Siman 345

One who borrowed two cows, half the day through borrowing and half the day through hiring, and they died—the lender says they died during the time of borrowing, and the other says one died during the time of borrowing and regarding the other I do not know; since he is unable to swear, he must pay for the two, for behold, he admitted to him in part. And if he had said regarding the other that it died during the time of hiring, he would be liable for a biblical oath according to the law of one who admits in part. And now that he does not know, it is like "I know fifty and I do not know fifty," as was explained in siman 75, that he is obligated to swear and is unable to swear, therefore he must pay.

And so too, if he delivered to him three cows, two borrowed and one rented, and two died, and the lender said that the two borrowed ones died, and the borrower says: "One borrowed one certainly died, but regarding the second one that died, I do not know if the borrowed one died and the rented one remains, or the rented one died and the borrowed one remains," since he is unable to swear—for he says "I do not know"—he must pay for the two, as in the previous law. And in this there is a greater novelty, for in siman 75 it was explained that we do not say "since he is unable to swear he must pay" except in a case where he should have known, such that he was negligent in not knowing; but in a case where he should not have known, we do not judge this so, as was written in siman 344, section 5. And according to this, in the previous law where he did not know the time of the accident, he is certainly negligent, for the cows are with him and he does not know when they were lost to an accident. But when he delivered to him three cows together, I would have said that he has no obligation to be precise at all as to which is the borrowed one and which is the rented one, for regarding the labor there is no practical difference in this. Nevertheless, we judge this law because he should have known for this very reason: that if one of them should be lost to an accident, he would know if it is of borrowing and he is liable, or if it is of renting and he is exempt [so it appears to me, for if not so, what is it coming to teach us? And so it must be said in the Shas, and therefore the Rambam was precise and wrote "he delivered to him three," meaning together; and examine this].