The Gemara now analyzes the positions of Rabbi Yosef and Rabbi Yehuda. Rabbi Yosef holds that the law concerning a resident convert applies to a non-Jew who accepted upon himself the seven Noahide commandments. According to Rabbi Yosef, one is obligated to pay such a worker on time if he is a night worker, but not if he is a day worker, because Rabbi Yosef does not derive the law through the verbal analogy based on the repeated word “wage.” That verbal analogy was stated only with regard to a night worker.
As we learned earlier, Rabbi Yosef also holds that the prohibition against withholding payment applies when a person’s animal or utensils were used for work. However, the other prohibitions associated with paying a worker on time do not apply in that case. There is only one prohibition, the prohibition against withholding payment, because that is the prohibition written in the verse dealing with an animal or utensil.
The Gemara raises a difficulty. We learned earlier that Rabbi Yosef derives from the word “with you” that the law applies to anything that is with you—whether a person, an animal, or utensils. If so, what does Rabbi Yosef do with the verse that states that a worker’s life should not remain with his employer overnight?
The Gemara answers that Rabbi Yosef uses that verse to teach that even when the worker was hired for only a minor or menial task, the employer must pay him on time. For example, if someone was hired merely to cut one cluster of grapes, one might think that this is not considered significant work and that the employer need not pay him immediately. The verse teaches that any work performed for the employer, even a small and menial task, is included.
The verse describes a worker as giving his life for the work. This teaches that whenever a worker exerted himself for the employer—even if the task was as minor as climbing a tree to cut a cluster of grapes—the employer must pay him on time.
What does the other rabbi do with that verse? He uses it to teach that withholding a worker’s wages is considered as though one is taking away a life. The Gemara will explain that this expression can be understood in one of two ways. Either by failing to pay the worker, the employer is endangering the worker’s life because the worker needs the money to obtain food, or the verse is referring to the employer’s own life: by withholding the wages, the employer is placing his own life in danger.
Rav Huna and Rav Hisda disagree about this. One says that the verse refers to the life of the person who withholds the wages—the employer, who is acting as a thief and endangering himself. The other says that it refers to the life of the worker whose wages were withheld.
According to the opinion that the verse refers to the life of the employer, the source is the verse in Mishle: “Do not rob the poor because he is poor, and do not crush the poor at the gate, for God will plead their cause and will rob those who rob them.” This means that God will take the life of the person who steals from the poor. The verse is speaking about the thief himself: if the employer withholds the worker’s wages, God will take away the thief’s soul.
According to the opinion that the verse refers to the life of the worker, the source is the verse that states that the thief takes the soul of the owner. Those who pursue money and take another person’s property are considered to have taken the owner’s life. The “soul of the owner” refers to the person from whom the property was taken. Therefore, when an employer withholds a worker’s wages, it is as though he has taken the worker’s life.
The other opinion responds that the phrase “the soul of the owner” can refer to the current owner. Once the thief takes the property, he becomes its new owner. Thus, the verse can be understood as referring to the thief himself, who is now the owner of the stolen property.
The disagreement between Rav Hisda and Rav Huna is therefore about who suffers the damage when a worker is not paid: the person who withholds the wages or the worker whose wages were withheld. In any event, Rabbi Yosef uses the additional verse to teach that when a person holds back a worker’s wages, he has committed a serious transgression. The employer should not treat the worker’s wages casually, because doing so places either the employer or the worker in danger.
The Gemara continues by defining when a person transgresses the prohibition against withholding wages. This applies when the worker has demanded his wages. If the worker has not yet demanded payment, the employer does not transgress by failing to pay him immediately. The prohibition applies when the employer is knowingly holding back payment after the worker has claimed it. If the worker has not made a claim, then the wages are not being withheld in the manner described by the phrase “with you.”
The Gemara asks whether the prohibition applies even when the employer does not have money with which to pay. The answer is that the verse refers to a case in which the employer has the money available. The Ritva explains that this includes a case in which the employer does not have cash but owns movable property that he could sell in order to obtain the money. If he has neither money nor property that he can sell, he does not transgress in the same way.
