Siman 294

If the depositor demanded the deposit and the bailee denied it, saying "these things never occurred" or "I returned it to you," and it was clarified that he spoke a lie, he immediately becomes a gazlan and is liable for accidents and is disqualified from testimony and from an oath, as has been written in siman 92. And even if he deposited it with him without witnesses [Sma], since it has now been clarified through witnesses that he lied, he is a gazlan. In what case does this apply? When there are witnesses that at the time he denied it, the deposit was in his possession and he knew of it, and he is not believed to say that the reason he said "these things never occurred" was because it came into his hand by way of sale—and in this the witnesses do not contradict him—for if so, he should have specified. But if there are no witnesses that the deposit was in his possession at the time of his denial, even if it was clarified afterward that the deposit is with him, nevertheless he does not become a gazlan, for we say perhaps at the time of the incident the deposit was lost from him and he said, "I will deny it now and push him off until I find it and return it to him," for it is not within a person's power to remove one who is in a state of presumed fitness as long as it is possible to deem him fit. And this law is like a loan there, for one who denies a loan is fit for testimony, as we say he is merely avoiding him until he obtains money; and specifically when he did not swear, but if he swore falsely, he is disqualified on account of his oath, as has been written there.

And even though it was explained in siman 292, section 1, that through mere speech one does not become liable for accidents, this is regarding misappropriation where he does not deny the essence of the deposit and it is possible that he will not fulfill his word; but when he denies the essence of the deposit to its owners, you have no greater robber than this. However, one should not distinguish and say that there it was not in the presence of the owners, but in the presence of the owners his law would be like a robber even regarding misappropriation through mere speech, for it does not imply so in the Gemara [for if so, let the school of Hillel at the end of the chapter HaMafkid establish the verse "for every matter of trespass" in such a case]. And it further seems to me that even though it is implied from the Tur and the Shulchan Aruch that also regarding accidents, when there are no witnesses that the deposit was with him at the time of his denial, he does not become liable for accidents, nevertheless, the depositor can administer an oath to him that it was not his intention to rob him. For in the Gemara they only said this regarding the fact that he is not disqualified from testimony due to the presumption of his fitness, but nevertheless, how can we expropriate the money of this one because of the presumption of the fitness of that one? Therefore, he can administer an oath to him at the very least.

If he did not deny it but rather claimed it was stolen or lost, he must swear the oath of the guardians. A guardian is obligated to swear three oaths: an oath that "I was not negligent with it," and a paid guardian must swear that it was not stolen and not lost; an oath that "I did not stretch forth my hand against it"; and an oath that "it is not in my possession," for perhaps it was not stolen at all. The opinion of the Rambam, of blessed memory, in the fourth chapter of Hilkhot Pikadon, and other great Rishonim, is that the primary oath that the Torah obligated a guardian is that it was stolen, and for a paid guardian that it was an unavoidable accident, and this is the oath that "it is not in my possession." The two oaths that he was not negligent and that he did not stretch forth his hand are only by way of gilgul. And that which is written, "and it be stolen from the man's house... then the master of the house shall be brought near to the judges [to swear] whether he has not stretched forth his hand," this is its explanation: "he shall be brought near to the judges" to swear that it was stolen, but this is on the condition that "he has not stretched forth his hand," for if he stretched forth his hand beforehand, he is liable even if it was stolen afterward [the Maggid Mishneh]. According to this, if there are witnesses for an unpaid guardian that it was stolen, or for a paid guardian that it was an unavoidable accident, he is exempt also from the two remaining oaths. However, there are some of our teachers who say that the oath "I was not negligent" is also from the primary oath even without gilgul; and even if there are witnesses that it was stolen, he must swear that he was not negligent, and by way of gilgul he shall swear that he did not stretch forth his hand. Therefore, if there are witnesses that he also was not negligent, he is exempt from the oath of stretching forth a hand, for we do not presume people to be wicked when there is no proof for the matter. This is the opinion of the Rosh and the Tur. And where is the oath that he was not negligent found in the Torah? For this is its explanation: "and it be stolen from the man's house" without his negligence, for if it was stolen through his negligence he is liable, and for this "he shall be brought near to the judges," which is to say that he shall swear that it was stolen without his negligence [and in the Rambam chapter 6, halakha 3, it also implies thus, though in chapter 4 it is explicit as I wrote]. And in the Yerushalmi, chapter HaMafkid [halakha 7], it also implies like this opinion. According to this, even if the pikadon is before us damaged or it died, he is not exempt from an oath, for perhaps it died or was damaged due to his negligence. And all the more so regarding a borrower, whose exemption is only if it died due to work [Netivot HaMishpat]. However, we have already explained in siman 72, section 26, that when one claims the pikadon was damaged, the Torah did not obligate an oath; see there.

