Siman 121

If the debtor sent his debt via a messenger: if the lender said to him, "Send it to me via so-and-so," and he sent it and they were lost, the debtor is exempt. Even if he did not say it to him face to face, but rather sent to him in writing, "Send it to me via so-and-so," and he sent them by his hand and they were lost, he is exempt. This is provided that he recognizes that it is his handwriting; and even if he did not recognize it and gave it to him, but the lender admits that it is his handwriting, he is exempt [it appears to me]. For since the debtor acted according to his command, the lender no longer has any claim against him. This is even if the messenger is a gentile or a deaf-mute, an insane person, or a minor. He does not need to say, "Send and be exempt" [Sma], for why should he need to exempt him after he commands him to deliver his money to so-and-so? And if the lender denies that this is his handwriting or that he commanded it, it will be explained before us.

And not only this, but even if he did not designate a specific person in his writing to send it with, but rather wrote to him, "Send it to me by whomever you wish," and he sent them and they were lost, or the messenger denied that he received them at all, he is exempt. However, in the case of the messenger's denial, the borrower is obligated to swear a hesset oath that he delivered them to him [Ra'avad, Chapter 2 of Shluchin], and more will be explained regarding this. And this is specifically when he sent it by way of a trustworthy person and the path is good, such that people are accustomed to transporting their money on this path. But if he sent it by way of a person who is not trustworthy, or who does not walk in the path of the good, or who was established as a denier, or if he sent it by way of a gentile, a minor, an imbecile, or a deaf-mute, or if he sent it in a place of road danger where the public is not accustomed to transporting their money there, behold, he has been negligent with them and is liable for any incident that occurs. And even if they were lost from the messenger not due to the poor condition of the road, in a manner that even on a good road this cause could have occurred, he is also liable, because the beginning of his giving was with negligence; and anything whose beginning is with negligence, even if its end was by unavoidable accident, he is liable, as will be explained in siman 291 [Shach]. For with this understanding he did not authorize him, unless he specified to him, "Send it to me by way of so-and-so and by way of such-and-such a path," or if he wrote to him, "Send it to me even by way of one established as a denier or in a place of road danger" [ibid.]. But when he wrote to him, "Send it to me by whomever you wish," even if he wrote to him, "and be exempt," he must send it by way of a trustworthy person and by a secure path [ibid.], not like the one who disagrees on this. And when he wrote to him, "Send it to me by way of so-and-so," he does not need to know which path this so-and-so takes. And similarly, when he wrote to him, "Send by the hand of whomever you wish," and he sent it to him by way of a trustworthy person, if the messenger went on the dangerous path and did not go on the secure path, the claim of the lender is against the messenger and not against the borrower [Sma], unless all the paths became a time of emergency after he wrote to him and he sent it, for then the borrower is liable [Urim VeTumim]. And if he wrote to him, "Send it to me by whomever you wish," and there are two paths from the place of the borrower to the place of the lender, one secure and one presumed dangerous, and he understands that the messenger will need to go in the place of danger for some reason, he should not send it even by way of a trustworthy man in such a case; and if he sent it, he is liable to pay [ibid.]. And even if they were lost not due to the danger, because its beginning was with negligence, as I have written. And if he went on the secure path, he is exempt [it appears to me], for behold, it was not with negligence at its beginning. And if he wrote to him, "Send it to me by way of the bearer of this document," he must send it by way of the one who brought him the writing and not by way of another. But when he wrote to him "send it" without specification, he should not give it to the one who brings the writing if he does not know that he is trustworthy, since he did not write to him, "Send it to me by his hand" or "by way of the bearer of this document"; and even if he is trustworthy, he should not send it by his hand for this reason [it appears to me]. And if he sent it by way of the post office, he is exempt, for this is the way of merchants and the whole world does so [it appears to me]. And all these laws also apply to a deposit; and by way of whomever one can send a loan, one can send a deposit, and in a case where one is liable for a loan, one is also liable for a deposit, and only in a case of unavoidable accident is one exempt regarding a deposit.