The Gemara then discusses a case in which the employer tells the worker to collect his wages from a shopkeeper or a money changer. The employer says, in effect, “I owe you money. Go to the shopkeeper and take food, and I will pay the shopkeeper later.” If the shopkeeper does not honor the arrangement, does the employer transgress the prohibition against withholding the worker’s wages?
The answer is that the employer does not transgress when he directs the worker to collect the money elsewhere. The prohibition applies when the employer himself is holding back the wages. If he sends the worker to another person who is supposed to pay him and that arrangement fails, the employer has not personally withheld the payment.
Three laws have therefore been derived from the phrase “with you.” First, the prohibition applies specifically when the worker has demanded payment. Second, it applies when the employer has the money, or property that can be sold to obtain the money. Third, it applies when the payment remains with the employer; if he directs the worker elsewhere to collect it, he does not transgress the prohibition of withholding wages.
The Gemara then asks whether the worker can return to the original employer and demand payment if the shopkeeper or money changer does not pay him. There are two possibilities. Perhaps by agreeing to collect the money from the shopkeeper, the worker relinquished his claim against the employer. If the shopkeeper does not pay, the worker has no further claim against the employer. Alternatively, perhaps the worker merely agreed to go to the shopkeeper as a means of receiving payment. If the shopkeeper does not pay, the worker can return to the employer and demand his wages.
The Gemara records a dispute between Rav Sheshet and Rav Ba. Rav Sheshet says that the worker cannot return to the original employer. Rav Ba says that he can. Rav Ba derives his position from the wording of the Mishnah. The Mishnah teaches that the employer does not transgress the prohibition against withholding wages when he sends the worker elsewhere, but this does not necessarily mean that the employer is exempt from paying altogether. There are two separate questions: whether the employer transgresses the prohibition of withholding wages, and whether he still owes the worker the money. The Mishnah may be saying that the employer does not transgress, while the worker nevertheless retains the right to return and collect his wages.
According to Rav Sheshet, the phrase “he does not transgress” means that the employer is not even within the category to which the prohibition applies. Since the employer no longer has the money and has directed the worker elsewhere, he does not owe the money in a manner that would make him subject to the prohibition.
The Gemara then raises another question: What is the law regarding a craftsman who is paid by the job rather than by the day or hour? For example, a person gives an artisan a vessel and asks him to repair or paint it. The artisan is not paid according to the amount of time he works. Instead, the parties agree on a fixed price for the completed job. Is this artisan also considered a hired worker with regard to the prohibition against withholding wages?
There are two ways to understand the relationship between the artisan and the owner. One possibility is that once the owner gives the artisan his vessel, the artisan acquires the improvement he creates in the vessel. Until he is paid, the improvement belongs to the artisan. When he returns the vessel, he is effectively selling the improvement back to the owner. In that case, the payment resembles a loan or a purchase price, and the prohibition governing a worker’s wages might not apply.
The other possibility is that the artisan never acquires the improvement. He is merely performing work for the owner. When he returns the vessel, he is returning the owner’s property, and the owner owes him payment for the work he performed. According to this understanding, the payment is wages, and the prohibition against withholding wages could apply.
The Gemara cites a statement concerning an artisan who acquires the improvement in a vessel and is entitled to it because of his work. If that is the case, when the artisan returns the vessel, it is as though he is selling the improvement to the owner. The owner owes him money for what he is receiving, and the prohibition concerning timely payment of wages does not apply to a debt of that type.
The Gemara attempts to bring a proof from a teaching that says that an employer transgresses when he delays payment to an artisan. If the artisan acquires the improvement, why would the employer transgress? The payment should be viewed as the price of the improvement, not as wages.
The Gemara rejects the proof. The teaching may be referring to the earlier case in which the employer sent the worker to a shopkeeper or money changer to collect his wages. In that case, the employer does not transgress because he directed the worker elsewhere. It is not necessarily discussing an artisan who is paid by the job. Therefore, there is no contradiction.