We have already explained in siman 291, section 3, that the decree of the Torah is that one is not exempted with an oath except in a place where witnesses are not commonly found; but in a place where witnesses are commonly found, he is compelled to bring witnesses, and if not, he shall pay. And even if he admitted on his own that the matter occurred in a place where witnesses are commonly found, he is not exempted with an oath by way of a migo that he could have said the matter occurred in a place where witnesses are not commonly found, for this is like a migo in the place of witnesses [ibid.]. Therefore, even though he has a migo of "the matter never occurred" or "I returned it to you," he is not believed without witnesses for this reason [and the difficulty of the Ketzot HaChoshen is answered]. And one should not raise a difficulty regarding every deposit for which the Torah required an oath, asking why he is not believed with a migo of "the matter never occurred" or "I returned it to you" if he has these migos, for we hold that we do not say a migo to exempt from an oath, and it is also a migo of audacity, as I wrote in the rules of migo in siman 82, see there; and it will be further explained in siman 296 with the help of Heaven.

And that which we said, that in a place where witnesses are common one must pay when he did not bring witnesses, this is specifically regarding a matter that is visible to the eye, such as one carrying a barrel in the marketplace and the like. However, a matter that occurs where it is not visible to the eye, such as one carrying an object in his hand, where it is possible that even though many are present there, nevertheless it could be that the accident occurs and people do not notice it, its law is like a place where witnesses are not common.

One who claims a claim of unavoidable accident regarding a deposit and brings witnesses that an object of this type was taken from him by force—for example, that he deposited with him a garment of a certain appearance and he brings witnesses that such a garment was taken from him by force—and the depositor says, "Perhaps such a garment was taken from you by force but not mine, for there are many garments of one appearance," and the bailee says, "It was yours," and the witnesses do not know with certainty that it belongs to the depositor, nevertheless he is exempt and is not even liable for an oath. The reason is that if the garment were in his hand and the depositor were to say, "This is not it," and the bailee were to say, "This is it," the bailee would be believed with a shevuat hesset, for the oath of bailees is not applicable in this case, as was written in siman 296. And if the depositor were to say "perhaps" and the bailee were "certain," he would be exempt even from a shevuat hesset. If so, since the depositor does not know if the garment that was taken by force is his or not, the bailee is automatically believed, for he brings witnesses that such a garment was taken from him by force, and it is as if the garment were before us; for regarding that which there are witnesses, an oath is not applicable, and he is automatically believed without any oath. [This is the intention of the Shach and the Ketzot HaChoshen, and the difficulty of the Bach and the Taz is settled, and the words of the Netivot HaMishpat require further study].

If the bailee stipulated that he shall be exempt from an oath, his stipulation is valid, for any stipulation in matters of finance is valid. And there is room for doubt if the matter occurred in a place where witnesses are commonly found, whether he must bring witnesses, for he was not exempted from this; or perhaps since the witnesses stand in place of the oath, and since he does not require an oath, he does not require witnesses. And it requires further study.

