Siman 297

Reuven says, "I deposited such-and-such an object with Shimon." If he says that he deposited it without witnesses, Shimon is believed with a shevuat hesset to say "the matter never occurred." And even if witnesses now see the object in his hand and recognize it by clear visual recognition that this is Reuven's object, he can say, "I bought it from him," or "from the hand of another who bought it from him." Therefore, even if he provides a distinct siman for the object, it does not avail him for this reason. And even if Shimon is not of the means to possess such an object, because "there are those who pretend to be poor yet have great wealth," and furthermore, perhaps he found a lost object. He is also believed to say that it was given to him as a gift. And even if Reuven is not accustomed to entering Shimon's house, such that we might say he saw the object in his possession and therefore knows the simanim, for behold, even when there are witnesses that it is his, it does not avail him for the reason that he can say, "it is purchased in my hand," as has been written in siman 133.

And if he deposited with him in the presence of witnesses, he is not believed to say "I returned it to you," for we establish that one who deposits with his fellow in the presence of witnesses does not need to return it to him in the presence of witnesses. Therefore, because of a migo that "I returned it to you," he can also say "I went back and bought it from you" or "you gave it to me as a gift." And this is specifically when witnesses did not see the object in his possession prior to his coming down to beit din, for then he can produce the object before the beit din and say, "It is true that he deposited it with me, but I bought it from him or he gave it to me as a gift," with a migo that he could have chosen not to show it now and said "I returned it to you." But if witnesses saw the object prior to his coming down to beit din, he is not believed with any claim; for since he cannot say "I returned it," consequently he cannot claim it was bought or a gift since he has no migo. And if it is because he could have said "I returned it" before the witnesses saw the object, this would be a migo l'mafrea, and we do not say migo l'mafrea, for we must judge according to the time of the litigation before the beit din.

And even if the witnesses did not recognize the object as belonging to the depositor through recognition of the object itself (tavaat ayin), but rather based on a definitive sign (siman muvhak) that the depositor gave, the law is also thus. And specifically a definitive sign, but if he claims, "I deposited wheat with you," supported by witnesses, "and such and such was their measure, and you placed them in such and such a barrel," and the witnesses say that they saw this in the possession of the bailee, nevertheless, he is believed to say, "I returned them to you and these are others," for this is not a definitive sign. And it is only regarding a lost object that we return based on such signs because there is no one who claims against him, as I wrote in siman 267. But when this one says, "They are mine and they are others," he is believed, and consequently, through this migo, he can also say, "I bought them from you" or "You gave them to me as a gift." And some say that this is not a good migo, for since such an object is found in his possession, he is afraid to say that they are others [Shach]. The principle of the matter: the depositor cannot extract the object unless he brings witnesses that he deposited this object with him, whom those witnesses or other witnesses saw before they came down to beit din, and the witnesses recognize the object through recognition of the object itself (tavaat ayin) that it belongs to the depositor, or based on a definitive sign (siman muvhak) that the depositor gave. And this is what was explained in siman 133, that we require witnesses and seeing.

And in such a case where there are witnesses and they saw, it is not only that we extract the object from his hand while he is alive, but even if the bailee died, we extract it from the heirs even without an oath. We do not claim on behalf of the heirs that perhaps their father would have brought witnesses that he subsequently purchased it from him, for we do not claim on behalf of heirs a matter that is uncommon. And even according to the one who holds that we claim on their behalf that they were lost by force in siman 296, nevertheless, in a case of witnesses and they saw, we do not claim on their behalf. On the contrary, there is a matter where the power of the orphans is inferior to his power. For example, if the depositor came and said, "I deposited such-and-such an object with Shimon before witnesses, and I have clear signs on the object thus and so," and he brings witnesses that he deposited in their presence, and they also testify that they saw an object of this sort in the hand of the bailee, only they do not recognize it with recognition of the eye, and they also did not see the signs; and the depositor requests to compel the bailee to show the object before the beit din, perhaps the signs will be found or the witnesses will observe it and perhaps recognize it with recognition of the eye—he cannot compel him to this, for he can say, "I returned it to you, and this is another one, and I will not show it before you since I know clearly that it is so." And consequently, with this mingo, he can also say, "I purchased it from him," for this is dependent on that, as I have written. And it is possible that nevertheless we do not say a mingo in this, for it is not good for him to say "I returned it to you" since they at least saw in his hand something like this object; and only that if he nevertheless claims "I returned it," he is believed, but that he should be believed to say "purchased" with a mingo of "I returned it," he is not believed. And this is regarding himself. But with orphans, when he claims so, the beit din compels the orphans to produce the object and show it to the witnesses. And if they testify that this is it, either by recognition of the eye or by clear signs that the depositor gives, we return the object to him. And the reason is that since the orphans do not claim a certain claim, and the claim of the depositor is good and appears true, they are obligated in this to exert effort in this. And even if the bailee was wealthy, we extract the object from them since there are witnesses and they saw. And even if the depositor was accustomed to enter the house of the bailee and it is possible that he knows the signs, nevertheless, since there are witnesses that he deposited in their presence, we extract it from them. However, when the orphans claim a certain claim—"Our father said that it is his, and he presumably returned his own to the depositor"—they are not obligated to show it, and the orphans swear. And even though orphans do not swear to exempt themselves, as I wrote in siman 108, nevertheless, since the depositor stands and cries out, "This object is mine, and I request that he show it before the beit din," they do not have the power to withhold the object without an oath. And all the more so regarding himself, when he does not want to show it, he is obligated to swear a shevuat hesset.