Even if the creditor did not speak to the debtor himself and also did not write to him, but rather said to the messenger, "Go and say to so-and-so, my debtor or my bailee, that he should send my money or my objects that are in his possession through you, and bring them to me," and he said this to him in the presence of witnesses; or even if he did not mention the language of agency at all, but rather said to him in the presence of witnesses, "I have money or objects in the possession of so-and-so; go and tell him that you intend to come here, and if he gives them to you, bring them to me," and the debtor or the bailee gave them to him and they were lost on the way, he is exempt. However, if he said this to him not in the presence of witnesses, even though the creditor admits that he said so to him, the debtor is liable. The reason is that although agency does not require witnesses or a kinyan [the Rambam, chapter 1 of Agency], nevertheless, since he did not speak to the debtor himself and did not write to him in writing, the creditor's mind did not rely on the debtor doing so, and he is not a complete agent. When the debtor sent them, he sent them on his own volition, and they are under his responsibility. But when he took the trouble to say so in the presence of witnesses, we say that he made him a complete agent. And there are those who disagree, saying that when he did not mention the language of agency, he is not considered his agent. Therefore, if he said to him in the presence of witnesses, "Tell him to send them through you," it is then that he becomes an agent. But if he only said to him, "Tell him that you intend to come here, and if he gives them to you, bring them to me," even if he said so in the presence of witnesses, he is not considered his agent, but rather like one who provides an agent for the debtor, such that if the debtor wishes, he can make him an agent, but he [the creditor] does not make him an agent. Therefore, if the debtor sent them through him and they were lost, the debtor is liable [the Rashal according to Rashi's commentary on Bava Kamma 104a]. And there are those who further say that even if he said to him in the presence of witnesses, "Tell so-and-so to send them through you," he is also only like one who provides an agent for the debtor, and he is not his own agent until he says to him in the presence of witnesses: "Behold, I am making you an agent to receive my money from so-and-so, and tell him to send them through you because I have made you an agent with witnesses" [Shach]. However, this is certainly true even according to the first opinion: when he did not mention at all that he should bring them to him, but rather said to him, "I have money in the possession of so-and-so and he does not send them to me; perhaps he cannot find an agent. Go and inform him, perhaps he will send them through you," even if he said so in the presence of witnesses, he is not an agent, and the debtor is liable for their responsibility, for he is only like one who provides an agent for the debtor to tell him that he is a trustworthy man. And also regarding a deposit, the law is the same. And even though the depositor admits that this man is trustworthy, why should the debtor not be able to send them through him? And all the more so regarding a deposit, for behold, the depositor cannot say, "I do not believe this person." Nevertheless, the bailee is liable, for the depositor can say that his intention was that he is held to be trustworthy, and "if you wish to believe him, believe him, but I do not yet hold him to be trustworthy" [ibid.]. Therefore, if the depositor himself is accustomed to believing this man, the bailee can certainly send them through him and is exempt from responsibility for the deposit. But in a loan it is not so, because the debtor is obligated to place the money into the hand of the creditor himself or into the hand of his agent, and as long as he has not done so, even if he delivered them to righteous people and the creditor always believes them, he is nevertheless liable for their responsibility. It is not similar to a deposit, where the benefit belongs to the depositor, which is not the case in a loan. And it appears to me that the two disagreeing opinions that we brought would agree regarding a deposit since he said, "Bring them to me." Furthermore, it appears to me that in a place where his speaking in the presence of witnesses is effective, it is also effective if he performed a kinyan even without witnesses, for since he took the trouble to perform a kinyan, his mind relied on it just as when he spoke in the presence of witnesses.