The Gemara brings another case. A person gives wool to an artisan to process it and make a garment. The artisan completes the work and tells the owner to come and collect the garment, but he has not yet returned it. Even if ten days pass, the employer does not transgress the prohibition against withholding wages, because the artisan has not yet returned the owner’s property. The artisan is still holding the finished item.
However, if the artisan returns the garment in the middle of the day, and sunset arrives without payment, the employer transgresses the prohibition. Once the artisan returns the item, the owner owes him payment for the work he performed. Since the item was returned during the day, the employer has until sunset to pay him.
This appears to support Rav Sheshet’s position that an artisan acquires the improvement created through his work. When he returns the finished item, he is effectively returning the owner’s property together with the improvement that belongs to him, and the owner owes him money for that improvement.
The Gemara rejects this proof as well. The case may involve wool that the artisan was hired to comb. Combing the wool does not improve it; in fact, it may weaken the wool. Since there is no improvement that the artisan acquired, the case cannot establish that an artisan generally acquires the improvement in the owner’s property.
The Gemara suggests that perhaps the owner gave the artisan the wool specifically to produce a certain result. In that case, even if the wool itself was not improved in an obvious way, the requested work created value for the customer. The desired result could therefore be considered an improvement.
The Gemara responds that the case is not one of payment by the job. Rather, the worker was paid for each time he stepped on the wool. The wool was placed in water, and the worker was hired to trample it. For each step, he received a coin. This is not the ordinary arrangement of an artisan who accepts a project for a fixed price. It is an ordinary employment arrangement in which the worker is paid according to the amount of work performed. Therefore, the case cannot establish the law of an artisan paid by the job.
We now continue with the Mishnah’s discussion of a hired worker. A night worker must be paid by the following day, before sunset. A day worker must be paid during the following night, by the morning. During the period in which payment is due, the worker may take an oath that he has not been paid, and he then collects his wages.
For example, if a night worker worked during the night, his payment is due during the following day. If it is two o’clock in the afternoon and he has not yet been paid, he can swear that he has not received his wages, and the employer must pay him.
This is unusual because the ordinary rule regarding an oath is that a person swears in order to exempt himself from payment. When a claim is brought against someone, he takes an oath and is exempt. Here, the worker takes an oath and collects. This is an exception to the ordinary rules of oaths.
The Gemara asks why the Sages instituted that the worker should swear and collect. Rav Yehuda says in the name of Shmuel that this was a major rabbinic enactment. The Gemara questions the wording. Why call it a major enactment? Every enactment of the Sages is significant. Rav Nachman therefore says in the name of Shmuel that these were permanent enactments. The Sages considered it appropriate to establish this arrangement permanently, even though it departs from the ordinary Torah rule.
The ordinary Torah rule is that the person who is obligated to pay takes the oath and becomes exempt. The verse teaches that the one who is supposed to pay takes an oath and does not pay. Here, however, the Sages transferred the oath from the employer to the worker. The worker swears that he was not paid and then collects.
Before explaining the reason for this enactment, we must clarify the case in which the employer would ordinarily be required to take an oath. Suppose the employer says, “I do not owe you anything. I already paid you.” Under the Torah law, a person who completely denies a claim does not ordinarily take an oath; the rabbinic oath is what requires him to swear.
Perhaps the Gemara is referring to a case of partial admission. The worker claims, “You owe me one hundred,” and the employer responds, “I already paid you fifty.” In that case, the employer has admitted part of the claim, and ordinarily he would take an oath concerning the remainder and be exempt from paying it. The Sages transferred that oath to the worker, who swears and collects.
Alternatively, the Gemara may be referring to the rabbinic oath imposed even on a person who completely denies the claim. In that case as well, the employer would ordinarily be the one required to swear. The question is why the Sages transferred the oath to the worker.
One answer is that the worker needs the money to live. The worker’s livelihood depends on receiving his wages, so the Sages allowed him to swear that he was not paid and collect. Otherwise, the employer could take an oath and exempt himself, leaving the worker without the money he needs.
The Gemara challenges this explanation. Why should concern for the worker’s livelihood take away the employer’s ordinary legal right to swear and become exempt? If the law is that the employer should take the oath, how can the Sages change the law merely because the worker needs the money?
