Siman 364

In siman 90 it was explained regarding the enactment of the sages, who enacted that the victim of a robbery swears and takes when witnesses saw that Reuven entered the house of Shimon in the presence of Shimon and took vessels and left, and the witnesses do not know what he took, and there is a denial between them, the victim of the robbery swears and takes. And specifically when the witnesses knew that he entered in the capacity of a robber or to seize a mashkon without the permission of the beit din, for this also is his law like a robber. And if the witnesses do not know that he entered in the capacity of a robber, but rather saw him entering and leaving in the presence of the owners with vessels in his hand, and he claims "I bought them from you," if the vessels are of the things that are made to be lent or rented, he is not believed to say "they are bought in my hand" according to the details that were explained there in section 10, see there.

And this is specifically when the homeowner was in his house, but when witnesses saw that one entered the house of his fellow not in the presence of the homeowner and his household members and took vessels from there and brought them out openly, and the vessels are of the type made to be lent or rented, and even though this homeowner is prone to selling his vessels—if the homeowner claimed and said, "He took them by way of robbery," and the other says, "I entered with your permission and you sold them to me or gave them to me previously and commanded me to take the vessels even when you would not be in your house," or if he says, "I have a debt with you and you told me to take the vessels for my debt," he is not believed. Even though if it were so in the presence of the homeowner he would be believed, as I wrote there, nevertheless, not in the presence of the homeowner he is not believed, because anyone who enters the house of his fellow not in his presence and not in the presence of his wife or his household members and took vessels from there and brought them out before witnesses, behold, he is in the status of a robber. Therefore, he returns the vessels to the homeowner and there is no oath here, for behold, the witnesses saw what he took. And after he returns, he goes back and sues the homeowner with whatever he wishes to claim—a claim of sale, or a gift, or a debt—and let the law pierce the mountain between them. And it was explained there that this is specifically when witnesses saw the vessels in his hand now, for if not so, he would be believed with a migo of "I returned them to you," for one who robs his fellow before witnesses does not need to return to him before witnesses, as I wrote in siman 361; and see what I wrote in siman 90, section 13. And if the witnesses do not know how much he took and there is a denial between them, the victim of the robbery takes an oath and collects. And if he has a migo of "I returned to you," he takes a hesset oath and is exempt; see there in section 3.

And if there are no witnesses to this, and Reuven claims with certainty that Shimon robbed him of such and such, and Shimon denies it, Shimon swears a shevuat hesset and is exempt. And even if he says, "It is true that I took it, but you commanded me to take it because of a debt owed to me," or "You sold it to me," he swears while holding a sacred object according to the law of one who comes to collect [the Rambam, chapter 4]. And we do not say that since it has been explained that anyone who enters the house of his fellow and takes vessels not in the presence of the owner is presumed to be a gazlan, and since he himself admitted it, he is like a gazlan—for it is not so, as he has a mingo of "I did not take it at all." And even though according to his words he is a gazlan, and how can he be believed with an oath? For it is not so, as it is possible that the event truly happened this way, but when there are witnesses we do not believe him. Furthermore, because of this, even though his law is like a gazlan, nevertheless he is not disqualified from an oath, as I wrote in section 9; see there.

And if there was only one witness there, and the homeowner claims that this vessel is stolen in his hand, and the other says, "It was purchased by me," or "I collected it for a debt," or "It was mine and it was a deposit with you," he is obligated to return the vessel to its owner without an oath. For it is a general rule that wherever two witnesses would obligate payment, one witness obligates an oath, and the oath is to contradict the witness. And in this case, he cannot swear to contradict him, for behold, he does not contradict him and admits to him that he took it, but says that he took his own; and in this, the witness does not contradict him, as he does not know regarding this. And since he cannot swear the oath that the Torah obligated him, he pays, as I wrote in siman 75. Therefore, if he denied and said, "I did not enter his house and I did not take anything," since there is only one witness and he contradicts him, he swears a shvua de-rabbanan that he did not take anything from his house and is exempt. And with two witnesses in such a case, he must pay. And if the witnesses say that he entered but they do not know if he took vessels or not, and the homeowner says that he took them and he says that he did not enter at all, it was explained in siman 90 whether this is called a contradiction and he is obligated to pay based on the oath of the homeowner, or whether this is not a contradiction at all, for a matter that is not a person's responsibility, it is possible that he forgot; see there.

