Yerushalmi Shevuot 7:1 ירושלמי שבועות ז׳:א׳

MISHNAH: All who must swear by Torah standards do swear not to pay. The following do swear¹By rabbinic (popular) standards. and collect: The journeyman, a person robbed or injured, and one whose opponent is suspected of perjury, and the grocer on his account book²These will be explained in the following Mishnaiot.
Probably one should vocalize פִּינַקְסוֹ, Greek πίναξ “wooden (wax covered) writing tablet.”. How does the journeyman do it? He tells him, “give me my wages which you are holding;” he says, “I gave.” He swears and collects³Since one assumes that the employer is occupied with many things while the journeyman has only his wages on his mind.. Rebbi Jehudah says, only if there is partial admission. How is this? He tells him, “give me my wages of fifty denarii which you are holding;” but he says, “you received from these a gold denar⁴25 silver denarii. By biblical law, the employer would have to swear since he partially denied the journeyman’s claim..”

HALAKHAH: “All who must swear by Torah standards,” etc. One understands from what is said, an oath before the Eternal shall be between them⁵Ex. 22:10., would we not know that if he does not swear, he has to pay⁶Since the entire paragraph is about the obligations of the paid trustee in case the deposit was lost. Only the case in which he does not have to pay is described; from this it follows that in all other circumstances he has to pay.? Why does the verse say, its owner shall take it, and he does not have to pay? But from the moment the owner accepted his oath, he does not have to pay⁷Babli 45a, Bava qamma107a; Mekhilta dR. Ismael Neziqin16, dR. Simeon ben Ioḥai ad loc., (Tosephta 6:7.)
Probably this statement has to be interpreted following the parallels in the Babli and the Mekhilta dR. Simeon ben Ioḥai: The oath grants the trustee absolute immunity. Even if afterwards witnesses are found who prove that the trustee stole the deposit, he cannot be made to pay. This cannot be inferred from the first part of the verse quoted earlier.
Mekhilta dR. Ismael Neziqin treats the statement as paradigm for all oaths prescribed in the Torah and sees in it proof for the statement that “All who must swear by Torah standards do swear not to pay.”. Rebbi Ḥaggai asked before Rebbi Yose: Is this only following Rebbi Meїr or even following the rabbis? Did not Rebbi Assi⁸The Babylonian name of R. Yasa who is named correctly in the parallel, Halakhah 4:14 (Note 118). say in the name of Rebbi Joḥanan: Rebbi Meїr is the one who says that out of a negative one understands a positive? Its owner shall take it, and he does not have to pay, therefore if he does not swear, he has to pay⁹Why should this simple inference be particular to R. Meїr and require R. Joḥanan’s statement?. Rebbi Ḥiyya stated: The unpaid and the paid trustees may stipulate to be like a borrower¹⁰It really should read: The depositor may stipulate with a paid or unpaid trustee that they should be strictly responsible for the deposit like a borrower (Mishnah 8:1). Since this is a money matter, the biblical conditions are only valid if there are no explicit dispositions for deviations from these standards (Bava meṣi`a5:5 Note 81). The verse may be read: If the owner accepts the oath, the trustee does not pay; this leaves open the option that the owner stipulated that he would not accept the oath.. Rebbi Ḥanina said, everybody agrees that in the language of the Torah out of a negative one understands a positive; where do they disagree? In everyday speech¹¹There is no disagreement with R. Meїr in the interpretation of scriptural verses but there is much disagreement in the interpretation of vows and informal texts..