The Gemara answers that the employer is pleased with the arrangement. The employer wants workers to agree to work for him. If workers know that they will be unable to collect their wages unless the employer swears, they may be reluctant to work for him. The employer is therefore willing for the worker to swear and collect, because this gives workers confidence that they will be paid and encourages them to work for him.
The Gemara then points out that the same reasoning could be applied in the opposite direction. Perhaps the worker would prefer that the employer take the oath and become exempt, because employers will then be more willing to hire him. If the employer knows that a worker will be able to swear and collect, he may be reluctant to hire workers. Thus, the worker could also benefit from giving the advantage to the employer.
The Gemara responds that the employer needs workers in any event. If he needs workers, he will hire them regardless of whether the worker or employer takes the oath. Similarly, if the worker needs employment, he will seek work regardless of the oath arrangement. Therefore, this explanation does not adequately resolve why the oath was transferred to the worker.
The Gemara returns to the original answer: the employer is preoccupied with his workers. An employer who has many workers does not always remember which workers he paid and which he did not. He may think that he paid a particular worker when, in fact, he paid someone else. Because the employer is confused about the payment, the Sages did not impose the oath upon him. Instead, they placed the oath on the worker, who knows with certainty that he was not paid.
The Gemara challenges this answer as well. If the employer is uncertain whether he paid the worker, why must the worker take an oath at all? Ordinarily, when one person is certain of his claim and the other is uncertain, the person with the certain claim should prevail without an oath. If the employer is confused and does not know whether he paid, perhaps the worker should simply receive the money without taking an oath.
The Gemara answers that the employer is not entirely uncertain. The employer believes that he paid the worker. The employer is also claiming with certainty, “I paid you.” The Gemara is merely saying that this certainty is weak because he is preoccupied with many workers and may have confused one payment with another.
Since both sides are asserting their positions with certainty—the worker says, “I was not paid,” and the employer says, “I paid you”—the Sages required the worker to take an oath. The oath appeases the employer’s concern that the worker might be taking money improperly. The worker does not simply walk away with the money; he must swear that he was not paid.
The Gemara then proposes another solution. Instead of requiring the worker to swear, the Sages could have enacted that every employer must pay workers in the presence of witnesses. Then, if the employer later claimed that he had paid, he would have to produce the witnesses. If he could not produce them, he would have to pay again. Even if this occasionally caused an employer to pay twice, that would be his own fault for failing to pay in the presence of witnesses.
The Gemara rejects this proposal because it would be too burdensome. An employer who wants to pay a worker in the middle of the day would have to find witnesses every time he makes a payment. An employer may have many workers and may have to make many payments throughout the day. Requiring witnesses for every payment would create excessive trouble.
The Gemara suggests another solution: the employer could pay the worker in advance. If the worker is paid before beginning the work, then when he later claims that he was not paid, the employer can respond that the payment was already made. This would eliminate the uncertainty concerning whether payment was made on time.
This solution is also rejected because both parties prefer credit. The worker does not want to be paid in advance, because he may not want to hold the money before completing the work. The employer certainly does not want to pay in advance, because the worker might not perform the job properly. In addition, the employer may not have the money available at the beginning of the work. Therefore, advance payment is not a practical solution.
The Gemara concludes that the rabbinic enactment remains: the worker swears and collects. The reason the oath is placed on the worker rather than the employer is that the employer is preoccupied and may not know whether he paid the worker. The Sages therefore allowed the worker to swear that he was not paid and to collect his wages.
The Gemara raises another difficulty. If the employer’s confusion is the basis of the enactment, the same rule should apply when the dispute is not whether the employer paid, but how much he agreed to pay. Suppose the worker says, “You agreed to pay me two coins,” while the employer says, “I agreed to pay only one.” The employer should be considered preoccupied and uncertain, so perhaps the worker should swear and collect two coins.
That is not the law. In a dispute over the agreed price, the employer takes the oath and is exempt from paying the additional amount. The worker is considered the person attempting to extract money from the employer, so the burden of proof is on the worker. If the worker claims that the agreed price was two coins and the employer says it was only one, the worker must bring proof.