From the general matters we have explained, we have learned that a messenger appointed in the presence of witnesses is a messenger; and according to the first opinion, even if he did not mention the language of agency; and according to the second opinion, specifically when he mentioned the language of agency; and according to the third opinion, specifically that he must say to him in the presence of witnesses, "Behold, I am making you a messenger." And without witnesses, it is not effective at all. Furthermore, even if he handed him his seal as a sign that he is his messenger and said to him, "I have money in the possession of so-and-so; tell him to send it to me, and if he gives it to you, bring it to me, and show him my seal as a sign," and he comes to the borrower and says to him, "So-and-so sent me to you that you should send him his money, and here is his seal as a sign," even if witnesses testify that he handed him his seal, since they do not testify that he appointed him as a messenger, and he sent it with him and it was lost, the borrower is not exempt. This is so even if the lender admits that he said this to him and handed him his signature, for even this is only like one who provides him a messenger, and the mind of the lender did not rely on the borrower handing it over based on the sign of his seal, unless the lender was a famous person whose seal is like his handwriting. And if he handed him his seal in the presence of witnesses and said to him in the presence of witnesses, "Go and appear to him, perhaps he will send it through you," even if he did not say "and bring it to me," for in such a case the borrower is liable according to all opinions as I wrote in section 3, and with a seal in such a case he is exempt [it appears to me], for this is like a complete messenger. And some say that if the lender admitted that he handed him the seal and that he told him to receive the money, even if there were no witnesses to this, the borrower is exempt, for the seal is like handwriting. And that which the sages, of blessed memory, said [Bava Kamma 104b] that one does not send money by way of a seal, that is when it is not known that he handed him the seal, for then the borrower must fear perhaps he stole the seal or found it; but when there are witnesses that he handed him the seal, or the lender admits to this, the borrower is exempt. And this is the opinion of the Rambam, of blessed memory. And according to this, if the lender indeed denies it and says that he did not hand him the seal and did not send him, and there are no witnesses, the borrower is liable for their responsibility, and the borrower is able to impose a cherem hesset upon the lender that he should accept upon himself an explicit acceptance if he did not send him. And some say further that the lender is also obligated to swear according to the law of those who swear and take; and even though the borrower does not claim with certainty that he sent him, nevertheless he administers an oath to him as if it were a certain claim, since there is a basis for the matter as his seal is in his hand [Shach, subsection 24]. And so it appears primary for the law, unless it appears to the beit din that the messenger is lying.

If the lender or the depositor claimed, "This is not my signature," and witnesses are not available to verify it, and the bailee or the borrower says, "I recognize that it is your signature"—if this money was deposited with him without witnesses, or with witnesses but without a document, and similarly in an oral loan, since he could have said "the matter never occurred" or "I returned them to you into your hand," he is also believed to say that it is his signature. The borrower or the bailee shall swear that this is the signature of the lender or the depositor and that according to this writing he delivered them to the messenger. And why is an oath required? Because if he had claimed "the matter never occurred" or "I returned it," he would also have required an oath. And if the deposit was with a document, he is also believed with an oath through a migo that he could have said "the deposit was lost to an accident." According to this, he must swear a severe oath similar to a Torah oath, for in a case of accident he would have been liable for a Torah oath according to the law of the oath of guardians. But in a loan with a document, the borrower is not believed and is liable to pay, for against a promissory note there is no migo. And the lender shall swear a severe oath that this is not his signature, and even if there is a trust clause in the document, for the trust was not given to him regarding this. And this law is like the law of a borrower who claims that the lender forgave him, which was explained in siman 82. And some say that just as there we do not administer an oath to the lender except when the borrower demands the oath, so too here; but without his demand for the oath, we do not administer an oath to the lender [Shach, and what was written in Shulchan Aruch section 4 refers to an oral loan]. And this entire law applies similarly if the writing is not before us, but rather the bailee claims that the depositor sent him his signature to deliver his deposit to this person and he recognized that it was his signature, and the depositor denies it. And similarly in an oral loan, the law is as has been explained. And what is the law of the messenger regarding these funds that were lost? Beit din obligates him to swear the oath of guardians [ibid.]. And if he is a messenger for hire, he is not exempt except with an oath that they were lost to an accident; and if for free, he is exempt with an oath that they were stolen or lost.

If there is no denial regarding the essence of the matter between the plaintiff and the defendant—for example, the plaintiff admits that it is his signature, or that he told the defendant to send it through him, but he says to the agent, "I do not believe you that they were taken by force, or stolen, or lost," and also, "I do not believe the depositary or the borrower that he gave them to the agent"—the agent swears the oath of the guards. Regarding the defendant, he has nothing but a kabbalah that the defendant must accept that he gave them to the agent. This is so even if it were a debt documented by a shtar, for the general rule is that since he admits to the essence of the agency but merely suspects him of not giving them, he has no oath against him unless he claims a certain claim that he did not give them to the agent; for then he must swear a shevuat hesat. And he cannot adjure the agent since he says that the defendant did not give them to him. However, the defendant can adjure the agent with a shevuat hesat, and the agent is not able to say, "What right do you have to adjure me, for I am not your agent?" because he can say to him, "Since through your denial the plaintiff adjures me, and I know that I delivered them to you, I hereby claim from you the money that I gave you, and I will return it to the plaintiff and I will not need to swear, and I do not believe you that they were lost or taken by force." And likewise, if the agent denies that he gave it to him at all, he shall swear that he did not give it to him, and afterwards the defendant shall swear that he gave it to him; for even when the plaintiff and the agent say that he did not give it, nevertheless, the defendant only owes a shevuat hesat since the plaintiff admits to the essence of the agency [it appears to me].

