been struck, one whose opposite is not trusted to take an oath, and a shopkeeper over his ledger. A hired laborer — how so? [The sages ordained that a hired laborer swear and take; for the employer is busy with his workers and may not remember. This, when he claims within the prescribed time: a day-laborer, all of the night following, and a night-laborer, all of the day following. But if he claimed after his time, the employer takes a shvuath heseth that he paid him and he is exempt. Also, if he did not hire him in the presence of witnesses, the hired laborer does not swear and take. For since he can tell him: "I never hired you," he can also tell him: "I hired you and I paid you."] If he said to him: "Give me the pay that you owe me" — If the other said: "I gave it to you," and he: "I did not receive it," he (the hired laborer) swears and takes it. [But if the laborer said to him: "You stipulated that you would give me two," and the employer: "I stipulated only one," the employer swears a Torah mandated oath that it is as he says, and he gives him only one.] R. Yehudah says: (He does not swear) unless there is partial admission. How so? As when he said: "Give me my pay, fifty dinars, that you owe me," and the other said: "You received a golden dinar (twenty-five silver dinars)." [The halachah is not in accordance with R. Yehudah, neither in the instance of a hired laborer, nor in that of one who has been robbed or beaten.]
Bartenura on Mishnah Shevuot
כל הנשבעין. נשבעין ולא משלמין – The Torah did not institute for the person making a claim to take an oath and to take/regain their due, but rather for the one investigated that he takes an oath and does not pay, as it is written (Exodus 22:10): “[an oath before the LORD shall decide between the two of them that one has not laid hands on the property of the other;] the owner must acquiesce, and no restitution shall be made.” Whomever that it is upon him to pay is the one who must take an oath.
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English Explanation of Mishnah Shevuot
Introduction
The first six mishnayoth of our chapter discuss the exceptional cases in which a person takes an oath and thereby collects money from another person. All of the cases that we have seen in the mishnah until now have been examples of people who take oaths and are thereby exempt from paying.
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Bartenura on Mishnah Shevuot
ואלו נשבעין ונוטלין – that the Sages established for them to take an oath and to regain their due. And all of this is explained further on in our Mishnah.
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English Explanation of Mishnah Shevuot
All whom the Torah obligates to take an oath, take an oath, and do not pay. But these take an oath, and receive [payment]: the hired laborer, he who has been robbed, he who has been wounded, and he whose opponent is suspected of taking a false oath, and the shopkeeper with his account book. Under most circumstances the one who takes an oath is the defendant or the one who would potentially owe money. Usually he swears and is thereby believed and does not have to pay the claimant. However, there are five cases in which a claimant takes an oath and thereby collects. This section briefly lists these five cases. The mishnah through mishnah six will explain these cases one at a time.
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Bartenura on Mishnah Shevuot
השכיר – The Sages established for him to take an oath and to take his due because the owner of the house/employer is preoccupied with all of his workers and does not remember. And these words are when he makes a claim at the present time. The hired day laborer (see Tractate Bava Metzia, Chapter 9, Mishnah 12) his present time is all day long that is after him , but if they made a claim against him after his time, the owner of the house takes an equitable oath (which is applied if one is sued for a debt, denies the later entirely (כופר הכל), in contradistinction to the legal oath which is required when the defendant admits a part of the time ( מודה במקצת) . It being presumed that nobody will go to the law unless he has a claim, it is a matter of equity to put the opponent to an oath, to which he may in return put the claimant (see Talmud Shevuot 40b) – that he paid him and departed, but if he had been hired without witnesses being present, also, the hired person cannot take an oath and take his due because he (i.e., the owner of the house/employer) can say to him: “I never hired you.” He also can say to him: “I hired you and gave you your wages.”
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English Explanation of Mishnah Shevuot
“The hired laborer” How so? [If] he says to him [his employer], “Give me my wages which you owe me,” and he replies, “I have given,” and the other says, “I have not received it,” he [the laborer] takes an oath and collects his wages. Rabbi Judah says: “[There is no oath] unless there is partial admission: How so? If he says to him, “Give me my wages, fifty denarii, which you owe me,” and the other says, “You have received a gold denar (25 silver.” The first person who takes an oath and is thereby able to collect a debt is a hired laborer. If a hired laborer claims his wages and his employer claims to have already paid him, the laborer may take an oath and collect his wages. The Talmud explains that since employers have many employees, they may tend to forget whom they have paid and whom they have not. It is not unlikely that they have indeed forgotten to pay their employees. Therefore, the hired laborer is allowed to swear that he has not been paid, and thereby collect his wages. According to Rabbi Judah, the hired laborer is allowed to collect by swearing only if the employer admitted to owing him part of his wages. In the scenario that he presents, the employer admitted to owing him 25 denarii but denied owing him an additional 25 denarii. The laborer may swear that the employer owes him 25 and collect. If the employer had denied the entire debt the employee would not be able to take an oath and collect.
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Bartenura on Mishnah Shevuot
והוא אומר נתתי – but he said to him: “I stipulated/agreed upon two [Zuz] and he (i.e., the employer) says, “I stipulated for you only one (see Talmud Shevuot 45b). The owner takes the oath of the Torah that it is according to his words, and he only gives him one.
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English Explanation of Mishnah Shevuot
Questions for Further Thought: • Why does Rabbi Judah believe there needs to be a partial admission in order for the claimant to swear and then collect?