The Gemara explains that people may forget whether they paid a particular worker, especially when they are paying many workers. However, they remember the price they agreed upon with each worker. The employer may forget whether he handed over the payment, but he remembers whether he agreed to pay one coin or two. Therefore, in a dispute over the agreed price, the ordinary rule remains in place: the employer takes the oath and is exempt from the additional payment.
The Gemara then asks another question. The law that the worker swears and collects applies during the period in which his wages are due. Once that period has passed, the worker may no longer swear and collect. Why should the rule change merely because the payment deadline has passed? If the employer is preoccupied and may not remember whether he paid, that uncertainty should exist both during the payment period and afterward.
The Gemara answers that there is a presumption that an employer does not transgress the prohibition against withholding wages. Before the deadline, the employer is still uncertain about the payment and may think that he paid the worker when he actually paid someone else. But once the deadline has passed, the employer knows that if he failed to pay, he is now transgressing the prohibition. At that point, he is likely to remember whether he paid the worker.
Therefore, during the payment period, the worker can swear and collect. Once the period has passed, we presume that the employer paid the worker, because the employer does not want to violate the prohibition against withholding wages. The worker is no longer believed merely on the basis of an oath. He would need stronger proof, such as witnesses.
The Gemara raises a further question. If the employer will remember by the end of the payment period whether he paid, why not wait until the end of the period before allowing the worker to swear? The worker could claim his wages, and the employer could say, “Wait until the deadline has passed. At that point I will remember whether I paid you.”
The Gemara answers that once the worker has already claimed his wages and the employer has responded, “I paid you,” the employer will maintain his original position. Even if he later remembers that he did not pay, he is likely to continue defending his original claim. Human nature is such that once a person has firmly denied a claim, he does not easily retract that denial.
Accordingly, if the worker makes his claim during the payment period and the employer responds that he already paid, the worker may swear and collect. But if the worker waits until after the payment period to make his first claim, the presumption favors the employer. By then, the employer is presumed to have paid, and the worker cannot collect merely by taking an oath.
The Gemara then discusses the competing presumptions. The employer has two presumptions in his favor: first, that he does not want to transgress the prohibition against withholding wages; and second, that a worker normally does not delay demanding his wages. If the worker waited until after the payment period, it is reasonable to assume either that he was paid or that he would have demanded payment earlier if he had not been paid.
The worker has only one presumption in his favor: a person does not want to steal. The worker would not ordinarily falsely claim that he was not paid. Nevertheless, the employer has the stronger position because he benefits from both presumptions. After the payment period has passed, the ordinary law therefore returns: the employer is believed over the worker.
The Mishnah states that if the worker has witnesses that he claimed his wages from the employer during the payment period, and the employer did not pay him, the worker can still swear and collect even after the payment period has passed. The witnesses establish that the worker demanded payment at the proper time and that he was not paid then.
The Gemara asks what the witnesses add. If the worker is now coming to court and claiming that he was not paid, why should it matter that witnesses saw him demand the money during the payment period? Perhaps the employer paid him later, before the deadline ended. The witnesses only establish that the worker was not paid at the moment when he made his claim; they do not necessarily establish that he remained unpaid afterward.
The Gemara answers that the witnesses remained present throughout the payment period. They saw the worker demand his wages, and they saw that the employer did not pay him until the end of the period. Since the witnesses establish that the worker remained unpaid throughout the relevant time, the worker can later swear and collect.
The Gemara challenges this as well. There must be some limit. Merely because the employer did not pay the worker during the proper payment period, can we assume that he never paid him? Could the worker come twenty years later and claim that the employer still owed him money?
The Gemara answers that the worker receives one additional day. If the payment period ended at a particular time, the worker can still swear and collect during the following day. After that additional day has passed, the presumption returns to the employer. We assume that the employer paid his worker, and the employer is the one who takes the oath and becomes exempt.
Thus, even when witnesses establish that the worker demanded payment during the proper period and was not paid at that time, the worker does not retain the right to swear and collect indefinitely. He is given one additional day to make his claim and take an oath. After that, the oath shifts back to the employer, who is believed to have paid the worker.