Siman 352

One who claims regarding a deposit that was deposited in his hand that it was stolen, and he swore, and afterwards witnesses came [testifying] that he swore falsely, for the deposit was then in his hand, is liable for kefel. Our Sages, of blessed memory, learned this from the verse where it is written: "If a man gives his fellow money... and it is stolen from the man’s house; if the thief is found, he shall pay double. If the thief is not found, then the master of the house shall be brought to the judges, [to swear] whether he has not put his hand... For every matter of trespass, whether it be for ox, for donkey... for any lost thing... he shall pay double to his fellow." Our Sages, of blessed memory, received [by tradition] that this "if the thief is not found" means that if he is not found as he [the bailee] said, but rather he himself stole it, he shall pay double like the thief himself. And this is the plain meaning of the verse, for that second "thief" is superfluous, as it should have written "if he is not found, then he shall be brought... and also pay double to his fellow." Why do I need the end of the verse? For previously it is written "he shall pay double." Furthermore, this "to his fellow," if it refers to the thief, that he should pay the depositor—behold, in the beginning of the verse it calls the bailee "fellow." Rather, this is the explanation: perforce, that which is written "and it is stolen from the man’s house" does not mean that the depositor knows it was stolen or witnesses testify it was stolen, for if so, how can it say "and he shall be brought to the judges" to swear? Why this oath? Rather, its meaning is that the bailee says it was stolen, and therefore he requires an oath also regarding the theft besides the misappropriation. And regarding this it said, "if the thief is found, he shall pay double," and if he is not found as he said, but rather witnesses testify that he himself stole it, the law is also thus. And he shall swear that he did not put his hand to it, for if he put his hand to it, he is liable for accidents. And "for every matter of trespass, whether it be for ox," etc.—all matters of trespass, whether the thief stole it or whether he himself stole it, "he shall pay double to his fellow." Therefore it concludes "to his fellow," meaning his fellow mentioned previously, which is the bailee to the depositor. And since his law is like the thief himself regarding the matter of kefel, it follows that also regarding the matter of four and five [payments] his law is thus when he slaughtered or sold [Bava Kamma 63b]. And specifically when he swore before the witnesses came; but if he did not swear beforehand, he does not pay kefel. And this is what is written, "and the master of the house shall be brought to the judges," meaning that immediately when he was sued, he swore it was stolen, and afterwards witnesses testified that he himself stole it. And likewise, specifically when he claimed it was stolen; but if he claimed a claim of loss and swore, and witnesses came [testifying] that he himself stole it, he is exempt. And this matter is a decree of the Torah, that for a claim of loss he only pays the principal [ibid.].

The Rambam wrote in chapter 4 that if he misappropriated the deposit before he swore, he is exempt from the double payment even if he swore and witnesses came, because it is written, "if he did not misappropriate," for if he misappropriated, it is considered like his own regarding this matter, that he is exempt afterwards from the double payment. The Rosh disagrees with him, for even though he became a gazlan, he is liable for the double payment because he was a thief from the beginning. However, if he first claimed a claim of loss and swore, and then returned and claimed a claim of theft and swore, and afterwards witnesses came that he himself stole it, he is exempt from the double payment; since the oath is what primarily mandates the double payment, and he was already exempted from the double payment by the oath he swore regarding the claim of loss. But if he claimed a claim of theft and swore and witnesses came, and he returned and claimed that it was stolen afterwards and swore and witnesses came that even now he swore falsely, even if it were so many times, he is liable for the double payment for each and every oath, for he did not interrupt with a claim that exempted him from the double payment. However, he only pays the principal the first time, and for every oath he pays the double payment, for the oath mandates the double payment and not the principal.

And such is the law regarding a lost object, for one who found a lost object and the owner of the lost object came to take it, and he said to him that it was stolen and he swore, and afterwards witnesses came that the lost object was in his house, his law is like a thief to be liable for double payment and four or fivefold, as it is written in this verse, "for any lost object of which he says," and it has come in the tradition that this is its explanation: that regarding a lost object, when he claims a claim of theft and swears and witnesses come, his law is like the thief himself. And according to the opinion in siman 267 that a guardian of a lost object has the law of a paid guardian, you do not find this except in one who claims it was stolen by an armed bandit, which is an accident, for otherwise, he would not be exempt with a claim of theft and there would be no double payment here.

If witnesses did not come after the oath, but rather he admitted of his own accord that he swore falsely, he is liable for the principal, the fifth, and a guilt offering, and this is the guilt offering for robberies. In this, there is no distinction between a claim of theft and a claim of loss. So too regarding a lost object, he is liable for this as is explicit in the Torah: "If a person sins... and deals falsely with his fellow regarding a deposit... or he found a lost object and dealt falsely with it and swore falsely... he shall restore the robbery, or the deposit, or the lost object which he found... and he shall add its fifths to it, and his guilt offering he shall bring to the Lord," etc. And this is the oath of the deposit.

