Siman 296

Whether one deposits, lends, or leases to his fellow with witnesses or without witnesses, they have the same law. Since this person admitted by his own mouth that it was deposited in his hand, or that he lent it to him, or leased it to him, he must swear the oath of the guardians. Even though he has a mingo—for he could have said "you never deposited with me" and would not have been liable for a Torah oath—nevertheless, he is liable. The reason is because we do not say a mingo to exempt from an oath [Rambam]. We explained the reason in siman 93: because regarding a monetary claim, a person is precise in his claims, and since he has a mingo to exempt himself, we conclude that he is speaking the truth; however, regarding oaths, a person is not so precise in his claims, and it is possible he did not take this mingo to heart. Furthermore, we hold that wherever it is possible to clarify, we clarify, even in a case of a chazakah; therefore, since it is possible to clarify the matter through an oath, we clarify it even though he has a mingo [Taz]. Furthermore, the sages did not see fit to remove the oath because of the mingo since it is not an extraction of money, even though by strict law the mingo should exempt him [explanation of the Sma, see there]. Furthermore, when a person wants to exempt himself from money, he is not concerned with his claims to exempt himself from an oath, and he accepts upon himself all the concerns of oaths; therefore, it is impossible to exempt him from the oath [Levush]. And some say that we do say a mingo to exempt from an oath, for an oath leads to money when one does not swear; only regarding guardians we do not say this mingo, because it would be a mingo of great audacity, therefore we do not say it; but in other places, we do say this mingo.

The entire essence of the oath of guardians is only when the bailee admits to the core of the deposit and claims that it was stolen or occurred through an unavoidable accident, and regarding a borrower, that it died due to work. However, if he denies the core of it, saying, "You did not deposit anything with me," or "You did not lend to me," or "You did not rent to me," or if he says, "I returned it to you," for according to this he does not currently admit to the core of the deposit, he swears a hesset oath and is exempt. Even if he deposited it in the presence of witnesses, he can say, "I returned it," for one who deposits with his fellow in the presence of witnesses does not need to return it to him in the presence of witnesses, as has been written in siman 297. And even if he deposited it with him via a deed, or lent it or rented it via a deed, where the depositor could say to him, "If it is as you say, that you returned it to me, why did you leave your deed with me?"—just as with a loan deed where the borrower is not believed to say "I paid" for this reason, as has been written in siman 82—nevertheless, regarding a deposit he is believed. And the reason is that since if he were to say "it was stolen from me" if he is an unpaid guardian, or "it occurred through an unavoidable accident" if he is a paid guardian or a renter, or "it died due to work" if he is a borrower, he would be believed with the oath of guardians, therefore he is also believed to say "I returned it to you" through a migo of "it was stolen," "it occurred through an unavoidable accident," or "it died due to work." For because he relied on this migo, he was not concerned to retrieve his deed from the depositor. This is not the case regarding a loan, where he is liable in all circumstances and has no migo; therefore, he is not believed.

Therefore, since the primary credibility regarding a shtar is due to a migo, just as if he had claimed the migo he would have been required to take a shevuat hadayanim with a sacred object as the shevuat hashomerim, so too when he claims "I returned it to you," he must take an oath similar to a Torah oath with a sacred object. For it is impossible to obligate him in an actual shevuat hashomerim that the Torah mandated, as has been explained, but rather we obligate him in a severe oath similar to a Torah oath. And the Tur, who wrote that he is obligated to take a shevuat hadayanim, his intention was an oath similar to a Torah oath [Shach]. And it is possible that he holds that all the distinctions that exist between a shevuat hadayanim and a rabbinic oath—such as regarding shifting the oath, descending to his properties, and regarding one suspected of perjury, as written in siman 87—do not apply to this oath, just as in a Torah oath. However, some say that even this oath's law regarding the matters that were explained is like all rabbinic oaths [ibid.]. And if it is difficult, for if so, what kind of migo is it? Let us suspect him that his intention is to shift it, or that he does not want the beit din to descend to his properties, and therefore he claims thus. However, in truth, this is not a literal migo like all other migos, for the primary reason is that he was not careful to retrieve his shtar because he had the ability to claim "it was stolen" or "it was lost to an ones," and therefore his law is like one who deposited with witnesses and is believed to say "I returned it to you." Rather, nevertheless, since for this reason he did not take back the shtar, we are stringent upon him in his oath to be similar to a Torah oath [Netivot HaMishpat]. But there are those who disagree and hold that this oath has all the stringencies that exist in a shevuat hadayanim [Urim VeTummim in the rules of migo, letter 112], and proof for this is from the poskim and the Tur who called it a shevuat hadayanim and not a severe oath like all severe rabbinic oaths.

