Siman 88

It is written, "If a man gives his fellow silver or vessels," and our rabbis, of blessed memory, expounded: "silver" is analogous to "vessels"; just as "vessels" refers to two, since it is written in the plural, so too "silver" refers to two. And just as "vessels" are something significant, for in every vessel there is significance due to its craftsmanship, so too "silver" must be something significant. For this phrase "silver or vessels" is entirely redundant, as it should have written "If a man gives his fellow to guard," and everything would be included; rather, it certainly comes for an exposition. And significant silver is not less than a ma'ah of silver, and we find that the Torah considered a ma'ah of silver significant, as it is written, "twenty gerah shall be the shekel," and a gerah is a ma'ah. Furthermore, our sages, of blessed memory, expounded from that which is written in the section of the guards, "of which he shall say: this is it," that we require him to admit to a portion of the claim. And this is the explanation: that he says regarding the claim of the plaintiff, "this is it" that you gave me and no more. And perforce the admission must be worth a perutah, that he admits to a perutah and denies two ma'in, for "silver" refers to the denial, what the plaintiff claims and he denies. And all this is by tradition, man from the mouth of man, until the Halacha LeMoshe MiSinai. Therefore, the claim must be for at least two ma'in and a perutah, and he admits to him a perutah. If he admitted to two perutot, he is exempt, for there is no denial of two [ma'in of] silver. Likewise, if he admitted to less than a perutah, he is exempt from an oath. The measure of a perutah is the weight of half a barleycorn of pure silver, and the measure of two ma'in is the weight of thirty-two barleycorns of pure silver. Likewise, if he claimed types of merchandise and he admitted to him a portion, they appraise them also according to this calculation. And this calculation according to our coins is not clearly known to us, and already from the generations before us, the custom of the judges has spread in all our provinces that they do not administer an oath for less than ten zehuvim, which according to the currency of our province, the Russian Empire, is one and a half rubles, and in French currency it is six francs; and for less than this they do not administer an oath, but only give a kabbalah to the defendant.

In what case are these words said? When he claimed money, or produce, or types of merchandise. But if he claimed two vessels and he admitted to one of them, a minimum measure is not required. For this reason "vessels" is written specifically, to inform us that we do not require the value of money in them, for a vessel has importance due to its craftsmanship. Therefore, even if there were ten needles for a perutah and he claimed two needles and he admitted to one of them, he is liable for a shevuat modeh be-miktzat when the needle he admitted to was lost from him—for if it were not so, but rather he hands it over to him, it would be "heilech." But when it was lost, even though he must pay in money, nevertheless, since it comes by way of a vessel, he is liable even for less than the value of a perutah; and furthermore, perhaps the needle will be found [Netivot HaMishpat]. And some say that even though with vessels we do not require the importance of two ma'ah of silver, nevertheless we require that each vessel be worth a perutah, for with less than this, it does not have the status of property at all [Tur]. And if he claimed silver and vessels, and he admitted to the vessels and denied the silver: if there is in the denial two ma'ah, he is liable, and if not, he is exempt. And if he admitted to the silver and denied the vessels: if he admitted to a perutah, he is liable, and according to the "some say," it is necessary that there also be in the vessel the value of a perutah, whether in its admission or in its denial [ibid.]. And if the claimants and the defendants are many, there is reason to doubt whether they require a denial of two ma'ah of silver and an admission of a perutah for each and every one or not. And it appears to me that an admission of a perutah is required for each and every one, but a denial of two ma'ah of silver is sufficient in that in this claim there is a denial of two ma'ah of silver, even if there are not two ma'ah of silver for each and every one. And there are some among the later authorities who doubt this, and according to what I have written, so it appears to me to be the essential law [and see Pitchei Teshuvah siman 93, subsection 4].

