Siman 295

An unpaid guardian who said, "Behold, I will pay and I will not swear the oath of the guardians"—if the deposit was a thing where its entire species is identical and is also available to be purchased in the market, such as produce or sheets of wool and of linen that are identical in all their matters to one another, or beams that are not decorated, and anything similar to them, behold, he pays and does not swear. But if the deposit was a living creature, or a decorated garment, or a finished vessel, or a thing that is not found to be purchased in the market like it even though its entire species is identical, we suspect that perhaps he set his eyes upon it and his desire is to withhold it for himself. Therefore, we adjure him with the holding of a sacred object that the object is not in his possession, that it was stolen or lost, and afterward he pays and gains that he does not need to swear that he guarded it properly, that he did not neglect it, and that he did not commit shlichut yad; for he is afraid to swear this, as perhaps he did not guard it properly at some time, or perhaps one time he benefited from the deposit and it constitutes shlichut yad [Sma]. And some say that the same law applies even if the depositor already received the payment from his hand, nevertheless, it is in his power to adjure him afterward with this oath that it is not in his possession [Rosh]. And the same law applies to the rest of the guardians, such as a borrower who said it died or was stolen, and a paid guardian or a renter who said it was stolen or lost; even though they are liable to pay, we adjure them with that oath that it is not in their possession, and afterward they pay the value of the animal or the object, because we suspect them that perhaps they set their eyes upon it. And if the owners said it was worth more than this, he includes in his oath that it is only worth such and such. And there is no difference in this regarding guardians between whether they say they are liable to pay or whether they say they are not liable to pay but because they do not desire to swear the oath of the guardians they pay—nevertheless, he swears the oath that it is not in his possession.

It results that every shomer who swears the shomrim's oath includes three things in his oath: that he guarded in the manner of shomrim, that he did not commit peshiah regarding it, and that the cause that occurred to the pikadon was not through his peshiah; and he also swears that it is not in his possession, which is the essence of the shomrim's oath that the Torah obligated him as written in siman 294, and it is an oath that it was stolen, or lost, or an ones occurred, and he must prioritize it before the oath that he did not commit peshiah. And even if he prioritized the oath that he did not commit peshiah and that what occurred to the pikadon was without his peshiah, nevertheless, he must also swear the oath that it is not in his possession, for it could be true that it was stolen but the thief returned it to him, or that it was lost and he found it, or an ones occurred and the ones was removed. And likewise, he must swear that he did not perform shlichut yad before the event occurred that exempts him. And if he wished to pay, he swears that it is not in his possession if it is a thing that is not commonly found or if its entire species is not of equal value, and he includes in his oath that it was worth such and such if the depositor says it was worth more [as I have written, the difficulty of the Sma, subsection 5, and the Ateret Zvi is settled, and study this carefully].

Our sages, of blessed memory, said [at the beginning of the third chapter of Bava Metzia]: One who deposits an animal or vessels with his fellow, and they were stolen from him or lost through an accident, and he did not wish to swear and instead paid the depositor the value of the object, and afterwards the thief was found and paid double, or in the case of a deposited animal that the thief slaughtered and paid four-fold or five-fold payments—the shomer takes the double payment and the four-fold and five-fold payments. The reason for the matter is that we follow the assessment of the owner's intent to transfer ownership of the double payment and the four-fold and five-fold payments to him in exchange for his paying him the principal. Since the profit in this is not from the body of the object but rather from the side, and he suffers no loss in this, it is amenable to him to transfer it to the shomer when he pays him the principal. However, improvement that comes from the body itself, such as shearings and offspring, he does not transfer to him. And if you should ask: by which act of acquisition did the shomer acquire the double payment and the four-fold and five-fold payments? For he cannot transfer the double payment, as it is a thing that has not yet come into the world. And one cannot say that at the time the double payment comes into the world he transfers it to him, for we hold that even if the owner does not want the shomer to receive the double payment from the thief, nevertheless the shomer takes it against his will because the owner transferred it to him beforehand; and yet beforehand it was a thing that has not yet come into the world. Rather, thus said the sages: it is as if he said to him at the time he delivered it to him to guard, "When it is stolen and you desire to pay me, behold my cow is acquired by you from now so that the double payment shall be yours," but not for improvement of the body itself. And the acquisition is not adjacent to its theft, for if so, if at the time of the theft it was not in the domain of the shomer—for example, if it stood in a marsh—he would not have the ability to acquire it. Rather, the acquisition is at the time of the beginning of the guardianship, for then it is in the domain of the shomer [according to the first version there].