The borrower admitted that this is not the handwriting of the lender, or that he does not know if it is his handwriting, but rather he shows signs and letters in the writing that they established between them specifically as a sign that it is from the lender, and the lender does not deny the signs between them but rather claims "I did not send this writing, and others deceived the borrower with it who knew the signs between us," the law is with the lender and the borrower is liable for their responsibility, for he should not have given based on the signs without the handwriting. And since he admits that it is not his handwriting or that he does not know, it is like one who claims "I know that I became indebted to you and I do not know if I repaid you," who is liable, as I wrote in siman 75. And he can only impose an oath of acceptance upon the lender that he did not send this writing. And there is one who ruled that he should swear and afterwards take, according to the law of all those who swear and take, for even though it is a claim of "perhaps," nevertheless since there is a basis for the matter from the signs, he must swear [Shach]. And so too regarding a depositor and a bailee the law is thus. And it appears to me that if at the time of making the signs they spoke explicitly that when these signs exist, even when there is the handwriting of others, he should give based on these signs, the law is with the borrower and the bailee, for since the lender or the depositor did not concern himself with a deceiver, why should they concern themselves? And the law of the agent when the money was lost from him is as I wrote in section 5.

In all the laws we have explained, this is when the agent admits that the money came into his hand and was lost by force majeure or disappeared. However, if he denies the lender or the depositor and says, "I gave it to you," while the other says, "He did not give it to me," and the lender admits that he made him an agent, the agent is not believed according to the law of a third party who is believed, as I wrote in siman 56. And even if they are two agents, they are not believed because they are interested parties in their testimony, for they are forced to say that they gave it to the lender, as otherwise the borrower would claim from them. And if they were to say to the borrower, "We did not receive it from you," would they not be liable for a shevuat hesset? Therefore, the agent swears a hesset to the claimant in the presence of the claimant and the defendant, for perhaps he will be ashamed before them, and he swears that he gave it to the claimant. And the borrower or the bailee shall take a kabbalah that they delivered it into the hand of the agent, and the agent cannot exempt them from the kabbalah, for since he requires an oath, the status of testimony is removed from him, as any witness who requires an oath is not a witness [Sma]. And even if the agents are two, the law is so. And likewise, if the agent denies the bailee or the borrower, saying, "You did not deliver it to me," while the other says, "I gave it to him," the agent swears a hesset that he did not receive it from him, and he shall swear in their presence so that he will be ashamed before them, and he swears a hesset and is exempt. And the borrower or the bailee swears to the lender or the depositor in the presence of the agent a hesset and is exempt. And even though the claim of the claimant against the defendant is a claim of doubt, nevertheless, since the agent assists the claimant—and even though the status of a witness is not upon him because of his oath as I wrote—nevertheless, he strengthens the claim of the claimant to require the defendant to swear [ibid.]. And there is no difference between a loan with a shetar and a loan by word of mouth, for even with a shetar, as long as he admits that he made him an agent but there is a contradiction between them regarding the giving, the lender has nothing but an oath against the agent. And if the contradiction is with the borrower, the borrower also swears as I wrote [Shach].

