[Avodah] Ends-Driven Halachic Reasoning in the Aruch haShulchan?

[Zev Sero]

I don't think it's accurate to say that mid'oraisa he doesn't have to 
pay.  If he really does owe the money then mid'oraisa he has to pay, and 
has an *additional* obligation to pay this debt over all other debts, 
because of "lo solin".  The only question is whether he really owes the 
money or not.  Normally, the way the Torah left things, we can't be sure 
he owes it, so we can't *force* him to pay; we have to leave it up to 
his own conscience. But his obligation (or lack thereof) is unchanged.

Now Chazal come along and meddle with that setup, for social reasons. 
In order to discourage defendants from falsely denying their liability, 
and in order to give plaintiffs a sense that justice has been done, they 
instituted the sh'vuas hesses.  If you don't swear we'll make you pay, 
despite the Torah saying we can't.  According to you, how could they do 
that?

Here Chazal went a bit further: We can't make the defendant swear, 
because he may honestly have forgotten or got confused, so we tell the 
plaintiff that if he's willing to swear, not just hesses but binkitas 
chefetz, then we'll believe him, and once we do believe him the *Torah* 
says the defendant must pay.

Comes the Aruch Hashulchan and asks, what about the exceptional case 
where the defendant is not confused and unlikely to have forgotten?  And 
what about other defendants who may be confused or have forgotten?  And 
he answers "lo plug" because there's a deeper reason for the takana 
here.  It's not just that we're worried about the defendant 
inadvertently making a false oath; if he's really worried about that let 
him pay up, but if he's not worried we won't be.  The deeper reason why 
we've given the plaintiff a slight edge here is that we're emulating the 
Torah itself, which made the "takana" of "lo solin" for the explicit 
reason that employees *in general* risk their lives and so deserve extra 
protection.  And just as it did not distinguish between employees, so we 
won't either.

I have a bigger question, though:  This takana seems to be biased 
*against* the employee whose employer is a yerei shamayim.  Without the 
takana the employer would decline to swear because he can't be sure he's 
right, and he'd have to pay.  Now we say no, you don't have to pay until 
we test the employee, more rigorously than we were going to test you. 
So mah ho'ilu chachamim betakanasam?  It seems as if our real concern 
here is not for the employee's welfare but to protect honest employers 
from employee fraud!  That's surely a worthy goal, but opposite to the 
one the AhS posits.


-- 
Zev Sero            A prosperous and healthy 2018 to all
zev at sero.name       Seek Jerusalem's peace; may all who love you prosper