Siman 344

If the borrower claimed that it died due to work, if he is in a place where witnesses are commonly found, he is not exempt until he brings witnesses that it is as he says, as was written in siman 291 and 294. And the witnesses shall testify that he did not deviate with it, and he shall include in his oath that it is not in his possession [Tur], and as was written in siman 295. And if he stipulated that he shall not swear or shall not pay if it was stolen or lost to an oness, even that he should be exempt if he is negligent with it, everything is according to his stipulation, even if they did not perform a kinyan on this, for every stipulation regarding shomrim is valid even without a kinyan.

This matter, that a kinyan is not required, applies specifically when they stipulated before the borrowing or the guarding came into his hand; but after he has obligated himself, he cannot stipulate with mere words and requires a kinyan. And there was a case involving Reuven who lent Shimon ten dinarin, and afterward Reuven said to Shimon that it should be for "half-profit," which is half loan and half pikadon, and they were lost to an ones, and they ruled that Shimon is liable for all ten dinarin as before, for since they came into his hand under the law of borrowing, he is not released without a kinyan [Sma]. And there is one who says that this is specifically when stated without elaboration, but if he said to him explicitly, "let it be in your hand for half-profit and you shall be exempt from the half for unasin," or regarding other shomrim where he said to him explicitly, "you shall be exempt from negligence or from theft and loss," he is exempt with words without a kinyan even afterward [Ktzot HaChoshen]. Therefore, regarding what was explained in section 1, where he says that he shall not swear or that he shall not pay, he is exempt even afterward, for it is no worse than one who says to his fellow, "tear my garment and be exempt," where he is exempt even if it came into his hand under the law of guarding, as written in siman 380. And there is one who says that certainly regarding shomrim the explicit exemption is effective even afterward, but regarding a borrower and a renter, where the object is as if acquired by them for the duration, it is not effective afterward without a kinyan [Netivot HaMishpat]. And it appears that the primary view is like the previous opinion, for also in siman 380 there is no distinction between guarding and borrowing, as the Rambam wrote at the end of chapter 5 of Chovel; and see what I wrote in siman 291 and siman 305.

When the borrower pays, one appraises for the lender the shards of the vessel or the carcass, and one appraises them for him according to their value at the time of the breaking or the death, for it was then that the obligation of payment fell upon the borrower, and he gives them to the owners and completes the payment for them; for they are no worse than damages, where one appraises the shards for the injured party, and only regarding a thief or a robber did the Torah say that one does not appraise. And if they depreciated between the time of the breaking and the time of standing in beit din, one appraises them according to their value at the time of the breaking, and the loss of the depreciation is upon the owners, for also in damages the law is so. And likewise, if they appreciated, the profit is for the owners, for from the time of the accident they are as theirs. And likewise, if they were spoiled and the value was reduced from the time of the accident, the loss is upon the owners as in damages, as I wrote in siman 403. And likewise, if they improved; and even though in damages when the carcass improved they divide between them as I wrote there, that is a decree of the Torah, which is not the case regarding a borrower. [It appears so to me, and see Bava Kamma 34b]

Just as a borrower, after the period of his guarding has ended, no longer has the status of a borrower and is considered like a shomer sachar, so too after an accidental mishap, he is not considered a borrower regarding the shards but rather like a shomer sachar. Therefore, if the shards were stolen or lost, the borrower is liable, and if he said to the lender, "Take what is yours," he is considered only a shomer chinam. And some say that regarding the shards his status is still that of a borrower, and when he says, "Take what is yours," he is a shomer sachar. The primary ruling follows the first opinion, for since it suffered an accidental mishap, his guarding has ended, and saying "Take what is yours" is no worse than a craftsman in siman 306 [the Gra and Netivot HaMishpat]. However, if even after the accidental mishap the name of a vessel still applies to it, only that its value was greatly reduced, it is obvious that his status is that of a borrower [it appears to me].

Our teacher, the Beit Yosef, wrote in section 3: Reuven lent an object to Shimon and he damaged it; Shimon said to Reuven, "Swear how much it was worth and I will pay you," and the owner of the object replied, "You swear and be exempt"—the owner shall swear and the other party shall pay according to his oath; and if he does not swear, the other party shall not pay, and he is not called "one obligated to swear who is unable to swear" such that he must pay. Thus far his words. And it must be understood why he is not called so; for is he not admitting that it was worth a small amount, and it is like "fifty I know and fifty I do not know" as written in siman 75? And there is one who says that the exemption is because the borrower was not expected to know its value, and in such a case we do not say "since he is unable to swear, he must pay," as written there [Bach]. And even though it was explained in siman 90 and in siman 298 regarding one who deposited dinars, where the depositor says there were such and such and the bailee says, "I knew there were dinars in it but I do not know how many," that he is one obligated to swear and unable to swear and must pay—it is different there, for he should have counted them; but regarding the value of the object, how was he to know its value? [And the difficulty of the Shach is answered]. And see what I wrote in siman 340, section 11. And there are those who answered that here it deals with a case where he does not admit to the loss at all, for it deals with a case where he did not lose it entirely, but rather the lender says it depreciated greatly and the borrower says it did not depreciate at all, and there is no admission of a part [Shach and Taz]. And behold, the law is certainly so, but if so, this is no novelty at all, and what is it coming to teach us? [Netivot HaMishpat]. And there is one who answered that it deals with a case where the borrower says it depreciated due to work [ibid.]. And this too is not in the implication of the wording of the Tur and the Shulchan Aruch. And there is one who answered that it deals with a case where the lender claims "perhaps" [Sma]. But if so, how could the borrower say to him, "Swear and take"? Furthermore, when he claims "perhaps," the borrower is not obligated to swear at all, as written in siman 75 [Shach].