In what case is it said that the lender loses by way of the oath? When he made him a messenger. But if he did not make him a messenger, rather the borrower said to someone, "Go out and pay this debt to so-and-so," or "Bring so-and-so his money," or if he said to him, "Give" or "Acquire for so-and-so" [Shach], or if one came and said to the borrower, "So-and-so made me a messenger to bring him his money," and he believed him and handed him the money, and the messenger said afterward that they were taken by force or were lost from his hand, or "I delivered them to the lender" (and he does not need to deliver to him in the presence of witnesses since the borrower did not command him to deliver in the presence of witnesses), and the lender says, "I did not make him a messenger and I did not receive the money from him"—the messenger shall swear a shevuat hesset that he gave them to the lender. And even though it is a claim of "perhaps" from the borrower, nevertheless, what the lender said—that he did not receive them—combines and it becomes like a claim of "certainty" [Sma]. And the lender swears while holding a sacred object that he did not receive them, according to the law of those who swear and take, and the words of the messenger combine to make it like a claim of "certainty" to obligate him in an oath, and he shall collect his debt from the borrower. And the lender swears first [Shach], for perhaps he will not want to swear and we will not need the oath of the messenger. And the messenger is not believed like a witness to obligate the lender in a shevua de-oraita, for even if they are two, they are not like witnesses because they require an oath, as has been written. And even if the borrower wants to exempt him from the oath so that he will not be "interested" in the testimony, it is of no avail; for since he became obligated in an oath, the exemption does not help, as he is still considered "interested" in the matter because of his benefit that the borrower exempts him and believes him [ibid.]. And it is not similar to the "removal" in siman 37. And in a claim of "taken by force," the lender does not need to swear at all; only the messenger shall swear a shevua de-oraita according to the law of a bailee [ibid.]. And one should not raise a difficulty against what I wrote—that the messenger is "interested" in the matter because of his oath—from the logic of "either way": if we suspect him that his desire is to rob the lender, behold he will also swear falsely; for it has already been explained in siman 75 that there are people for whom an oath is more grave than robbery. And all that has been explained applies likewise to a depositor and a bailee.

Since it has been explained that the reason the agent is not a witness is because of his oath, therefore, if at the outset when he delivered them into his hand he exempted him from an oath and there are witnesses to this, there is one who says that it is effective when he is a single witness to obligate the lender or the depositor in a shevuat de-oraita when he says "I delivered it to them." And if they are two agents and they testify that he exempted them from an oath, the borrower or the bailee is entirely exempt. And even though according to this there is a concern of collusion—that he might exempt them from an oath at the outset in order to cause a loss to the lender or the depositor and they would divide it among themselves—nevertheless, two people are not suspected of this, for if not so, we would be concerned in every testimony for collusion. And since he exempted them from an oath at the outset, they are like any other witnesses in the world [Sma]. And likewise, if the agent does not need to swear for another reason, such as if the sender went with him and saw from a distance that he performed his agency by delivering to the lender or the depositor, he is not an interested party in the testimony and he is a valid witness, and he forces the lender to swear a shevuat de-oraita when it is a loan with a shtar where the borrower cannot claim "I paid." And likewise regarding a deposit, he forces the depositor to swear a shevuat de-oraita. And if they are two and the sender went with them and saw that they performed their agency, they are two witnesses and the borrower or the bailee is entirely exempt. And there are those who disagree with this, that the borrower is not exempted by this. And their reasoning is that since their entire exemption is because the borrower says that he saw that they performed their agency, and without this they would not have the status of witnesses, how is it possible to make them witnesses based on the litigant to extract money from the opposing party? For it is well and good when he exempted them from an oath at the outset, for we do not believe the borrower but rather the witnesses who say so, that he exempted them; but in what he says, that he saw them perform their agency, the exemption would be through himself. And some say further that for this reason even if the agent is one, he does not lead to a shevuat de-oraita [Levush]. And besides this, is it not so that a shevuat de-oraita by a single witness is only to exempt oneself and not to collect? And the first opinion holds that in truth we do not need their testimony at all, for this is like the borrower or the bailee saying "I paid," since he saw that they performed their agency. And if it is because he is not believed to claim "I paid" when there is a shtar, behold, on this the witnesses testify that he speaks the truth, and the essence of their testimony is on his claim, which is like a claim of "I paid" [Shach]. And that which he says, that he saw them in the performance of their agency, is not that it validates their testimony, but rather that through this he is able to claim a certain claim, and the witnesses automatically become valid. And likewise even with a single witness it is so. And even though we have not found a shevuat de-oraita to collect, nevertheless, he is able to lead to a shevuat de-oraita, for he could pay him in the presence of this one and in the presence of one more, and afterward he would sue him through this one and he would testify that he paid him also previously, and he would need to swear a shevuat de-oraita and be exempt [Sma].