And it is not specifically that he paid, but rather since he said "I am hereby paying," even though he has not yet paid, because of that satisfaction that he promised him to pay, he transfers the kefel to him. And some say that specifically when he swore an oath that it is not in his possession, then he transfers the kefel to him with his speech, but without an oath, he does not transfer it to him with speech alone [Rosh]. And most of the poskim disagree on this [Shach]. And regarding a borrower, the sages, of blessed memory, said that since all the benefit is his, he does not transfer the kefel to him until he pays, for he does not need to show him gratitude for mere speech; and even if he swore that it is not in his possession, he does not transfer it to him until he pays [ibid.]. And even if he stipulated to be like a gratuitous shomer, the law is so [Nimukei Yosef]. And similarly, a gratuitous shomer, even if he stipulated to be like a borrower, nevertheless in this his law is like a gratuitous shomer. And similarly, even when they swore the oath of shomrim and exempted themselves, and afterwards changed their minds to pay, the kefel is theirs; however, in this case, speech is not effective until they pay, for he does not rely on his speech when he already exempted himself by means of an oath. However, all this is specifically when he paid him of his own will, but where the dayan compelled him until he was forced to pay—for example, if he said "I was negligent with it" and did not want to pay, or if he said "I do not know where I placed it" and did not want to pay, and the dayan compelled him and collected from him against his will—he does not transfer the kefel to him [Gemara]. But if he paid him of his own will, even though he was obligated by law to pay—for example, if he was negligent with it and said "I was negligent" and wants to pay—he transfers the kefel to him [ibid.]. And the sages, of blessed memory, said the reason is that since the gratuitous shomer could have exempted himself with a claim of theft, and a paid shomer with a claim of anes, and the borrower with "died due to work," and since he did not trouble him with litigation, he transfers to him the external profit. And from this it appears that if there were witnesses to his liability—for example, if witnesses saw that he was negligent with it—he does not transfer the kefel to him, for behold, he did not perform any satisfaction for him, as he could not have exempted himself. And in the Yerushalmi, he is exempt even in such a case; however, from our Gemara it does not imply so [Ramban]. And there is one who says that the same applies if they had witnesses to the exemption—for example, if a gratuitous shomer had witnesses to the theft and nevertheless paid him—he does not transfer the kefel to him, for it did not enter the mind of the depositor that he would pay him in such a case, and therefore even beforehand he did not transfer it to him in such a case [Nimukei Yosef].

A guardian who said, "I will swear," and the depositor wished to roll upon him other additional claims, and he retracted and said, "I will pay," even though the retraction was because of the additional claims, nevertheless, since in the end he paid him of his own will, the double payment is his [the Rosh, end of Shevuot]. And our sages, of blessed memory, said [Bava Metzia 34b] that if he said, "I will not pay," and then retracted and said, "I will pay," the double payment is his. But if he said in beit din, "I will pay," and then retracted and said, "I will not pay," even though he cannot retract since he accepted upon himself in beit din to pay, nevertheless it is a legal doubt whether he acquired the double payment or not as long as he has not paid. And so too if he said, "I will pay," and died, and the heirs said, "We will not pay," or if he did not manage to claim from him until the depositary died and he claimed from his sons and they paid, or if the sons of the depositary paid the sons of the depositor, it is a legal doubt, for perhaps he only transferred the double payment to the depositary himself and not to his sons, even though they paid, since the father did not say he would pay. And so too it is a doubt when he paid him half, or if he borrowed two cows and paid for one of them, or if he borrowed from partners and paid one of them his portion, or partners who borrowed and one of them paid, or if they borrowed from a woman from her nichsei melog and he paid her husband, or a woman who borrowed an animal to perform work on the land of her nichsei melog and her husband paid; in all of these it is a legal doubt. And the Rif, of blessed memory, wrote that they divide the double payment between them, and if one of them seized it, we do not remove it from his hand even in the diaspora where we do not judge cases of double payment. And so the Rambam wrote in chapter 8. And why should they divide? Because neither of them is considered the possessor. However, the Rosh, of blessed memory, ruled that the depositor is considered the possessor, for behold, the animal is his and the double payment is his.

Just as he transfers the kefel to him, so too he transfers to him any appreciation from the world. Therefore, if the object increased in value after it was deposited in his hand, and the object was found after he paid him or said he would pay, the appreciation belongs to the bailee for the reasons that have been explained, and he only needs to give the value of its worth at the time of the deposit [Sma]. And some say that he pays him according to its worth at the time of the theft. And likewise, when there are witnesses as to when it was lost but it is not known if it was through his negligence or not through his negligence, and he paid him, any appreciation of value that came after the theft belongs to the bailee [Shach].

The opinion of the Rambam, of blessed memory, is that even if the object deposited, or borrowed, or rented was only worth a perutah, the shomer must swear regarding it. Many disagree with him and hold that there must be a denial of two silver ma'ah, and regarding vessels, a perutah suffices; whereas according to the Rambam, even less than a perutah. However, it is according to all opinions that none of the shomrim require a partial denial and a partial admission, for only in the case of a partial admission regarding a loan did the Torah decree so, and not regarding a deposit. In siman 88 we explained, with the help of Heaven, the details of these matters; see there.