Siman 300

Two who claim from one, each saying, "I deposited a maneh with him," and he says, "One of you deposited with me but I do not know which one," both of them swear and take, for he is negligent in that he does not remember who the depositor is. And similarly, if two deposited with him, this one a maneh and this one two hundred, and each one says, "The two hundred is mine," and he does not know to whom the two hundred belongs, each one shall swear and take two hundred, and the bailee loses a maneh, for he is negligent in that he did not specify who is the owner of the maneh and who is the owner of the two hundred. And one should not say: why do they require an oath, for each of them claims two hundred from him and he admits to a maneh and regarding the remainder he does not know, and since he is unable to swear, he must pay? For since one of them is certainly a deceiver, they do not have the ability to take without an oath [Nimukei Yosef, chapter 3 of Bava Metzia]. And furthermore, behold he knows for certain that he is not liable to both of them for more than three hundred, and he is paying one hundred more; therefore, how could they take without an oath [Maggid Mishneh, chapter 5]?

And specifically when they claim from him and both of them claim with certainty while he claims uncertainty, and therefore since he was negligent he is liable to pay; but when they do not claim from him, as the matter is also a doubt to them, it is a case of "uncertainty and uncertainty" and he is exempt from paying by the letter of the law. Therefore, when he says without a claim, "One of you deposited a maneh with me and I do not know which one," or if he says, "You deposited with me, one a maneh and one two hundred, and I do not know who is the owner of the two hundred," he pays this one a maneh and this one a maneh, and the third maneh shall be left with him. And some say he should leave it in beit din so that he does not come to practice deception, and therefore it is better that it be left in the hand of beit din until Eliyahu comes, or until one admits to his fellow, or until they divide it. And so too with one maneh, it shall be left in the hand of beit din. Nevertheless, regarding a maneh and two hundred, if he seeks to fulfill his obligation toward Heaven, he must return two hundred to each one since he was negligent. But regarding one maneh, he is exempt even to fulfill his obligation toward Heaven, for regarding one maneh he did not have to know or consider in his heart that a doubt would arise for him regarding someone who did not deposit at all. Therefore, granted that when they claim from him he is considered as negligent and liable by the letter of the law, nevertheless when they do not claim from him and he is exempt by the letter of the law, there is no reason to obligate him in this even to fulfill his obligation toward Heaven. And in siman 76 it was explained regarding a loan in a similar case, and that there is one who holds that even regarding one maneh, if he seeks to fulfill his obligation toward Heaven, he must pay both of them. And it appears to me that since our teacher, the Rema, did not bring this opinion in this siman, he holds that specifically regarding a loan, which is for the benefit of the borrower and he uses the money, we consider even this as negligence when seeking to fulfill his obligation toward Heaven; but regarding a deposit, where there is no benefit to the bailee—and even when he uses the money of the deposit as written in siman 292, nevertheless the essence of the deposit is not for the benefit of the bailee—he is not called negligent in such a case. And although from the Tur there it is evident that he does not hold of this distinction [see there in the Beit Yosef], nevertheless one may say so. And regarding a sale, we explained in siman 222, section 6. And even though regarding one maneh, if they do not claim from him, he does not need to give to this one and that one even to fulfill his obligation toward Heaven, nevertheless if he says, "The father of one of you deposited a maneh with me and I do not know which of you," he is obligated to give each one a maneh when seeking to fulfill his obligation toward Heaven; for specifically regarding [the depositors] themselves, they were also negligent in this, in that the doubt fell between them, but regarding their father, where they do not need to know, we consider him as negligent when seeking to fulfill his obligation toward Heaven.

Our Sages, of blessed memory, said: when is it necessary to return two hundred to each one? When they deposited in two bundles. But when they deposited in one bundle, even if they claim from him, he need only give a maneh to this one and a maneh to that one, and the third maneh shall be placed in beit din; and even to fulfill his obligation toward Heaven he is exempt. And some say that if they claimed from him, he is obligated to fulfill his obligation toward Heaven even in such a case. And the reason for the matter is that since they deposited in one bundle, the bailee can say to them: since I saw that you are not meticulous with one another and you brought it in one bundle, I did not trouble myself to know and to always remember who is the owner of the hundred and who is the owner of the two hundred. And the Rambam interprets "in one bundle" according to its plain meaning, that they brought their money in one pouch, and "two bundles" according to their plain meaning, even if they deposited in each other's presence, and the negligence is that he should have written the name of each one on his pouch. And Rashi and the Tur interpret that it is not specifically in one bundle, for the same law applies when they deposited in two pouches, provided that they deposited in each other's presence; he can say: since I saw that you did not suspect one another, I did not set my heart to be precise as to who is the owner of the two hundred. And it is called "two bundles" when they deposited not in each other's presence. And the Tur wrote that to fulfill his obligation toward Heaven he is obligated when they claim from him. And it is possible to say that in a case of literally one bundle, he agrees with the Rambam that even to fulfill his obligation toward Heaven he is not obligated; and the Rambam would agree with the Tur when they deposited in each other's presence, for although by the letter of the law he has a justification that he is not entirely negligent, nevertheless, to fulfill his obligation toward Heaven it was incumbent upon him to remember who gave him the bundle of a maneh and who gave him the one of two hundred. However, there are some of the poskim whose words imply that even according to the interpretation of Rashi, he is exempt also from fulfilling his obligation toward Heaven [see Tosafot Bava Metzia, beginning with the word "Hatam"].

Just as the law is with money, so too it is with objects: if they deposited two vessels with him, one large and one small, and each one says "the large one is mine," they shall both swear, and he gives the large one to one of them and the value of the large one to the second, and the small one remains his. And if each one requests the vessel, they shall cast a lot between them or they shall raise its value in a sale. And if they brought them in one bundle as one, he gives the small one to one and the value of the small one to the second, for he breaks the large vessel and gives him his portion of it [Sma], and the remainder shall be placed aside until one admits to his fellow, or until they agree to divide, or until Eliyahu comes; and he is not obligated to put out money from his pocket for the value of the small one, and even though through the breaking it will be somewhat damaged, nevertheless, what is there for him to do? But in two bundles, when he must pay both of them, he cannot give the small one to the second and complete from his pocket up to the value of the large one, for he can say "I do not want the small one, for my desire is to buy a large one with the money that you will give me." And when they do not claim from him, his law is like that of money which has been explained.

And similarly, two who deposited two animals with a shepherd and one of them died, or one is large and one is small, or one deposited two animals and the other one animal, and each of them says "the living one is mine" or "the large one" or "the two are mine," he must pay both of them after they swear a severe oath as with the money. And even if they deposited them together and they were tied to one another, their law is not like one bundle; for even if they had deposited them not in each other's presence, the guardian could not have guarded against deception, since the other would see it in the field and could say "it is mine." Unless they deposited them in his herd without his knowledge—where they stood them by him to deposit them in his pasture but brought them not in his presence—he places the animal between them and departs, for he did not commit any negligence since they did not deliver them into his hand. And the animal in doubt shall be left until one admits to his fellow, or they agree to divide it, or until Eliyahu comes.