One of the great authorities wrote that if the bailee has one witness that he returned the deposit to him, this exempts him from an oath according to the law of a supporting witness who exempts one from an oath, as was written in siman 75. And even though it was explained in siman 87 that a supporting witness only exempts one from an oath in a case where his credibility regarding the claim is without a migo, or where the witness was supporting him also regarding the claim of the migo, but in a case where his credibility is by means of a migo, and regarding the migo he is not exempted by the witness who does not support him regarding the migo—such as in this case where his credibility is because of a migo of "it was an accident" and the supporting witness only testifies regarding the return, and if he had claimed a claim of accident he would not have had a supporting witness—nevertheless, a supporting witness exempts him here, for this is not a complete migo that we judge like all other migot, as was written [Urim VeTummim there]. And see what I wrote there in section 9 [and there is further study required there regarding the Netivot HaMishpat].

And since the essence of his credibility is due to a migo that it was lost by force majeure or stolen, he is therefore only exempt when the shomer could have claimed it was lost by force majeure or stolen, such as when they would not require him to bring witnesses for his claim. But if he were obligated to bring witnesses, such as when the matter occurred in a place where witnesses are common, as I wrote in siman 294, he is not credible to say "I returned it," for upon what did he rely to leave the document in his hand? For he is not credible to say it was stolen or lost by force majeure. And it is like a loan with a document in siman 82 where he is obligated to pay, except that the depositor must swear with a sacred object that he did not return the deposit to him. And even this is specifically when the bailee claims "swear to me that I did not return it to you," but if he does not demand the oath, we do not administer the oath to him, and we say to the bailee: "Go pay him the value of the deposit," as has been explained there.

If the bailee comes to return his deposit to the depositor and the depositor says to him, "This is not my deposit, but rather it is another," or if he claims, "It was whole and you broke it," or "It was new and you used it," or if he claims, "I deposited one hundred se'in with you and these are only fifty," and the bailee says, "This is the item just as you deposited it with me, and what you placed you are taking," behold, the guardian swears only a shevuat hesat as with other claims. This is because a guardian does not swear the guardian's oath mentioned in the Torah except when he admits to the essence of the deposit as the depositor says, but claims it was stolen, or lost, or an unavoidable accident occurred. But if he said, "This is what you lent me," or "rented to me," or "gave to me to guard," and the owners say, "It is not this, but rather another," or "it has changed from how it was," behold, the guardian swears a shevuat hesat. And if he admitted to a part, he swears a shevuat de'oraita. How so? If he says, "I deposited one hundred se'in with you," and the guardian says, "You did not deposit with me except fifty," and he does not say to him, "Here are the fifty," he swears a Torah oath because he admitted to a part, and not because of the guardian's oath. But when he said, "What you placed you are taking," he is only liable for a shevuat hesat, as it is a case of "here it is for you" (heilech). Furthermore, he did not admit to a matter of measure, weight, or count, as was written in siman 88. And if he did not admit to him in its kind at all, he is exempt from a Torah oath even without "heilech," such as if he said to him, "I deposited one hundred kor of wheat with you," and he says, "You did not deposit with me except one hundred of barley," he only swears a shevuat hesat like all others who swear regarding this claim; for one who claimed wheat and he admitted to him in barley is exempt with a shevuat hesat, as was written in siman 88, see there.