The Rambam wrote in the first chapter of Laws of Oaths that anyone who has in his possession the money of his fellow, whether it is a deposit, a loan, or if he robbed him, or withheld his wages, or found a lost object of his and did not return it, and the like, and he claimed from him the money that he has in his possession and he denied it, he violates a negative commandment, as it is said: "You shall not deal falsely"—this is the warning against the denial of money. One does not receive lashes for this negative commandment. And if he swore to him falsely regarding the money that he denied, he violates another negative commandment, and regarding this it is said: "Nor lie one to another"—this is the warning for one who swears regarding the denial of money. This oath is what is called the "oath of deposit." And what is he liable for in this? He pays the principal that he denied along with the addition of a fifth, and he offers a definitive guilt offering, whether he acted unintentionally or intentionally, as it is said: "And deal falsely with his neighbor... then it shall be, because he has sinned and is guilty." It does not say regarding it "and it be hidden from him," in order to obligate the intentional as the unintentional. This is specifically when he acted intentionally regarding the deposit or the money that he became liable for and knew of it at the time of the oath; but if he acted unintentionally and forgot that he had money belonging to him and swore, and afterwards he knew, he is considered under duress and is exempt from everything. Likewise, if he did not know that it is forbidden to swear falsely regarding the denial of money, he is considered under duress and is exempt. If so, what is an unintentional "oath of deposit"? For example, if it was hidden from him whether one is liable for a sacrifice for it or not, but he knew that it is forbidden and that he has money belonging to him—this is its unintentional state. And its intentional state is when he knew that one is liable for a sacrifice for it. Thus far his words. And how this oath is performed was explained in Yoreh Deah in siman 237. And for every oath he pays a fifth and a guilt offering, as with the double payment, and see what I wrote in siman 367.

If one deposited with two people and they claimed it was stolen and both of them swore, and afterwards one confessed and witnesses came against the second, the principal is paid between the two of them; and this one who confessed pays a fifth and a guilt offering, and regarding this one against whom witnesses came, it is a legal doubt whether he pays double according to his portion. For since the Torah did not obligate a fifth and double payment on one sum of money, he is not liable; or perhaps since they are two people, this one is liable for his fifth and this one for his double payment. Therefore, we do not obligate him to pay, but if the depositor seized it, we do not remove it from his hand. This is the opinion of the Rambam. However, the opinion of the Tur is the opposite: that this one against whom there are witnesses certainly pays double, and the doubt is regarding the fifth.

If he claimed a claim of theft and swore, and then claimed a claim of loss and swore, and witnesses came [testifying] that it was not stolen, and he confessed that it was not lost—since he pays double payment based on witnesses, he does not pay a fifth for the final oath, even though he confessed; for the money that obligates him in double payment exempts him from the fifth [Bava Kamma 108a]. And one should not wonder according to the opinion of the Rambam in the previous law, where he ruled that he certainly pays a fifth and the double payment is a doubt, implying that the fifth pushes aside the double payment, whereas here it is the opposite, that the double payment pushes aside the fifth. It appears to me that the Rambam holds that it is certain that in any case where one must be obligated in either a fifth or double payment, we obligate more in a fifth than in double payment because in a fifth there is also a portion for the Most High, which is the guilt offering; only here, where initially witnesses came and he was already obligated in double payment, it therefore pushes aside the fifth that comes after it [and the difficulty of the Tur is settled]. It further appears to me that the Rambam was precise in his words that the witnesses testified that it was not stolen, but if they testified that it was in his possession, he would not have been obligated based on his confession, for we do not need his confession since the witnesses already contradicted him [like the difficulty of the Tosafot ibid.]. And even though with "it was not stolen" alone it is impossible to obligate him in double payment, it can be said that after his confession they clarified their words as well, that it was in his possession [and Rashi did not explain thus, see there].

An oath that mandates a fifth and a guilt-offering is whether he swore in beit din or whether he swore outside of beit din. However, an oath that mandates him double payment is only in beit din where they obligated him to swear, for it is written, "and he shall approach the judges." And one should not ask according to this: how do you find a case where he swore two times and witnesses came and he was obligated in two double payments, as I wrote in section 2? For since the beit din saw that he swore falsely once, how could they have administered an oath to him a second time, given that he is suspect regarding an oath? For it can be said that it was in a different beit din, or that he performed repentance in the interim [the Maggid Mishneh].

