Shevuos Daf 46 חג השבועות דַף 46

Shmuel was asked: if the worker says, שתים קצצת לי – “You stipulated to pay me wages of two [selaim],” and the employer claims he only agreed to pay one sela, who swears? He answered that the employer swears and the שכיר loses, because although an employer may forget if he paid his worker, קציצה ודאי מידכר דכירי אינשי – people certainly remember the stipulation amount.

However, Rebbe Yehudah taught that a worker swears and collects even in such a case, provided the employer admits he still owes him part of the amount claimed. The Gemara ultimately explains that Rebbe Yehudah holds the enactment was made wherever there is a shevuah מדאורייתא (even where the wage amount is disputed), but if the employer’s shevuah would only be מדרבנן (i.e., he claims he already paid), then תקנתא לתקנתא לא עבדינן – we do not institute an enactment atop another enactment. The Rabbonon hold the תקנה was even made for a שבועה דרבנן, but hold that an employer remembers the stipulation amount.

The Mishnah taught that a נגזל may swear and collect, and gives an example of a creditor who entered his house to seize a משכון without permission, and the homeowner claims that the creditor took his utensils. The alleged נגזל can swear that his utensils were taken, and collect payment. The Gemara asks that although he entered the house with the declared intent to take a משכון, perhaps he did not take anything!? In a similar case, Rav Nachman ruled that if someone holding an axe announced he would chop down someone’s palm tree, and it was found later to be chopped down, we do not assume he chopped it down. This proves that עביד איניש דגזים ולא עביד – it is common for a person to exaggerate when declaring what he will do, and he may not actually do it. Here too, although he said he intended to illegally take a משכון, we should not assume he did!?

The Gemara explains that the Mishnah’s case is where he definitely took a משכון. However, we cannot simply take back what was taken, because the case is בטוענו כלים הניטלין תחת כנפיו – where [the homeowner] claims utensils which can be taken under the folds of his clothing, and it is unknown what he may have taken.

Rav Yehudah says that if עדים saw someone enter another person’s house and hide utensils in his clothing and leave, he cannot claim he bought them. However, this only applies where five conditions are met: (1) The homeowner does not ordinarily sell his utensils. (2) These utensils are not ordinarily hidden when carried in public. (3) The possessor does not ordinarily hide everything he carries in public. (4) The homeowner claims the items were borrowed (but he is not believed to claim they were stolen, because לאחזוקי איניש בגנבי לא מחזקינן – we do not assume people are thieves without proof), (5) Finally, the items are דברים העשוין להשאיל ולהשכיר – items which are commonly lent out or rented. If they are items not normally lent or rented, the possessor is believed to claim he bought them, because Rav Huna bar Avin ruled that one who holds דברים העשוין להשאיל ולהשכיר is not believed to claim he bought them (implying that for other items, he is believed). Similarly, Rava seized a pair of garment scissors and a sefer of אגדתא from orphans and returned them to their previous owner, because they are דברים העשוין להשאיל ולהשכיר, and the father could not have claimed he bought them.