One crisp October morning, Mr. Stein decided that it was time to get the yard in order before winter. The bushes had grown thick, fallen leaves covered the lawn, and the flowerbeds needed clearing.
He called Mr. Green, a gardener who worked for several neighbors. “Can you come tomorrow morning to trim the bushes, rake the leaves, and prepare the garden for winter?”
“Of course,” Mr. Green replied. “I’ll take care of everything.”
The next day, Mr. Green arrived at 8 a.m. with his trimmer, rake, and blower. For five hours he worked carefully – trimming the hedges, bagging leaves, and tidying every corner. By midday, the yard looked neat and refreshed.
Mr. Stein came outside, pleased. “Beautiful job!” he said appreciatively. “Let me get my checkbook.”
Mr. Green nodded. “As we agreed – $60 an hour,” he said. “$300 total.”
Mr. Stein hesitated. “That’s not what we agreed,” he replied. “I heard you say $50 an hour – that comes to $250.”
Mr. Green looked thoughtful. “I’m certain I said $60 an hour,” he said.
“I clearly remember it as $50,” Mr. Stein insisted, “but I don’t want to underpay you if you quoted otherwise.”
“And I don’t want to take more than what we agreed, if, in fact, you’re right,” said Mr. Green.
“Why don’t we ask Rabbi Dayan what halacha says when there’s a disagreement of this kind?” Mr. Stein suggested. “We both want to do what’s right.”
That afternoon, they presented the case together, and asked:
“Who is believed about the agreed price of the work?”
“The Gemara (B.M. 112b; Shevuos 45b-46a) teaches that when the parties dispute the amount of agreed wages, hamotzi meichaveiro alav har’aya – the burden of proof is on the one seeking payment, like other monetary disputes,” replied Rabbi Dayan (C.M. 89:4).
“Thus, if a worker completes his job and claims a certain amount, whereas the employer asserts a lower amount, the burden of proof rests on the worker. In the absence of proof, the employer’s stand is accepted – but he is obligated in an oath.
The Rishonim and Acharonim discuss which oath applies.
Some Rishonim, supported by the Shach (89:9), understand that the oath is the classic, severe Biblical oath of partial admission (modeh b’miktzas), which applies only when the employer does not intend to pay immediately what he admits. If he paid or intends to pay immediately, though, the employer is required to take only a light, heses oath, like any other defendant who denies the claim fully (C.M. 75:6-7).
However, many Rishonim, followed by Shulchan Aruch, rule that the Sages imposed a stringent rabbinic oath (shevuas haMishna) on the employer, even when he intends to pay immediately – when there is evidence that the worker was hired, and demands his pay promptly – because wages are critical to workers (C.M. 89:4; Sma 89:17; Urim 89:25).
Even according to this opinion, if there is no evidence that the worker was hired, the employer is believed with the lighter heses oath, because he could have claimed that he never hired the worker and owes him nothing (migo). Similarly, if the worker did not demand his pay promptly, the employer is required only a heses oath.
Nowadays, almost no batei din impose oaths, but this discussion is still relevant. Beis din will usually advocate a compromise (p’shara) in lieu of the oath, and the compromise amount depends partially on the severity of the oath. The stricter the oath, the higher the compromise amount is.
Thus, when the employer is obligated only in a heses oath, the compromise will lean heavily in his favor; he will be instructed to pay only a small portion of the disputed sum, e.g., $15. When he is obligated in a stringent Rabbinic oath, as in this case, the compromise amount will be more, e.g., $20; when obligated in a severe Biblical modeh b’miktzas oath, the compromise amount will be higher, e.g., $25.
“To spare disagreements of this kind, which often arise honestly due to forgetting or misunderstanding,” concluded Rabbi Dayan, “it is advisable to confirm the price in advance, either in writing or in verified verbal communication.”
Verdict: When the worker and the employer remember the agreed price differently, hamotzi mei’chaveiro applies. In the absence of proof, the employer is believed, but with an oath. Beis din would recommend a compromise instead, considering the halachic severity of the oath under the specific circumstances of the case.