There is also a matter where the power of the heirs is inferior to his power, for their father, when he deposited without witnesses, cannot extract it from him even with distinct signs, and even if the bailee is not wealthy, when he claims "the matter never occurred" or "it is purchased in my hand," as has been explained. But with heirs it is not so, for one who comes and says to the heirs, "Such and such I deposited with your father, and these are the distinct signs," and such an object is already found in the possession of the orphans, which witnesses saw with all the signs he states, and the judge knows clearly that the deceased was not wealthy enough to have such an object, the judge has the authority to extract the object from their hand and hand it over to this one who gave its signs. Since the heirs do not claim with certainty, and the truth is recognizable both from the side of the depositor who gives distinct signs and from the side of the heirs since their father was not wealthy enough for this. Therefore, if he was wealthy enough for this, or even if he was not wealthy but this depositor was accustomed to entering their father's house, they do not give it to him, for we fear perhaps it belongs to another and he, because he was accustomed to be with him, recognizes its signs. And with only one side we do not return it to him, for since this return is only based on an assessment, we require an assessment from two sides. And so too when the heirs claim with certainty, their law is like their father's. And if witnesses came and testified before the judge that their father was not wealthy, this is nothing, for the law that we judge based on an assessment requires the judge himself to know the assessment, and we do not rely on the assessment of witnesses to extract from orphans. And also this was only in the time of the Talmud, but nowadays the Rambam, of blessed memory, already wrote that since courts that are not proper have increased, and even if they are proper in their actions they are not wise as is fitting and are not masters of understanding in the nature of the world, most of the courts of Israel agreed that we do not extract from orphans even with the assessment of the judge's mind. Therefore, all that has been explained in this section we do not judge in this time. However, even this is not a general rule in all matters, as I wrote in siman 15. And if the judge returned the deposit based on his assessment, and afterward another judge ruled that this is not a complete assessment, this is not like a complete error and the judge is exempt, and also the one to whom he returned it does not need to return it. However, if it became clear that it was not his but theirs or another's, we extract it from his hand and give it to the one to whom it belongs [this is the intention of the Rema, and its source is from the Yerushalmi which the Rif brought at the end of the chapter HaKones, as the Gra wrote, and what the Sma wrote is not clear].

And some say that since regarding witnesses without seeing, he is believed to say "purchased" with a migo of "I returned it," therefore we also claim on behalf of the orphans "purchased" with a migo of "I returned it." And even if he came to beit din and said, "I deposited such and such with their father," and gives distinct signs, and the orphans show it to the beit din, and the witnesses of the deposit recognize it as that which he deposited in their father's hand, nevertheless, since there were no witnesses of seeing here and their father could have claimed "I returned it" or "purchased" with a migo of "I returned it," we claim for them as well "purchased." But if witnesses saw it after his death, even if they did not see it afterwards until he came down to judgment, we do not claim for them "purchased" with a migo that the orphans could have claimed "we returned it" after the seeing of the witnesses, for this is not a migo, as they do not know anything. Therefore, if they claim with certainty that their father purchased it, they are believed with this migo and must take a shevuat hesset since they claim with certainty. And know that in every place where we said that when there are witnesses of seeing he cannot claim "I returned it" or "purchased" with a migo of "I returned it," all the more so if it is already placed in the hand of the beit din, for the beit din themselves are witnesses of seeing. And specifically when they brought it to beit din at the time of the judgment does a migo apply, but not when the object was with the beit din before the judgment, and all the more so that we do not claim for orphans in such a case [Shach].

And when there are witnesses that this vessel was deposited in his hand and they saw it even after his death, or if the orphans admit that this is a deposit but the witnesses and the orphans do not know to whom it belongs, the claimant is believed when he provides a definitive sign and was not accustomed to entering the house of this person. And if the orphans do not know if their father purchased it afterward, even though they know it came into his hand as a deposit and there are eyewitnesses, nevertheless, if there are no witnesses to the deposit, we claim for them that it was purchased. And specifically when he was wealthy, for if not so, we do not claim purchase for them [ibid.]. And according to what I wrote in section 4, we do not claim the claim of purchase for orphans in such a case even if he was wealthy.