Specifically regarding one who admits to a portion of the claim, we require a denial of two ma'ah of silver; and even though the verse "for this is it" is written regarding bailees, our Sages of blessed memory received a tradition that "a mixing of passages" is written here, and the verse "for this is it" refers to the verse "if you lend money." And why was it written out of its place? Because the passage of lending is written after bailees in Mishpatim, and the Torah revealed regarding bailees the obligation of an oath for any denial of money, and therefore it did not write it regarding a loan, as we derive it from bailees. And since the obligation of an oath for a loan is learned from bailees, therefore the verse "for this is it" is also written there to teach regarding a partial claim that only if he admitted to a portion is he obligated in an oath, and not for one who denies everything. And consequently, the Torah was also forced to write there the verse "money or vessels" to teach us the measure of the oath as has been explained. Furthermore, since "money or vessels" comes to teach us the measure of an oath, and it is not the way to borrow vessels in a loan, therefore the Torah only wrote it regarding bailees, as it is the way to give money or vessels for safekeeping, and consequently it was forced to write there also this of "for this is it" to teach us the law of one who admits to a portion [it appears to me]. Therefore, regarding the oath of a single witness, which is not written at all in Mishpatim but rather in Deuteronomy, we do not require two ma'ah of silver; rather, even if he only denied a perutah, he is obligated to swear to contradict the witness. Furthermore, since the oath of a single witness is derived from the verse "a single witness shall not rise against a man for any iniquity or for any sin," and the tradition came that for iniquity and for sin he does not rise, but he does rise for an oath; and anywhere that two witnesses obligate payment, one witness obligates an oath. And for a perutah, two witnesses obligate payment, and consequently one obligates an oath. And regarding a vessel that is worth less than a perutah with a single witness, some say he is obligated in an oath [Sma, Shach, and Urim VeTumim] and some say he is exempt [Bach and Taz]. And so it appears, since the oath of a single witness is not written at all in that passage, and less than the value of a perutah is not considered money at all such that two witnesses would obligate him to pay, how then would one obligate an oath? And we have only what the Torah innovated regarding one who admits to a portion [as above, and the words of the Urim VeTumim require further study, see there]. And regarding the oath of bailees, our teachers the Rishonim disagreed. For some say that regarding bailees as well, two ma'ah of silver are not required; rather, even if he deposited a perutah or the value of a perutah with him and he claimed it was lost, he swears. And less than the value of a perutah is not money even if it is a vessel [Taz], and the beit din does not attend to this. For since the tradition came that "a mixing of passages" is written here, this verse does not belong at all to bailees. And some say that regarding the oath of bailees we also require two ma'ah of silver, and for a vessel even less than the value of a perutah, just as with one who admits to a portion; for it was not entirely uprooted from the passage of bailees, as the Sages of blessed memory said "a mixing of passages" and not "an uprooting of passages," and it also refers to the oath of bailees. Our teacher, the Rema, wrote that this is the primary view, according to this opinion. And even regarding the law of one who admits to a portion, we do not uproot it entirely from a deposit; for certainly if he admits to him regarding the entire deposit but claims that it was lost by an unavoidable accident, or in the case of an unpaid bailee that it was stolen, in this the Torah obligated an oath even though there is no denial of a portion and admission of a portion. But when he denies to him that he gave him the deposit at all, he is exempt by Torah law from swearing unless he admitted to a portion and denied a portion; for there is no difference in the law of one who admits to a portion whether he sues him for a loan or sues him for a deposit—in all of them, if he denies everything, he is exempt by Torah law, and if he admitted to a portion, he is obligated to swear. And so most of our teachers the Rishonim agreed [Tosafot Bava Kamma 107a, and the Rosh and Nimukei Yosef there]. And so the opinion of the Rambam, of blessed memory, is clarified; even though regarding the matter of two ma'ah of silver he holds that we do not require it for a deposit, nevertheless regarding the matter of one who admits to a portion, he also holds as we have written. For he wrote in the first chapter of Toen that one who claims against his fellow regarding movable property and he admitted to a portion of it, he is obligated to swear by Torah law, and if he denied everything he is exempt, see there. And he did not write that this is specifically regarding a loan, and so it is proven from his words in many places. And that which he wrote there afterwards, that there are three oaths by Torah law: regarding one who admits to a portion, regarding a single witness, and regarding a bailee, see there—that refers to the claim of bailees of unavoidable accident or theft. Therefore, it appears to me that even the first opinion we wrote, which is the opinion of the Rambam, of blessed memory, also admits that "a mixing of passages" is written and not "an uprooting of passages," and he holds that certainly regarding a deposit we also require a claim of two ma'ah of silver and an admission of a perutah. However, this is specifically regarding a claim that is also applicable to a loan, which is when he denied his deposit to him, for then we require an admission of a portion as well, as has been explained. But a claim that is only applicable to a deposit alone, such as unavoidable accident and theft—for in a loan this is not a claim, as he is obligated to pay even when the money was lost by unavoidable accident—in this we do not require an admission of a portion nor a claim of two ma'ah of silver. And for an "hesset" oath, we adjure him for the value of a perutah; for since the Sages enacted it so that one should not rob his fellow, therefore anything that is considered money, in that they enacted an oath [Sma]. And consequently, for a vessel worth less than the value of a perutah, the Sages did not enact it. And regarding the measure for those who swear and take, and for oaths of doubt, it will be explained in siman 89 and in siman 93 with the help of Heaven. And when he sues him for two claims, one from a loan and he admits to a perutah of it, and the second from a deposit and he claims it was lost by unavoidable accident, and in one of them there are not two ma'ah of silver except by combining both of them, it appears to me that they combine and we adjure him, since we learned both oaths from one verse. And although there are those who disagree, nevertheless it appears to me that this is the primary view.