It has already been explained in siman 291 that any condition regarding shomrim is valid when he stipulated at the time of accepting the guardianship. Therefore, a shomer chinam may stipulate to be exempt even from an oath, and a borrower to be exempt from payment and from an oath. Who must make the stipulation was explained at the beginning of siman 207. And so too regarding a stringency, for the depositor may stipulate when the shomer consents; for example, even if he is only a shomer chinam, he stipulates that his law shall be like a borrower, and certainly a shomer sachar and a renter, and they are liable even for accidents. And regarding a borrower, he may stipulate that he shall be liable for death resulting from work, for any condition regarding monetary matters or regarding an oath pertaining to monetary matters, the condition is valid. And there is no need for a kinyan nor witnesses, for witnesses were only created for falsehood, provided that they stipulate at the beginning of the guardianship; but afterwards, a kinyan is required. According to this, if he was a shomer chinam and the depositor claimed that there was a condition that he be liable for accidents like a borrower, and the shomer says there was no condition, the shomer swears the oath of shomrim and includes within it that there was no condition there.

And so too the reverse: if the guardian admitted that he was negligent but claimed, "There was a condition between us that I would not need to guard it in the manner of guardians," and the depositor says there was no condition—even though he deposited it with him before witnesses, only they do not know if there was a condition or not, and even though he handed it over before them without specification, nevertheless it is possible that they made a condition beforehand and he handed it to him before the witnesses based on the prior condition [Shach]. And the guardian is believed with a migo: since he could have said, "I guarded it in the manner of guardians and it was lost to an ones," he is also believed to say that there was a condition between them. Therefore, the guardian shall swear with the holding of a sacred object that he did not lay a hand upon it, that it is not in his possession, and that there was a condition between them. Consequently, if it was in a place where witnesses are common, or if the depositor brought witnesses that he was negligent, the guardian is liable to pay and is not believed to say, "There was a condition between us," for there is no migo here. And this is specifically when the witnesses know at least that he is a guardian in this matter; but without this, even though he was negligent, he is believed with a migo, for he could have said, "I was not a guardian over it and I only said to him, 'Behold, the house is before you.'" And if he claims, "There was a condition between us," after the delivery of the deposit when there are witnesses to the deposit, he is not believed with a migo of "it was lost to an ones," for it is like a migo in a place of witnesses.

If the depositor claimed that he deposited with him, and this one says, "I did not accept upon myself guardianship, but rather I said 'place it before you' or 'behold, the house is before you' and I did not become a shomer for you," as was written in siman 291, he swears a shevuat hesset that he only accepted it in this manner. He includes in his oath that he did not lay a hand upon it, nor did he destroy it with his hands, nor did he cause it to be lost such that he would be liable by the law of garmi; for in all these cases, even if he is not a shomer, he is liable to pay. However, that he did not act with negligence regarding it, he does not swear; for behold, even if he was negligent and did not close the door, and because of this the object was stolen, since the law of a shomer does not apply to him, he is not liable for such negligence [Sma].

There is one who says that regarding negligence, a condition that the shomer shall be exempt is not effective; however, this is not the opinion of all the poskim, and there is also no correct reasoning to distinguish between them.

If the bailee died and the deposit was not found among his possessions, the beit din claims on behalf of the heirs that perhaps it was stolen or lost to an unavoidable accident, for we have a general rule: whatever their father could have claimed, we also claim on behalf of the orphans. There are those who disagree regarding this, for theft and unavoidable accident are uncommon, and we do not claim on their behalf a matter that is uncommon, even though their father would have been able to claim so. However, we do claim on their behalf "I returned it," and even though he would not have been believed with the claim "I returned it" except with a migo of "it was lost to an unavoidable accident" as has been written, and since we do not claim for them "it was lost to an unavoidable accident" we should not claim for them the claim of return—nevertheless, we do claim for them. This has already been explained in siman 108, section 9; see there. It was explained there that this is a legal doubt. There is one who says that according to this opinion that we claim on their behalf the claim of unavoidable accident, we claim for them even in a case where their father would not have been able to claim, such as in a place where witnesses are commonly found, where we would say to their father "bring witnesses," but as for them, how are they to know who was present at the time of the incident? These are words of reason. Also, regarding the oath of the heirs, we do not adjure them, for the oath of the heirs is only when they come to collect, and not when they come to exempt themselves, as has been written there.