If the depositor claimed his deposit from the bailee, and he swore that it was stolen, and the thief was identified, and the bailee claimed against the thief and he confessed that he stole it, and afterwards the depositor claimed against him and he denied, and witnesses came [testifying] that he stole—there is a doubt whether this confession to the bailee exempts him from the kefel for denying the depositor, just as if he had previously confessed to the depositor himself; or perhaps since it is not the bailee's money, his confession is of no consequence. And the sages, of blessed memory, said [ibid.] that if the bailee swore truthfully and was exempt by law because he was not negligent with it, he is like the owner regarding this matter, such that a confession before him exempts from kefel; for since it is incumbent upon him to pursue the thief and he swore truthfully, a confession before him is a valid confession. But if he did not swear truthfully, such as if he was negligent with it and was liable by law to pay, or if he claimed it was an unavoidable accident and it was found to have been stolen—even if there is no practical legal difference, such as if he is a shomer chinam [as is implied from Rashi there]—nevertheless, since he is a liar, we are witnesses that it is not pleasing to the owner that he should be the guardian any longer; therefore, his confession is of no consequence, and he pays kefel for the denial of the bailee. And the Rambam, of blessed memory, wrote in chapter 4 that it is a legal doubt and we do not extract the kefel from him, and if [the owner] seized it, we do not extract it from his hand [and he ruled thus because in the Gemara there is a dispute regarding this, see there in the wording of Rav Tavi].

If the depositor sued the bailee and he paid him, and afterwards the thief was identified and the depositor sued him and he confessed to him that he stole, and afterwards the bailee sued him and he denied it and witnesses came, it remains a legal doubt even according to the first opinion. For even though the double payment belongs to the bailee, nevertheless, since he did a favor for the depositor by paying him, perhaps the depositor is obligated to do him a favor to search after the thief; and if so, the confession before him is considered a confession and exempts him from double payment. Or perhaps, since he has already removed himself, he is like a stranger.

One who claims the plea of a thief regarding a deposit of a minor, even if he claimed it from him in his adulthood, nevertheless, since he deposited it in his childhood, the bailee is exempt from the double payment, as it is said: "When a man shall give to his fellow," and the giving of a minor is nothing, for both the giving and the claim must be in adulthood; and likewise for a deaf-mute and an imbecile. And if he gave the deposit while he was of sound senses and afterwards became a deaf-mute at the time of the claim, he is also exempt from the double payment as I have written. But a woman is liable, whether she is the bailee or whether she is the depositor, for a woman is equated to a man regarding all laws in the Torah, as I have written in siman 348.

It has already been explained in siman 348, section 11, that by Torah law, when a thief does not have the means to pay, he is sold for the principal as an eved ivri during the time that the Yovel is practiced, and he is only sold for six years, as it is written: "If you buy an eved ivri, six years he shall serve." The tradition has come down that this refers to when the beit din sold him for his theft. Therefore, if the principal of the theft was worth one hundred zuz and the thief is only worth fifty for his labor, they sell him for fifty, and the remainder, along with the double payment or with the fourfold and fivefold payments, remains upon him as a debt until he goes out in the seventh year and becomes wealthy and pays. And if he was worth more for the six years than the amount of his theft, even one zuz more than the principal, he is not sold at all, as it is said: "And he shall be sold for his theft," until his entire value is absorbed within his theft. And this matter is from the tradition [Kiddushin 18a].

If one stole and was sold, and stole again: if he stole from two people, he is sold a second time, and even if he stole from one hundred people, he is sold one hundred times. But if he stole from one person twice, he is not sold a second time for him; rather, it remains upon him as a debt. This is the opinion of the Rambam [ibid.], and such is the opinion of Rashi [ibid.]. And some say the opposite: that for one person he is sold even several times, but once he is sold for Reuven, he is not sold again for Shimon [Tosafot ibid.]. If he stole from this one, and stole again from this one, and stole again from this one, and had not yet been sold at all, they are all partners in him. If the value of his sale corresponds to the theft of all three of them or less than this, he is sold and they divide [the proceeds] between them, and the double-payments remain upon him as a debt. If his value is more than all the thefts, he is not sold at all, and everything remains upon him as a debt. Partners who stole together, each one pays according to his share, and each one of them is sold according to his share of the principal. Anyone whose value is greater than his share of the principal is not sold at all. And know that regarding partners who stole, some say that even if one stole with the knowledge of his fellow, both are liable [Rashi, Bava Metzia 8a]. And some say specifically when both of them lifted it, for only regarding slaughtering and selling is there an agent according to Rabbi Akiva [Tosafot ibid., and from Shabbat 93b it implies like Rashi]. The first opinion holds that this is not by virtue of the law of agency, but rather it is like one who acts himself; for since they are already partners and he acted with the knowledge of his fellow, every act he performs is as if both of them are performing it.