Our Sages, of blessed memory, said that one who admits to a portion of the claim is not liable for a Torah oath unless he admits to a portion of the same type of claim that was demanded of him; for example, if he claimed a kor of wheat and he admitted to a half-kor. However, if he claimed wheat and he admitted to barley, he is exempt. The implication of the verse is thus: "of which he shall say, for this is it"—that he says, "from that which you claim from me, I am not liable to you except for this portion." But when he admitted to him of another type, he is as one who denies everything regarding the type claimed, and regarding the type he admitted to, he did not claim it. Therefore, our Sages, of blessed memory, said: if he claimed wheat and he admitted to barley, he is exempt even from the value of the barley. And regarding the reason for the matter, our teachers explained: Some say that since he did not claim barley, he has waived his claim to the barley [Rashi and Tosafot at the end of the third chapter of Bava Kamma], for certainly all claims that a person has against his fellow, when he sues him in beit din, he sues for all his claims; therefore, since he did not also claim the barley, he presumably waived it. Therefore, even if witnesses came regarding the barley, he is exempt. And there is no difference between whether he claimed wheat that he borrowed from him in Nisan and he admitted to barley that he borrowed from him in Iyar, or whether he says, "I did not borrow wheat from you in Nisan, but rather barley." And even though in such a case the concept of waiver is not applicable—for granted that we should consider that he borrowed barley from him in Nisan, behold the claimant wants to extract from him more than the value of the barley, and how is it applicable to say that he waived the barley? Nevertheless, we do not have the power to obligate him for the barley, for either way: if he borrowed from him then wheat and barley, he waived the barley since he did not claim them; and also if we say that he only borrowed barley from him and the claimant wanted to extract more from him, nevertheless, if that were the case, he should have claimed more barley than what he had lent him, and since he did not mention barley at all, we can say that he waived the barley to him, and he wants to extract wheat from him not because of the loan of the barley [it appears to me, and see Netivot HaMishpat]. And there are some of our teachers who disagree with the reason of waiver, for perhaps he did not want to sue for all his claims at once. Therefore, if he claimed wheat that he borrowed from him in Nisan and he admitted to barley from Iyar, he is liable for the barley. However, when he answers him that "on the same day that you say I borrowed wheat from you, I borrowed barley from you," behold the claimant has admitted that he did not borrow barley from him, for if it were not so, he would have claimed the barley as well since it was on the same day, and the admission of a litigant is like a hundred witnesses [the Rosh there]. And even if there are witnesses regarding the barley, he is not liable, for a person is more believed regarding himself than a hundred witnesses. But if the defendant knows within himself that he borrowed barley from him, he is obligated to pay [Shach, subsection 17]. And some say that even according to this reason of admission, even when the defendant knows he borrowed barley from him, he is exempt from the barley, since he did not claim it, he has admitted [to its non-existence], and it is as if he waived it to him [Sma and Bach]. And according to this, there is no difference in the law between the reason of admission and the reason of waiver except when he admitted to him regarding barley from another time, for then according to the reason of admission he is liable and according to the reason of waiver he is exempt. And according to these two reasons, even when the claimant subsequently claims, "it is true that barley is also due to me and I will yet claim them, but I did not want to bring two claims at once," we do not listen to him, since we hang it on the reason of waiver or admission. But there are some of our teachers who hold that this law does not come to us from the reason of waiver or admission, for certainly from the side of the claimant there is neither waiver nor admission here regarding the barley. Rather, the explanation is this: from the side of the defendant's response, who admitted to him regarding the barley, one cannot obligate him for the barley because he can say, "I was mocking you in what I admitted to you regarding the barley." And even though he admitted in beit din and without a claim for the barley—and it was explained in siman 81 that in these cases we do not say the claim of mockery—nevertheless, he can say that "since you did not claim barley from me but only wheat, and I know that I did not borrow wheat from you, therefore I mocked you even in beit din to admit to you regarding that which you did not claim from me at all." And that which was explained there, that without a claim mockery is not applicable, that is without any claim at all; but when he claimed wheat, mockery is applicable regarding barley [Pachad Yitzchak there], even in beit din, and he can say to him: "You mocked me by claiming wheat from me, and I mocked you by admitting to you regarding barley" [the Ra'avad, the Ramban, the Meiri, the Ramah, and Nimukei Yosef, and so it appears from the Behag and from the Rambam chapter 3 of Toen, and to this the Shach agreed in subsection 16]. And according to this approach, when the defendant says that in truth barley is due to him, or if there are witnesses regarding the barley, he is liable to pay the barley, whether their loan was on the same day as the claim for the wheat that the claimant stated or on another day. And regarding the wheat, according to all opinions, the defendant takes a hesset oath and is exempt. And if the claimant seized the value of the barley from the defendant, it is not extracted from his hand even according to the two previous reasons, for in truth the waiver or the admission that we explained is a weak waiver and admission [Netivot HaMishpat], for behold he did not waive or admit explicitly, rather there is no power in the hand of the beit din to extract from him because of these concerns; therefore, when he seized and claimed that he did not waive and did not admit, it is not extracted from his hand even when he seized in the presence of witnesses, for he does not have a migo of "I did not seize." And specifically when he seized before the defendant retracted his admission regarding the barley; but if he seized in the presence of witnesses after the defendant retracted his admission and claims "I was mocking you," the seizure is not effective [Sma], for even according to the first two reasons, certainly he can claim "I was mocking you" [Netivot HaMishpat]. But if he seized not in the presence of witnesses, he is believed with a migo of "I did not seize" or "I returned it to you" [ibid.]. And some say that according to the first two reasons, seizure is only effective before he sued him in law; but if he seized after he stood in law, it is extracted from him even when he seized not in the presence of witnesses where he has a migo, because it is like a migo in the place of witnesses, for we are witnesses that since he did not claim the barley, he waived or admitted; for these "some say" hold that the waiver or admission are like a complete waiver or admission. And if you ask: if so, even if he seized beforehand, why did he not claim the barley at the time he stood in law? One can say that he did not care to claim them since he was in possession of them. However, even though according to these "some say" seizure is not effective regarding the barley, nevertheless, against the seizure of the wheat, seizure without witnesses is effective according to the law of any claimant whose defendant denied him and he subsequently seized without witnesses, that he can hold onto it and collect from it with a hesset oath, as written in siman 87 (Sma). And our teacher, the Rema, wrote that so it appears to him as the primary view, like these "some say." However, according to the third reason that we explained, there is no difference between seizure before standing in law or afterward, for even afterward, and even if he seized in the presence of witnesses, as long as it was before the defendant retracted his admission, it is not extracted from his hand, as I have written. And the Shach, of blessed memory, decided in accordance with the third reason.

If he claimed two things from him, wheat and barley, and he admitted to one of them, it is a partial admission of the claim, and he is obligated to give him what he admitted and to swear a biblical oath regarding the remainder. And similarly, if the claimant was in doubt and claimed that he lent him either wheat or barley, and he admitted to him regarding the barley, he is obligated to pay the barley (as is evident at the end of the third chapter of Bava Kamma, see there). And if he claimed a kor of wheat or barley and he admitted to him regarding a half-kor of barley, there is room to doubt if he is obligated in a biblical oath regarding what he denied, since his claim was not clear. And if the claimant claims wheat and the defendant is in doubt and answers him, "I do not know if it was wheat or if it was barley," he swears a hesset oath that he does not know and pays him for barley, for in this case, waiver, admission, or mockery do not apply, since he answers him that "it is as you say, for I am certainly indebted to you, but I do not remember if it was wheat or if it was barley," and therefore he is certainly obligated for the value of the barley and swears a hesset oath that he does not know. And even though there are those who say that even in such a case he is exempt even from barley by the laws of man, but rather that if he wishes to fulfill his duty toward Heaven he must pay for wheat (Shach), nevertheless, the primary ruling follows the first opinion (ibid.). And this is the opinion of the Rambam, of blessed memory, in the first chapter of To'en (and even the Ra'avad, who disagreed with him from Bava Kamma there, nevertheless wrote that now that they have instituted the hesset oath and he is forced to swear that he does not know, automatically he pays for the barley, see there; and one must further study our teacher, the Rema, who decided like the "there are those who say" in section 17, and regardless, there is no difficulty from there, for there the "perhaps" is better because it is not in his presence, which is not the case here, and the Gemara compares "perhaps is better" to the ruling of Rabba bar Natan, and see in the Shach, subsection 35).

