Siman 298

Any shomer who became liable to pay and said, "I do not know how much I am liable to pay," and the owners say, "We know, it was worth such and such"—for example, if he deposited with him a purse full of gold coins and he was negligent with it, and the depositor says, "There were two hundred dinars," and the shomer says, "It is true that there were dinars in it, but I do not know how many"—it turns out that this is like one who claims two hundred and the other admits to a portion and says regarding the remainder that he does not know. He becomes obligated to swear and is unable to, and he pays. Therefore, the owners shall take without an oath, provided that they claim an amount for which they are assessed to be capable of possessing. The shomer has the right to impose a kabbalah upon whoever takes from him more than what is proper for him. This is the opinion of the Rambam and the Beit Yosef:

And there are some of our teachers who disagree with this law and hold that we do not say "since he cannot swear, he must pay" except in a case where he should have known, such as a claimant of a maneh which he lent him and he said, "fifty I know and fifty I do not know," for he was negligent with himself, as how does he not know what he borrowed? Therefore, the Torah obligated him to pay. But regarding a deposit, from where would he know how much was in the depositor's bag? However, the Rambam holds that there is no distinction in this, for since the Torah obligated him in an oath for a partial admission, he cannot be exempt except through an oath or through payment, and since he cannot swear, he pays. And there are those who disagree with this for another reason, that a partial admission only exists when he admits to something of a count, such as when he admits to a perutah, and in this case, he is not admitting to a known sum, and this is like if he said "what you placed, you may take," and there is no Torah oath here but only a rabbinic one, and regarding a rabbinic oath we do not say "since he cannot swear, he must pay," as I wrote in siman 75. And according to the Rambam, it can be said that his opinion is that only in "what you placed, you may take," where the object is physically present, it is indeed not a thing of a count because it is hidden from him how much is in it; but here, where the deposit was lost, it is simple that we should not obligate him except for the minimal amount of money, which is a perutah, for from where do we have reason to obligate him for more? And even if he knows that there were dinars, we should only obligate him for a dinar, and if so, it is like admitting to a fixed amount and it is properly a partial admission [Shach siman 72, subsection 50 in the name of the Ramban]. And in siman 90, the two opinions were brought in the Shulchan Aruch, and there we explained this with the help of Heaven, see there and in siman 72.

And if the bailee says, "I do not know at all what was in it, and perhaps there was sand or pebbles there that are worth nothing," there is no law of "admitting to a part" in this, and according to the law, the bailee swears and is exempt as with any shevuat hesset when he claims, "I do not know if I became obligated to you." However, there are those who say that just as the sages enacted regarding a robber that the victim of the robbery swears and takes, as written in siman 90, so too they enacted this enactment regarding a deposit, that the depositor shall swear and take so that the bailee will be careful to guard the deposit. And there are those who disagree on this, as written there. And if the depositor also says, "I do not know what was in it," the bailee does not require an oath at all [Sma], but rather the depositor may impose a kabbalah upon anyone who suppresses his money and does not pay him. And if the depositor could not have known, such as if his father died and left him a bound sack deposited with someone, and the bailee was negligent with it, and the depositor says, "I do not know what was in it, and perhaps there was a pearl in it," and likewise the bailee says, "I do not know," the Tur and the Shulchan Aruch wrote that the guardian shall swear that it is not in his possession, and through a gilgul he shall swear that he does not know for certain that there was in it more than the value of such-and-such, and he shall pay what he admitted to him. And if he says that he does not know that it was worth even a perutah, he does not pay at all. And even though it was explained in siman 94 that one only imposes a gilgul when the defendant claims "certainty," the oath of guardians is fundamentally from the Torah even upon a claim of "perhaps" by the plaintiff; therefore, there is no difference between "certainty" and "perhaps" regarding the matter of gilgul. And with this, that which will be explained in siman 344 is also settled, see there. And a depositor who said, "Some of the deposit was stolen from me," and the guardian says, "I do not know," he swears that he does not know and is exempt, and the enactment of a victim of robbery—that he should swear and take—is not relevant in this case, for that is specifically if he admits that it is missing; in that case the enactment is relevant so that he will be careful to guard a deposit, but not when he does not know if it is missing at all [ibid.].