Rebbi Abin said, since the householder has many occupations they instituted that the journeyman should swear and collect¹²In the Babli, 45a, this is an anonymous statement. Since it comes at the end of a lengthy discussion, it is Amoraic.. [Rebbi Yose ben Rebbi Abun said, there¹³The insert is from a Genizah text; it is superfluous and questionable in that it fixes the origin of the institution in Babylonia (“there”). they instituted that the journeyman should swear and collect;] similarly they instituted for the householder that if its deadline had elapsed, he cannot swear and collect¹⁴Mishnah Bava meṣi`a9:13, Tosephta Bava meṣi`a10:5. The journeyman is hired for the day. It is sinful not to pay the journeyman immediately after his work is done (Deut. 24:15). Therefore one may assume that the laborer asked for his wages immediately and that he was paid since it is difficult to assume that the householder would sin in withholding the wages. But if there are witnesses that the laborer asked and was not paid, the presumption of permanence of the status quo ante requires one to assume that he was not paid until the opposite is proven.. Rebbi Ḥiyya stated, if there are witnesses that he claimed it in time, he swears and collects¹⁴Mishnah Bava meṣi`a9:13, Tosephta Bava meṣi`a10:5. The journeyman is hired for the day. It is sinful not to pay the journeyman immediately after his work is done (Deut. 24:15). Therefore one may assume that the laborer asked for his wages immediately and that he was paid since it is difficult to assume that the householder would sin in withholding the wages. But if there are witnesses that the laborer asked and was not paid, the presumption of permanence of the status quo ante requires one to assume that he was not paid until the opposite is proven. even after a year. Rebbi Yose said, he has only that single day¹⁵He disagrees with the Tosephta and holds that the inversion on the rules of oaths is valid only for 12 hours after the end of the working day. Later the householder would have the option to swear and to free himself from paying since it must be assumed that the laborer would have gone to court immediately had he not been paid. This opinion has no parallel elsewhere.. Rebbi Jonah said, Rebbi Yose ben Rebbi Ḥanina and Rebbi Simeon ben Laqish disagreed. One said, if he claimed from him during daytime, he has only that day; if in the night he has only that night¹⁶The hours worked by a laborer hired for the day are set by communal standards (Mishnah Bava meṣi`a7:1) but at most are from daybreak to nightfall. Therefore, a day laborer must be paid between the end of his working day and the end of the following night; a worker hired for the night must be paid before the end of the next day.. But the other said, if he claimed from him and he said, I gave. But if he said, I shall give, the presumption is that he gave¹⁷If the laborer claims that he was not paid and his employer says that he was paid, this is a situation analogous to that of an oath about a deposit and the laborer swears and collects. But if the householder agrees that he has to pay, the court has to assume that he will keep his word and fulfill his religious duty in paying promptly.. We do not know who said what. Since Rebbi Ḥama bar Uqba said in the name of Rebbi Simeon ben Laqish: if he claimed from him during daytime, he has only that day; if in the night he has only that night, therefore Rebbi Yose ben Rebbi Ḥanina is the one who said, if he claimed from him and he said, I gave. But if he said, I shall give, the presumption is that he gave. Rebbi Mana said, sometimes he claims after its time and it is considered as in time. How is this? He claimed from him and he¹⁸The laborer claimed and the employer said. said to him, did I not say to you that I gave at that date? That date becomes as if it were yesterday; one gives him one measure¹⁹The 12 hours of the next day to claim, swear, and collect under the rules of the day-laborer..

If he paid him in advance; in that case he swears and collects²⁰The employer claims that he paid the day laborer in advance but he has no witnesses and no receipt. The law is not changed; the laborer swears and collects.. If a pledge was in his hand; in that case he collects without swearing²¹If the laborer had been paid, he would have returned the pledge.. If he was a slave. Would the court admit a slave to an oath²²Since the slave has no standing in court, he could not be punished for perjury. An oath sworn by someone exempt from the sanctions for perjury is worthless and an insult to the court.? If he was suspect? Would the court admit a suspect person to an oath²³Either he is suspected of a false or vain oath or he gains his livelihood by fraud, as explained in Mishnah 4.? If both were suspect, it is the dispute between Rebbi Meїr and Rebbi Yose: ²⁴Mishnah 4.“If both were suspect, the oath returns to its origin, the words of Rebbi Yose²⁵The meaning of his words is in dispute between Babylonians and Galileans; cf. Halakhah 4, end.; Rebbi Meїr says, they shall split the difference²⁶Since neither party can swear or has proof; the claim is classified as “money in doubt” which is split evenly between the parties (Ketubot2:1 Note 9, Bava qamma5:1 Note 4)..”