If he claimed a kor of wheat from him, and before he completed his words to say "and also a kor of barley," the defendant hurried and said, "I owe you nothing but a kor of barley," and the plaintiff said, "I also intended to claim barley from you, but you hurried and interrupted my words"—the judge shall see according to his understanding. If the defendant acted as one who circumvents, in that he hurried to respond before the plaintiff finished his claim, he is liable to pay what he admitted and takes a shevuat de-oraita regarding the remainder, and we consider it as if he had already claimed both of them from him. But if according to his understanding the defendant did this innocently, he is exempt from a shevuat de-oraita and takes a shevuat hesset. And even if immediately within the time of a speech-act after his admission the plaintiff said, "I also intended to request the barley from you," nevertheless he is exempt from a shevuat de-oraita, since in any event he claimed wheat and he admitted to him barley. And regarding the payment of the barley, if the defendant stands by his admission regarding the barley, he is certainly liable according to the third reason we explained. And even according to the two reasons of waiver and admission, they also do not apply here, since the plaintiff says that in truth he wanted to claim the barley from him as well. And some say that according to these two reasons, if the defendant did not respond so quickly within the time of a speech-act of the plaintiff, or if it is evident to the beit din from his words that he ceased his speech and did not intend to claim more (Urim VeTummim), he is exempt even from the value of the barley. And if the plaintiff says, "It is as you say, that I have barley in your possession, but I am not claiming them now," he is liable to pay him the value of the barley, and the main view is like the first opinion (ibid.). And if the defendant says afterward that he was mocking him and does not owe him anything, he takes a shevuat hesset regarding this and is exempt (Shach), and the reason of mockery is the primary one (ibid.).

If the defendant preceded and said, "I have barley of yours in my possession," and afterward the plaintiff also claimed wheat (Taz) and he denied it, since he admitted to the barley before the claim of the plaintiff, there is no admission of part of the claim here. For an admitter of part is never liable for a shevuat de-oraita unless he admitted after the claim. And even regarding one species the law is so; for example, if he admitted to him regarding half a kor of wheat, and the plaintiff said, "You owe me a kor," and he denies it, he is exempt from a shevuat de-oraita (Shach), but rather he pays what he admitted and swears a shevuat hesset on the remainder. And in this case he cannot claim "I was mocking you" since he had not claimed from him previously, as I wrote in siman 81. And likewise, if he claimed wheat from him and he admitted to them, and afterward he claimed barley from him and he denied it, since he admitted to the claim of wheat before he claimed barley from him, this is not an admission of part, and he pays the wheat and swears a shevuat hesset on the barley. And some say that in this case as well we see if the defendant acted with guile and rushed to admit before the plaintiff could finish, he is liable for a shevuat de-oraita as if he had claimed wheat and barley from him, as in the previous section. And even though in this law, even according to the guile of the defendant, it only avails to exempt from a shevuat de-oraita and not regarding payment—and it is not similar to the previous section where he acted with guile to admit to another matter in order to be exempt even from that which he admitted—nevertheless, in this case too, if it appears to the judge that he acted with guile, he obligates him in a shevuat de-oraita (see Shach, subsection 53). And some say further that even in the previous law where the defendant preceded to admit to barley, if it appears to the judge that he acted with guile in this to admit before the claim of the plaintiff, we obligate him in a shevuat de-oraita (Shach). And some say that in this case, in any event, he only swears a shevuat hesset since, at any rate, the claim of the plaintiff did not precede (Levush and Bach).

This matter, that one must admit to him from the type of the claim, must be viewed according to the location; if in the language of the location the admission is included in the claim, it is called "admitting to a part of the claim," and if in the language of the location it is not included, this is not an admission from the type of the claim and it is like one who claimed wheat and he admitted to him in barley. And in the Gemara we say that if he claimed from him a kor of grain and he admitted to him in a half-kor of barley, it is an admission from the type of the claim, for all five species of grain are included in the term "grain." But if he admitted to him in a half-kor of legumes, he is exempt, for legumes are not included in "grain." However, if he claimed from him a kor of fruit and he admitted to him in a half-kor of legumes, he is liable, for legumes are included in "fruit." And from this one should judge in every place according to the language customary there.

If he did not claim a specific object, but rather said to him, "I have the value of a maneh in your possession," whatever he admits to him is considered of the type of the claim, because everything is included in the category of "value." However, if he claimed a maneh of a specific object and he admitted to him the value of half a maneh of another specific object, it is not called of the type of the claim; for even though he claimed a maneh, nevertheless, since he mentioned to him a specific thing and he admitted to him half a maneh of another thing, it is not of the type of the claim. And if he claimed an unspecified coin, such as if he said to him, "I have a silver dinar or a gold dinar in your possession," its law is as if he claimed the value of a dinar, and whatever he admits to him is considered of the type of the claim. And this is specifically when he claimed a coin that is current in circulation, for in this case we say that he meant "value," since a person is likely to appraise everything in currency, and when he lent him a kor of wheat whose price is a gold dinar, he claims from him a gold dinar. But if he claimed a litra of gold or a coin that is not current in circulation, it is not considered as if he claimed "value." Similarly, if he claimed "this gold dinar coin," meaning a minted one, "I have in your possession," it is not considered the value of a dinar even though it is current in circulation; rather, he is claiming specifically the dinar, because a person is not likely to appraise other things in "this gold dinar coin" [Levush]. Furthermore, since he added the word "gold," we learn from this that he is claiming specifically the dinar. Similarly, if he claimed a coin of another country, he is not claiming "value," but rather he is claiming specifically this coin [Ran, chapter 6 of Shevuot]. And if he admitted to him in produce or in merchandise, it is not of the type of the claim, and even if he admitted to him a coin of half a dinar, it is not considered of the type of the claim. And even regarding an unspecified dinar, which we said is as if he claimed "value," some say that these words apply to a loan, for since it was given for expenditure, it is the way of people to calculate the matter of the loan in the value of currency; but regarding a deposit, he specifically said "dinar" and not "the value of a dinar," for since a deposit was not given for expenditure, it is the way to claim exactly what he deposited. And there is one who disagrees and says that the law of a deposit is equal to a loan, but the main point is according to the first opinion, as the "one who disagrees" is a minority opinion [Urim VeTumim; and regarding what he wrote in subsection 5, that for us, since it is permitted to use the money of a deposit, it is like a loan—I am astonished, for the desire of Heaven is for money in a loan, and not money in an object].