And behold, all the justifications are true regarding the law, and also the first justification is true, for this is called "he should not have known," as I have written. And it appears to me that even in a case where he should have known, if there are no witnesses that it was constrained or stolen, and the borrower could have exempted himself with "it died due to labor," if the lender does not claim with certainty that it did not die due to labor, the borrower is also exempt. And even though the borrower would be obligated to swear that it died due to labor, according to the law of guardians who swear regarding a claim of uncertainty, nevertheless, when he claims regarding the value "I do not know," and "I do not wish to swear that it died due to labor and I wish to pay," the lender must swear how much it was worth and he pays. And the lender cannot claim: "Since you are obligated to swear that it died due to labor and you do not wish to swear, you must swear how much it was worth, and regarding this you cannot swear and must pay," for this is not a good claim. For even if he were obligated to swear by extension regarding another claim, since the primary oath is regarding a claim of uncertainty, we do not judge the extension with the law of "since he cannot swear, he pays," as will be explained. All the more so when, if he had sworn that it died due to labor, there would be no further obligation of an oath upon him, for we do not judge regarding the other oath, when he does not wish to swear the first oath, the law of "since he cannot swear, he pays." And it is possible that in such a case the lender can say to him: "Swear that you do not know." [And it appears to me that this is the intention of the Levush, and the difficulty of the Sma is settled].

One who borrows a cow from his fellow and stipulated with him that on the first day it shall be with him as a borrow and on the second day as a rental, and he will pay him for the second day, and it died and a denial fell between them: the borrower says that it died on the day of rental and he is exempt from accidents, and the lender says that it died on the day of borrowing and he is liable—the burden of proof is upon the claimant. And not only this, but even if the lender claims with certainty that it died on the day of borrowing and the borrower claims "I do not know," the burden of proof is upon the claimant. We do not say in this case "certainty and uncertainty, certainty is preferable," for this is like one who says "you have a maneh of mine in your hand" and the other says "I do not know if I became obligated to you," where we establish that the burden of proof is upon the claimant, as I wrote in siman 75, for the power of certainty is not sufficient to extract money. And even though in a case of "I do not know if I returned it to you" it was explained there that he is liable, why do we not judge here as well with the law of "I do not know if I returned it to you," for behold he admits that he took it from him as a rental or a borrow and he does not know if he returned it to him? For if it died on the day of borrowing and he is liable to pay, behold he did not return it to him. For it is not comparable to there, as there the obligation fell upon him from the time of the loan, and when he does not know if he returned it, he is liable to pay; but regarding the liability of guardians, the liability of payment does not fall upon him except from the time of the accident, and since he does not know if he is liable for the accident at all—for perhaps it died on the day of rental and no liability fell upon him at all—it is like "I do not know if I became obligated to you" [Nimukei Yosef, chapter HaShoel]. And even according to the opinion of the Rambam that we brought in siman 340, section 5, that the liability falls upon him from the time of borrowing and the heirs are liable to pay even when it died in their possession, this is only a lien on his property, and when it dies the lien takes effect retroactively; but when there is a doubt regarding the death itself as to whether he became liable, it follows that there is a doubt also regarding the essence of the lien as to whether he became liened, for perhaps it died on the day of rental and there is no lien here at all, and it is like "I do not know if I became obligated to you" [and so it appears from Tosafot ibid. 97b s.v. vehala, and see there in Nimukei Yosef and in Lechem Mishneh chapter 3 of She'elah].

This is the wording of the Rambam and the Tur and Shulchan Aruch: One who borrows a cow from his fellow, borrowing it for half a day and hiring it for half a day, or borrowing it today and hiring it tomorrow, or borrowing one and hiring one, and one of them died—the lender says, "The borrowed one died," "It died on the day it was borrowed," or "It died during the hour it was borrowed," and the hirer says, "I do not know"; or if the hirer says, "The hired one died," "It died on the day it was hired," or "It died during the hour it was hired," and the lender says, "I do not know"; or if this one says, "I do not know" and that one says, "I do not know," the burden of proof rests on the claimant. Thus far their words. And regarding borrowing it today and hiring it tomorrow, the intervening night: if it is the way of the borrower that the animals lodge with him during the night following the borrowing, he is also considered a borrower here regarding the night, and if it was lost to an accident during the night, he is liable. But if it is not the way for it to lodge with the borrower during the night following the borrowing, his law is like a hirer, and he is exempt from accidents and liable for theft and loss [Sma].