And that which was explained, that when the messenger does not require an oath it is a kosher witness, this is specifically when the borrower or the bailee said to him, "Go and pay the debt or the deposit that so-and-so has against me." For in such a case, the messenger does not acquire it on his behalf, and if the borrower or the bailee wished to take it from him, or if he wished to retract his mission, the authority is in their hands. But if he used the language explained in section 9, "Take these" or "Acquire," and it will be explained in siman 125 that the messenger immediately acquires on behalf of the one to whom he was sent and the sender cannot retract, and also the messenger, if he retracted and returned it to the sender, is liable for their responsibility—he does not become a witness. And even two do not become witnesses, for they are interested parties in their testimony. For specifically when they can retract from their mission and he also exempted them from an oath, there is no interest at all, for they are also able to say that they returned it to the borrower or to the bailee. But in this case, if they say they returned it, they would be required to pay the lender or the depositor; if so, they are forced to say that they delivered it to them, and you have no greater interested party in testimony than this. And this is specifically when there are witnesses that he said this language to them, but without this, they are fit for testimony with a migo that they could have said that he did not say this language to them [Shach, subsection 44].

And this, that the borrower can administer an oath to the agent when he says that he delivered them to the lender, is specifically when both are before us—the agent and the lender—and they contradict one another. But if the agent came alone and says, "I gave it as you told me," he cannot administer an oath to him if he performed his agency, for there is no one there to claim against him with certainty that he did not perform his agency. And when the lender comes and claims thus, they shall administer the oath to him then. And so too, if the agent died or went to a province overseas, and the lender came to claim from the borrower, and the borrower says, "I sent it to you via so-and-so," and the lender says, "He did not deliver it to me and I did not make him an agent," the borrower cannot administer an oath to him that he was not paid, for there is no one here who claims against him with certainty that he was paid. Rather, the borrower imposes an acceptance upon him, that he shall accept upon himself that he was not paid, and he pays him his debt or his deposit. And even if it were a loan by word of mouth, where he is believed to say "I paid," nevertheless, here where the borrower himself does not know if he delivered it to him—for the agent did not return to him to say "I performed your agency"—therefore he must pay [it appears to me]. And this is specifically regarding an agent appointed by the borrower, but regarding an agent appointed by the lender, even in a loan with a document, he does not need to pay, since he says that he delivered it to his agent and the lender admits that he appointed an agent; and he cannot even administer an oath to the borrower, since there is no one who contradicts him [it appears to me]. And there is one who says that this which has been explained, that the borrower cannot administer an oath to the lender, this is even if the borrower says that his agent told him that he delivered it to the lender, he does not have the power to administer an oath to him since he did not say so before witnesses or before a beit din. But when he said before witnesses or a beit din that he delivered it to the lender, even if the agent died afterwards, the lender must swear [Shach]. And so too in this which we said, that the agent does not need to swear when the lender is not before us to contradict him, even if the lender died and his heirs came to claim with the document in their hand and the borrower is obligated to pay them, nevertheless, he does not have the power to administer an oath to the agent, since there is no one here who makes a certain claim to contradict him [ibid.].

Reuven who said to Levi, "The maneh that you owe me, give it to Shimon who dwells in your city because I owe it to him," and Levi says, "I gave it to him," and Shimon says, "I did not receive it," the law in this case is as has been written regarding a messenger appointed by a debtor who said to him, "Take to so-and-so his money that is in my possession." And in this, there is no distinction in which language he said to him, whether in a language that is like a zakhin or not, for this distinction is only regarding the matter of acquisition on his behalf, as will be explained in siman 125. However, regarding the matter of an oath, there is no distinction. And even though it could be said that since he did not hand over ready money to Levi, but rather told him that the money he owes him he should give to Shimon, and it is possible that he does not have it and is evading Reuven by saying that he gave it to Shimon, and according to this Reuven should not have had Shimon take an oath; nevertheless, since Levi denies him with certainty, Shimon is first obligated to take an oath, and then Reuven shall pay him [Sma]. And he must pay him even when it is a loan by word of mouth, for the claim of "I paid" is not relevant in this case, since Reuven himself does not know except through Levi, and behold Shimon takes an oath against him to contradict him [it appears to me].