If he claimed one hundred dinars of a certain currency and he replied, "I only owe you fifty of a different currency," it is not considered of the type of the claim. We do not say that since he mentioned currency he was not particular about saying "certain," but rather since he mentioned "certain," he presumably claimed that specific currency. This is unless he says to him, "I gave you a gold dinar of a certain currency to exchange for coins," or "I sold you merchandise for money of a certain currency," and he says, "I gave them to you except for one coin," and the like. For this is considered of the type of the claim, for even though he mentioned a certain currency, nevertheless, since he said "to exchange it" or mentioned to him the sale of merchandise, it is evident that the essence of his claim was the sum of the money or its value and not specifically the certain currency. But in another manner he is not liable; even if he claimed a gold zehub dinar and he admitted to him a coin of a half-gold zehub dinar, it is not considered of the type of the claim, as I wrote in the previous section. Its law is like one who claimed a large menorah and he admitted to him a small one, which will be explained nearby.

If he claimed a large menorah and he admitted to him a small menorah, he is exempt, for they are two different types. But if he claimed a menorah of ten litrin and he admitted to him one of five litrin, he is liable for a shevuat de-oraita, as it can be said that regarding that same menorah that he claims, he admitted to him a portion of it, and he scraped it and lightened its weight. But large and small are two different types and it is a different craftsmanship; and see in section 14. And if he claimed a menorah of sections, he is liable in any case, even with large and small, because it can be said that he took several sections from it and it became small, and behold he admitted to that which he claimed. And similarly, if he claimed a curtain of ten measures or cubits and he admitted to him one of five, he is liable, as it can be said that he cut five cubits from it. But if he claimed a large belt and he admitted to him a small one, he is exempt, for in a belt the edges are recognizable and it is not relevant to say that he cut from it, and his admission was regarding a different thing. And with a belt of sections, he is liable just as with a menorah. And from this we can judge regarding all things: that if it is possible to say that he admitted to him this thing that he claimed, but that he diminished from it, it is an admission of a part and he pays what he admitted and shall swear a shevuat de-oraita on the remainder. And if not, he only swears a shevuat hesset. And regarding the matter of payment, his law is like one who claimed wheat and he admitted to him barley, as has been explained.

Every type of money is one category, even if he claimed a loan and he admitted to a partial amount as a deposit. For example, if he said to him, "I have a maneh in your hand as a loan," and he replied to him, "These things never occurred and I never borrowed from you at all, but you have fifty dinarim in my hand as a deposit or rental fees" and the like, this is a partial admission, and he must swear a Torah oath and pay the fifty that he admitted. The same applies to borrowing and renting. And it is not specifically money, for the same applies to any item, such as if he claimed one hundred borrowed objects and he admitted to fifty as a deposit, it is a partial admission. And even though there are those who disagree on this and hold that since the laws are different regarding liability for accidents, it is like claiming wheat and he admitted to him in barley, nevertheless, the halacha is not so, since everything is one category. And similarly, if he claimed from him his father's debt and says that the defendant knows that his father owes him and should pay from the assets of the inheritance, and the defendant admitted to him a partial amount from his own debt and regarding his father's debt he denied it entirely, he pays him the partial amount he admitted and swears a Torah oath on the remainder [Shach]. And if the plaintiff says to him, "From you as well more is coming to me than what you admitted, but I did not want to sue you now," he rolls this over onto him as well in the Torah oath. And if he claimed a maneh from his father's debt and he admitted to a maneh from his own debt, and the plaintiff replies, "Indeed that is the case, but I did not want to sue you for your debt now," he pays his debt and swears a rabbinic oath on his father's debt and is exempt, because in this case he denied everything and the plaintiff did not claim his debt, and there is no partial admission here. And similarly in reverse, if he claimed from him his own debt and he admitted to him his father's debt, all these laws apply. And all this is when he claims his father's debt with certainty, saying that the son knows of this, as I have written, for if not so, the heir is not obligated to swear, as I have written at the end of siman 69, and he can say, "I was mocking you in that which I admitted" [ibid.].

And not only this, that every type of money is considered one, but even one who claims against his fellow, "I lent you a maneh," and the other says, "You have nothing in my possession except fifty zuz that you gave as payment for such-and-such an object that you bought from me, and the object is under my responsibility such that if it is lost I am liable for it," and the object is not present, it is considered a partial admission. But when the object is present, it is considered "heilech." And likewise, if he is not liable for the responsibility of the object, this is not a partial admission. And likewise, if he said, "You have nothing in my possession except fifty that you lent me on such-and-such an object," it is a partial admission. And even if he said that he lent upon it on the condition not to be repaid except from the body of the object, if he stands by his admission or if there are witnesses, he is liable for a shevuat de-oraita and it is not considered "heilech" since it requires an assessment of beit din, as was written in siman 87. But if he retracts his admission, he is exempt from a shevuat de-oraita when he said that he lent upon it on the condition not to be repaid except from its body, and in siman 400 the reason for the matter will be explained with the help of Heaven [Shach, sub-sections 25, 26]. And the same applies to the opposite, where he claims against him that he has with him such-and-such an object which he made an apotiki for him for a maneh, and the other admits to fifty zuz that he lent him as a simple loan; there is one who says that what he claimed, he did not admit to him, and he is exempt both from payment and from a shevuat de-oraita, but rather he swears a shevuat hesset and is exempt. And the reason is that since he could have given him the object against his will, and if the object were lost he would be exempt, it is not an admission of the type of the claim. And there are those who disagree on this, for since we hold that even with an explicit apotiki he can remove him with money, as was written in siman 103, if so, it is like one who claims against him, "Give me this object or the value of this object," and the other admits to him fifty zuz, which is a partial admission of the claim [ibid.]. But if he stipulated with him not to be repaid except from the body of the object, such that he would not have the ability to remove him with money, and he retracts his admission, then it is not an admission of the type of the claim, as was written [ibid.].