It is obvious: If the householder dies, the journeyman swears to his heirs²⁷And collects his wages. Since the Babli does not mention the topic, this is accepted practice. If the day laborer dies, the employer swears to free himself from payment.. Even if the journeyman dies, do his heirs swear to the householder’s heirs? They made this ordinance only for the journeyman. Maybe for his heirs? Rebbi Eleazar said, if he claimed²⁸Since the text is confirmed by a Genizah fragment, it cannot be amended to read “if he hired him before witnesses” as seems to be implied later in the text. R. Eleazar restricts the possibility of the laborer to swear and collect to the situation when he requested payment before witnesses and afterwards comes to court. But if there are no witnesses to the fact that he was not paid on the spot when he requested payment, i. e., there is prima facie evidence that the employer did not fulfill the commandment “to pay on his day”, the employer must be given the benefit of doubt and the option of swearing to deny his debt. before witnesses. [But if he claimed without witnesses²⁹The text in brackets is added from a Genizah fragment. It is necessary; its existence was conjectured by some commentaries (Ridbaz and Noam Yerushalmi)., he can tell him,] I paid your wages. Rebbi Joḥanan said, does one not in money matters argue “because³⁰Cf. Halakhah 6:1, Note 25. The later R. Yudan denies the legal validity of “because” arguments in court but R. Joḥanan is quoted in the Babli 45b to agree with Samuel that this kind of argument is valid.?” Because he can say to him, I did not hire you, he can tell him, I hired you and paid your wages³¹If the laborer was hired without witnesses or contract, he has no way to establish the fact that he was a day laborer in the service of the person from whom he claims wages and cannot request the court to admit his oath.. A baraita³²Tosephta 6:1. disagrees with Rebbi Eleazar³³It seems that in this text, “Eleazar” should everywhere be replaced by “Joḥanan” since only R. Joḥanan requires that the hiring be documented.: “When was this said? If he said, I gave, but the other said, I did not take; I gave you your wages, but he says, I did not take. You hired me, but he says, I did not hire you. The burden of proof is on the claimant.³⁴There is a word missing in the text of the Tosephta, which makes the text incomprehensible. The Tosephta notes that the special rule which allows the laborer to swear and collect is restricted to the case of the Mishnah, where there is no dispute about the relation of employer and employee, only whether the latter had been paid or not; but a dispute whether such a relationship existed at all must be adjudicated by the general principle that the burden of proof is on the claimant. It seems clear that this situation cannot occur if the hiring was documented.” It is difficult for Rebbi Eleazar³³It seems that in this text, “Eleazar” should everywhere be replaced by “Joḥanan” since only R. Joḥanan requires that the hiring be documented., if he hired him before witnesses, how can this one say, I did not hire you?

Rebbi Abba from Carthage asked: “You worked for me one day and I paid you.” But the other says, “I worked for you for two days and you did not give anything to me.” It is obvious that he takes for the first day without³⁵This must read “with”. Since the employer asserts the existence of the hire, the rule of the Mishnah applies. oath. The second is the disagreement between Rebbi Joḥanan and Rebbi Eleazar³⁶According to R. Joḥanan, if the hire was not documented the employer must be believed and any additional claim by the laborer has to be proven (e. g., by witnesses). There is no occasion for an oath about the additional sum. According to R. Eleazar, if the claim was made before witnesses, there is no limit to the right of the laborer to swear and collect.. “I hired you for a tetradrachma and gave it to you.” But the other says, “you hired me for two tetradrachmas and did not give me anything.” It is obvious that he takes the first tetradrachma without³⁵This must read “with”. Since the employer asserts the existence of the hire, the rule of the Mishnah applies. an oath. The second is the disagreement between Rebbi Joḥanan and Rebbi Eleazar³⁶According to R. Joḥanan, if the hire was not documented the employer must be believed and any additional claim by the laborer has to be proven (e. g., by witnesses). There is no occasion for an oath about the additional sum. According to R. Eleazar, if the claim was made before witnesses, there is no limit to the right of the laborer to swear and collect..