And if the lender did not bring proof, the Rambam and the Tur wrote that the renter shall swear that the rented one died or that it died on the day it was rented, and when he claims "I do not know," he shall swear that he does not know; and this is when the lender claims "perhaps," but when the lender claims "certainly," the renter shall swear that it died naturally and he shall include through a gilgul shevuah that the rented one died or that it died on the day it was rented. And specifically when both of them claim "certainly," but when the borrower claims "perhaps" and the lender "certainly," his law is like when the borrower claims "certainly" and the lender "perhaps," for he only swears that he does not know and is exempt, and he does not administer an oath to him via gilgul except when both of them claim "certainly" [the Rosh].

It is necessary to clarify this, for whether they claim certainty or they claim doubt, the borrower cannot escape the oath that it died naturally, which is the oath of guardians. If so, even when the lender claims doubt, why is his law not like one who claims certainty—that the borrower shall swear it died naturally, and through an extension of the oath (gilgul), he shall swear that the rented one died or that it died on the day it was rented? For even in a claim of doubt, we apply gilgul, as written in siman 94. However, it was explained there that we do not apply gilgul by way of doubt except when there is a basis for the matter (raglayim ladavar), and here there is no basis for the matter that the borrowed one died. Therefore, we do not apply gilgul by way of the lender's claim of doubt [ibid.]. And one should not raise a difficulty: still, when the lender claims certainty and the borrower doubt, why do we not apply gilgul upon him that he should swear the rented one died? And since he cannot swear because he claims doubt, and since he cannot swear, he must pay. The answer to this is that we only adjudicate this law when he cannot swear regarding the primary claim; but when he cannot swear regarding the extension (gilgul), we do not adjudicate by "since he cannot swear, he must pay," for the power of gilgul is not as strong in this as the primary oath [ibid.]. And that which he does not swear via gilgul that he does not know is because we have not found regarding gilgul an oath of "I do not know," for we learned gilgul from a sotah, and there she swore with certainty and not that she did not know [it appears to me]. Therefore, there is no oath of gilgul here unless both claim certainty. And this oath that we obligated the borrower when one of them claims doubt is nothing other than a shevuat hesset; and he shall swear a Torah oath that it died naturally, which is the oath of guardians, and regarding the claim between them whether it was borrowed or rented, he shall swear a hesset when one of them claims doubt. And even though we do not administer an oath even of hesset upon a claim of doubt by the plaintiff, as written in siman 75, however, it is not similar to all claims of uncertainty; for since the lender has no way to know which one died, his claim is as strong as a claim of certainty [the Gra]. And as written there, that we administer an oath upon a claim of uncertainty when there is a basis for the matter, so too here, when he has no way to know, his claim is also strong. Furthermore, since the Torah obligated the primary oath of guardians even in a claim of doubt, we are therefore stringent regarding guardians to have him swear a hesset even in doubt.

And all that we have explained is according to what has been clarified for us from the words of the Rosh, of blessed memory, and so most of the commentators held, that this oath which the Rambam and the Tur wrote of when both of them do not claim certainty is only a shevuat hesat; however, the opinion of our teacher, the Beit Yosef, in section 4 is not so.

This is his wording: And if there was no evidence there at the time the lender claims against him with certainty, the renter must swear that the rented one died or that he does not know. And at the time the lender says "I do not know," the bailee must swear the oath of bailees that it died in its natural way, and through an extension of the oath (gilgul), the bailee shall swear that the rented one died or that he does not know. And the same applies if this one says the borrowed one died and that one says the rented one died, or this one says "I do not know" and that one says "I do not know." Thus far his words. And they raised an objection against him, for he opened with the case where the lender claims against him with certainty, the renter shall swear that the rented one died; implying that when both claim with certainty, there is only this oath that the rented one died. Yet afterwards he wrote that when both claim with certainty, there is a gilgul. Aside from this, there is no reason for his words, and there are those who wished to amend his words. But it appears to me that his words are clear in their reasoning, for he holds that gilgul applies even to a claim of "perhaps," and one swears through gilgul even an oath of "I do not know." And the law that one who is unable to swear must pay is not applied to a gilgul when the lender does not claim with certainty. Therefore, there is here the oath of bailees that it died in its natural way, and through gilgul he swears that the rented one died or that he does not know when the lender claims "I do not know." And that which he wrote at the beginning of his words, "at the time the lender claims against him with certainty," his intention is simple: that he claims with certainty regarding everything, for he says "I know that it died in its natural way and that the borrowed one died." And there is no oath of bailees here at all, since he knows it died in its natural way, and there is nothing here but his claim that the borrowed one died; he swears a shevuat hesset on this claim as with all claims, for this is not the oath of bailees that the Torah obligated. But on a claim of doubt regarding this claim, one does not administer a shevuat hesset. And when the lender claims the borrowed one died and the borrower says "I do not know," we judge this with the law of "since he is unable to swear, he must pay." [And so it appears in Bedek HaBayit and Helkat Mechokek regarding all that they objected against him, and from the Rambam's Commentary on the Mishnah there is evidence for what I have written; see there].