If he claimed from him, "I have ten jars of oil in your possession," or if he said to him, "I have ten jars full of oil in your possession," and he responded to him, "You have nothing in my possession but ten empty jars," or if he admitted to him regarding the oil alone, he is liable for a Torah oath, for he claimed from him jars and oil and he admitted to him regarding one of them. But if he said to him, "I have ten jar-measures of oil (kadei shemen) in your possession," he only claimed the oil, for when one says "jars of oil" (kadim shemen) it implies jars that have oil in them, but "jar-measures of oil" (kadei shemen) implies the measure of jar-sized oil. Therefore, if he admitted to him regarding a portion of the oil, it is an admission of the type of the claim; but if he admitted to him regarding the vessels alone, it is not an admission of the type of the claim. And similarly, when he claimed from him, "I have the fill of ten jars of oil in your possession," and he responded to him, "You have nothing in my possession but ten jars without oil," he is exempt, for since he added the word "fill," it implies that he is suing him for the measure, and it is as if he said, "I have ten measures of oil in your possession." And some disagree in all this and hold that there is no distinction between "kadei" and "kadim," and similarly when he said "fill" it is as if he did not say it, for these expressions in every case imply that he is suing him for the jars and the oil [ibid.]. And specifically when he said, "I have the fill of ten jars of oil in your pit or in your cellar," in this case it is certain that he claims only the oil [ibid.]. And the first opinion is the view of the Rambam and the Tur, and our teacher, the Rema, ruled accordingly. And from the Yerushalmi, chapter 6 of Shevuot [halacha 4], it is clarified that with this language, when he claims from him "vessels of oil," it can be said to mean oil and vessels, and it can be said to mean oil without vessels. Therefore, the beit din can ask the claimant what his intention was, and he is believed regarding this according to what I wrote in siman 80, that to clarify his words he is believed [Pri Megadim ibid.]. And one should not wonder: since the reason that one who claimed wheat and the other admitted to barley is exempt is due to the reason of waiver, or admission, or mockery, if so, how is he believed to retract? For certainly to retract he is unable, but rather this is not a retraction since the language can bear this or that [see there in Tziyun Yerushalmi]. However, in our Talmud this is not clarified, and also all our teachers, the Rishonim and Acharonim, did not cite this; therefore, it requires further study as a matter of law. And from what has been explained, one should learn regarding all types of food and drink placed in a vessel, when he sues him, whether he sues for the vessel as well or the food and drink alone. And this matter depends on the common speech of people in that place. And there is a great principle in this: that if it is possible to interpret the language of the defendant as an admission of the type of the claim, we so interpret. And proof for this is from one who sued for a menorah of ten litras and he admitted to one of five, which was explained in section 11, that it is an admission of the type of the claim because it can be said that he reduced it, as I wrote there, even though it could be said that he admitted to a different menorah [and so wrote our teacher, the Beit Yosef, in his book in the name of the students of the Rashba, see there; and although from the Yerushalmi that we cited it does not imply so, nevertheless it can be reconciled, and examine this closely].

Reuven and Shimon, where each one claims against his fellow and the claim of this one is not like the claim of that one—for example, Reuven claimed a maneh loan from Shimon and Shimon admitted to him a dinar, and Shimon claimed from him "I have a kor of wheat in your possession" and Reuven admitted to him in part—if the admission of Reuven was worth no more than the admission of Shimon, Reuven is exempt from a shevuat modeh be-miktzat. For since at the time Reuven admitted, Shimon had already admitted to him such an amount, it is considered "heilech," for there is in Shimon's possession an equivalent to his admission. However, Shimon is liable for a shevuat modeh be-miktzat, for even though his own was in Reuven's possession, nevertheless, since he did not answer him "I am seizing yours against what I have in your possession," and at the time he admitted it had not yet been clarified before the beit din that he has in Reuven's possession according to his admission, it is not called "heilech." And if the admission of Reuven is more than the admission of Shimon, Reuven is also liable for a shevuat modeh be-miktzat. And even though if he had answered him "I am not liable to you" or "the matter never occurred, for you have of mine in your possession and I am seizing yours for this," he would be exempt from a shevuat modeh be-miktzat even though more is still due to Shimon even according to his calculation—for nevertheless, since he seizes it for this, this is not a modeh be-miktzat—nevertheless, when he did not answer thus but rather admitted in part with a complete admission and remained liable beyond the admission of Shimon who admitted to him, he is a modeh be-miktzat and is liable for a shevuat modeh be-miktzat.

It has already been explained in siman 87 that regarding a shevuat de-oraita, the defendant cannot reverse it upon the plaintiff. Furthermore, even if he wishes to administer a shevuat hesset to him, he cannot. For example, one who was sued for a maneh and admitted to fifty, and when he came to swear he claimed and said, "I do not wish to swear, but rather I will pay him the entire maneh, and let the defendant swear a shevuat hesset that I owe him a maneh"—nevertheless, he cannot compel him. Rather, he must pay without the oath of the defendant, for the Torah cast upon him either to swear or to pay. However, it is within his power to cast upon him a cherem stam. It has already been explained there that in every place where a cherem stam is mentioned, our custom is to explicitly accept it upon oneself. All this is before the payment; but after he has paid him, he has the power to administer a shevuat hesset to him if he took money from him unlawfully, for this is no worse than other claims, as he is suing him for fifty zuz. And now the custom of the dayyanim is that one who admits to a part deposits the money in the hands of the beit din and administers a shevuat hesset to the plaintiff.

One who admits to a portion of a claim is not liable until the claimant sues him for something involving measure, weight, or number, and he likewise admits to him in such a manner. For "money or vessels" written in the Torah refers to something involving measure, weight, or number, and regarding the admission it is also written "that this is it," which implies something clarified and known [Sma]. How so? If he said to him, "I have ten dinars, or a kor of grain, or two litras of silk in your possession," and the other responds to him, "You have nothing in my possession but a dinar, or a letekh which is half a kor, or a litra of silk," he is liable for a shevuat de-oraita. But if he said to him, "I have a purse full of coins in your possession," and the other responds to him, "You have nothing in my possession but three dinars," or the reverse, where he claimed one hundred dinars from him and he responds to him, "I do not know how many coins were in the bundle you delivered to me, and what you placed there you may take," he is exempt from a shevuat de-oraita, even if it is missing from the hundred dinars, and even if it is missing from the bundle itself that he delivered to him. For if it were not missing from the bundle, he would be exempt anyway because it would be a case of "heilekh" [it appears to me, and see Sma subsection 48 and Shach subsection 47]. And he is exempt because he did not admit to something involving number, even though there is a perutah in his admission. And it was explained in siman 72 regarding a mashkon and in siman 75 regarding a loan, that when the defendant responds, "I know it was worth more but I do not know how much," it is a case of "obligated to take an oath but unable to swear" and he pays; and regarding a loan, when he said, "In truth you lent to me," but he does not know how much, since there is not less than the value of a perutah in his admission, he is liable. For it is not comparable, as there, since the mashkon is no longer in existence and it is impossible to obligate him for more than a perutah, and likewise in siman 72, it is like an admission of a perutah and he is liable. But here, where many coins of the bundle still exist which can be counted to see how many they are, and therefore at the time he admitted, he admitted to more than a perutah, yet how much he admitted he did not state their number—this is not a thing involving number. And according to this, if the bundle was lost, he would be liable for a shevuat de-oraita [it appears to me, and see Shach subsection 45].

