QUESTION: The Gemara says that according to the opinion which maintains that a craftsman ("Uman") who works on an object does not acquire the value of the improvements that he makes, the craftsman is considered a hired worker and the laws of "Bal Talin" apply. Consequently, if the owner of the object does not pay the craftsman on time (when he finishes the work), he transgresses the Isur of "Bal Talin."

The RITVA in Kidushin (48a, DH Hacha) asks that a person who withholds the wages of a craftsman should not transgress the Isur of "Bal Talin." If an employer gives an object as a "Mashkon" (security) to his employee, the laws of "Bal Talin" do not take effect (since the Mashkon will serve as the payment, and thus the employee will have received his payment on time). Even if a craftsman does not acquire a share in the object that he improves, the object itself is considered a Mashkon for the craftsman, as the Gemara earlier (80b) teaches ("a craftsman holds the object in order to collect his wages"). Since a craftsman always has a Mashkon, why does the one who employed him transgress the Isur of "Bal Talin"?

ANSWER: The RITVA and RAN answer that the presence of a Mashkon prevents the problem of "Bal Talin" only when the employer gives it directly to the employee with the express intent that the object will be security for the payment that the employer owes. When it is given in this manner, the worker acquires the Mashkon in accordance with the ruling of Rebbi Yitzchak ("Ba'al Chov Koneh Mashkon"). In the case of the Gemara here, however, the craftsman holds the object as collateral on his own accord (without the explicit consent of the owner), and he therefore does not acquire it as payment for his work, and thus the laws of "Bal Talin" apply. In fact, the Ritva uses this argument to prove that Rebbi Yitzchak's ruling (that a creditor acquires a Mashkon) does not apply to an object that was not given to him with the express intent that it be a Mashkon.

The KETZOS HA'CHOSHEN (72:23) raises an objection to the Ritva's question. The Gemara states that the employer transgresses "Bal Talin" only after the object has already been returned, for it is at the moment that the object is returned that the employer becomes obligated to pay the craftsman. At that moment, however, the worker no longer has the Mashkon in his possession, and thus "Bal Talin" does apply. How, then, does the Ritva prove that a craftsman does not acquire the object as a Mashkon? Perhaps he does acquire it, but the laws of "Bal Talin" still apply because the employer becomes obligated to pay the craftsman only when the object is returned, at which time there is no longer a Mashkon.

The Ketzos ha'Choshen answers that if the worker did acquire the object as a Mashkon, then even after he returns the object to the owner the laws of "Bal Talin" do not apply. Since he acquired the object as a Mashkon while it was in his possession, when he returns it to the owner it is considered a sale and the owner owes him money for the purchase of the object. The payment that the owner owes the craftsman is the purchase money, not the wages of a hired worker, and "Bal Talin" therefore does not apply (just as it does not apply according to the opinion which maintains that a craftsman acquires a share in the object that he works on). This explains how the Ritva can prove from the fact that "Bal Talin" applies after the object is returned that the craftsman does not acquire the object as a Mashkon in the manner of "Ba'al Chov Koneh Mashkon." (Y. Marcus)

QUESTION: The Gemara teaches that a creditor who has in his possession an object of collateral may collect from the debtor without bringing any evidence since, if he wanted, he could claim that the object of collateral belongs to him. In such a case, though, does he need to make a Shevu'ah before collecting the debt?

Generally, in all cases of "Nishba v'Notel" (where one is entitled to collect money based merely on his word; a list of such cases is recorded in the Mishnah in Shevuos 7:1), one is obligated to make a Shevu'ah before he can collect the money or object. The RAMBAM (Hilchos Malveh v'Loveh 13:3) cites the GE'ONIM who explain that when a creditor possesses an object of collateral and claims a debt equivalent to the value of the collateral, although he is entitled to collect based on a "Migu" that he could have claimed that the object of collateral belongs to him, he must make a Shevu'ah ("Nishba v'Notel") in order to collect. According to the Ge'onim, although the creditor has the object of collateral in his possession, he is not considered to be "Muchzak" (in which case he would not have to swear). Rather, since he is claiming other money (the money of the debt) and not the collateral itself, he is not considered to be "Muchzak" and thus he must swear before he may collect the money.

The RAMBAN (cited by the Ran in Shevuos, 27a of the pages of the Rif) questions the ruling of the Ge'onim from the Beraisa quoted here. The Beraisa says that when a craftsman claims that his salary was fixed at two Zuz, and the employer claims that it was fixed at one Zuz, if the craftsman is in possession of the object his claim prevails. This Beraisa is quoted in greater detail in Bava Basra (45b) where it says, "As long as the object is in the hands of the craftsman, his claim prevails, but once the employer has received the object, his claim prevails, on condition that he swears first." Since the Beraisa mentions the requirement to swear only when the object has been returned to the employer, it implies that in the case of the Reisha, when the craftsman has the object in his possession, the craftsman does not have to make a Shevu'ah. This seems to contradict the ruling of the Ge'onim who say that a claimant must make a Shevu'ah before he collects even though he has an object of collateral.

(a) The RAMBAN points out that according to the opinion which maintains that a "craftsman acquires the value of the improvements that he makes to the object" ("Uman Koneh b'Shevach Kli"), there is no question on the Ge'onim. The Ge'onim are discussing a case in which the creditor is merely in possession of an object of collateral (and he is thus the one who is trying to be "Motzi" from the other person). A craftsman, in contrast, owns part of the object, and thus he is considered "Muchzak" and is not obligated to swear to support his claim. This answer, however, does not address the question according to the opinion which maintains that a craftsman does not acquire the value of the improvements that he makes to the object.

(b) The RAN (loc. cit.) offers a different answer. Whether the creditor or craftsman needs to swear depends on what he claims. When the creditor demands payment, he is considered to be "Motzi" money from the debtor, and in such a case the Ge'onim obligate him to swear. The Beraisa's case refers to a craftsman who does not demand payment. Rather, he threatens the employer that if he does not receive his salary, he will not return the object. He assumes that the owner will consent and pay him the salary that he claims to deserve. In such a case he is not obligated to swear. (Y. Marcus)