And regarding one witness in such a case, where the witness says that he entered and he does not know if he took or did not take, or even if he says that he took but he does not know what he took, he swears a shevuat hesset that he did not rob him and is exempt. And even though two witnesses would obligate him in payment in such a case, nevertheless, since they only obligate him based on the oath of the owner who would swear how much he took, we do not say in this case "anywhere that two witnesses obligate payment, one obligates him in an oath" and "since he is unable to swear, he must pay," for we only say this in a place where they obligate him in payment without any oath at all, as was written in siman 75.

If one snatched an object from the hand of his fellow in the presence of one witness and said, "I snatched it, but it is mine," and the witness does not contradict him in this, as he does not know if he snatched it as a robbery or if it belongs to him, or if he sold it to him, or if he took it for his debt—he is likewise obligated to return it for the reason that has been explained. For since he cannot swear to contradict the witness, but rather only an oath that the witness cannot contradict, we apply in this case the law of "since he cannot swear, he must pay." And if he snatched money or objects from him in the presence of one witness, and he says, "I snatched what was mine, and it was such-and-such an amount," and the owners also say it was such-and-such an amount, and the witness does not know how much he snatched—nevertheless, he pays that sum. For behold, he admitted that he snatched such-and-such, and he is obligated in an oath against the witness and cannot swear, so he pays. And there are those who disagree in this, for even with two witnesses in such a case, he is believed to say "I snatched what was mine" by a migo that if he wanted, he could have said that he only snatched one, since the witnesses do not contradict him on this [the Gra]. The first opinion holds that this is a migo in the place of a strong chazakah, for everything in a person's possession is his, and the one who snatches from him is like a gazlan [ibid.]. The first opinion is the view of the Rambam and the Shulchan Aruch, and such is the primary ruling.

And if the grabber says, "I grabbed twenty and they are mine," and the victim says, "He grabbed one hundred," he pays the twenty that he admitted to according to the first opinion that was explained, and regarding the remainder he swears a shevuat hesset and is exempt, as it is like a different claim [Taz]. And he is not obligated in a shevuat de'oraita like the law of one who admits to a part, for behold, he did not admit to anything, since he says, "I grabbed my own," except that he is not believed. And this is specifically when the witnesses do not know at all how much he grabbed; but if they know about a part that he grabbed, he is obligated to swear a shevuat de'oraita regarding the remainder, for the testimony of witnesses is no less than his own admission, as was written in siman 75 [Sma]. And with one witness in such a case, he swears a shevuat hesset regarding the remainder.

And if Reuven entered the house of Shimon not in his presence and took vessels from there in the presence of one witness, and the witness does not know how many he took, and Shimon says, "There were twenty vessels in my house," and Reuven says that he only took ten and they are mine, he is obligated to return the ten because he is obligated in an oath to contradict the witness and he is unable to swear and pays. And regarding the remainder, he does not swear even a shevuat hesset because Shimon cannot claim against him a claim of certainty. And it is not similar to what was written in section 5, that even regarding what he took he swears a shevuat hesset and is exempt, for there it is different, as he does not say, "I took such and such," but rather says generally, "I took what is mine," and if so, the owners would not take even with two witnesses except with an oath; whereas here, when he admits that he took ten, he would be obligated to return based on two witnesses without an oath, and therefore even with one witness his law is "since he is unable to swear, he pays." [So it appears from the Sma, subsection 3, and examine it.] And there are those who disagree on this, for since the homeowner was not in his house and cannot claim against him a claim of certainty, and also the witness does not know how many he took and if he took his own, he is not called "obligated in an oath" [the Ra'avad] and is exempt from paying even the ten that he admitted, and also he is not obligated to swear a shevuah de'oraita. And it appears to me that nevertheless, he swears while holding a sacred object according to the law of one who comes to take. And even though it was explained in siman 75 that a person can sue based on one witness and bring him to a shevuah de'oraita even though he himself does not know, that is when the witness testifies clearly that he owes him, but here the witness does not know if he took his own and how many he took [ibid.]. And the first opinion is the opinion of the Rambam and the Shulchan Aruch.

Our teacher, the Beit Yosef, wrote: One who says to his fellow, "You robbed me of one hundred," if he said, "I did not rob you," he swears a shevuat hesset. And if he admitted that he robbed him of fifty, he pays fifty and swears a Torah oath regarding the remainder, for he has not been established as a robber by witnesses, and a person does not make himself out to be wicked [ibid.]. And similarly, one who claims against his fellow that he entered his house and robbed him of vessels, and he says, "I took them as a pledge for my debt that I have with you," and the homeowner says, "I owe you nothing," even though he admitted that he took the pledge without the permission of a beit din and his status is like that of a robber, nevertheless, since there are no witnesses to this, he swears and collects his debt from the pledge, for a person is not disqualified from an oath based on his own word for the reason that has been explained.