THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 76 • MISHNA OATHS • Oath #4: Hired Laborer

In the last few lessons we were discussing Torah judicial oaths, all three of them. We now begin the discussion of oaths instituted by the Rabbis of the Mishna, sometimes taken by the plaintiff to win the case and sometimes taken by the defendant to win the case. I commence with the oaths taken by the plaintiff to win the case. The first of these, that I call Oath #4, is that of the hired laborer.

In all situations, the testimony of two witnesses or proper documentation makes irrelevant the necessity of oaths, whether by the plaintiff or the defendant . Oaths are resorted to only when there is lack of competent testimony or documentation to establish a claim or a defense. The reason that the Rabbis decided to enact a decree to favor the hired laborer is that the employer may have many people working for him and may not recall if every single hired laborer was paid, but the hired laborer will certainly remember if he was paid. Once the rule was instituted it does not matter how many employees the employer employs, even if only a few and where he would remember if he paid the individual employee who now has a claim.

The hired laborer demands his wages from the employer, who claims that he fully or partially paid the hired laborer. The laborer may take the oath and win the case. This law applies no matter how small the wage claim. The hired laborer will be required to take the oath to collect the wages only if the employee pleads with certainty that he paid the hired laborer. If the employer does not plead with certainty that he paid the hired laborer, then the hired laborer will collect his wages without the necessity of taking an oath. The oath is taken while the hired laborer holds a sacred object in his hands, similar to that of a Torah oath. The hired laborer may take this oath even if the employer is a minor. The hired laborer may not take this oath if he is a minor. The hired laborer will not be permitted to take the oath if he cannot produce at least two witnesses that he was employed by the employer and that he did work for the employer. If the hired laborer cannot prove that he was hired or that he worked, since the employer could have denied that the hired laborer was employed by him, the employer is believed when he states that he paid the hired laborer. 

The hired laborer will not be able to take the oath if he did not make a timely demand for the payment of his wages. The Torah requires that the hired laborer be paid in a timely manner according to the following schedule. A day worker must demand his wages at the termination of his day’s employment and not later than the end of the night following his employment. A night worker must demand his wages at the termination of he night’s employment and not later than the end of the day after his employment. The hired laborer worked on the day shift from 6:00am to 6:00pm on Wednesday, February 1st. He may make his demand for wages until daybreak 6:00am on Thursday February 2. The hired laborer worked on the night shift from 6:00pm on Wednesday February 1 until 6:00am Thursday February 2. He may make his demand for wages until sunset 6:00pm Thursday February 2.

An hourly worker working the day shift has until the end of the following night to make demand and an hourly worker working the night shift has the entire next daylight time to make his demand. A person working for a set time, such as a week or a month, has until the next daylight or nighttime period following the period of employment to make demand. If the demand was timely made, then the hired laborer may take the oath at the first sitting of Beth Din. In Talmudic times this was ordinarily the same day. The employer can remedy this by insisting that all employees get paid in front of witnesses or sign a receipt of payment or be paid by check, which the employee will endorse and be able to immediately cash with the employer. The theory of the enactment was to make life easier for the hired laborer.

Sometimes the dispute is not as to whether the hired laborer has been paid but rather as to the amount of the wages to be paid. I suggest that a memorandum of understanding be entered in to, unless there is a collective bargaining agreement between the employer and a large group of employees. Such agreements or memorandums of understanding will usually obviate disputes as to the amount of wages to be paid. The employer claims that the wages were $200 and the hired laborer claims that the wages were $300. The burden of proof is on the hired laborer, as in any case where the plaintiff has the burden of proof to show that his version of the facts is correct. If the hired laborer cannot prove the amount, then the employer must take an oath while holding a sacred object and he will win the case and the total wages will be determined to be $200. He may take this hesseth oath whether or not he has already paid the hired laborer. The employer is required to take the oath only if: (i) the hired laborer has two witnesses that he was employed by the employer and did the work satisfactorily, and (ii) if the demand for the wages was timely made. 

A situation similar to the hired laborer is the claim of the artisan, a person to whom the owner of an object entrusted the object to be worked on, such as a watch or automobile repair or a clothing cleaner. If there is a dispute whether the owner paid the artisan, the artisan may take a hesseth oath and win the case. If the artisan claims that he was not paid and the owner admits that he still owes part of the payment but claims he made part payment, the artisan has certain options. He may insist that the owner take a Torah oath of partial denial (Oath #1 of my oath chart, see Lesson 73, TT455) or the artisan may take the Mishna oath of the hired laborer (Oath #4) and win the case as to the denied balance. If he owner takes the oath as insisted upon by the artisan, the owner will win the case as to the disputed balance, and if he refuses to take the oath, then the artisan will win the case. In most societies there are laws dealing with the rights and obligations of artisans and they will ordinarily be binding in halachah under the concept of Dina D'Malchutah Dina. Also many artisans give receipts to the owner stating the object that was give over to the artisan for repair and the price to be paid before the artisan will return the object to the owner.

The subject matter of this lesson is more fully discussed in Vol. III, Ch.89 A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 
Questions to quint@inter.net.il