And similarly, when one says to him, "I have a house full of fruit in your possession," and the other says, "You have only ten kor in my possession," or the reverse, where he claimed ten kor and the other answers him, "I do not know how many there are because I did not measure them, and what you placed you may take," he is exempt. Even if he claimed, "this house full of fruit," and the house indeed has a measurement, nevertheless, since in human speech even when it is not literally full up to the beams it is called "full," his claim is not certain [Sma]. However, if he claimed, "I delivered to you this house with fruit up to the molding," and the other answers him, "It was only up to the window," he is liable, as it is a matter of measurement. And this is specifically when all or some of them rotted through his negligence, for if not so, it would be "heilech" and he would be exempt.

If he claimed from him, "I lent you a maneh in Nisan and a maneh in Tishrei," and he admitted to one of them, it is properly considered of the same type as the claim. Even though the loans were at separate times, we do not say that just as we require the admission to be of the same type as the claim, it must likewise be from the time of the claim, and when they are not from the same time it would be like a total denial regarding the second time. For time is not comparable to type, and the time is of no consequence, since he claims from him two claims and he admitted to one of them, he is called one who admits to part of the claim.

An admission regarding a document is not considered an admission to obligate a Torah oath for the denial, but rather he swears a shevuat hesset. How so? If he claimed a maneh from him, fifty in a document and fifty orally—it is not necessary to say that if he admitted to the fifty that was oral and denied the fifty in the document, there is no oath here at all; rather, he pays the fifty he admitted to, and for the document he denied, the lender shall swear and take if the borrower claims "swear to me," as written in siman 82. And even though he has a migo, for he could have admitted to the document and denied what was oral, nevertheless, since regarding the body of the document he has no migo, for the document is always in its strength and remains in its presumption [Shach], and it is impossible for him in any case to be exempt now from the document he denied, and it is similar to a migo in a place of a powerful presumption where we do not say migo, as written there in the rules of migo. Rather, even if he admitted to the fifty in the document and denied the fifty that was oral, he does not swear a Torah oath. For just as one does not swear from the Torah regarding lands, as written in siman 95, so too one does not swear regarding a claim in a document, for this too is like land, since through the document the lands of the borrower became liened. And just as one does not swear regarding the denial of lands and their lien, so too their admission does not obligate an oath. And how is it possible to obligate an oath based on their admission, for the Torah exempted them from an oath, so how could they cause an oath? And specifically when the borrower has land, even if they are liened, nevertheless, since the lender can extract them from the purchasers, the document is called land. But if the borrower has no land at all, the document is not like land, for what land is liened through this document since he has none [Shach and Urim VeTummim]. And some say that even if he has no land at all, nevertheless the document is considered like land regarding this matter, since the primary purpose of writing the document is to seize from purchasers, the law of this document is exactly like land [Sma and Taz]. And some say that without this, an admission of a document does not lead to an oath because a document is called "heilech" [Beit Yosef], since he cannot deny it. And if the borrower has even only movable property, they belong to the holder of the document [Shach]. And some say that a document is not called "heilech" except when he has land, for they do not lack collection, and so it is implied from the Rif [beginning of Bava Metzia] and from Rashi [ibid. 4a]. And also in the Shulchan Aruch this reason was not mentioned, and so it appears primary [the Gra].

And there are some of our teachers who asked how the Torah obligated an oath for one who admits to a portion of the claim even in an oral claim, for we maintain that the lien is from the Torah, as written in siman 39, and even if the lien is not from the Torah, one collects from land from the borrower himself as well, and if so, every loan is a lien on lands just as in a loan with a document. And they answered that this refers to when the borrower does not have land or that he waived the lien from the land, and likewise a Torah oath to contradict a witness is not found except in this manner [Tosafot Bava Metzia 4a, starting with "Ein," and the Rosh there, and so wrote the Tur in section 38]. But from the Rambam, of blessed memory, and from other poskim who did not mention this, it is clear that they do not hold so. And so it is implied from our teachers, the authors of the Shulchan Aruch, who did not mention this matter at all. And it appears to me that their reasoning is this: it is not because the lender can collect land for his debt that it should be considered a denial of a lien on lands. And what logic is this? For he can also collect movable property, and if the borrower has money, must he not pay with money? And how can we make this like a denial of a lien on lands because of the power he has to collect from land as well? And as for a document, where our sages, of blessed memory, exempted from a Torah oath, it is because the entire essence of a document is only for the sake of land; for regarding money and movable property, the document is of no use at all, as from the borrower himself he would collect even without a document, and from purchasers even with a document he would not collect. And it is only useful for lands, that if he sells them, he will collect from the purchasers. And even if from the Torah he could collect from purchasers even without a document, nevertheless, even from the Torah, without a document he does not rely on land alone. But when he writes a document, his entire reliance is on land, and it is considered a denial of a lien on lands. And even though the benefit of a document is also that he cannot claim "I paid," nevertheless, for this sake he could lend to him before witnesses and say to him, "do not pay me except before witnesses." Therefore, the primary writing of a document is for the sake of the land, even according to the law of the Torah.