Rav Huna said, if after he swore he brought witnesses that it was standing at the feeding trough, the oath already had robbed it³⁷This paragraph is not a continuation of the preceding but refers to the first paragraph of the Halakhah where it was stated that if the claimant accepted the defendant’s oath, the latter does not have to pay (Note 7). Rav Huna [in the Babli, Bava qamma106a, a statement of Ilfa (Hilfai) endorsed by Rav Huna in the name of Rav] holds that the oath effects a transfer of property rights; if the claimant accepts the oath, the defendant later ate his own animal, not the claimant’s. However, since here the acquisition is qualified as robbery the claimant can bring a new action for robbery whereas in the Babli Rav Huna in the name of Rav qualifies this as acquisition and denies any obligation on the part of the defendant.. A Mishnah disagrees with Rav Huna: ³⁸Mishnah 8:4.“ ‘Where is my ox?’ He told him, it was lost. ‘I am putting an oath on you,’ and he said Amen. But witnesses testify that he ate it. He has to pay the value. If he confessed on his own, he pays the value, an additional fifth, and a reparation offering”. The Mishnah if he ate it and only later swore to him. What Rav Huna said, it he swore to him and only later ate it.

Rebbi Jehudah’s argument seems inverted. There³⁹Mishnah Bava qamma6:7. In R. Jehudah’s opinion an arsonist has to pay for everything he destroyed even if he could not have known of its value. he says, even if he does not know. But here he says, not unless he knows⁴⁰Since in this and the following Mishnaiot R. Jehudah always requires partial admission by the debtor, information of the debtor is assumed. (Since the reading “knows” is confirmed by the Genizah fragment, the word cannot be emended to “admits”.). There since it is not in the form of a biblical oath even (about a biblical oath)⁴¹These words are not in the Genizah text, do not make any sense here, and have to be deleted. he does not know. But here it is in the form of a biblical oath⁴²In Bava qamma there is no oath. Here R. Jehudah requires partial admission to base the administration of an oath on biblical grounds even though the oath itself is a rabbinic institution..

May one roll over a biblical oath on a biblical oath⁴³Soṭah2:6 Note 167, Qiddušin1:5 Note 520. If a person is required to swear in court, the opposing party can add to the text of the oath any other oath he might have cause to let the other party swear without having to prove every case separately. For biblical oaths this is proven from biblical texts in the places quoted. For an obligation to swear by biblical standards to add an oath which is a rabbinic institution seems to be a natural consequence. The only problem is whether the obligation to swear a rabbinic oath is cause for the opposing party to add biblical oaths without presenting sufficient proof for that obligation.? Let us hear from the following: One rolls over a biblical oath on a biblical oath, an instituted oath on an instituted oath, a biblical oath on an instituted oath. An instituted oath on a biblical oath? There, one swears and pays, but here in one case he swears and collects, in the other he swears and does not pay⁴⁴The question is answered in the negative. The rabbinic oaths mentioned in this Chapter (and probably also the one in Bava qamma10:3) are not obligations but privileges; there is no reason to pile obligations on top of these.
The Babli (49a, top) agrees for the oaths described in the Mishnah. The answer of the Babli has to be more nuanced since it introduces an Amoraic institution of שְׁבוּעַת הֵיסֶת “an oath of instigation”, unknown to the Yerushalmi, if judgment is given by a preponderance of evidence but not beyond a reasonable doubt. These rabbinically instituted oaths are obligations and can be used as pegs to pile on other obligations..