Reuven who sent via his messenger his debt or his deposit to Shimon, and the messenger came to Shimon and says that they were lost to him by force, the messenger does not need to swear to Shimon until Reuven comes, because he can say to Shimon: perhaps Reuven will believe me without an oath, and as for you, are you not obligated to pay other money since I am not your messenger, and why should you make me swear? Therefore, if Reuven died or went to a province overseas and Shimon has no one from whom to claim now, the messenger is obligated to swear immediately to Shimon the oath of the guardians; for even though he is not his messenger, nevertheless, since he loses for the time being through his guardianship, he can make him swear [Shach, subsection 37]. And he shall make him swear a biblical oath, just as if Reuven were making him swear [it appears to me].

Reuven sent money via his agent to Shimon, and the agent claims that he sent them via his wife and that he has permission to do so, for anyone who deposits, he deposits with the understanding of [the bailee's] wife and children, as is written in siman 291. And the agent's wife says that she gave them to Shimon, and Shimon says that he did not receive them. The agent's wife must swear that she gave them to Shimon, and Shimon must swear that he did not receive them, and Reuven must pay Shimon [Sma]. However, the agent does not need to swear since his wife swears [Shach]. And if it is not the custom of the place for an agent to hand over his agency to his wife, we follow the custom, and the agent is liable to pay [it appears to me]. And among us, the custom is not to hand over the agency to another, even to his wife, even though according to the law it is like a deposit.

One who sent his agent to seize a mashkon for him, and he seized it but does not know from whom, it is negligence, and he is liable to pay him the amount the mashkon is worth more than what he lent upon it; for any "I do not know" is negligence, as will be explained in siman 291, for even a shomer chinam, when he says "I do not know where I placed it," it is negligence. And if he said, "I seized it from so-and-so," and the so-and-so denies it, the agent is liable to pay, for he should have seized it before witnesses. And it is not similar to what was written in section 9, that he does not need to give it to him before witnesses, for there, since he commanded him "go to so-and-so" and did not tell him to deliver it before witnesses, he does not need to do so of his own accord. And here too, if the sender said to him, "Go and seize a mashkon from so-and-so," he is exempt. But since he did not specify to him from whom, the agent should have considered that perhaps this man is not upright and will go and deny it, and he should have delivered it before witnesses. And even though it would not have helped—for when he wishes to deny it, he could claim it was an ones or it was lost if he is a shomer chinam according to what was written at the beginning of siman 72—nevertheless, the sender can say that perhaps this man is not suspected of a false oath, and now that there is only a shevuat hesset upon him, it is light to him [Urim VeTummim]. And there are those who disagree for this reason, and they hold that since he must necessarily believe him because of a claim of ones or loss, he is not negligent in that he did not seize it from him before witnesses [Shach]. And likewise, if the borrower sent his debt to the lender and does not know by whose hand, and the lender says that he did not receive it, the borrower must pay the lender without an oath; for even if he knew by whose hand he sent it, if the agent is not before us to contradict him, the lender or the depositor also takes without an oath, as was written in section 12, and all the more so when he says "I do not know by whom," for it is like one who is negligent [Shach, subsection 43]. However, it is in his power to impose a ban of kabbalah upon the lender if he did not receive it [it appears to me].

Reuven sent money via his messenger to Shimon so that he would buy him something, and the messenger says that he delivered them to Shimon, and Shimon says "I did not receive them," the messenger shall swear a shevuat hesset that he delivered them to Shimon. Reuven is unable to adjure Shimon because he has against him only a claim of uncertainty, but the messenger can adjure Shimon. Shimon cannot say "You are not my legal adversary," for he is certainly his legal adversary. This is not only before the oath of the messenger—for if Shimon would not agree to swear and would pay, the messenger would be exempt from his oath—but even after his oath, he is like his legal adversary since he claims that he gave it to him from his own hand [Shach, subsection 42]. And some say that Reuven can compel the messenger to impose an oath upon Shimon even after the messenger has sworn, for Reuven can say to the messenger: "Since it is clear to you that you gave it to him, he certainly will not swear falsely and will pay, so why should you cause me a loss?" And so logic inclines. Therefore, if the messenger sees that Shimon is prepared and beginning to swear, he can forgive him, and Reuven cannot prevent it; since he is swearing and not paying, what gain is there for him in his oath? [Urim VeTummim].