If the deposit was stolen without his negligence, and in the case of a shomer sachar when it was stolen by force, such as by armed bandits, and afterwards the thief was identified, the shomer is obligated to deal with the thief and to exert effort to extract the stolen object from him, whether he is a shomer chinam or a shomer sachar. And if he says, "I will swear and I will not exert effort," they do not permit him, for since he is a shomer and it was stolen from him, the effort is incumbent upon him. And if after the effort he is unable to extract it from the hand of the thief, he does not need to pay, and he shall swear that he was not negligent; and in the case of a shomer sachar, that it was stolen by force and that he did not misappropriate it, according to the second opinion in section 3. But if the shomer already swore or brought witnesses regarding the theft and afterwards the thief was identified, if he is a shomer chinam, he may do as he wishes: either he shall stand by his oath and the witnesses he brought, or he shall exert effort with the thief. But the shomer sachar is obligated to exert effort with the thief even after the oath and the witnesses. And some say that in any place where the law is that he must exert effort with the thief, if it is known that he will extract the deposit from the thief, he is obligated to pay the depositor immediately. And in a place where the law regarding a shomer sachar is that he must exert effort with the thief because he takes a wage, it does not avail him even if he wishes to return the wage so that his law would be like a shomer chinam [Ba'er Hetev], just as this does not avail him to be exempt from his liability for theft and loss.

The Rambam, of blessed memory, wrote [chapter 8]: If the deposit was stolen by force and the thief returned it to the house of the guardian, and it is an animal and it died there through negligence, there is a doubt in the matter whether his guardianship ended and he is exempt, or whether his guardianship has not yet ended. Therefore, the guardian is exempt from paying, and if the owners seized [the object], it is not removed from their hand. Thus far his words. And this law is a query in the Gemara [Bava Kamma 108a]. And all the poskim omitted this law because they hold that since we establish that when the thief is identified the guardian must exert effort after the theft, it follows that his guardianship did not end through the theft or the force. And if so, certainly if the thief returned it to him, he is liable for negligence since his guardianship did not end. And the one who queried it in the Gemara held regarding an identified thief that he does not need to exert effort and his guardianship ended, and when the thief returned it, it is a doubt whether his guardianship ended [Ketzot HaChoshen]. However, the Rambam holds that it is possible that even though regarding effort he is obligated in it, nevertheless regarding payment it is possible that his guardianship ended [and he holds that Rabbah Zuta there does not disagree with Rava, see there and examine carefully].

Our teacher, the Rema, wrote: Reuven facilitated a secure debt for Shimon and received payment for the brokerage, and afterwards the debt went bad and they must intercede with the official regarding the debt, and Shimon wants Reuven to undertake that exertion since he received payment from the debt, some say that the law is with Shimon, similar to the case where the thief was identified. Thus far his words. And there are those who disagree with this, for it is not similar to where the thief was identified, for there he is a shomer and it was stolen from him, and he is certainly obligated to do everything in his power to return it to its owner; but this one who was only a broker for the loan, and for this he received his payment and finished his work, why is the obligation upon him to exert himself in the collection of the debt? [Shach]. And it appears to me that they do not disagree on the law at all, for certainly if he was only a mere broker and the lender himself lent to the official, certainly the broker is not obligated to exert himself further in this. However, our teacher, the Rema, his intention was that the broker lent to the official and brought the rights to the lender, for the official did not see the lender at all, and in such a case it is certainly similar to a shomer and he must exert himself in the collection of the debt. And see what I wrote at the end of siman 185, and such is the custom in brokerage like this where the debt was made through the broker, that he exerts himself in the collection of the debt.

When one administers an oath to a shomer that he was not negligent, we administer the oath to him with this phrasing; but he shall not swear that the damage occurred without intent, for this phrasing can imply that he was negligent in his guarding and the damage occurred without intent, and he would be liable to pay. Rather, he shall swear that he was not negligent in his guarding [ibid.].