In what case are these matters stated? Regarding a deed that he is able to authenticate; but if he is unable to authenticate it, it is like an oral admission and he swears regarding the denial that accompanies it, for a deed that is not authenticated is not considered a deed at all. And it goes without saying regarding one who lends with a deed and claimed, "I had a deed and it was lost," and the borrower admitted that he had made a deed for him but denied a portion, or admitted to the entire deed but says that part of it is paid, that he swears a shevuat modeh b'miktzat like any modeh b'miktzat. For specifically when the deed is before us and authenticated, and he comes to collect with the deed against the lands of the borrower, we consider it as if the essence of his claim is land, as I wrote in the previous section. But when the deed is not before us or is not authenticated, it turns out that even though at the time he made the deed his primary intent was for the lands, nevertheless now when he comes to collect, the essence of his collection is not for lands, for at the time of collection it is like an oral loan, and therefore this is not a denial of a lien on lands [it appears to me]. And also, even an authenticated deed, this is only regarding a deed with which one may seize from encumbered properties, such as a deed with witnesses; but a deed in the borrower's own handwriting, even if it contains a clause of trustworthiness, since one cannot seize from encumbered properties with it, he is liable for a shevuat modeh b'miktzat as with an oral loan. For since this deed has no more power regarding land than regarding movable property, the essence of his reliance is not upon the land, and this is not a denial of a lien on lands. And according to the reason we explained in section 20, that some say every deed is "heilech," for since he cannot deny it we do not need his admission and the Torah did not obligate a shevuat modeh b'miktzat in this [the Rambam, chapter 4 of Toen], according to this, even a deed in the borrower's own handwriting, if it contains a clause of trustworthiness such that he cannot deny it, he is not liable for a shevuat modeh b'miktzat [the Shach according to the Rambam]. And know that this which we wrote, that a deed is called "heilech," we wrote according to the words of the commentators of the Rambam, of blessed memory, for so they explained his words. But in truth, from his wording it is not implied that he holds a deed is "heilech." This is his wording there: One who claimed against his fellow and said to him, "I have one hundred dinars with you—fifty that are in this deed and fifty without a deed," and [the borrower replied], "You have nothing in my hand except the fifty in the deed," this is not a modeh b'miktzat, for the deed is not affected by his denial and behold all his properties are encumbered by it, etc. Thus far his words. And according to this, it may be said that it is not due to the reason of "heilech," but rather due to the reason of the lien on lands [the Gra, subsection 57]. And according to this, in a deed in the borrower's own handwriting, he would be liable for a shevuat modeh b'miktzat. And if the borrower handed over his handwriting to the lender in the presence of witnesses, it was explained in siman 69 that its law is like a deed signed by witnesses. And if the witnesses are signed on the handwriting and the signature of the borrower—if by their signature they authenticate the matter, that they testify to the essence of the loan, its law is like a complete deed; and if they do not authenticate anything but his signature, its law is not like a complete deed, as I wrote there. And if the loan was with a kinyan in the presence of witnesses, its law is also like a complete deed, as I wrote in siman 39. And just as an admission of a loan with a deed is not an admission and its denial is not a denial, so too an admission of a loan with a kinyan where the witnesses of the kinyan are present is not an admission to obligate him in a shevuat modeh b'miktzat, and its denial is not a denial, for its law is like a complete deed also regarding the matter that he cannot claim "I paid" [the Shach]. Therefore, if he said to him, "I have fifty dinars in your hand by kinyan and fifty without kinyan," and he admitted to one of them and denied the second, he swears a shevuat hesset and is exempt.

A document in which is written "selaim" or "dinars" without specification, and it is not written therein how many selaim or dinars: he is liable. If the lender says that he owes him five, and the borrower says two, he is exempt from a shevuat modeh b'miktzat and swears a shevuat hesset, because there is no admission of a partial claim here, for even without his admission he is liable for two based on the document, as the minimum of "selaim" is two, and an admission within a document does not lead to a shevuat modeh b'miktzat, as has been explained. Furthermore, even if the borrower admitted to three selaim, he is nevertheless exempt from a shevuat modeh b'miktzat for another reason: since he admitted to more than the implication of the document, he is like one who returns a lost object (meshiv aveidah), and he has a migo, for if he wanted, he could have said two. And although regarding every partial admission we do not say "migo of denying everything" as I wrote in siman 75, nevertheless in this case, where the document supported him—since from the fact that they did not specify how many, it is presumably no more than two—we say migo, and it is superior to a migo because this is like one who returns a lost object. However, he is liable for a shevuat hesset. And although every meshiv aveidah is exempt even from hesset, nevertheless he is not exempt here from hesset because we fear that he might come to act with artifice and admit slightly more than the implication of the document in order to be exempt from hesset [Netivot HaMishpat], for in truth it is not a clear necessity from the fact that "selaim" is written without specification that there was not more, it is only likely to say so but not necessarily. And according to what has been explained that a meshiv aveidah is exempt from hesset as well, therefore, if the admission of the defendant preceded the claim of the plaintiff, he is also exempt even from hesset, for this too is like one who returns a lost object. How so? If he said to him, "I have a maneh of yours in my hand," or "I have a maneh of your father's in my hand and I paid half," and the other replied, "I did not remember this at all, but now you have reminded me, and I know that you paid nothing," he is exempt even from hesset. And it is not similar to what I wrote in section 7, where the defendant preceded and admitted to barley and afterwards he claimed from him wheat and barley, where he is liable for hesset; that is because the plaintiff did not forget about the debt. But in this case, where he says that had he not reminded him he would not have remembered at all, it is truly like one who returns a lost object. And it is similar to what will be explained in siman 267, that in a place where he did not know of the debt at all, even though through the admission of the second party he afterwards claims with certainty that he owes him such and such, he is exempt even from hesset [Urim VeTummim]. And if there are witnesses or a rumor that this person had business dealings with the father of this one, and it is possible that he feared they would remind the plaintiff, this is not a meshiv aveidah and one should impose upon him a shevuat hesset, and everything is according to the assessment of the eyes of the dayan [ibid.]. And if the heir claimed from the beginning with a claim of certainty that he owes his father a maneh and that he did not pay him at all, and he admitted to a part, he is liable for a shevuat modeh b'miktzat, and if he denies everything, he is liable for hesset. And if the heir claimed that his father told him, it was explained in siman 75. And if he claims from him with a claim of uncertainty, saying "it seems to me that I have a maneh in your hand but I do not know with certainty," and this one admitted to him a part, and through his admission the plaintiff remembered with certainty and now claims from him with certainty, he is not liable for a shevuat modeh b'miktzat since the beginning of his claim was with uncertainty [Shach]. But he must swear a shevuat hesset, and this is not a meshiv aveidah, since there was a claim there; even though it was a claim of uncertainty, nevertheless, since he afterwards claimed with certainty, he must swear a shevuat hesset [it appears to me].