Reuven lent money to Shimon on a mashkon, and the lender deposited the mashkon in the hand of Levi. Afterward, the lender saw the mashkon in the hand of Shimon. Reuven claims the mashkon from Levi, and Levi responds: "I returned it to you via your messenger whom you sent to me to receive the mashkon." Shimon also says: "I returned the debt to your messenger and received the mashkon." Reuven says: "This never happened; I did not send a messenger at all, and some deceiver deceived you in my name." Reuven shall swear that he did not send his messenger, and Levi shall pay him. Shimon does not need to swear, for Reuven does not have a claim of certainty against him, as he claims that he delivered it to the messenger who came to Levi. And if Levi says that the messenger brought a letter from Reuven and he recognized that it was the handwriting of Reuven, Levi swears a shevuat hesset and is exempt, as has been written in the previous seifim [Shach, subsection 46].

Levi who came as the agent of Reuven to collect fifty dinars from Shimon that he owes him, and he collected them from him, and Reuven says: "I did not send him to collect except twenty, and he only brought me twenty"—some say that Shimon must pay the thirty dinars after Reuven swears with a Torah oath that he did not send him to bring except twenty and that he did not bring him more. And even when there are witnesses that he appointed the agent, and he himself also admits to this, nevertheless, since he says that he only appointed him for twenty, and the witnesses also say that he specified some amount for him but they do not know how much—for if it were not so, Shimon would have had permission to hand over all fifty—Shimon is regarding the thirty like one who says "I know that I became obligated to you and I do not know if I paid you," who is liable to pay. And the agent shall swear a shevuat hesset to Shimon that he gave all fifty to Reuven [Shach according to the Rambam]. And some say that if it is known that he is the agent of Reuven, or if Reuven admits that he is his agent, he has no claim against Shimon at all, for he had permission to give him the fifty; since he did not write to him that he should not give except twenty, Shimon is not liable to pay, and he shall swear a shevuat hesset and be exempt [Tur and Bach according to the Rambam]. And also according to the first opinion, if the borrower claims with certainty that he sent him to collect all fifty, and it is a loan by word of mouth, he is exempt with a shevuat hesset [Shach]. And if Reuven sent his agent to borrow money from Shimon, and Shimon lent him fifty, and Reuven says that he did not send him to borrow except twenty and he only received twenty, Shimon has against Reuven only a claim of "perhaps," for it is a claim of "perhaps" and it is like "I do not know if I became obligated to you," and the agent swears a shevuat hesset that he handed over fifty to him and is exempt [ibid.]. And if the lender wishes, he will not sue the borrower at all, but rather the agent will sue him, saying "I brought you fifty," and he will admit to him twenty, and it is a partial admission and he will be liable for a Torah oath, and the lender has the power to compel the agent to sue the borrower, and the agent shall swear a shevuat hesset. And so too, if the lender claims with certainty that the borrower sent him to borrow fifty, then even without the agent, the lender can make the borrower swear [ibid.]. 20. Reuven had money with Shimon and commanded him to give them to Levi, and Levi sent them via an agent to Reuven, and afterwards Reuven said that he did not receive all the money, that some was missing, and Shimon says "I handed over everything to Levi as you commanded," and Levi says "I do not know how much there was, but this I know: that everything Shimon handed to me I sent to you, and I do not remember by whose hand I sent it"—Shimon is exempt even from an oath, since Levi does not contradict him and Reuven commanded him to do so, and Reuven has against him only a claim of "perhaps." And Levi is also exempt from an oath, for it is like "I do not know if I became obligated to you," and he indeed had permission to send it by the hand of whomever he wished, for he is not a borrower nor a bailee that he should have responsibility, but rather he promised him to receive them from Shimon; therefore he had permission to send it by the hand of whoever appeared to him to be trustworthy, and he is not obligated to remember by whose hand he sent it, and he has no claim of certainty against him, for Reuven cannot say "certainly Shimon handed over more to you" [ibid.].